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Siri Chand and ors. Vs. Nathi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 345 of 1981
Judge
Reported inAIR1983P& H171
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10; Limitation Act - Sections 21; Transfer of Property Act, 1882 - Sections 1 and 59
AppellantSiri Chand and ors.
RespondentNathi
Cases ReferredPurusottam Das v. S. M. Desouza
Excerpt:
.....prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed..........that the land in dispute had been mortgaged by him with possession with the defendants by an oral mortgage on june 14, 1948 for a sum of rs. 2,000/- the mutation with regard to this oral transaction was sanctioned later on sept. 17, 1948. the case of the plaintiff was that he had already paid rs. 2,000/- to the defendants on or about april 1, 1976, but the latter did not get he revenue entries corrected in his name, hence the suit for a decree of possession by redemption and in the alternative if the payment of rs. 2,000/- was not proved, a decree for possession by way of redemption o payment of mortgage money. in the said suit, apart from other defendants, smt. ram kali was also impleaded as defendant no. 3.4. all the defendants except smt. ram kali defendant no. 3 contested the.....
Judgment:

S.S. Sandhawalia, C.J.

1. A meaningful challenge to the ratio of the Division Bench judgment in Inder Singh v. Mst. Kishno, (1966) 68 Pun LR 408, has inevitably necessitated this reference to the Full Bench.

2. As would be apparent hereinafter, the legal issue falls within a somewhat narrow compass. It, therefore suffices to notice briefly the facts which are directly relevant to the question.

3. The plaintiff-respondent Nathi instituted a suit for possession by way of redemption on Oct, 4, 1977 on the ground that the land in dispute had been mortgaged by him with possession with the defendants by an oral mortgage on June 14, 1948 for a sum of Rs. 2,000/- The mutation with regard to this oral transaction was sanctioned later on Sept. 17, 1948. The case of the plaintiff was that he had already paid Rs. 2,000/- to the defendants on or about April 1, 1976, but the latter did not get he revenue entries corrected in his name, hence the suit for a decree of possession by redemption and in the alternative if the payment of Rs. 2,000/- was not proved, a decree for possession by way of redemption o payment of mortgage money. In the said suit, apart from other defendants, Smt. Ram Kali was also impleaded as defendant No. 3.

4. All the defendants except Smt. Ram Kali defendant No. 3 contested the suit inter alia on the ground that the same was not within time and further that it was barred on the principle of res judicata. The factum of mortgage was also denied. Specific objection was taken that since defendant No. 3 had already expired on Aug. 14, 1972, the suit had been filed against a dead person and was, therefore, incompetent.

5. The application giving rise to the present Civil Revision was presented on behalf of the plaintiff on Aug. 16, 1978 for bringing the legal representatives of defendant No. 3 on the record stating that he had come to now about he death of Smt. Ram Kali defendant No. 3 on July 21, 1978. This application was contested on behalf of the defendants and was ultimately dismissed on Nov. 24, 1979 by the order of the then trial Judge Shri B. L. Singal. This dismissal was assailed by way of revision which was allowed by this Court in the following terms :--

'It is agreed between the counsel that the impugned order may be set aside but the finding that Smt. Ram kali died on Aug. 14, 1972 be kept intact. It is further agreed that application dated August 14, 1978 for bringing legal representatives of Ram Kali on record be treated under O. 1, R. 10, of the Civil P. C. and be decided taking into consideration sub-rule 5 of O. 1, R.10 of this Code, S. 21 of the Limitation Act, and observation in Joginder Singh v. Krishan Lal, AIR 1977 Punj & Har 180.'

In compliance with the above, the trial Court then heard the arguments afresh and by its detailed order dated Dec. 17, 1980, which is under revision, allowed the application and directed the impleading of the legal representatives of Smt. Ram Kali to be brought on the record. In doing so, it relied primarily on the Division Bench judgment in Inder Singh case (1966-68 Pun LR 408)(supra) for holding that the application was within the period of limitation 30 years which would start after the expiry of twelve years from the date of the original oral mortgage. It is this stand which has been assiduously assailed in this revision petition which was admitted for hearing by the Division Bench at the motion stage and the case was later directed to be placed before the Full Bench vide the lucid referring order of the Division Bench dated Nov. 2, 1981.

