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2012 DIGILAW 1504 (PAT)

Ram Pyari Devi v. Nazimal Haque

2012-11-01

MUNGESHWAR SAHOO

body2012
Judgment Mungeshwar Sahoo, J. (1) The plaintiffs have filed this Second Appeal against the judgment and decree dated 12.03.1987 passed by Sri Ramesh Chandra Srivastava, the learned 3rd Additional District Judge, Siwan in Title Appeal No.32 of 1978 whereby the Lower Appellate Court allowed the appeal and thereby reversed the judgment and decree dated 17.01.1978 passed by Sri Jagdish Kumar Sinha, 3rd Additional Munsif, Siwan in Title Suit No.62 of 1966/139 of 1976. (2) The plaintiffs-appellants filed the aforesaid suit for redemption of the Jarpesgi deed dated 23.07.1926 for a consideration of Rs.100 in respect of 1 bigha 2 katthas and 6 dhurs of land on the ground that plaintiff’s ancestor, Lila Singh had 2 sons namely Khelawan Singh and Charitar Singh. Charitar Singh died issueless in state of jointness with Khelawan Singh so, the joint family properties came in possession of Khelawan Singh. Charitar Singh during his lifetime was the karta of the family. Khelawan Singh died leaving behind the plaintiff as only son. During the lifetime, Charitar Singh has executed a Jarpesgi deed on 23.07.1926 for a sum of Rs.100 in favour of defendants. Since then, the defendants are Jarpesgidar. Accordingly, the plaintiff is entitled to redeem the mortgage. The plaintiff tendered the money to the original defendant to redeem but the defendants refused. Hence, the suit was filed. (3) According to the defendant’s case, the Jarpesgi has now extinguished. Charitar Singh executed it as owner of the property as he was separate from his brother, Khelawan Singh. In the partition between two brothers, the properties of Pokhraira were allotted in the share of Khelawan whereas property of Ukhain fell in the share of Charitar Singh. After separation, Charitar Singh executed the mortgage in question and he died in the state of separation and not in the state of jointness with Khelawan. After execution of the mortgage, Charitar Singh took the mortgaged land on the same date on annual rent of Rs.26 and executed a deed of Kabuliyat. The said Kabuliyat was separate transaction. After separation, Charitar Singh executed the mortgage in question and he died in the state of separation and not in the state of jointness with Khelawan. After execution of the mortgage, Charitar Singh took the mortgaged land on the same date on annual rent of Rs.26 and executed a deed of Kabuliyat. The said Kabuliyat was separate transaction. Charitar Singh did not pay the rental which fell in arrears for which the defendants filed Suit No.1408 of 1930 for realization of arrears of rent which was decreed in their favour to the knowledge of Charitar Singh and these defendants purchased the mortgaged land in court auction and obtained delivery of possession as such they came in possession of the mortgaged land by virtue of auction purchase. Therefore, the mortgage has now extinguished. (4) The trial court recorded the finding that there is relationship of mortgagor and mortgagee in respect of the suit property and Exhibit C, the sale certificate is a paper transaction. Charitar Singh was the karta of joint family and he executed the Jarpesgi in the state of jointness. On these findings, the trial court decreed the plaintiff’s suit and on appeal, the Appellate Court held that the defendants have succeeded in showing that they purchased the suit plots in auction and plaintiff failed to prove the relationship of mortgagor and mortgagee between the parties subsisting on the date of filing the suit. The Appellate Court also recorded the finding that the Kabuliyat is not a separate transaction. Accordingly, the Appellate Court allowed the appeal and set aside the trial court judgment. (5) On04.01.1988, at the time of admission, the following substantial question of law was formulated: “Whether the defendants can be heard to say that they purchased the equity of redemption for execution of the decree in suit no.1408 of 1930 in view of the provisions as contained in Order XXXIV Rule 13 of Code of Civil Procedure?” (6) The learned senior counsel, Mr. T. N. Maitin appearing on behalf of the appellants submitted that the earlier suit filed by the mortgagee was not with respect to the sell of mortgaged property. The suit was only for realization of rent which was payable by the mortgagor. Therefore, the mortgaged property could not have been sold in the earlier suit in view of Order 34 Rule 14. The suit was only for realization of rent which was payable by the mortgagor. Therefore, the mortgaged property