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Ambe Lal and ors. Vs. Phina and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 110 of 1969
Judge
Reported inAIR1974HP11
ActsTransfer of Property Act, 1882 - Section 60
AppellantAmbe Lal and ors.
RespondentPhina and ors.
DispositionAppeal allowed
Cases ReferredFirmKaura Mal Bishan Dass v. Firm MathraDass Atma Ram
Excerpt:
- .....were also wrong inasmuch as it held that there was no legal and valid redemption of a part of the suit land by the appellant alone. the learned additional district judge held on this point that since the remaining co-mortgagees were not bound by the payment made by the mortgagors to ambe lal and lachhaman dass mortgagees, they continued to enjoy the status of mortgagees in respect of the entire mortgaged property and their mortgage security could not be redeemed without their consent by the acts of other parties to the mortgage. he. accordingly reversed the findings of the trial court and held that no part of the mortgage had been redeemed. however, he further held that the appellants represented to the respondent-mortgagors that in case the latter paid rs. 99/- the entire mortgage.....
Judgment:

Chet Ram Thakur, J.

1. This second appeal has been filed by Shri Ambe Lal and the legal representatives of Shri Lachhman Dass against the dismissal of the appeal by the learned Additional District Judge, Kangra at Dharamsala. The plaintiffs claimed that the land measuring 307 kanals 5 marlas described in the head-note of the plaint, situate in Nangal Mauza Junat, Tehsil Dehra was in their possession since the time of their ancestors. This land in fact had been mortgaged by the ancestors of the defendants in favour of the plaintiffs' ancestors. An area of 225 kanals 1 marla was mortgaged with possession by the owners Chu-har, Tega. Diala sons of Salahi with Moti son of Kahan on 21st March 1898. vide mutation No. 164. Whereas the rest of the land was already under mortgage with possession even prior to 1887-88. The plaintiffs contended that they were mortgagees with possession for over a period of 60 years and had thereby become owners by lapse of time and, therefore, they sought a declaration in their favour to the effect that they are the owners and are entitled to remain in possession and that the names of the defendants be deleted from the revenue papers. The defendants opposed the suit and also pleaded that the plaintiffs were estopped by their act and conduct and that the land in fact had been redeemed on 23rd July. 1950 and that the defendants were the owners of the same and were in actual possession of the land.

The trial Court found that out of the plaintiffs, Sarvshri Ambe Lal and Lachhman Dass received Rs. 99/- from the defendants on their own behalf as also on behalf of all other co-mortgagees, some of whom were minors, and that the land was redeemed, vide redemption deed. Exhibit D. 1. It further held that admittedly some of the co-mortgagees cannot allow the redemption of the entire land on behalf of all the mortgagees. Payment of the mortgage money to some of the several co-mortgagees without the consent of the other ra-mortgagees is not a complete discharge of the mortgage debt binding on all the mortgagees. It placed reliance for this on 68 Punjab Records 1917, and accordingly held that Ambe Lal and Lachhaman Dass could not discharge the entire mortgage debt on behalf of all the mortgagees, some of whom were admittedly minors, and that the redemption could be only in so far as the Shares of Ambe Lal and Lachhaman Dass were concerned. Further, that this payment of RS. 99/- was made only with regard to the latter mortgage, for Rs. 99/-effected vide mutation, Exhibit P. 4, which related to the land, khata Nos. 2 and 4, in which Ambe Lal and Lachhaman Dass had 1/3rd share. So. the redemption was only to this extent in these two khatas. The rest of the land of those khatas was not redeemed. Further, it was held that the plaintiffs had become owners of the land, khata No. 3 and all the plaintiffs excepting Ambe Lal and Lachhaman Dass had become owners of 2/3rd land in dispute of khata Nos. 2 and 4. Since Ambe Lal and Lachhaman Dass had executed the redemption deed. Exhibit D. 1, and received the mortgage amount of Rs. 99/- from the defendants they were estopped from denying the redemption of their shares out of khata Nos. 2 and 4 to which the redemption related. In fine, the court passed the decree in favour of the plaintiffs to the effect that they were the owners of khata 3 and that the plaintiffs other than Ambe Lal and Lachhaman Dass were also declared owners to the extent of 2/3rd share out of the land covered by khata Nos. 2 and 4, in other words, the suit of the plaintiffs with regard to 1/3rd share in the land, khata Nos. 2 and 4. was dismissed.

