1. This R. F. A. 1 of 1965 and the cross-objections and R. F. A. 7 of 1966 arise out of a suit under the provisions of Order 34 of the Civil P. C. for the recovery of Rs. 16,000/- with costs and future interest by sale of mortgaged property described in para. 1 (g) of the plaint and further that in case the sale proceeds fall short of the amount due to the plaintiff for a personal decree to that extent or in the alternative for possession of the mortgaged property and a personal decree for interest and costs filed by the plaintiff against the defendant No. 1.
2. The facts as emerge from the plaint are that the plaintiff is the son of Thakur Ram Bass proprietor of Marina Hotel, Simla, Defendant No. 1 is the widow of Kr. Mohan Singh of Junga, presently residing in Kasumpti Bazar of Simla District. She borrowed Rs. 13,400/-from the plaintiff against the security of the property mentioned in the mortgage deed, PA. This property consisted of several Khasra numbers and buildings thereon. The mortgage was effected on 27-9-1950, but the same was registered on 10-10-1950. She had promised to pay back the loan before the end of May 1951 without interest and get the mortgaged property redeemed. In case she failed to pay the amount before the end of May 1951, it was provided that the plaintiff would be entitled to get possession of the entire property at once without any objection from the mortgagor. Further, in case she failed to deliver possession to the mortgagee, he was at liberty to file a suit for possession and in that case she would be liable to pay costs and also profits and income, etc. realised from the property by way of interest, and for the payment of costs and interest she was personally liable apart from the mortgaged property. Since she failed to deliver possession or to make payment of the money, the plain-tiff filed this suit and averred that the amount of interest worked out was at Rs. 11,055/- but he was contented to claim only Rs. 2,600/- and he, therefore, prayed for a decree.
3. It was also pleaded that after the mortgage in favour of the plaintiff, defendant No. 1 created a further mortgage in favour of Thandu Ram (defendant No. 2) of the suit property on 15-12-1950 against Rs. 6,000/- and that mortgage deed was registered on 20-12-1950. The plaintiff came to know about this only a fortnight before the filing of the suit. It was also stated that defendant No. 1 had also sold the house and the land measuring 7 biswas in Khasra No. 74, Khata No. 57 and Khatauni No. 72 in village Bharai to one Mst. Reshmo (defendant No. 3) and that she was in possession of the house and the land attached thereto. About this fact also the plaintiff learnt only a fortnight back of the filing of the suit.
4. The plaintiff also learnt that defendant No. 1 had also sold a portion of the mortgaged property to Shri Virendra Singh (defendant No. 4) and who was also in possession of the same. He, therefore, pleaded that the acts of defendant No. 1 regarding the second mortgage in favour of defendant No. 2 and sale of mortgaged property in favour of defendants 3 and 4 were without the knowledge of the plaintiff and as such were illegal, improper and fraudulent. The plaintiff had a first charge on the property and was entitled to priority over the interests of defendants 2, 3 and 4, and they could not stand in the way of the plaintiff in getting possession of the mortgaged property or in realising the suit amount with costs and interest by sale of the same.
5. The defendant No. 1 pleaded that the suit was barred by time. The suit for sale of the property did not lie. She repudiated the facts stated in the plaint. It was pleaded that she is an illiterate widow who can just clumsily sign in Hindi. She remains almost constantly sick and her mind had been enfeebled by physical and mental distress since the year 1950, her husband had died a decade earlier of 1950. She had further none to look after or advise her, two of her real brothers Sarvshri Kr. Bhairawi Singh and K. Jowala Singh being unable to do so, the former on account of his continued illness, excessive opium eating and the latter by reason of his habits of drunkenness and carelessness. According to her, her brother Jowala Singh, who died in the year 1960 fell into the clutches of the father of the plaintiff, who lured him to execute in his favour even on 27-2-1950 an alleged deed of mortgage for Rs. 4,000/-for and on her behalf and a reference of which finds mention in the mortgage deed which is the basis of the suit. Kr. Jowala Singh had no authority to execute or present the deed for registration. The alleged deed was not only without authority but was wholly without consideration and could not and did not bind the defendant. She further averred:
'The plaintiff's father under the threat of recovery of the said amount of Rs. 4,000/- in collaboration with his intimate friend, one Hema Ram, put pressure on her and set up the plaintiff as a mere show-boy for advancing money on the security of the property mentioned in the mortgage deed and more, in another village'
It was further pleaded,
'the illegal and fictitious deed dated 27-2-1950 was ostensibly wiped out of existence by means of a story of redemption which like the mortgage was a wholly made-up affair.'
In fact according to her nothing had been borrowed by the defendant by the earlier mortgage nor there was anything to be re-paid in that behalf to Thakur Ram Dass father of the plaintiff nor could or was any deed of redemption executed, and yet by undue influence and threat of recovery of Rs. 4,000/- the alleged suit mortgage was got executed from the defendant on 27-9-1950. The plaintiff and his father were in a position to dominate the will of the defendant and used that position to obtain undue advantage for the plaintiff by securing execution of the alleged suit mortgage deed when her mental capacity had been affected by reason of ker continued illness and mental and bodily distress. She had never executed any mortgage deed at any time. The plaintiff was only a student when the mortgage deed is alleged to have been executed. She had always through notices or otherwise been repudiating the liabilities under the alleged mortgage and the plaintiff had never the moral courage to controvert all this for the last so many years. The claim, therefore, was false to the very knowledge of the plaintiff and was liable to be dismissed. Further, it was pleaded that she inherited property from her husband and that she had only a life-interest and at that relevant time she could alienate only for legal necessity and of which there was none. In para. 6 of the. written statement, it was averred that barring a sum of Rs. 1,648/- nothing was paid by the alleged mortgage to her on the basis of this alleged mortgage deed which was brought about as a result of an unholy alliance between the mortgagor, the father of the plaintiff and her deceased brother K. Jowala Singh who had all collaborated to put undue influence on her.
