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Gopal Fateh Singh Vs. Sis Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H283
AppellantGopal Fateh Singh
RespondentSis Ram and anr.
Cases ReferredMehoro v. Suja
Excerpt:
.....parwana did not notify to the mortgagors the sum due on the mortgage must fail. 16. the finding of the trial court on issue 2 that sri gopal defendant was served with a parwana together with a copy of application under section 8 of the regulation, therefore, proceeds upon good evidence......of the trial court on issue 2 that sri gopal defendant was served with a parwana together with a copy of application under section 8 of the regulation, therefore, proceeds upon good evidence. the statement of sri gopal defendant appears to be false for he denies the service on him of the parwana which is indisputably proved in this case. the testimony of other witnesses examined by the defendant does not affect the case. they state that in their presence sri gopal defendant was not served and it is not the case of the plaintiffs that any other prisoner was present at the time the parwana was served upon the defendant.17. for the reasons given above, i uphold the decision of the trial court on issue 2. no other question has been argued in appeal, i affirm the judgment and the decree of.....
Judgment:

Harnam Singh, J.

1. This appeal arises out of a suit for possession of a single storyed house situate in the abadi of Narela instituted by the plaintiffs on 10th April 1944 on the allegations that defendants 1 and 2 had mortgaged the house with the plaintiffs and father of defendants 3 to 5 on 30th August 1926 for a consideration of Rs. 1000 carrying interest at the rate of Rs. 1-9-0 per cent, per mensem on the condition that if the principal and interest were not paid within five years the house shall be deemed to have been sold to the mortgagees. The plaintiffs further alleged that the father of defendants 3 to 5 had died and as a result of partition between the parties the rights under the mortgage had been allotted to the plaintiffs.

2. The case of the plaintiffs was that a notice was sent to the defendants on 17th October 1931 and that notwithstanding that notice the mortgage debt had not been paid, Thereupon, on 26th February 1932 the mortgagees made an application in the Court of the District Judge, Delhi, under Section 8 of Regn. XVII [17] of 1806 and in spite of the fact that a copy of the application made under Section 8 of the Regulation had been furnished to the defendants and the District Judge had notified to the defendants by a parwana under his seal and official signature that if they shall not redeem the property mortgaged in the manner provided for by Section 7 of the Regulation the mortgage will be finally foreclosed and the conditional sale will become conclusive, the mortgage debt had remained unsatisfied.

3. The defendants admitted the mortgage but pleaded that no notice of demand was served upon them and that defendant 2 was not properly and sufficiently served in the proceedings under Regn. XVII [17] of 1806. Defendant 1 pleaded that he was not served at all and that the plaintiffs alone had no right to sue.

4. On the pleadings of the parties, the following issues were framed:

(1) Was any notice of demand served by the plaintiffs upon defendants 1 and 2 before taking out proceedings before the District Judge, Delhi? If not, what is its effect?

(2) Was Sri Gopal defendant properly served with notices of the Bengal Regulation proceedings along with copy of petition? If not, what is its effect?

(3) Was service on defendant 2 not effected or was improper or insufficient?

(4) Have the plaintiffs purchased the rights of defendants 3, 4 and 5?

(5) Relief.

5. The trial Court found in favour of the plaintiffs on all the issues and decreed the plaintiffs' suit with costs.

6. Sri Gopal defendant has come to this Court in first appeal against the decree of the trial Court through Mr. Shamsher Bahadur.

7. Mr. Shamsher Bahadur, learned Counsel for the appellant, challenges the correctness of the finding of the trial Court on issue 2. He urges that the parwana under Section 8 of the Regulation is not proved to have been served upon defendant 1 and that in any case the parwana did not satisfy the requirements of Section 8 of Regulation XVII [17] of 1806. He further contends that it has not been proved that a copy of the application under Section 8 of the Regulation was also served upon defendant 1 along with the parwana.

8. Mr. Shamsher Bahadur also asks the Court to permit him to be heard in support of the plea that the suit was barred by limitation.

9. As regards the request of the counsel for the appellant that he be permitted to argue the question of limitation in this appeal, I am of the view that this permission cannot be allowed. The point was not raised in the trial Court and it has not been set out in the grounds of appeal in this Court. Mr. Shamsher Bahadur, however, urges on the authority of Moola M.E. Sons Ltd. v. Perin R. Burjorjee that this permission ought to be allowed in this case. In the Privy Council case their Lordships laid down:

When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon the facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting the course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below.

In the present case, the question sought to be raised is not a pure question of law for the plea of limitation if pleaded by the defendants in the trial Court could have been met by the plaintiffs by pleading that there was an acknowledgment within the meaning of Section 19, Limitation Act. The point involved in the Privy Council case was under Section 49, Registration Act, and the rule of law is firmly established that the law of registration hits upon documents and not upon transactions. I am clearly of the opinion that in this case the appellant cannot be permitted to be heard in support of the plea that the suit was barred by limitation.

10. On merits the appellant urges that the conditions of Section 8 of Regn. XVII [17] of 1806 have not been strictly complied with. Section 8 of the Regulation runs:

Whenever the receiver or holder of a deed of mortgage and conditional sale, such as is described in the preamble and preceding sections of this Regulation, may be desirous of foreclosing the mortgage and rendering the sale conclusive on the expiration of the stipulated period, or at any time subsequent before the sum lent is repaid, he shall (after demanding payment from the borrower or his representative) apply for that purpose by a written petition, to be presented by himself or by one of the authorised vakils of the Court, to the Judge of the zila or city in which the mortgaged land or other property may be situated.