2. Against this judgment and decree, dismissing their suit to the extent of 1/3rd share. Ambe Lal and Lachhaman Dass went in appeal. The defendants also filed their cross-objections with regard to the decree of 2/3rd share passed against them. It appears, subsequently the defendants did not press their cross-objections and the same were dismissed.

3. Before the learned Additional District Judge it was urged by the appellants that the trial court had no jurisdiction to pass any decree relating to the land covered by khata Nos. 2 and 3 as the suit with regards to these khatas was permitted to be withdrawn by the trial Court with liberty to bring a fresh suit. The learned Additional District Judge found that even after the amendment of the plaint the plaintiffs included khatas 2 and 3 which were ordered to be omitted by the trial court in the first instance on the application of the plaintiffs and since they included the same in the amended plaint, therefore, the court had the jurisdiction to pass a decree in respect of these khatas as well. Further, it was urged before him that the findings of the trial court were also wrong inasmuch as it held that there was no legal and valid redemption of a part of the suit land by the appellant alone. The learned Additional District Judge held on this point that since the remaining co-mortgagees were not bound by the payment made by the mortgagors to Ambe Lal and Lachhaman Dass mortgagees, they continued to enjoy the status of mortgagees in respect of the entire mortgaged property and their mortgage security could not be redeemed without their consent by the acts of other parties to the mortgage. He. accordingly reversed the findings of the trial court and held that no part of the mortgage had been redeemed. However, he further held that the appellants represented to the respondent-mortgagors that in case the latter paid Rs. 99/- the entire mortgage would be redeemed and acting on that representation the respondents did pay Rs. 99/-to the appellant. The appellants were, therefore, estopped from pleading that no redemption has been effected. In any case relief of declaration being discretionary, the discretion of the court was not to be exercised in favour of the persons, like the present appellants, who did not come to the court with clean hands. In view of these findings he observed that the appellants were not entitled to any relief claimed by them and that their claim was rightly dismissed by the trial court, and he accordingly dismissed the appeal, thus affirming the judgment and decree of the trial court.

4. The first submission made by the learned counsel for the appellants in this Court is that the lower court had no jurisdiction to pass any decree regarding the land in khata Nos. 2 and 3 as the suit in respect of these khatas was permitted to be withdrawn by the lower court vide its order dated 15th December, 1956. But this submission of his has got no force in view of the findings of the lower appellate court which after perusal of the plaint he found that in the amended plaint the plaintiffs had again included the khata Nos. about which he had previously made a request for withdrawal. I too have verified this fact from the amended plaint and there is, therefore, no force in the argument advanced by the learned counsel for the appellants that the court had no jurisdiction to pass any decree in respect of the khatas 2 and 3.

5. The second submission is tihat the mortgage is one and indivisible and all the mortgagees joined together could discharge the mortgage debt and as such the mortgage still subsists. This submission, however, appears to have force. Under Section 60 of the Transfer of Property Act, the integrity of mortgage is not broken except where the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged. In this behalf. I may quote the proviso to Section 60, which reads as under:

'Nothing in this section shall entitle a person interested in a share 'only' of the mortgaged property to redeem his own share 'only' on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.'

Consequently, it follows that the integrity of the mortgage cannot be broken except in the circumstances mentioned in this proviso. A similar view has been expressed in Pudukad Public Bank. Ltd; v. Annamma (AIR 1955 NUC (Trav Co.) 2218) and Kondayya v. Atchayamma (AIR 1955 NUC (Andhra) 4462). In these authorities it has been laid down that:

'Where in a suit against one of the mortgagors and the lessee the lessee enters into a compromise with tine mortgagee regarding one of the items of the property the mortgage cannot be deemed to have been split up by reason of the compromise. The mortgage debt can be split up only by an agreement between the mortgagee and all the mortgagors. As one of the mortgagors was not a party to the suit on the mortgage and he was not a consenting party to the compromise the mortgage is not split up. In Narain Singh v. Teja Singh (AIR 1955 Punj 96) also it was laid down that :

'Under Section 60 the integrity of a mortgage is not broken except where the mortgagee has purchased or otherwise acquired as proprietor a certain portion of the property mortgaged.'

