1. Shiboo Ram had five sons viz. Kishori Lal, Gurdial Chand, Jaswant Rai, Dharam Chand and Ram Lal, Kishori Lal, Gurdial Chand and Ram Lal mortgaged their 3. 5th share of land measuring 13 kanals 17 marlas with one Fattu. On the partition of the country, the custodian passed an order on Sept. 8, 1958 under S. 11 of the Act to the effect that the 'land is vested in the custodian under Section 11 of the Act free from all encumbrances and liabilities.' It appears that Ram Lal died. On his death, his heirs viz. Devinder Nath alias Divender Singh, Kewal Krishna, Dev Raj, Hukam Chand, Surinder Pal and his widow Lachmi Devi filed and application for redemption. This application was considered by the competent authority. An order was passed oil July 26, 1968. It was inter alia observed that 'the representative of the custodian has admitted that the land in question was under mortgage for a sum of Rs. 1000/- and the custodian has no objection if the same is redeemed on payment of the mortgage amount. In view of the evidence produced by the claimants and the statement made by Shri Devinder Nath and the representative of the custodian, I hold that the land was under mortgage for a sum of Rs. 1000/- with the evacuee and this land will be redeemed in favour of the claimants on their paying Rs. 1000/- on account of mortgage amount and Rs. 10/- as cost of notices. The amount be deposited by the claimants within one month. To come up on 23-3-1968. A copy of this order has been produced as Ex. P5. On August 23, 1968, the competent authority passed an order to the effect that the full mortgage debt having been paid land measuring 11 kanals 11 marlas i.e. 3/5th share of Khasra Nos. 3853, 3855 pre-consolidation and land measuring 13 kanals 17 marlas i.e. 3/5th share of Killa Nos. 39/24,49/7, 73 and 49 min situated in village Mianian Tehsil Moga after consolidation stands redeemed in favour of Devidender Singh, Kewal Krishna, Dev Raj, Hukam Chand, Surinder Paul, Lachmi Devi'. It was further provided that the warrant for the delivery of the possession will be issued after receiving the proper application. A copy of this order is at Ex. P6. Thedirections for the delivery of symbolic possession were actually issued vide order dated August 31, 1971, a copy of which has been produced as Ex. D1.
2. The heris of Ram Lal having got possession of the land, Kishori Lal and Gurdial Chand filed a suit for possession. It was averred that the property was joint and that the heirs of Ram Lal, the defendants hold the property on behalf of the plaintiffs and that they were entitled to get 2/ 5th share on payment of Rs. 670/-, the proportionate redemption money. The defendants contested this suit on the plea that the shareholders of the land had been cultivating it individually and that the land having vested in the Central Government, they had got its possession by way of transfer on appeal after payment of the assessed amount of Rs. 1010/-.
The trial Court framed the following issues:--
1. Whether defendants Nos. 1 to 4 and 6 arc the purchasers of the land in suit from the Central Government? O.P.D.
2. If issue No. 1 is not proved, whether the plaintiffs, are entitled to possession of 2/5th share in the suit land on payment of Rupees 670-00? O.P.P.
Finding that the defendants 1 to 4 and 6 had become the owners of the property by purchase thereof from the Central Government and that the plaintiffs were not entitled to any share therein, the trial Court dismissed the suit. These findings having been reversed by the lower appellate Court, the aggrieved defendants have come up in second appeal to this Court.
3. Mr. M. S. Rakkar, learned counsel for the appellants has made a two-fold submission. By referring to the provisions of the Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as 'the Act'), the learned counsel contends that the land in dispute had become a composite property. Notice as contemplated under Section 6 of the Act for the purpose of separating the evacuee interest in the composite properly was givento all concerned including the plaintiff-respondents and on their failure to submit any claim in accordance with the provisions of Section 7 of the Act, the competent authority had proceeded to decide the matter under Section 8 which order had the consequence of vesting the evacuee interest in the Custodian free from all encumbrances under Section 11. He further points out that the competent authority, had actually passed the order dated Sept. 8, 1958 Ex. D6 by which the land had come to vest in the Custodian free from all encumbrances. He submits that once the land had come to vest in the Custodian, there was no occasion for its redemption by the plaintiff-respondents and that the defendant-appellants had become owners by purchase of the land. On these premises, learned counsel contends that the plaintiff-respondents have no right or title in the property and that the judgment of the learned lower appellate Court is based on misconstruction of the factual and legal position. He further contends that in view of the provisions of Sec. 9(2) of the Act, the mortgage shall be deemed to have been extinguished on the expiry of a period of 20 years and as such, there was no question of any redemption of the mortgage. On this basis, the learned counsel contends that the judgment and decree passed by the learned lower appellate Court deserve to be reversed.
4. The claim made on behalf of the appellants has been controverted by Mr. Sanjay Majithia, the learned counsel for the plaintiff-respondents.
5. It is the admitted position that Kishori Lal, Gurdial Chand and Ram Lal had mortgaged 3/5th share in favour of Fattu. Consequently, after the partition of the country and on Fattu's migration to Pakistan, only the mortgage rights of the evacuee could come to vest in the Central Government. Fattu was not absolute owner of the land in dispute. As such, the Custodian could not have acquired a better title than that of the evacuee.
