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Kundan Shadi Ram and ors. Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1196 of 1967
Judge
Reported inAIR1969P& H193
ActsEvacuee Interest (separation) Act, 1951 - Sections 2, 9(2) and 11; Transfer of Property Act, 1882 - Sections 60
AppellantKundan Shadi Ram and ors.
RespondentUnion of India
Appellant Advocate J.N. Kaushal and; Ashok Bhan, Advs.
Respondent AdvocateRaj Kumar Adv. General
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........in the year 1947 when khawaja migrated to pakistan. the plaintiffs continued in possession f the land as mortgagees and the entries in the revenue records also continued to the same effect showing the plaintiffs as mortgagees and khawaja as mortgagor.in the year 1965, the punjab government through the tashildar (sales) started auction proceedings in respect of the suit land treating it as an evacuee property free from any encumbrances. the plaintiffs were probably feeling that they had become owners of the land, since it was not redeemed by the mortgagor within the period of sixty years. they filed the present suit on november 19, 1965, after serving notice under section 80 of the code of civil procedure, for a declaration that they had become absolute owners of the land in dispute by.....
Judgment:

H.R. Sodhi, J.

1. This Regular second Appeal came up for hearing before D.K. Mahajan, J. on December 21, 1967, when the learned Judge considered that the points involve in the case were of considerable importance and the entire case should, therefore, be decided by a division Bench. It is in these circumstances that the appeal is before us.

2. The facts are not in dispute. One Mata bakhsh, who was a Hindu, originally owned the suit land measuring 131 Kanals 13 Marias situate in village Saraula, Tehsil Kaithal, District Karnal. He mortgaged this land by two mortgage-deeds in the years 1897 and 1898 for a sum of Rs. 290/- in favour of Shadi and Jati ram, predecessors-in-interest of the plaintiffs-appellants. The possession of land in pursuance of the terms of the mortgage was delivered to the mortgagees who are in possession of the same since then. Mutations of the mortgages were sanctioned and Mata Bakash later gifted the equity of redemption of the aid land in favour of Parsa son of Satha Jat in the year 1914 the mutation in respect of which was sanctioned on June 4, 1915.

On February 10, 1928, Parsa sold his equity of redemption to one Khawaja, a Mohammedan, for Rs.1,300/- per registered deed and a mutation of sale was also sanctioned on May 28, 1928. Khawaja as vendee was then entered in the revenue records as a mortgagor and the plaintiffs as mortagagees with possession. There then came the partition of the country in the year 1947 when Khawaja migrated to Pakistan. The plaintiffs continued in possession f the land as mortgagees and the entries in the revenue records also continued to the same effect showing the plaintiffs as mortgagees and Khawaja as mortgagor.In the year 1965, the Punjab Government through the Tashildar (Sales) started auction proceedings in respect of the suit land treating it as an evacuee property free from any encumbrances. The plaintiffs were probably feeling that they had become owners of the land, since it was not redeemed by the mortgagor within the period of sixty years. They filed the present suit on November 19, 1965, after serving notice under section 80 of the Code of Civil Procedure, for a declaration that they had become absolute owners of the land in dispute by lapse of the period of sixty years and the property could not, therefore, be sold by the Custodian as an evacuee property.

The Union of India an the Custodian of Evacuee Property, Jullundur, were impleaded as defendants, who contested the suit on the ground that the property was an evacuee property and the mortgage stood extinguished under section 9(2) of the Evacuee interest (separation) Act, 1951, hereinafter called the Act, and that it vested in the Union of India free from all encumbrances. On the pleadings of the parties, the following issues were framed-

1. Whether the plaintiff has become the owner of the property in dispute due to lapse of time?

2. Whether the civil Court has got jurisdiction to try this suit?

3. Whether the defendant is entitled to special costs?

4. Relief.

The trial Court held under issue No.1 that the mortgage in favour of the plaintiffs had been extinguished on the coming into force of the Act in the year 1951 in view of the provisions of S. 9(2) contained therein, and that the plaintiffs had no title in the land. Issue No.2, which related to the jurisdiction of the civil Court, was not pressed by the defendants. Issue No. 3 was decided against the defendants. As a result of the finding on issue No.1, the suit was dismissed.

3. The plaintiffs preferred an appeal. The District Judge, Karnal, affirmed the findings of the trial Court though with a more elaborate discussion of the relevant law and dismissed the appeal. Hence the present appeal by the plaintiffs.

4. It is contended before us by Mr. J. N. Kaushal, learned counsel for the appellants, that section 9(2) of the act does not apply to the circumstance of the instant case. The contention is that this provision is intended to apply only to those cases where the original mortgage was by a Muslim evacuee and that in the present case, the mortgage was by Mata bakhsh who was admittedly a Hindu. According to the learned counsel the mere fact that equity of redemption has been transferred by the original mortgagor in favour of a Muslim. It is submitted that since sixty years, the prescribed period of redemption, ha expired, the plaintiffs-appellants became owners by lapse of time and the Custodian had no jurisdiction to interfere with their ownership. At this stage the provisions of section 9(2) may be reproduced here with a advantage-

'9. (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 taken effect as a complete usufructuary 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 unexpiry portion of that period bears to the total of that period.'