Therefore, the conslusion is that the mortgage is indivisible and its integrity cannot be broken except with the consent of the parties.

6. Further, the mortgage money in the present case has been received in part to the extent of Rs. 99/- by two mortgagees, that is. Ambe Lal and Lachhaman Dass. without the consent of the others. Therefore, in such a circumstance When there is no consent of the other co-mortgagees there cannot be a valid redemption which may be binding on the other co-mortgagees in discharge of the debt. I am supported in this behalf by Eukh Lal v. Kaniman. (AIR 1930 All 98). Wherein it is laid down that:

'When there are several mortgagees and there is no specification in the mortgage-deed in regard to who advanced the money, the presumption is that the money was advanced in equal shares and payment whether by bond or otherwise to one of them without consent of or reference to the others does not discharge the mortgage debt drue to others.'

A similar view was taken in Arunachalam Chetty v. Ramasamy Ayyar. (AIR 1928 Mad 933) and Satindra Nath v. Jatinda Nath. (AIR 1927 Cal 425) and Mt. Malan v. Tara Singh, (AIR 1922 Lah 64). It had been laid down in all these authorities that the payment of mortgage money to one of several co-mortgagees without the consent of the other co-mortgagees is not a complete discharge of the mortgage debt binding on all the mortgagees. Therefore, the receipt of Rs. 99/- which was part of the mortgage money by two of the mortgagees out of the several mortgagees could not bind the other plaintiffs or for that matter the mortgagees and this receipt by the two plaintiffs did not amount to a discharge of the mortgage debt.

7. The lower appellate Court has also come to the conclusion that the mortgage contract is indivisible and integrity of the mortgage cannot be broken except by act of the parties at tihe time of contract or by operation of law or by acts of tihe parties subsequent to the creation of tihe mortgage by way of novation. He has also rightly held that since the remaining co-mortgagees were not bound by the payment made by the mortgagors to Ambe Lal and Lachhaman Dass mortgagees, they continued to enjoy the status of mortgagees in respect of the entire mortgaged property and their mortgage security could not be redeemed without their consent by tihe acts of other parties to the mortgage. I. therefore, endorse this view of the Court below.

8. The appellate Court has. however,upheld the finding of the trial Court ontihe point that the plaintiffs were estopped because of their act and conduct inasmuch as they represented to the respondents-mortgagors that in case thelatter paid Rs. 99/-. the entire mortgagewill be redeemed and on that representation the respondents did pay Rs. 99/-to the appellants. But, in my opinion,this view as wholly erroneous because noestoppel operates against a statute andin this behalf I may refer to FirmKaura Mal Bishan Dass v. Firm MathraDass Atma Ram, Anmedabad. AIR 1959Punj 646:

'Where the value of the suit wasnot so determined by the trial Court buton the basis of the plaintiff's depositionclaiming higher amount, the Court passed the order that it had no jurisdiction and on dismissal of the suit by another Court the appeal filed in the Court of the Senior Sub Judge was also returned on ground of having no pecuniary juridsiction:

Held that the mere fact that the appellant took back the memorandum of appeal from the Court of the Senior Subordinate Judge and, in compliance with that order, represented the appeal in the Court of the District Judge, cannot amount to estoppel. If the Senior Subordinate Judge was competent to entertain and dispose of the appeal, the conduct of the parties could not take away that jurisdiction and could not confer on the District Judge a jurisdiction, which did not, under the statute, vest in him for, there could be no estoppel against a statute.'

Therefore, it is wrong to say that the two plaintiffs were estopped by their act and conduct by receiving Rs. 99/-. However, the appellants must refund the amount of Rs. 99/- which they had received from the mortgagors.

9. Consequently. I allow this appeal, set aside the judgment and decree of the trial Court to the extent that the plaintiff-appellants were estopped, and pass a decree of the entire land in favour of the plaintiffs against, the defendants. However in exercise of the ipowers under Order 41 Rule 33 of the Civil Procedure Code, I order the refund of Rs. 99/- by the appellants to the respondents.

10. In the circumstances of the case. I pass no orders as to the costs.


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