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ShamshuddIn Vs. Mansha Singh Ganga Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1468 of 1965
Judge
Reported inAIR1968P& H35
ActsTransfer of Property Act, 1882 - Sections 68(1)
AppellantShamshuddin
RespondentMansha Singh Ganga Singh and anr.
Appellant Advocate R.N. Mittal and; S.K. Pipat, Advs.
Respondent Advocate Tirath Singh, Adv.
DispositionAppeal dismissed
Cases ReferredArumugam v. Sivagnana
Excerpt:
.....375 which still stands in the name of the mortgagees will be adjusted by the appropriate authorities in accordance with the position as it obtains today, namely that the claim of the mortgagees has been fully satisfied......part thereof, may, in the circumstances deem fit.' in this writ petition, munsha singh and kishan singh mortgagees were also impleaded as respondents, besides the custodian of evacuee property and the auction-purchaser.5. after the disposal of the writ petition shamsuddin pursued his remedies available to him under section 20a of the act. it has been stated at the bar by mr. mittal, the learned counsel for shamsuddin, that so far the central government has not allotted any land or cash value to him. munsha singh and kishan singh, on the other hand, filed the present suit for recovery of rs. 1500, from shamsuddin on 24th march, 1964, on the allegation that the defendant had allowed the mortgaged property to be destroyed by his negligence and failure to appear before the competent officer.....
Judgment:

Shamsher Bahadur, J.

1. This is a defendant's appeal from the judgment and decree of the Additional District Judge, Patiala, who granted decree in favour of the plaintiff-respondents for a sum of Rs. 1500 and reversed the decree of the Subordinate Judge who had dismissed their suit in its entirety.

2. The defendant-appellant Shamsuddin had mortgaged with possession land measuring 25 Bighas and 2 Biswas in village Karali of Rajpura tehsil for a sum of Rs. 1500 by a registered mortgage-deed of 16-2-2001 Bk. As a result of consolidation proceedings land measuring 26 Bighas and 1 Biswa bearing Khasra Nos. 172 to 170 was allotted in lieu of the mortgaged land in possession of the mortgagees Munsha Singh and Kishan Singh. Though Shamsuddin claimed to have remained in India after the partition, proceedings under the Evacuee Interest (Separation) Act were taken by the Competent Officer who issued the notice Exhibit D.4 to the mortgagees on 30th April, 1953. By an order passed on 29th July 1953 (Exhibit D.3) the Competent Officer admitted the claim of the mortgagees for a sum of Rs. 1500. In the order itself it was said that 'this mortgage has not been disputed on behalf of the respondent. Custodian, representing the mortgagor who is since an evacuee.' Under section 7 of the Evacuee Interest (Separation) Act 1951, the interest of the mortgagees was assessed at Rs. 825 and it was directed that the amount shall be paid to them by the Custodian out of the sale-proceeds. The property was actually sold on 4th June, 1959, for a sum of Rs. 825. A sale certificate was granted in favour of the auction-purchasers on 20th August. 1959. The sale certificate Exhibit D. W. 1/2 is in favour of Ram Singh son of Amir Chand and Ram Singh son of Sohan Singh also residents of Karali.

3. Possession of the land was actually given to the auction-purchasers on 3rd September, 1959. Thereafter a sum of Rs. 375 was offered to the mortgagees which they declined to accept. The Competent Officer in his order of 5th December, 1960 (Exhibit D. 5) mentioned that the mortgagees had represented to him that the land had actually been restored to its original Muslim owner Shamsuddin and the original certificate of restoration was put on record. It seems that the order of restoration in favour of Shamsuddin mortgagor had been made presumably on the ground that he was not an evacuee and the property could not, therefore be disposed of as composite property.

4. The next step of Shamsuddin was to move this Court in writ jurisdiction with a prayer that though the property had been restored to him by the order of the Central Government it had been sold by the Competent Officer as evacuee property and the departmental authorities had not set aside those orders. Graver J. who heard this petition (Civil Writ No. 1250 of 1961 (Punj)) in his order of15th October, 1963, while dismissing the writ petition observed that Shamsuddin had a remedy under Section 20A of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter referred to as the Act). Under this section:--

'Where any evacuee or his heir is entitled to the restoration of any evacuee property on an application made by him in this behalf..... and the Central Government is of opinion that It is not expedient or practicable to restore the whole or any part of such property to the applicant by reason of the property or part thereof being in occupation or a displaced person or otherwise, then notwithstanding anything contained in the Evacuee Property Act, and this Act, it shall be lawful for the Central Government-

(a) to transfer to the applicant in lieu of the evacuee property or any part thereof, any immovable property in the compensation pool or any part thereof, being in the opinion of the Central Government as nearly as may be of the same value as the evacuee property or as the case may be, any part thereof, or

(b) to pay the applicant such amount in cash from the compensation pool in lieu of the evacuee property or part thereof, as the Central Government having regard to the value of the evacuee property or part thereof, may, in the circumstances deem fit.'

In this writ petition, Munsha Singh and Kishan Singh mortgagees were also impleaded as respondents, besides the Custodian of Evacuee Property and the auction-purchaser.

5. After the disposal of the writ petition Shamsuddin pursued his remedies available to him under Section 20A of the Act. It has been stated at the Bar by Mr. Mittal, the learned counsel for Shamsuddin, that so far the Central Government has not allotted any land or cash value to him. Munsha Singh and Kishan Singh, on the other hand, filed the present suit for recovery of Rs. 1500, from Shamsuddin on 24th March, 1964, on the allegation that the defendant had allowed the mortgaged property to be destroyed by his negligence and failure to appear before the Competent Officer on whose directions it was declared 'composite' and subsequently sold in auction. Shamsuddin resisted the suit and the following issues were framed: --

'(1) Did the plaintiff lose his security of mortgaged lands on account of default and negligence on the part of the defendant in informing the authorities of Rehabilitation Department of his intention to stay in India as alleged?

