Shiv Lal & Ors. v. Chet Ram & Ors.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1250 and 12'1 of 1966. Appeals by special leave from the judgments and decrees dated April 1, 1965 of the Poojab High Court in Civil Regular Second Appeals Nos. 138 and 139 of 1964. SHIV LAL v. CHET RAM (liegde, J.) K. L. Gosain and Janardan Sharma, for the appellants (in both the appeals) . Naunit Lal, for the respondents Nos. ! to 7 and 9 (in both the appeals) . The Judgment of the Court was delivered by Hegde, J. The aJ:lpellants in these appeals are the representatives of the mortgagees of the suit properties. The respondents in both these appeals claim to represent the interest of the mortgagors. Civil Appeal No. 1250 of 1966 arises from Suit No. 280 of 1961 in the court of Senior Sub Judge;Rvhtak and Civil Appeal No. 1251 of 1966 arises from Suit No. 334 of 1961 on the file of the same judge. Both the suits were suits for redemption. The trial court dismissed both the suits on two grounds viz. ( 1 j that Kura, the person from whom the plaintiffs claim to have purchased the nghts of the mortgagors was incapable of entering into a contract as he was insane.

Hence the sale deeds executed by him are void and ( 2) the claim for redemption in respect of the various mortgages sought to be redeemed excepting the one executed on April 26, 1912 is barred by limitation. The learned District Judge allowed the appeals and decreed both the suit& excepting as regards the mortgage dated January 20, 1878. In second appeal Capoor J. of the Punjab High Court confirmed the decision of the learned District Judge. The Letters Patent Appeals filed by the appellants were summarily dismissed. Thereafter these appeals were brought after obtaining special leave from this Court. Both the learned District Judge as well as the learned Judge of the High Court have concurrently come to the conclusion that there is no satisfactory evidence to show that Kura was insane at the time he sold the suit properties to the plaintiffs. This is a finding of fact and we see no reason to go behind it.

The only other ground on which the appellants are i:esistilig the plaintiffs' claim to redeem the mortgages in question is that according to them the claim for redemption is barred by limitation. For dealing with that question, it will be convenient to take up the two appeals separately. In Suit No. 281, the plaintilfs sought redemption of four different mortgages. Those mortgages were said to have been executed on the following dates :- (1) April 26, 1912; (2) December 21, 1895; (3) December 18, 1901 and ( 4) January 20, 1879. 8-L23SSup.CI/71 The original mortgage deeds or even their registration copies 'have not been produced. The executiov of those mortgages have been sought to be proved on the basis of certain. mutation ·proceedings The courts below have relied on those proceedings to prove 'the ·factum of the mortgages sought to be redeeniep.

The execution of those mortgages was not chall:onged before us.:So. far as the suit relating to the·morig"age executed on January 20, 1878 (property described in plaint Item r-fo. 4); the plaintiffs sought \o withdraw their suit on· the grounq, that they are not able to prove their case 'on the pasis, of the.'1'rJ.aterial in their possession. • The learned trial judge did not pemiit them to withdraw that part of their suit He tlismissed the plaintiffs' claim in that· regard.· His judgment was upheld in appear-as-well as in second appeal'. 'That part of the plaintiffs' case was fiot pfessed before us. ,Now coming to .the mortgage said to have been executed on Awil 26, 1912 (the· concerned property is described in plaint Item No. 1), the cTaim for redemption is admittedly within 1illle :is the suit was filed on November 27, '!.961, the period of limitation being 60 years.' This leaves us with' mortgag.-:os said to have been executed on December 21, ·1895, (relating to plaint Item' No. 2) and on December 18, 1901 (relating to plaint Item No. 3):

We sh'all first take up the mortgage .said to have been executed on r:>ecember 21, 1895. Prima 1acie the suit in respect of this property is barred by time but it is said that in view of the ackr>.owletlgmellt made by mortgagors under the origin_al of Ex. P-5 dated 22.6.1906, the suit is within time. There is no satisfactory material 10 show that Ex.P-5 relates to the mortgage in question. It is not necessary to go into thaLquestion in detail as in our opinion, it was impermissible for the courts below to rely on Ex.P-5 for the purpose of ackrnowledgment. Ex. P-5 is a certified copy of a statement said to have been made in a mutation proceeding. Its original has not been produced. No witness has been examined to speak to the fact that the persons who are shown to have signed the original have in faat signed the same or those persons were the mortgagors or their representatives.

The ·signature on the original cannot be proved by production, of 'a certified ~opy, Nor can ~he courts raise any presumption under s. ·90 of the Evidence /\ct in that re~ard see Harihar Prasad Sin.~h and anr. v. Ms/. of M1111sh( Natlz Prasad and Ors.(1) The High Court and the 1st apncllatc court erroneously thought that they could presume that the persons mentioned as the executants in the copy have signed the oril!inal on the strength of s. 44 of the Punjab Land Revrnue Act and s. 114 ( e) of the Evidence Act: Section 44,of the Punjab Land Revenue Act deals with the presumption as fegards :rn entry (I) [1956] S.C.R. J. SHIV LAL v. CHET RAM (Hegde, J.) in the record of rights. Herein we are not concerned with any entry in the record of rights. We are concerned with the genuineness of the signature in the original of Ex. P-5 and the identification of the persons who signed it. Hence that section affords no aid.

