Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1509 (PNJ)

Harnam Kaur v. Taru

2013-11-18

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan, J. (Oral):- The following substantial questions of law arises for consideration in the second appeal: 1. Whether a suit for setting aside the order passed under Redemption of Mortgages (Punjab) Act 1913, is competent for securing the relief of redemption without an express prayer of redemption of mortgage? 2. Whether the power of attorney alleged to have been granted by the plaintiff in favour of her husband, was duly established to maintain the suit as framed? 2. The counsel for the appellant argued that the suit was filed through Tarlok Singh describing himself as Mukhtar-i-am and no where in the written statement was there a contention that Mukhtar-i-am was not competent to represent plaintiff Harnam Kaur. He also points out that the original of the Power of Attorney has been filed making reference to said Tarlok Singh. Not even the issue regarding the competency of Tarlok Singh to represent the plaintiff named in the plaint was framed and the Court therefore was in error in recording a finding in this regard. The Appellate Court was also not justified in finding that Tarlok Singh was not shown to be a General Power of Attorney. 3. The counsel for the respondents states that the institution of the suit was not competent as the plaintiff has described herself as the daughter of Lechhmi and widow of Deva Singh and has not described herself as the wife of Tarlok Singh. The representation through Tarlok Singh was therefore not competent. I cannot understand as to how the representative character of Tarlok Singh could be taken up for consideration without any form of pleadings and an issue settled therefor. I have seen through the original file and find that the file contains a copy of the Power of Attorney. Normally even with the presentation of the plaint through an attorney, a permission is required to be obtained under Order 3 Rule 1 of the Code of Civil Procedure. I do not find any such application filed in the original file. However, I will not see this to be vitiating the very frame of the suit or the validity of the plaint presented. I will find this to be only an error in procedure that will not impinge on the adjudication regarding the redeemability of the property. I do not find any such application filed in the original file. However, I will not see this to be vitiating the very frame of the suit or the validity of the plaint presented. I will find this to be only an error in procedure that will not impinge on the adjudication regarding the redeemability of the property. The whole situation also become irrelevant from the point of view of the subsequent event, namely, the death of plaintiff and the impleadment ordered before this Court of the sons and daughters of Harnam Kaur as her legal representatives. The amendment providing for prosecution of the case through the LRs ought to therefore take care and the actual prosecution of the appeal at the instance of persons who were legal heirs who have been an interest in the equity of redemption. I will not take also the issue of ‘whether Tarlok Singh was the husband or not?’. The Power of Attorney need not necessarily be the husband and it could be even a stranger. I merely refer to this to redress an argument made by counsel appearing on behalf of respondent that the plaintiff has been described to be the widow of Deva Singh and not the wife of Tarlok Singh. Once the sons and daughters themselves had been brought on record without any objection coming from the respondents, I will take the defence regarding the invalidity of the representation of the plaintiff through Tarlok Singh, as wholly irrelevant now. 4. As regards the contention that suit was without any prayer for actual redemption but made with a mere prayer for setting aside the order passed by the authority under the Redemption of Mortgages (Punjab) Act and hence cannot be maintained, point is not res integra. The issue has been clearly answered in Tek Chand and others Versus Ram Sarup and others 1970 PLJ 274, wherein the Court has, while making reference to earlier rulings of the High Court held that a suit for declaration filed under Section 12 of Redemption of Mortgages (Punjab) Act 2 of 1913 must be construed also as a suit for redemption. The suit cannot be therefore dismissed for the sole reason that a specific prayer for redemption was not sought. 5. The learned counsel appearing for the respondents states that the respondent have become owners of the property. The suit cannot be therefore dismissed for the sole reason that a specific prayer for redemption was not sought. 5. The learned counsel appearing for the respondents states that the respondent have become owners of the property. According to him there is no actual document of mortgage brought on record, but the plaintiff was seeking for a redemption on an entry made in the Jamabandi that the defendants were in possession of the property as a mortgagee through a transaction of the order 1944 which entry also describes the plaintiff as a mortgagor. The Transfer of the Property Act, 1872 itself was not applicable in the State of Punjab except for the provisions relating to sale and consequently a written instrument of mortgage is not essential but the principles under The Transfer of Property Act have always been applied on the basis of justice, equity and good conscience. Entries in the Jamabandi describing the plaintiff and the defendants as a mortgagor and mortgagees, respectively, ought to be sufficient to enable the plaintiff to sue for redemption. There is no bar of limitation considering the fact that the denial of the mortgage for redemption was taken only at the time when the petition was filed by the plaintiff to the Collector for redemption in 1981. The order of the Collector was on 21.10.1981 and the suit had been filed on 5.11.1981 well within time from when the right to redeem was denied by the defendants. The suit ought to have been decreed and dismissal thereof by the Courts below is erroneous. 6. At this stage, an argument is made by the counsel for the appellant that the amount of Rs. 105/- is the principal mortgage amount and not Rs.7,105/-. The counsel would make reference to Rs.105/- as the amount of principal money of mortgage as mentioned in the order of the Collector. I am not inclined to examine the alleged error for the amount of Rs.7,105/-. This is the amount referred to in the plaint as the principal money and it is no where stated in the grounds of appeal either in the Ist Appellate Court or in the Second Appeal that the principal amount was wrongly stated and it has to be read as Rs. 105/-. There was also no mention of the same in the written statement. I have to go with what is stated in the plaint. 7. 105/-. There was also no mention of the same in the written statement. I have to go with what is stated in the plaint. 7. The judgments of the Courts below are set aside. The present second appeal is allowed. There shall be a preliminary decree for redemption of mortgage on depositing the principal amount of Rs. 7,105/- with the usual terms for passing of final decree, as prescribed under the Civil Procedure Code. The second appeal is allowed with costs. Counsel fee is assessed at Rs. 5,000/-. ——————— Nasib Singh & Ors. v. Anurodh Singh & Ors.