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Ganga Ram Vs. Lachman Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All176; 85Ind.Cas.633
AppellantGanga Ram
RespondentLachman Singh and ors.
Excerpt:
- - and at best it amounted only to an intimation to the revenue court, before which the mutation proceeding was pending, that the dispute between mt. under section 114 of the indian evidence act the court can presume that official acts had been regularly performed, that is, the court must have satisfied itself as to the authority of fazl ahmad, and that the common course of business had been followed in such oases......claim in barred by limitation. it appears that khaman singh had two sons, kehri singh and gangaram singh. the share of gangaram singh passed to khanjan singh, who died leaving a widow mi, hem kunwar, and a brother mewa ram singh, each of whom divided his property by a mutual arrangement in equal shares. mt. hem kunwar was succeeded by pem singh, one of the nephews of her husband, either by virtue of some gift or adoption. on the death of mt. hem kunwar there was a dispute about the 11/2 biswas share entered in his name, which was settled on the 11th september, 1890, in this way that mt. gaura, his widow, was allowed a one-third share, and bahadur singh and partap singh, the younger brothers of her husband, were allowed the remaining one-third share each. mt. gaura and bahadur singh.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of a suit for the redemption of mortgage effected by Khaman Singh in favour of Shib Lal and Khen Karan on the 8th June, 1850. The Courts below have decreed the claim, allowing the plaintiffs, who are-the legal representatives of one of the heirs of the original mortgagor, to redeem their share on payment of a proportionate part of the mortgage money.

2. The main question for consideration are whether the plaintiffs have a right to redeem the share in question and whether the claim in barred by limitation. It appears that Khaman Singh had two sons, Kehri Singh and Gangaram Singh. The share of Gangaram Singh passed to Khanjan Singh, who died leaving a widow Mi, Hem Kunwar, and a brother Mewa Ram Singh, each of whom divided his property by a mutual arrangement in equal shares. Mt. Hem Kunwar was succeeded by Pem Singh, one of the nephews of her husband, either by virtue of some gift or adoption. On the death of Mt. Hem Kunwar there was a dispute about the 11/2 biswas share entered in his name, which was settled on the 11th September, 1890, in this way that Mt. Gaura, his widow, was allowed a one-third share, and Bahadur Singh and Partap Singh, the younger brothers of her husband, were allowed the remaining one-third share each. Mt. Gaura and Bahadur Singh subsequently sold their rights to Ganga Ram, the present defendant-appellant, who is also the successor-in-interest of some of the heirs of the mortgagees.

3. In 1915 Mewa Ram Singh brought a suit for the redemption of a half share of the mortgaged property, impleading the mortgagees and other parsons, claiming an interest in the equity of redemption, as defendants. One of the pleas raised in that suit was that Mewa Ram Singh could not sue for anything more than his half share of 21/2 biswas, which he had obtained by the settlement with Mt. Hem Kunwar, and another plea was that the claim was barred by limitation. Lachman Singh and Mt. Hira Kunwar, the heirs of Partab Singh, were parties to that suit. It was found in that case that Mewa Ram Singh was entitled to redeem only 11/2 biswas representing his share, and that the acknowledgment made by the mortgagees, at the time of the attestation of the wajib-ul-arz in 1865 saved limitation Dharam Das v. Emperor (1910) 33 All. 48.

4. The present suit has been brought by Lachman Singh and Mt. Hira Kunwar to redeem their one-third share of 11/2 biswas, which had been allotted to Partab Singh by the compromise of the 11th September, 1890. The learned Counsel for the defendant appellant contends that that compromise is inadmissible in evidence for want of registration. But the compromise itself does not purport to convey or to create or declare any interest in immovable property. It merely recognises or confirms an antecedent title, which was till then involved in dispute; and at best it amounted only to an intimation to the Revenue Court, before which the mutation proceeding was pending, that the dispute between Mt. Gaura, the widow of Pem Singh on the one hand and Bahadur Singh and Partab Singh on the other, had been settled out of Court in a particular manner. The settlement aforesaid operated as a family arrangement acknowledging or defining an antecedent but disputed title, and as pointed out in Bindesri Nath v. Ganga Saran (1898) 20 All. 171, its registration was not necessary. In Baldeo Singh v. Udal Singh (1920) 18 A.L.J. 877 it was accordingly held that such a family settlement, proceeding as it did on the assumption of an antecedent title of some kind in the parties which it merely acknowledged or defined, did not fall within the purview of any of the provisions of the Transfer of Property Act so as to require an instrument in writing or registration. There can be no doubt therefore that Lachman Singh and Mt. Hira Kunwar, the heirs of Partab Singh, are entitled to redeem a one-third share out of li biswas entered in their names. The remaining two-thirds share has been purchased by the mortgagee from Mt. Gaura and Bahadur Singh and as observed in Kanhailal v. Brijlal A.I.R. 1918 P.C. 70 it does not lie in his mouth to impeach the settlement.