could not have been sold in the earlier suit in view of Order 34 Rule 14. The right to redeem did not extinguish because of the auction purchase in earlier suit. In support of his contention, the learned counsel relied upon AIR 1997 Supreme Court 456(Parichhan Mistry v. Acchiabar Mistry), AIR 2008 Supreme court 2328(M.R. Satwaji Rao vs. B. Shama Rao & Ors.) and also other decisions. (7) On the other hand, the learned senior counsel, Mr. Rajendra Narain appearing on behalf of the respondents submitted that in the present case, the provision as contained in Order 34 Rule 14 C.P.C. is not applicable. The sale of the property was made in execution of money suit no.1408 of 1930 and sale deed Exhibit C was executed through court which was never challenged by the appellants and as such, the sale became final. Therefore, in the present suit for redemption, it cannot be held that the right to redeem still exists. Since the money decree was obtained independently and not connected with the mortgage claim and in execution of the money decree, the property was sold, the relationship of mortgagor and mortgagee is not subsisting and, therefore, the Lower Appellate Court has rightly dismissed the plaintiff’s suit. The learned counsel in support of his contention relied upon a decision of the Apex Court reported in AIR 1966 Supreme Court 126(Sachidanand Prasad v. Babu Sheo Prasad Singh). (8) The learned counsel further submitted that the plaintiff is nobody to redeem the property because Charitar Singh died leaving behind two sons who never filed suit for redemption. So far this submission is concerned, the learned counsel for the appellant vehemently opposed and submitted that both the sons predeceased Charitar Singh, therefore, there is no question arises for filing suit by two sons. On the death of Charitar Singh and his brother, the plaintiff being the sole heir succeeded the property and, therefore, has got the right to redeem the mortgage. (9) In view of the submissions of the parties and the substantial question of law formulated, the main contention is that whether the right to redeem by the plaintiff is still subsisting. In other words, whether the relationship of mortgagor and mortgagee still subsists. (9) In view of the submissions of the parties and the substantial question of law formulated, the main contention is that whether the right to redeem by the plaintiff is still subsisting. In other words, whether the relationship of mortgagor and mortgagee still subsists. (10) So far this question is concerned, it is no longer res integra. The matter has already been settled by the Apex Court. The decision relied upon by the learned counsel for the respondents i.e. AIR 1966 Supreme Court 126(supra) was considered and finding the facts of that case not applicable, the Apex Court in the recent decision reported in AIR 2008 Supreme Court 2328, M.R. Satwaji Rao(supra) held that the purchase by the mortgagee in the circumstances narrated above amounts to a mere trust. It appears that the facts of the case before the Apex Court are same to the facts of the present case. To show the similarity, the short facts of the case before the Apex Court may be quoted here-in-below which would be evident from paragraph 2: “2. The facts, in a nutshell, are as under: The legal representatives of defendant No. 2 are the appellants in this appeal. On 19-2-1948, the plaintiffs' predecessor executed a usufructuary mortgage in favour of the appellants herein for a sum of Rs. 10,000/-. The terms of the said mortgage deed were that the mortgagee shall remain in possession of the mortgaged property without paying rent and that the mortgage amount of Rs. 10,000/- shall carry no interest. The period of redemption was five years from the date of mortgage. However, the mortgagors continued in possession of the mortgaged property as tenants of the mortgagee on a monthly rent of Rs. 97.50. As the mortgagors failed to pay the rent, on 19-5-1952, the mortgagee filed suit being O.S. No. 120/51-52 on the file of the 1st Munsif, Bangalore for arrears of rent. The said suit was decreed. In pursuance of the said decree, the mortgagee (2nd defendant) filed Execution Petition No. 1002/51-52 and the property was put on auction sale by the executing Court. Mortgagee being the highest bidder purchased the schedule property in court auction. Sale was confirmed. The respondents/mortgagors neither objected for the sale nor confirmed the sale or taken any steps to set aside the sale over three decades. Mortgagee being the highest bidder purchased the schedule property in court auction. Sale was confirmed. The respondents/mortgagors