(2) Is the plaintiff entitled to recover Rs. 1500 from the defendant as alleged?

(3) Has the plaintiff obtained satisfaction of his claim for the Competent Officer as alleged?

(3-a) Is the defendant entitled to compensatory costs under Section 35A C. P. C.?

(4) Relief.'

6. The trial Judge decided the first two issues against the plaintiffs and the other twoagainst the defendants. In the result, the suit was dismissed on 30th March, 1985.

7. Before the Appellate Court the finding on the first issue does not appear to havebeen challenged but the learned Judge treating the case as one falling under Clause (b) of Sub-section (1) of Section 68 of the Transferof Property Act decreed the suit. Now, Subsection (1) of Section 68 of the Transfer of Property Act is to this effect:--

'68.(1). The mortgagee has a right to sue for the mortgage-money in the following cases and no others, namely: --

(a) where the mortgagor binds himself to repay the same;

(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of Section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;

(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;

(d) .....'

8. It is quite clear that Shamsuddin never appeared before the Competent Officer to assert that he was not an evacuee and the property which had been mortgaged with Mansha Singh and Kishan Singh plaintiffs could not be treated as composite in nature. The finding no doubt is that the property did not come to be lost or destroyed as a result of the negligence of Shamsuddin, but it is clear from Clause (b) of Sub-section (1) of Section 68 that even if the property is otherwise destroyed wholly or partially or the security is rendered insufficient a suit could still be brought against the mortgagor for a personal decree. In the plaint it has been asserted that the mortgagees had been pressing the defendant to make good the loss in security which had been supplied by them as a result of the sale by the Competent Officer. It has been vehemently asserted by Mr. Mittal that if there was any negligence it was that of the plaintiffs, and not the defendant. I do not see how the mortgagees could have asserted before the Competent Officer that the property was not composite when the evacuee (Shamsuddin) himself did not come forward to say that he was in India and could not be regarded as an evacuee. It is idle to contend that Shamsuddin was not aware could have asserted before the Competent Officer.

In any event, it was not for the mortgagee plaintiffs to take up the impossible position in absence of such claim by Shamsuddin himself that the property was in fact not of a composite nature. Subsequently, the mortgagees came to know that Shamsuddin had made a claim to the Central Government and his property was in fact restored to him as mortgagorby the order of 14th May, 1960. It is so stated in Exhibit D.5 of 5th December, 1960, and the Competent Officer himself has said that the refusal of the mortgagees to accept the sum of Rs. 375 to which amount the claim of the mortgagees had been reduced by that time, was legitimate. As it is not essential under Clause (b) of Sub-section (1) of Section 68 of the Transfer of Property Act that the destruction of the mortgaged property should be in consequence of the acts of the mortgagor himself, I think the learned Additional District Judge was right in holding that the suit for recovery of mortgage money could properly be decreed under this provision.

9. It has been urged by Mr. Mittal on the analogy of the sale of lands acquired under the Land Acquisition Act that the property cannot be said to have been 'destroyed' In such a case. My attention has been drawn to a Division Bench judgment of Shephard and Best, JJ. in Arumugam v. Sivagnana, (1890) ILR 13 Mad 321, where it was held that:--

'The sale of mortgaged premises under the Land Acquisition Act is not a destruction of the security within the meaning of Section 68 of the Transfer of Property Act does not enable the mortgagee to sue the mortgagor personally.'

The short reasoning given by the learned Judges for this conclusion is itself an answer to the contention raised by Mr. Mittal, this as itated in the penultimate paragraph of the judgment is:--

'The land was converted into money to which the plaintiff might have made good his claim under the Act.'

Now, it is manifest that the case in point is not on a parity with that of the sale of mortgaged premises under the Land Acquisition Act where the claimant is present to make good his claim. It is important to observe that the evacuee who had an interest in the mortgaged land was no longer there to press his claim and was represented by the Custodian as against the other claimants to the property which is to be regarded as 'composite'. The appropriate authorities under the Act were dealing with the property as composite property. The mortgagees were required to furnish the particulars of their claim. The claim of the mortgagees was accepted. An assessment was made of the mortgagees claim. The mortgagees had no other option but to accept this assessment on the assumption that the property was evacuee. There was apparently no reason for them to urge that the property was not evacuee when Shamsuddin himself had not been represented from 1953 to 1959.

10. In my opinion, the decree of the learned Additional District Judge is in accordance with law and has rightly taken account of the reaction of. the situation. The mortgagees have now obtained full satisfaction of e decree as the amount of Rs. 1500 decreed has been realised by them on furnishing adequate security. Mr. Mittal's contention that the property or cash which he may acquireunder Section 20A of the Act would still remain charged or encumbered when he has actually paid the mortgage money to the mortgagees is without substance. It is now stated at the Bar by Mr. Tirath Singh, the learned counsel for the respondent-mortgagees, that the amount has been received in full, and no charge would remain on the property or cash which may come in possession of Shamsuddin appellant under Section 20A of the Act. The sum of Rs. 375 which still stands in the name of the mortgagees will be adjusted by the appropriate authorities in accordance with the position as it obtains today, namely that the claim of the mortgagees has been fully satisfied.

11. There remains no force in this appealwhich must accordingly be dismissed. In thecircumstances, I make no order as to costs.


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