6. Now it would be manifest on a reference to the material facts that the core question herein is whether an oral mortgage was a valid one in the eye of law on June 14, 1948, in the erstwhile State of Punjab, that is, prior to the extension of the provisions of Section 59 of the transfer of Property Act, 1882. To clear the decks for the consideration of this legal issue, an arena of admitted premises on which there is no controversy may first be highlighted. It is common ground that the Transfer of Property Act, 1882(being a Central statute) by virtue of S. 1 thereof had not been extended to the territories, which immediately before Nov. 1, 1956, were comprised in Part-B States or in the States of Bombay, Punjab and Delhi. It was, however, provided by Section 1 that any part of the said statute may, by notification in the official gazette, be extended to the whole or any part of the said territories by the State Governments concerned. Section 59 of the Transfer of Property Act, 1882(hereinafter called 'the Act') lays down that where he principle money secured is Rs. 100/- or upward on immovable property, the mortgage thereof can only be affected by a registered instrument signed by the mortgagor and attested by at least two witnesses. Admittedly, the area herein was the District of Faridabad within the State of Haryana to which the provisions of Section 59 of the Act had not been made applicable at the time of the original oral mortgage on June, 14, 1948. It was only on Aug. 5, 1967 that the provisions of he said section were extended to Haryana by the State Government by a notification in the following terms :--

'REVENUE DEPARTMENT

The 5th August, 1967

No. S. O. 75/C. A. 4/1882 S. I./67--In exercise of the powers conferred by Section 1 of the Transfer of Property Act, 1882(Central Act No. 4 of 1882), the Governor of Haryana is pleased to extend the provisions of Section 59 of the said Act to the State of Haryana with effect from the date of publication of this notification in the Official Gazette.'

From the aforesaid notification and the date of its enforcement, whereby for the first time the provisions of S. 59 of the Act were extended to Haryana, it seems manifest that prior to Aug. 5, 1967 the law imposed no bar on the creation of a mortgage by a landowner either orally or by an unregistered document. Indeed, the learned counsel for the respondents Mr. O. P. Goel was ultimately fair enough to concede that it could not be disputed that prior to the date aforesaid, there was no legal impediment in the validity of an oral mortgage on that score alone or on the ground of the same being unregistered. In fact, it could not be controverted before us that prior to he extension of the relevant provisions of the Act to these areas, even an oral transfer of all the property rights in land by way of sale or gift was, therefore, possible and legally valid therein.

7. Now once that is so, on the admitted stand that an oral mortgage was made on June 14, 1948, it seems to inflexibly follow that no legal infirmity attached thereto and the transaction was, in essence, legally valid and enforceable. All that, therefore, remains for adjudication is as to what would be the period of limitation for the redemption of such a valid oral mortgage.

8. On the aforesaid premises, one may now turn to Inder Singh's case (1966-68 Pun LR 408)(supra), the correctness of which is the primary issue. A close perusal of the judgment would indicate that their Lordships indeed simply followed the view in Purusottam Das v. S. M. Desouza, AIR 1950 Orissa 213, which had been relied upon by the Court below as well. Without in any way itself examining the issue on principle and precedent, it was observed that the ratio in Purusottam Das's case (supra) was attracted and in the absence of any contrary decision thereto, the District Judge was held to be right in following the same. Consequently, the applicability of the judgment in Purusottam Das's case (supra) in a way becomes the primary question.