neither objected for the sale nor confirmed the sale or taken any steps to set aside the sale over three decades. On 18-2-1983, the plaintiffs/respondents, after nearly three decades, filed a suit being O.S. No. 632 of 1983 on the file of the III Addl. City Civil Judge, Bangalore for a decree of redemption of the mortgage of the suit schedule property sold in public auction as long back as on 11-9-1952. The Civil Judge, after considering both oral and documentary evidence, dismissed the suit with costs on 31-7-1990. Aggrieved by the said order, the plaintiffs filed R.F.A. No. 465 of 1990 before the High Court. The High Court allowed the appeal decreeing the suit for redemption. Against the impugned judgment of the High Court, the defendants filed the present appeal by way of special leave.” (11) In that case also, the suit was filed by the mortgagee for realization of rent. Money decree was passed and in execution case, the mortgagee purchased the property. The mortgagor did not object and after 30 years, the suit was filed by the legal representatives for redemption. In the present case also, the mortgagee filed the money suit and in execution of the money decree, the mortgaged property was sold which was purchased by the mortgagee. In my opinion, therefore, there is no difference in the facts of both the cases. The Apex Court considering various other earlier decisions of the Apex Court including the decision relied upon by the learned counsel for the respondents at paragraph 13 held as follows: “13. Though the mortgagee purchased the mortgaged property pursuant to the decree in O.S. No. 120/51-52, as explained and interpreted the provisions of Order XXXIV Rule 14 CPC and Section 90 of the Indian Trusts Act, in the absence of recourse to Rule 14 of Order XXXIV, we hold that the relationship of mortgagor and mortgagee continues to subsist even thereafter, and his purchase is only in trust for the mortgagor. In view of the same, the right to redeem the mortgage is not extinguished and in the eye of law the purchase of the mortgaged property in pursuance of the decree for rent arrears must be deemed to have been made in trust for the mortgagor. In view of the same, the right to redeem the mortgage is not extinguished and in the eye of law the purchase of the mortgaged property in pursuance of the decree for rent arrears must be deemed to have been made in trust for the mortgagor. In such circumstances, the High Court was right in granting preliminary decree for redemption. Insofar as the period of limitation is concerned, article 61 of the Limitation Act, 1963 applies and for a mortgagor to redeem or recover possession of immoveable property mortgaged; the period of limitation provided is 30 years when the right to redeem or to recover possession accrues. In view of the same, since the mortgagee purchased the mortgaged property in court auction on 11-09-1952 and the suit for redemption of mortgaged property was filed within the time prescribed, the High Court cannot be faulted for granting preliminary decree for redemption.” (12) In view of the above settled position of law, no further decision is required by the High Court on this question. This question formulated is covered by the decision of the Apex Court referred to above. In view of the above facts, it is not desirable to discuss the other decisions relied upon by the appellants which are on the same point because the facts of the case of M.R. Satwaji Rao is same and similar to that of the present case. In other decisions referred to above by the appellants, the properties were sold in auction in execution of the decree obtained by landlord. Here, in the case of M.R. Satwaji Rao, the mortgagee obtained the decree and in the present case also, the mortgagee obtained the decree. (13) It appears that there is nothing on record to show that any son of Charitar Singh is alive. On the contrary, as has been pointed out by the appellants, it appears that the sons have already died and, therefore, the appellants are the legal representatives of the mortgagor. (14) In view of the above settled proposition of law laid down by the Apex Court referred to above, the substantial question of law is answered in favour of the appellants. Accordingly, this Second Appeal is allowed and the judgment and decree of the Lower Appellate Court is set aside and the judgment and decree of the trial court is restored. Accordingly, this Second Appeal is allowed and the judgment and decree of the Lower Appellate Court is set aside and the judgment and decree of the trial court is restored. In the facts and circumstances of the case, no order as to cost.