1. The land in dispute measuring 14 Bighas and 6 biswas was in possession of Ramla and Ram Sarup, real brothers, as occupancy tenants under S. 8 of the Punjab Tenancy Act (No 16 of 1887). In the year 1929, part of this land was mortgaged by both the brothers to one Tota and others, the landlords. In the year 1940, the balance of the land was also mortgaged by them to Karam Singh and others, the landlords, with the result that the entire land stood mortgaged with the landlords. On the basis of a statement made by Ram Sarup, he relinquished his rights of occupancy in favour of the landlords and thereon a mutation was followed which was sanctioned on the 31st of January 1944 (Exhibit D-5). Ramla applied to the Collector under the Punjab Redemption of Mortgage Act (No. II of 1913) for the redemption of the entire land.
The Collector ordered redemption of the land to the extent of his share. He disallowed the redemption qua the share of the land held by Ram Sarup. Dissatisfied with this order of the Collector, Ramla filed the present two suits for possession by redemption of the entire land on the allegation that Ram Sarup was issueless and had not been heard of for seven years and so he should be presumed dead, and accordingly he was also entitled to get possession of the share of the land mortgaged by Ram Sarup by succession according to the rule of survivorship.
It was also placed that Ram Sarup had never abandoned his share of the occupancy tenancy in favour of the landlords, nor he could do so under the law. The defence was that Ram Sarup could relinquish his share of the occupancy tenancy and he had done so, and further that the suit was barred by time as no declaration had been sought to get rid of the abandonment mutation within six years. It was also pleaded that Ram Sarup was not dead and that the plaintiff was estopped from suing by reasons of his acquiescence.
Both the Courts below have dismissed the plaintiff's suits. It has been held that it is proved on the record that Ram Sarup abandoned his share of the occupancy tenancy, and that the suit was barred by time, as the plaintiff could only challenge the abandonment within six years. Dissatisfied with this, the plaintiff has preferred two appeals to this Court (R. S. A. No. 16 and R. S. A. No. 17, both of 1955). This judgment will dispose of both the appeals.
(2) The first contention raised by Mr. Pandit is that Ramla is entitled to succeed to Ram Sarup by the rule of survivorship, and therefore by transferring his share of the occupancy tenancy to the landlords, his rights of survivorship could not be affected, because the integrity of the mortgage is not broken up in these circumstances. Therefore, if it be held that Ram Sarup has died, which fact the courts have not decided as desired by the parties, he was certainly entitled to redeem the entire mortgage including the share of Ram Sarup.
In reliance of this proposition, Mr. Pandit has drawn my attention to Badri Narain Jha v. Rameshwas Dayal Singh, AIR 1951 SC 186, Wasal v. Harnam Singh, AIR 1949 EP 53 (FB) and Mt. Bal Kaur v. Mt. Har Kaur, AIR 1928 Lah 242. In my view, none of these decisions has any relevancy to the present controversy. It is not disputed that Ram Sarup could sell, mortgage, or otherwise transfer his share of the occupancy tenancy without the consent or concurrence of his joint tenant Ramla, and that, in that event Ramla could not challenge those transactions, unless the occupancy rights were ancestral qua him. Thus the plaintiff would fail either way.
If the occupancy rights were ancestral property then the suit is barred under Art. 1 of Punjab Act I of 1920. It they were not ancestral plaintiff has no right to sue, the transfer will confer absolute rights on the transferee, which could only be avoided by the landlord and that too within limitation.
(3) In this case, there has been a mortgage by two persons of the land belonging to them in equal shares, though held jointly, with rights of survivorship, and wherein one of the mortgagors has transferred his share of the equity of redemption to the landlords. In such circumstances, the mortgage becomes divisible and the only right left to the joint mortgagor is to redeem his share of the land. In this connection, reference may be made to proposition 3 at page 402 of Mulla's Transfer of Property Act, IV Edition, where all the leading cases on this matter are cited. In this view of the matter, it is not possible for me to accept the contention of Mr. Pandit, that the integrity of the mortgage is not broken.
(4) Mr. Pandit has further contended that the abandonment by Ram Sarup in favour of the landlords is not proved. His contention is that the courts below have relied on Exhibit D-1, which is the deed of transfer, and it being not registered, is inadmissible in evidence on which the finding could be given. The courts below on consideration of the entire material on the record have come to a finding that Ram Sarup had in fact abandoned his occupancy tenancy. This is a finding of fact and cannot be challenged in second appeal, and, in any case, even if Exhibit D-1 required registration, the defect is cured by the doctrine of part performance, as recognised by the Full Bench decision, Milkha Singh v. Mt. Shankari, AIR 1947 Lah 1.
(5) For the reasons given above, both these appeals fail and are dismissed, but there will be no order as to costs in this Court.
(6) Appeals dismissed.