The Judge, on receiving such written application, shall cause the mortgagor or his legal representative to be furnished, as soon as possible, with a copy of it; and shall at the same time notify to him by a parwana under his seal and official signature that, if he shall not redeem the property mortgagad in the manner provided for by the foregoing section within one year from the date of the notification, the mortgage will be finally foreclosed and the conditional sale will become conclusive.

It would appear that in cases where a mortgagee sues for possession of the mortgaged property upon the ground that he has become owner thereof under the terms of the conditional sale clause, it is incumbent upon him to prove affirmatively that each and all of the conditions prescribed by Sections 7 and 8 of Regn. XVII [17] of 1806 have been duly fulfilled. The plaintiff must prove not only that the year of grace had expired, but that the procedure prescribed by law, both preparatory to and in connection with the notice of foreclosure, had been duly observed. It is only the complete observance of this procedure coupled with the non-payment by the mortgagor of the sum due upon the mortgage within the year of grace that gives the plaintiff a right to enforce forfeiture of the mortgagor's estate.

11. In the present case, the trial Court has found that a notice of demand was served by the plaintiffs upon defendants 1 and 2 before taking out proceedings before the District Judge, Delhi, and this finding has not been contested by the counsel for the appellant in this Court. There is further no dispute as regards the validity of the written application made by the plaintiffs under Section 8 of the Regulation. The counsel for the appellant, however, urges that inasmuch as the amount of the mortgage-debt was not mentioned in the parwana under Section 8 of the Regulation the proceedings under the Regulation were invalid. Section 8 of the Regulation provides that the District Judge shall notify to the mortgagor by a parwana under his seal and official signature that, if he shall not redeem the property mortgaged in the manner provided for by Section 7 of the Regulation within one year lrom the date of the notification, the mortgage will be finally foreclosed and the conditional sale will become conclusive. There is no requirement of law that in the parwana which goes to the mortgagor from the Court of the District Judge the details of the mortgage-debt are to be specified.

12. Mr. Shamsher Bahadur based his contention on this point on Mehoro v. Suja 84 P.R. 1882. In that case, it was found that the notice issued under Section 8 of Regulation 17 of 1806 did not bear the seal or signature of the District Judge, but only his initials, and merely notified to the mortgagor the principal sum due on the mortgage without any mention of the interest also due thereon and under those circumstances, it was held that there were such defects in the validity of the notice as to vitiate the foreclosure proceedings, and to prevent the mortgagee from maintaining a suit based upon such proceedings. There is no indication in the judgment that a copy of the application was also served upon the mortgagor and the main defect was that the notice issued under Section 8 of the Regulation did not bear the seal or signature of the District Judge. The decision in that case does not lay down the proposition that in all cases the sum due under the mortgage must be mentioned in the parwana and in the absence of the specification of the mortgage-debt in the parwana the parwana must be held to be invalid. In the present case, the parwana and a copy of the application under Section 8 of the Regulation were sent to Sri Gopal defendant and if the finding of the trial Court is correct that Sri Gopal defendant was served with the notice together with a copy of the application, the objection that the parwana did not notify to the mortgagors the sum due on the mortgage must fail.

12. The sole question is whether Sri Gopal was served with a notice under Section 8 of the Regulation and whether he was given a copy of the application made by the mortgagees under Section 8 of the Regulation.

13. The counsel for the appellant urges that there is no evidence on this record that Sri Gopal defendant was served with a parwana or that he was given a copy of the application. The trial Court in this connection has relied upon the statement of Sis Ram plaintiff and a certified copy of the report of the Assistant Superintendent of Jail that Sri Gopal defendant was served with a notice. The contention of the counsel for the appellant, however, is that inasmuch as the Assistant Superintendent of Jail has not been examined at the trial, the report of the Assistant Superintendent of Jail could not be used as evidence. In my opinion, the examination of the Assistant Superintendent was not necessary to prove the contents of that report. The report is a document within the meaning of Section 35, Evidence Act, and a certified copy of the report was admissible in evidence to prove the contents of the report.

15. The counsel for the appellant next urges that the report of the Assistant Superintendent of Jail does not mention that a copy of the application under Section 8 was also supplied to Sri Gopal defendant. The report of the Assistant Superintendent was a reply to a letter addressed to the jail authorities by the District Judge of Delhi and the letter to which the report was a reply only mentioned the parwana and not the copy of the application. It is mentioned in the parwana itself that a copy of the application was sent along with the parwana for the use of Sri Gopal defendant. That being so, a presumption arises under Section 114, Evidence Act, that official acts have been regularly performed.

16. The finding of the trial Court on issue 2 that Sri Gopal defendant was served with a parwana together with a copy of application under Section 8 of the Regulation, therefore, proceeds upon good evidence. The statement of Sri Gopal defendant appears to be false for he denies the service on him of the parwana which is indisputably proved in this case. The testimony of other witnesses examined by the defendant does not affect the case. They state that in their presence Sri Gopal defendant was not served and it is not the case of the plaintiffs that any other prisoner was present at the time the parwana was served upon the defendant.

17. For the reasons given above, I uphold the decision of the trial Court on issue 2. No other question has been argued in appeal, I affirm the judgment and the decree of the trial Court. The appeal, therefore, fails and is dismissed with costs.

Bhandari, J.

I agree.


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