Section 114 ( e) of the Evidence Act says that court may presume that judicial and official acts have been regularly performed. Herein we are not concerned with the regularity of the perfOOJ:l· ance of any official act. The identification of an execulant or genuineness of a signature in a statement filed before an official has nothing to do with the regularity of his act unless it is shown that he bad a ·duty to identify the person who ·signed it and further to take the signature 'in his presence. Therefore Ex. P-5 cannot serve as an acknowledgment of the mortgage. Hence the plaintiffs claim to redeem the mortgage in respect of item No. 2 of the plaint must fail. Now coming to plaint item No. 3, the plaint shows that the mortgage in question was executed on December 18, 1901. The original mortgage deed or its registered copy has not been pro" duced. For the proof of execution of the mortgage the plaintiffs relied on Ex. P-8," a certified copy of a mutation proceeding.

That copy shows that the mutation in question was ordered on 12th Jtme 1901. Therefore the concerned mortgage must have been executed earlier than that date. It appears that the plaintiffs have deliberately given a wrong date of the mortgage in the plaint with a view to bring the suit within the period of limitation. The learned District Judge has opined that the claim for redemption of this item o.f property is also within time in-view of Ex. P-8. Here again no evidence was led to show that the original statement was signed either by the mortgagors. or by their 'representatives. The original was not produced in court. Ex. P-8 is only a certified copy. By merely producing a copy, it cannot be said that the plaintiffs have succeeded in proving that the signature in original statement is that of the mortj!agors or their representatives. As discussed earlier the plaintiffs cannot take the benefit of s. 90 of the Evidence Act or s. 44 of the Punjab Land Revenue Act or s.

114 (el of the Evidence Act to prove that the original was signed by th11 mortgagors or their representatives. Hence the plaintiffs' claim in respect of plaint item No. 3 must also fail. In the result Civil Appeal No. 1250 of 1966 is partly allowed and the plaintiffs' claim for redemption of plaint items Nos. 2, 3 and 4 is dismissed al!ld the decree for redemption of plaint item No. 1 is upheld. Now we shall take up Civil Appeal No. 1251 of 1966 arising from Suit No. 334 of 1961. Therein redemption of two mortgages said to have been executed on June 19, 1894 and May 15, 1896 was sought. Prima facie the suit is barred by limitation. But it was contended and that contention was accepted by the appellate court and the High Court that the suit is within time in view of (1) the acknowledgments made uy the mortgagors or their representatives on several occasions, the last of which was on June 25, 1919 and (2) in view of the application made by the plaintiffs-respondents under s.

4 of the Redemption of Mortgages (Punjab) Act, 1913 (Act No. II of 1913). We shall first take up the question of acknowledgments. The acknowledgments in question were ought to be proved by production of certain certified copies. The originals of those r.opies were not produced. No evidence was led to show that the originals were signed either by the mortgagors or by their representatives. For the reasons earlier mentioned those copies cilillllot serve as acknowledgments. Now coming to the application made under s. 4 of the Redemption of Mortgages (Punjab) Act, 1913, the same was made on May 16, 1959 and it was dismissed on April 18, 1961. Therein the parties were referred to a civil suit. Even if the period taken in prosecuting the said application is excluded in computing the period of limitation, the suit for redemptiori is admitt~dly barred. But what was urged on behalf of the plaintiffs is that in view of s. 12 of the Redemption of Mortgages (Punjab)

Act, 1913, the plaintiffs were entitled to bring the suit within one year from April 18, 1961, the date on which their application wa~ dismissed. There is no dispute that for the suit contemplated by the aforesaid s. 12, the period of limitation prescribed is one y:ar from the date of the order. The dismissal of the. petition in this case was made under s. 10 of the Redemption of Mortgages (Punjab) Act. 1913. Therefore the order made on that application comes within the scope of s. 12. But the real question is whether s. 12 enlarges the period of limitation for a redemption suit. That section to the extent material for our present purpose reads as follows : "Any party aggrieved by an order made under ss. 6, 7, 8, 9, 10 and 11 of this Act may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive." This section merely provides that a summary order made under ss.

6, 7, 8, 9, 10 and 11 of the Redemption of Mortgai;es (Punjab) Act, 1913 becomes final unless a suit to establish the rights of the mortgagors is .instituted within the prescribed period. From this provision we are unable to hold that in view of that section, the period of !imitation fixed for redemption of mortgages can be enlarged. Several decisions of the Lahore High Court holding that if a suit as required by s. 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for I SHIV IAL v. CHET RAM (Hegde, J.) redemption has not expired. It is not necessary ,o go into the correctness of. those decisions though prima facie we arc inclined to accept their correctness, because they merely lay down that if any party aggrieved by an order under ss. 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab)

Act, 1913 does not institute a suit to establish. his rights in respect of the mortgage within the time prescribed hls right to sue for redemption is lost. Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under s. 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage e>"en though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under s. 4. No decision taking that view was brought to our notice. What is made conclusive by s. 12 is the order made by the Collector if the suit as contemplated by s. 12 is not instituted within the prescribed time, That provision does not lend any support for the contention that if an application which fulfils the requirements of s. 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant.

For the reasons mentioned above Civil Appeal No. 125 l of 1966 is allowed and the plantilfs' suit No. 334 of 1961 is dis· missed. Appellants had falsely pleaded that Kura was insane. Because of that plea the plaintiffs had to adduce considerable evidence. Taking into cor.sideration the various circumstances appearing in these cases we think it would be appropriate to direct the parties to bear their oW\11 costs throughout. V.P.S. Appeals allowed.