9. Now at the very threshold it may be noticed that by virtue of S. 1 of the Act, its provisions were applicable to the State of Orissa. Consequently all the mortgages the principal amount was Rs. 100/- or onwards, were invalid unless affected by a registered instrument signed by the mortgagor and attested by at least two witness. In Purusottam Das's case (supra), undoubtedly the alleged mortgage was of land and for an amount above Rs. 100/- The firm finding arrived at was that the mortgaged bonds Exts. 2 to 2-E were unregistered and therefore, not valid as such of firm and indeed admitted foundation the Division Bench in para 6 itself noticed that the primary question was whether a person and obtains possession under an invalid and void mortgage, who has not at any time asserted possession or any claim of absolute right, could wholly extinguish the title of the original owner and what would be the period of limitation in such a case? Again in para 8 of the report, the Judges referred specifically to decisions where a person has obtained possession under a void mortgage. It was in that peculiar context that it was held that after the expiry of twelve years, such a possession would be perfected into a mortgage by prescription which could thereafter be redeemed within the period prescribed for the redemption of mortgages.

10. It would appear that the crucial and indeed the conclusive factor--whether the original mortgage was a valid one or a void one--seems to have been altogether missed in Inder Singh's case (1966-68 Pun LR 408)(supra). Therein to mortgage undisputedly executed long before the extension of S. 59 of the Transfer of Property Act to the area, had been recorded in a bahi leaf which was unregistered. Therefore in the eye of law, as existing at the relevant time, an oral and obviously an unregistered mortgage was both valid and legally enforceable a one and the factual position was thus diametrically opposite to Purusottam Dass's case (AIR 1950 Orissa 213)(supra). Therefore, the ratio of Purusottam Das's case (supra), could not possible be attracted. It would appear that in Inder Singh's case (1966-68 Pun LR 408)(supra) counsel were sorely remiss in not bringing this salient factor to the notice of the Bench. As is apparent from an examination of the judgment, the crucial question--whether at that particular time the unregistered mortgage based on the bahi entry as also its subsequent acknowledgement was a valid or a void one--seems to have altogether missed consideration. The whole emphasis being on the correctness of the view in Purusottam Das's case (supra), the Division Bench in Inder Singh's case, did not even advert to this aspect of the matter that prior to the extension of section 59 of the Act to the States of Punjab and Haryana, oral mortgages and even oral sales and gifts were valid in the eye of law whilst the legal position may have been wholly to the contrary in Orissa. A close analysis of Inder Singh's case (supra), therefore, makes it plain that the judgment proceeded on the erroneous legal foundation that the unregistered mortgage at that particular time was void and invalid.

11. Even the learned counsel for the respondent could not deny that this aspect of a the case, which goes to the root of the applicability of the ratio of Purusottam Dass's case (supra) was not even adverted to in Inder Singh's case (supra). Inevitably, on the admitted legal position Purusottam Das's case (supra), was, therefore, plainly distinguishable and not attracted to the situation. Once it is held prior to the situation. Once it is held that prior to the extension of Section 59 of the Act, oral or unregistered mortgages were valid, the very bottom falls from underneath the observations made in Inder Singh's case (supra), With the greatest respect and deference to the learned Judges of the Division Bench, we are constrained to overruled the said judgment.

12. In the present case, admittedly the oral mortgage had been made on June 14, 1948. At that time the relevant provisions of the Transfer of Property Act had not been made applicable to the area. The said transaction at that time was, therefore, valid and legally enforceable one and the fact whether the mortgage was registered or not, was wholly irrelevant with regard to the issue of its validity. Consequently, the terminus for limitation for redemption has to run from the aforesaid date of June 14, 1948. The application for bringing the legal representatives, having been admittedly brought after the period of 30 years therefrom, namely, on Aug. 16, 1978 was thus beyond the period prescribed. This application, therefore, must be held to be barred by time. This Civil Revision has, therefore,, to be allowed and the application for bringing the legal representatives is hereby dismissed on the ground of limitation and the impugned order of the trial Court is hereby set aside.

13. It is common ground that other issues may well survive in the suit which is pending. The trial Court will proceed with the expeditious disposal thereof in the light of the above. The parties are directed to appear before it on Monday the 21st of Feb., 1983.

P.C. Jain, J.

14. I agree.

G.C. Mital, J.

15. I agree.

16. Order accordingly.


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