6. Mr. Rakkar contends that the land had become a composite property as defined in Section 2(d)(iii) on Fattu's migration to Pakistan. This provision reads as under:--
'2(d) 'Composite property' means any property which or any properly in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 and-
XX XX XX XX (iii) in which the interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; or XX XX XX XX'
7. A perusal of the above provision would show that composite property can mean either any properly or an interest in a property. The use of these two expressions viz. property or 'any property in which an interest ...... 'is indicative of the fact thatthe Legislature intended to include the property or any interest therein as a party of the composite property. Further under clause (iii) it was clarified that even the mortgage rights could constitute an interest in property as to form a part of the composite property. Consequently, it appears safe to assume that the mortgagee rights of Fattu form a part of the composite property and those rights could vest in the Custodian.
S. Further, the notice under Section 6 for the submission of claims under Section 7 would only relate to the determination or separation of 'the evacuee interest in a composite property.' A reading of the provisions of the Act and particularly those of Ss. 6 and 7 along with the definition clause leaves no manner of doubt and it is clear that the competent officer had to determine and separate the evacuee interest in a composite property.
9. In the present case, it being the admitted position that the three brothers had mortgaged their share to the extent of 3/ 5th in the joint property to Fattu, the competent officer had only to separate the evacuee interest in the entire property. If in view of this admitted position, the plaintiff-respondents did not submit any claim before the competent officer in accordance with the provisions of Section 7, it does not mean that alimited evacuee interest of mortgagee rights would be automatically converted into full ownership of the property. They may well have been advised that the evacuee had only mortgagee rights and to that extent the interest could vest in the Custodian. On this advice, they may have chosen not to submit any claim before the competent officer. As a result, the competent officer could have proceeded to pass the order and determine and separate the evacuee interest. This is precisely what he appears to have done.
10. On consideration of the provisions of law and the documentary evidence on record, it is clear that Fattu had only a limited interest in the property and it is that limited interest which could vest in the Custodian the Central Government under Section 11 of the Act. It is no doubt correct that in the order dated Sept. 8, 1968, the competent officer has observed that 'the above land is vested in the Custodian under Section 11 of the Act free from all encumbrances and liabilities' but when this order is read with the subsequent orders viz. Ex. P5 and P6, it is clear that it was only with regard to the mortgagee rights.
11. As noticed above, in the order dated July 26, 1968 (Ex. P5), the competent officer has categorically recorded that 'the representative of the Custodian has admitted that the land in question was under mortgage for a sum of Rs. 1000/- and the Custodian has no objection if the same is redeemed on the payment of the mortgage amount.' Accordingly, directions for the deposit of the mortgage amount were issued. When the amount was deposited, the competent officer ordered that the land 'stands redeemed in favour of Devinder Singh, Kewal Krishna, Dev Raj, Hukam Chand, Surinder Paul, Lachmi Devi.'
12. In view of the above, it is clear that the evacuee's interest was limited to the mortgagee rights. These rights had come to vest in the Custodian. On an application having been made, the defendant-appellants were permitted to redeem the property. In view of the clear and categorical observations in his order, the plea raised on behalf of thedefendant-appellants that the Central Government had become the absolute owner and that they had purchased the land, cannot be sustained. The land having not been purchased and the defendant-appellants having only redeemed it, the property retained its original character and the claim made by the plaintiff-respondents was rightly decreed by the lower appellate Court.
13. Nor am I able to uphold the claim made on behalf of the appellants on the basis of the provisions of Section 9 of the Act. The said provision reads as under:--
'9. Certain reliefs in respect of mortgated property of evacuees-
(1) Notwithstanding anything to the contrary in any law or contract or any decree or order of a Civil Court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of sub-section (2), be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced.
(2) Where a mortgagee has taken possession on any terms whatsoever of any agricultural land and is entitled to receive profits accruing from the land and to appropriate the same, every such mortgage shall be deemed to have been taken effect as a complete usufruc-luary mortgage and shall be deemed to have been extinguished on the expiry of the period mentioned in the mortgage deed or twenty years, whichever is less, from the date of the execution of the mortgage deed; and if the aforesaid period has not expired and the mortgage debt has not been extinguished, the competent officer shall determine the mortgage debt due having regard to the proportion which the unexpired portion of that period bears to the total of that period.'
14. As the very heading of the provision shows, it covers the cases of property mortgaged by the evacuees. This is further clear from a reference to the objects and reasons given for the enactment of this provision. It was enacted with the object of 'scaling down debts of evacuee mortgagors......' Further,the intended object is clearly borne out from a perusal of the provisions of clauses (1) and (2). Consequently, the contention sought to be raised on behalf of the appellants that the mortgage had in fact extinguished on the expiry of twenty years, cannot be sustained. In the present case, the evacuee was not the mortgagor. The provision has no application.
15. One cannot also lose sight of the fact that the appellants had raised no such plea in the written statement. If such a plea had been raised, the Court could have framed that issue and the plaintiff-respondents could have led adequate evidence to show the terms of the mortgage. Nothing of the sort having been done, the appellants cannot be permitted to raise the plea which requires the investigation of facts for the first time in second appeal. It is well settled that it is the pleaded case which has to be proved. No plea having been raised, the appellants cannot be permitted to do so at this belated stage.
16. In view of the above, there is no merit in this appeal. It is, consequently, dismissed. Keeping in view the fact the dispute is between close relations, I make no order as to costs.
17. Appeal dismissed.