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Surat Singh and ors. Vs. Umrao Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All410; 77Ind.Cas.113
AppellantSurat Singh and ors.
RespondentUmrao Singh and ors.
Cases ReferredAshfaq Ahmad v. Wazir Ali
Excerpt:
.....portion of the property is concerned would be well within time. 'we are clearly of opinion that as regards the property referred to in paragraph 5 (b) of the plaint the claim of the plaintiffs is time-barred......entered in the name of a lady called mohan kunwar while the other half was recorded in the name of arjun singh and durjan singh who are the sons of kesari singh.5. we have no clear information as to who the lady mohan kunwar was.7. it appears that in the year 1885, however, a dispute arose between the two branches of this family. an agreement to refer to arbitration was executed and we have before us that agreement and the award which was made by the arbitrators on the 23rd december 1885. it is this award really which determined the rights of the parties and it is on terms of this award that the present litigation must be decided.8. the arbitrators laid down in that award.(1) that the descendants of srghar singh (now represented by the plaintiffs) would be entitled to half of the 9 pie 5.....
Judgment:

1. The only question with which we are concerned in this second appeal is the question of limitation. It arose in the following way. It seems that two cousins named Sughar Singh and Kesari Singh were the owners jointly of a 1 anna 7 pie 10 karant share in the village of Atagaon. It has been found that this property was joint family property.

2. The plaintiffs in the present suit are the descendants of Sughar. Singh, while the principal contesting defendants %re the descendants of Kesari Singh.

3. In the year 1872 it is found that Kesari Singh as head of the joint family made a mortgage with possession of a 9 pie 15 karant share out of the, joint share already mentioned. This mortgage was made in favour of Sughar Singh son of Risal Singh.

4. The Settlement of the district took place in the year 1885 and it is shown that after Kesari Singh's death the entries in the revenue papers stood as follows with regard to the 1 anna 7 pie to karant share above mentioned: One-half of this share was entered in the name of a lady called Mohan Kunwar while the other half was recorded in the name of Arjun Singh and Durjan Singh who are the sons of Kesari Singh.

5. We have no clear information as to who the lady Mohan Kunwar was.

7. It appears that in the year 1885, however, a dispute arose between the two branches of this family. An agreement to refer to arbitration was executed and we have before us that agreement and the award which was made by the Arbitrators on the 23rd December 1885. It is this award really which determined the rights of the parties and it is on terms of this award that the present litigation must be decided.

8. The arbitrators laid down in that award.

(1) that the descendants of Srghar Singh (now represented by the plaintiffs) would be entitled to half of the 9 pie 5 karant share which has been mortgaged on payment of one-half of the mortgage money;

(2) As regards the remaining 9 pie 15 karant share which had formerly stood in the name of Mohan Kunwar, the descendants of Sughar Singh (now the 'plaintiffs) were to be entitled to recover half of this share on payment to Arjum Singh of a sum of Rs. 150. It is an admitted fact that the share which was mortgaged in the year 1872 was redeemed in the year 1904 by proceedings which were taken under the special Bundelkhand Act, and it is established that that redemption was obtained on application made to the Special Judge by the defendants. It is further established that the Special Judge held that the mortgage had been satisfied by the appropriation of the usufruct and that no sum was payable for redemption.

9. The defendants set up limitation as regards this part of the claim but on the rulings of this Court we think both the Courts below were right in holding that so far as this portion of the property in dispute is concerned, the plaintiffs' claim waas within time. It has been held by this Court that where one of several co-mortgagors redeems a mortgage, the other co-mortgagors can bring a suit for redemption against the redeeming mortgagor within sixty years from the date of the original mortgage. That is laid down in the case reported as Ashfaq Ahmad v. Wazir Ali 14 A. 1 A.W.N. (1891) : 211 : 11 A. 423 : 7 Ind. Dec. (N.S.) 373.

10. We have it that the date of the mortgage is the lath of June 1872 and consequently this suit was well within the statutory period of sixty years.

11. As regards the other portion of the property in dispute, however, the situation appears to us to be quite different. We have pointed out that the arbitrators in their award of the 23rd December 1885 stated that the descendants of. Sughar Singh could obtain possession of a half share of the remaining 9 pie 15 karants on payment of the sum of Rs. 150 to Arjun Singh.

12. There is nothing on the record to show how this sum of money came to be payable to Arjun Singh or what was the nature of Arjun Singh's claim against this property which the arbitrators recognized by their award, but it seems to Us that the award on this part of the case may properly be treated as declaring that Arjun Singh was entitled to retain possession of a half share in 9 pies karants as security for the sum of Rs, 150.

13. In their plaint the plaintiffs admit that they have never paid this sum of Es. 150 to Arjun Singh but they claim their right to pay it now and obtain redemption saying that they are mortgagors of this portion of the property while Arjun Singh is the mortgagee. If that were correct statement of the relations between the parties, then no doubt the suit brought by these plaintiffs, so far as this portion of the property is concerned would be well within time. But we are Unable to find in the plaintiffs' favour that they are the mortgagors and that Arjun Singh or his representatives are the mortgagees of this portion of the property. We have, said already that all we can find is that Arjun Singh was declared to have a possessory charge of this portion of the property on the basis of the award which was made on the 23rd December 1885. Therefore, the plaintiffs had a right to redeem this charge and the period for redemption of a charge is 12 years and not 60 years as in the case of a mortgage.

14. Both the Courts below in dealing with the question of limitation have treated the case as if it were one which is governed by Article 113 of the Schedule to the limitation Act. That Article provides the period of limitation for specific performance of a contract. In our opinion this has got nothing whatever to do with the present case. The award which declared the rights of the parties is in no sense a contract between the parties for which specific performance could be sought. It follows, therefore, that this appeal must succeed in part. 'We are clearly of opinion that as regards the property referred to in paragraph 5 (b) of the plaint the claim of the plaintiffs is time-barred. As regards the other property, for the reasons we have already given, the claim was within time and the decree of the Court below is affirmed. We, therefore, allow the appeal in part and direct the plaintiffs' claim to be dismissed with regard to the property specified in Clause (b) of paragraph 11 of the plaint. The parties will bear their own costs in all three Courts.


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