In order to support the contention that section 9(2) of the act does not apply and the mortgage cannot be deemed to have been extinguished on the expiry of the period of twenty years from the date of the execution f the mortgage debt, the learned counsel also relies on the definition of the 'composite property' as given in section 2(d) of the Act, the relevant portion whereof is in the following terms-

'2. In this Act, unless the context otherwise requires-

(d)'composite property' means any property which, or any property 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 (XXXI of 1950 and--

(ii) in which the interest of the evacuee is subject to mortgage in any from in favour of a person, not being an evacuee or

The argument of the learned counsel is that a mortgage debt with regard to which the competent officer can have jurisdiction must be one incurred by the evacuee himself 'Mortgage debt' has been defined under Section 2(f) of the act in the following terms-

'2 (f) 'mortgage debt' means any liability in respect of a property due under any form of mortgage (including any usufructuary mortgage or mortgage by conditional sale) whether such liability is payable presently or in future, or under any decree or order of a Court or otherwise, or whether ascertained or not, which -

(i) in any case where it is incurred by an evacuee, is secured by the mortgage of the interest of the evacuee in the property in favour of a person, not being an evacuee;

(ii) in any case where it is incurred by a person not being an evacuee, is secured by the mortgage of the interest of such person in the property in favour of an evacuee

but does not include any such liability of an evacuee arising out of any transaction entered into after the 14th day of August, 1947 unless such transaction has been confirmed by the Custodian under the Administration of Evacuee Property Act 1950 (XXXI of 1950)'

The learned counsel submits that the interest of he Muslim evacuee in the mortgaged land was only a right to redeem commonly described as equity of redemption and it was an interest separate from ownership of the land. The contention is that the interest of the Muslim evacuee is only an equity of redemption were subjected to a mortgage, then alone could the property be a composite property within the meaning of the Act. The contention proceeds on the hypothesis that an equity of redemption was a distinct type of property acquired by the transferee and that he had no interest in the land which could be said to be under a mortgage with the plaintiffs appellants. This argument though quite ingenious is wholly fallacious and without merit.

5. There is nothing in the language of section 2(d) and 9(2) of the Act to warrant that the mortgage should have been executed by the evacuee himself. A mortgage is by the owner of the property who only transfers some of his interests in the said property for the purpose of securing the payment of money to be advanced by way of loan, an existing or future debt or the performance of an engagement may give rise to a pecuniary liability, but this does not mean that the mortgagor ceases to be owner simply because he ahs transferred some of his rights in the specific immovable property put under a particular charge. He has always the right to redeem which in English law is called the equity of redemption. The right to redeem implies that he is still the owner who has parted with only some f his rights and not that, as contended by Mr.; Kaushalo, he has acquired a new kind of property or interest distinct from the ownership of the land. It may be that the sometimes even delivers possession of the land depriving himself of one of the important benefits of ownership. A corporeal ownership is the right to the entirely of the lawful uses of a corporeal thing. This vast compass of rights can be reduced or limited to any extent by creating the rights of others in the corpus. There may be cases where the right of ownership of the property may be practically eaten up by the permanent rights of lessees, mortgagee cannot be said to have become the owner of the property simply because of having a charge on that property and all that he has is a particular type of a right over that property. When a mortgagor transfers the equity of redemption, he transfers the property itself and the transferee gets the same rights as an owner which the mortgagor had. The mortgagee acquires only a right in the property of the mortgagor which is a right in re aliena.

6. In the instant case, it makes no difference that the original mortgage was by a Hindu. As soon as the Muslim evacuee Khawaja purchased the land form the mortgagor or what may be said to be an equity of redemption, he became the owner of the suit land itself, which would be deemed to have been mortgage by him (the Muslim evacuee) within the meaning of section 9(2) of the Act. This mortgage thus stood extinguished on the expiry of twenty years which must be computed from the date of the original mortgages which were effected in the years 1897 and 1898. Even if the period of twenty years is to be taken from the date of transfer, still more than twenty years had elapsed when the suit was filed as the transfer of equity of redemption in favour of Khawaja took place in the year 1928. The liability for the payment of mortgage debt was transferred in favour of the Muslim evacuee in the year 1928 and by virtue of this transfer Khawaja will be deemed to have incurred the debt secured by the mortgage an such debt will also be a mortgage debt within the meaning of section 2(f) of the Act. As already observed, Khawaja became the owner of the property by purchasing the equity of redemption and had an interest in the land which stood mortgaged with the plaintiffs-appellants.

7. The next contention of Mr. Kaushal is that the procedure as envisaged in section 6,7 and 8 of the Act was not followed in the matter of separation of the evacuee interest and in the absence thereof, the Custodian of Evacuee Property had no power to put the property to auction and take forcible possession thereof. This argument again loses sight of the provisions of section 9 of the Act, according to which the mortgage stood extinguished on the expiry of twenty years and the Custodian of the Evacuee Property automatically became the owner of the property. It is open to the Custodian of the Evacuee Property to take possession of such property by evicting the plaintiffs in accordance with law.

8. For the foregoing reasons, there is no merit in the appeal which stands dismissed with costs.

Mehar Singh, C.J.

9. I agree.

10. HGP/D.V.C.

11. Appeal dismissed.


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