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Sadhu Singh Harra Singh Vs. Ganda Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H183
AppellantSadhu Singh Harra Singh
RespondentGanda Singh and ors.
Excerpt:
.....passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1700. it was stipulated in the mortgage deed that the mortgagee would enjoy the usufruct of the land in lieu of interest on rs. defendant 1 bad not been able to redeem the land for so many years and there is nothing to show that he could have any reasonable expectation on the date of the sale of being able to redeem it at any future time. in..........sub-judge who agreed with the decision of trial court on the question of the character of the suit land and also on the question of limitation qua the suit in respect of the mortgage and consideration, and legal necessity for the mortgage. he, however, held necessity not to have been proved for the sale. he also held the possible existence of the alienor's real brother and his son in malaya to be no bar to the maintainability of the suit. on these findings he accepted the appeal and decreed the plaintiffs' claim in respect of the sale of the land that had been found to be ancestral defendant 1, the vendee, feeling aggrieved from the decree of the learned judge has come up in second appeal in this court.4. after hearing the learned counsel of the parties, i am of the opinion that.....
Judgment:

Achhru Ram, J.

1. This is a second appeal from the decree of the learned Senior Sub-Judge of Amritsar, reversing on appeal the decision of a Subordinate Judge of Tarn Taran and granting the plaintiffs a declaration that the sale of 10 kanala and 5 marlas of land comprised in khasra No. 735, situate in village Tharu, Tahsil Tarn Taran, shall not affect the plaintiffs' reversionary rights after, the death of the vendor.

2. On 28th September 1929, Jhanda Singh defendant 1, mortgaged 19 kanals and 10 marlas of land comprised in khasra Nos. 735 and 377 situate in village Tharu in Tarn Taran Tahsil to Sadhu Singh, defendant 2, for a sum of Rs. 1700. It was stipulated in the mortgage deed that the mortgagee would enjoy the usufruct of the land in lieu of interest on Rs. 1200 out of the mortgage consideration and that the balance of Rs. 500 would carry interest at the rate of Re. 1-4-0 per cent, per mensem. On 24th May 1939, defendant l, sold the above land to defendant 2 for a sum of Rs. 1900. Rupees 1700 out of the sale consideration were appropriated towards the mortgage debt due under the mortgage deed dated 28th September 1929 and Rs. 500 were received in cash for certain purposes specified in the sale deed. The amount due on account of interest under the terms of the mortgage deed was remitted. On 21st December 1943, the plaintiffs, collateral of the vendor in the the third degree, brought a suit for a declaration that the mortgage and the sale should not affect their reversionary rights after the death of defendant 1, alleging that the land covered by the two alienations was ancestral qua them and that both the alienations had been effected without consideration and legal necessity. The suit was resisted by defendant 2. The learned trial Judge held that out of the land forming the subject-matter of the suit only 10 kanals and 6 marlas of land comprised in khasra No. 735 had been proved to be ancestral qua the plaintiffs.

3. The plaintiffs' suit to contest the validity of the mortgage was held to be barred by limitation and consideration and legal necessity were held proved for both the alienations. On these findings, the plaintiffs' suit was dismissed. The plaintiffs went up in appeal to the learned Senior Sub-Judge who agreed with the decision of trial Court on the question of the character of the suit land and also on the question of limitation qua the suit in respect of the mortgage and consideration, and legal necessity for the mortgage. He, however, held necessity not to have been proved for the sale. He also held the possible existence of the alienor's real brother and his son in Malaya to be no bar to the maintainability of the suit. On these findings he accepted the appeal and decreed the plaintiffs' claim in respect of the sale of the land that had been found to be ancestral Defendant 1, the vendee, feeling aggrieved from the decree of the learned Judge has come up in second appeal in this Court.

4. After hearing the learned Counsel of the parties, I am of the opinion that this appeal must succeed.

5. The learned Senior Sub-Judge overlooked the fact that the consideration for the sale of the mortgage land consisted of besides the cash payment of Rs. 200, the remission of Rs. 362 odd due on account of interest under the mortgage. He has also overlooked the fact that there was no allegation on the plaintiffs' behalf that the land in dispute was of the value more than Rs. 1900 at the time of the sale. The fact that no suit was brought to preempt the sale is an almost sure indication of the, land not having been under sold. The sale took place in May 1939, when the prices of agricultural land were quite low. There were at the time no indications that these prices would rise to any appreciable extent in the near future. The possibility of such a rise could not be visualised before September 1939, when the war broke out. The land had been under mortgage ever since before 1929, the mortgage-deed dated 28th September 1929 having been executed only in renewal of a previous mortgage. The burden on the land had been increasing since the date of mortgage and was expected to increase as time passed. Defendant 1 bad not been able to redeem the land for so many years and there is nothing to show that he could have any reasonable expectation on the date of the sale of being able to redeem it at any future time. In the circumstances he seems to have made the best of a bad bargain. He secured a remission of about Rs. 362 which were due from him on account of interest under the mortgage and also-received Rs. 200 in cash. Defendant 2 may not have been able to prove necessity for this cash, advance of Rs. 200.

6. The doctrine of legal necessity cannot, however, be pushed to extreme lengths and I consider it to be altogether unreasonable to hold that an agriculturist in this province is debarred from raising for his own personal use or enjoyment a small sum of money, by parting with equity of redemption of ancestral' land which has been under mortgage for a long time and the mortgage charge whereon is almost equal to its market value and must increase as time passes. In circumstances like this to expect the man to keep intact the equity of redemption which at the time must seem to every reasonable person to be of no value at all in the hope that either the property may appreciate in value or otherwise the equity of redemption may become valuable for his prospective reversioners appears to me to be wholly unreasonable. In my view, defendant 1 acted quite prudently and I do not consider the present to be a fit ease in, which discretionary relief in the shape of the declaratory decree sought by them should be granted to the plaintiffs.

7. For the reasons given above, I accept this-appeal and setting aside the judgment and the decree of learned Senior Sub-Judge, restore the decree of the learned trial Judge dismissing the plaintiffs' suit. In the circumstances of the case, however, I leave the parties to bear their own costs throughout.


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