5. The question of limitation is by no means so simple. The suit was filed after the expiry of 60 years from the date of the mortgage and unless the verification of the wajib-ul-arz by Shib Lal and by Fazl Ahmad the general agent of the other mortgagees, can be regarded as sufficient within the meaning of Section 19 of the Indian Limitation Act, the claim would obviously be barred by time. It is conceded that under Act XIV of 1859 the acknowledgment made by a person, who was not himself the mortgagee, could not be regarded as sufficient to save limitation. But as held by their Lordships of the Privy Council in Soni Lal v. Kanhaiya Lal (1913) 35 All. 227 the law of limitation applicable to the present suit is not Act XIV of 1859, the law in force at the date of the alleged acknowledgment, but Act IX of 1908, which was in force at the time of the institution of the suit. No title had been acquired by the mortgagee before Act IX of 1908 came into force and Section 19 of the Indian Limitation Act now in force must therefore govern the question of the sufficiency or otherwise if the acknowledgment on which the plaintiffs-respondents seek to rely.

6. It is urged on behalf of the defendant-appellant on the strength of the decisions in Gokul Singh v. Sahib Singh (1917) 15 A.L.J. 121 and Narain Rao v. Mt. Manni Kunwar A.I.R. 1922 All. 230 that the Court might presume the genuineness of the signature of Shib Lal, one of the mortgagees, who verified the wajib-ul-arz and also the genuineness of the signature of Fazl Ahmad who purported to sign the verification on behalf of Mt. Daro, the widow of Ganga Eam, Gopal Singh and Sita Ram, the sons of Khem Karan, as their general agent, but the Court could not presume that the latter had authority to make an acknowledgment on behalf of his principals. But the circumstane9s in which the verification was made ought to be taken into consideration in determining the authority possessed by him at the time the verification took place. The settlement in which that wajib-ul-arz was verified was effected under Regulation VII of 1822 as amended by Regulation IX of 1833 then in force; and among the directions then issued for the guidance of Settlement Officers to carry out the object of those Regulations it was provided that the signatures of all the lambardars and as many as possible of the pattidars should be attached to the administrative paper, called the wajib-ul-arz, and it should also be attested by patwari and kanungos and be read out before the Settlement Officer in open Court and in the presence of the subscribing parties (Directions for Settlement Officers 1858, p. 78). In other words no settlement could be regarded as complete until the wajib-ul-arz was prepared and attested by the signatures of all the lambardars and as many as possible of the pattidars, who assented to the same and acknowledged its correctness. The co-sharers were required for that purpose to attend or to send their agents, and it must be presumed that Fazl Ahmad was sent on a similar errand in the company of Shib Lal, one of the mortgagees, by the heirs of the other mortgagee, who may have been unable to attend in person themselves. Both Shib Lal and Fazl Ahmad, the general agents of the mortgagees attended to verify the wajib-ul-arz, in which Shib Lal and the heirs of Khem Karan were recorded as mortgagees; and the verification made by Shib Lal one of the mortgagees and by Fazl Ahmad on behalf of the other mortgagees must therefore be taken to have been made in acknowledgment of the correctness of the fact that they were such mortgagees. Under Section 114 of the Indian Evidence Act the Court can presume that official acts had been regularly performed, that is, the Court must have satisfied itself as to the authority of Fazl Ahmad, and that the common course of business had been followed in such oases. The attendant circumstances can lead to no other conclusion.

7. The decisions to which the learned Counsel for the defendant-appellant has referred, are not applicable. In the first of the two cases referred to by him, the signature wag made on behalf of an absent co-sharer by the patwari who was found to have had no authority to sign on his behalf. In the latter case no fact appears to have been established or brought to the notice of the Court to justify the Court in presuming that the general agent had the requisite authority to make the acknowledgment. It is unquestionable that no valid acknowledgment can be made by a general agent unless he is expressly or impliedly. authorised in that behalf; but the authority may be presumed from the attendant circumstances, as the Courts below have presumed in this case. The question of authority in each case is one of fact or an inference to be drawn from the surrounding circumstances, and considering the circumstances here established there is no reason to differ from the view taken by the Courts below.

8. It is also noteworthy that in the previous suit about this very mortgage it was held between the parties by this Court that the claim was within time and that the acknowledgment made at the time of the verification of the wajib-ul-arz saved limitation. That suit included the property cow in dispute and the present claimants were than arrayed as co-defendants with the mortgagees or their heirs, with whom their interest was at conflict. If the suit for redemption was within time as regards the then plaintiff, it cannot be beyond time as regards the present plaintiff, who practically claim immunity on the same grounds as were then urged and accepted. The appeal therefore fails and is dismissed with costs including fees in this Court on the higher scale.


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