6. Thandu Ram defendant was proceeded ex parte, as he failed to out in appearance despite service.
7. Smt. Reshmoo Devi, defendant No. 3. pleaded that the land and the house mentioned in para. 1 (iv) of the plaint were in actual possession and cultivation of her late husband Shankar Lal as a tenant under defendant No. 1 on payment of rent and as such defendant No. 1 could only transfer the proprietary rights over the land but not the actual possession in case she failed to pay the alleged mortgage amount within the stipulated period. She had filed an application under the provisions of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act for the acquisition of the proprietary rights before the Compensation Officer in the then District Mahasu at Kasumpti. A notice had been issued to all the persons concerned in those proceedings but the plaintiff being a mortgagee was the successor-in-interest of the mortgagor-defendant No. 1 filed no objection before the Compensation Officer and as such he was estopped by his act and acquiescence. Further, it was averred that the sale of the houses by defendant No. 1 in her favour was for valid consideration. In case the plaintiff succeeded, he was only entitled to the amount of compensation determined by the Compensation Officer in respect of the land and houses in her possession and cultivation.
8. Shri Virendra Singh defendant No. 4 repudiated the claim of the plaintiff. It was averred that sale in his favour was legal and proper and not fraudulent.
9. Shri Thandu Ram defendant No. 2 had also put in an application on 27-6-1963 and prayed that he may be permitted to participate in the proceedings from that stage without filing any written statement and. it appears, he was so permitted.
10. As many as 24 issues were framed in the case.
11. The learned Senior Sub Judge found that Kanwarani Padma Vati executed the mortgage deed, Exhibit P-A, voluntarily and she had also understood its contents. She had received Rs. 13,400/-from the plaintiff as mortgage money. The suit was within time. Shri Thandu Ram, defendant No. 2, had not cared to contest the suit. He did not enter into possession of any part of the property. Defendant No. 1 had stated that the matter had been settled with Shri Thandu Ram, therefore, the Court did not think it necessary to pronounce upon that fact whether the mortgage in flavour of Shri Thandu Ram is still subsisting or not. Further, even if the mortgage was still there the right of the plaintiff to set possession of the suit property would override any right that Shri Thandu Ram may have had over the property in dispute.
12. In respect of the sale to defendant No. 4, he held that he was bound by the mortgage in suit and whatever rights he had acquired! were subject to the rights of the plaintiff as a mortgagee. As regards improvements alleged to have been made by him, there was no reliable evidence on the record. Even if any improvement had been made by him, he had done so at his own risk and that alone could not defeat the rights of the plaintiff.
13. In respect of the sale to Smt. Reshmoo, it was held that she would also hold her rights subject to the rights of the plaintiff as a mortgagee. The plaintiff was not estopped by his act and conduct from claiming possession of the mortgage property. There was no evidence on the record to show that Smt. Madna Vati had life-interest in the property at the time when the mortgage was created. Even if it was so she had become full owner of the property after the coming into force of the Hindu Succession Act.
14. The claim of the plaintiff for interest was allowed and the Court, therefore, passed a decree for possession of the property.
15. The first submission made by the learned counsel for the appellant is that the document Exhibit P-A is without consideration and is a result of fraud and misrepresentation. The appellant being a widow and an illiterate and old lady and not in a position to protect her interest the execution of such a document cannot be said to be valid. It was for the plaintiff to have shown affirmatively and conclusively that the deed was not only executed by her but was explained to and was really understood by the executant, i. e. Smt. Madna Vati. Learned counsel contends that she being a Pardanashin woman could not converse nor was in a position to understand. She was confined to her own house. The circumstances were such that she was in grave mental distress because of the death of her husband who had died a few years ago. She was not keeping fit physically and was suffering from some stomach ailment and had nobody else excepting her two brothers who were also addicts to intoxication and were friendly with the plaintiff's father. She had to depend upon Kr. Jowala Singh and he was the person who dominated her will and he by representing himself as her Mukhtiar got a mortgage deed executed on 28-2-1950 for a sum of Rs. 4,000/- in favour of the plaintiff's father. In fact Kr. Jowala Singh did not hold any power of attorney on her behalf and she was not in need of any money because she was possessed of substantial property and had a substantial income.
16. I have gone through the pleadings and I find that there is no plea raised in the written statement that she is a Pardanashin lady. The only plea is that she is an illiterate woman, remains constantly sick and her mind had been enfeebled by physical and mental distress. Further she had none to look after or advise her. The two brothers were addicts to intoxicants. On these facts it cannot be presumed that she was a Pardanashin lady. If the appellant had raised that plea in the pleadings the respondents would have had an opportunity to challenge the same and evidence could have been produced not only in support of the allegation but it could have been shown also that even if she was outside that class the circumstances were such that a person dealing with her was bound to take special precautions and to, prove that she had done so, see--Bank of Khulna Ltd. v. Jyoti Prokash Mitra, (AIR 1940 PC 147).
17. The learned! counsel contends that this protection which is given to Pardanashin ladies can also be extended to other women of that class and for this he placed reliance on Sm. Sonia Parshini v. Moula Baksha, (AIR 1955 Cal 17). It has been stated in this authority that the protection given by the rule relating to Pardanashin women cannot plainly be the exclusive privilege of the class commonly known as Pardanashin. The Parda with its inhibitions may be an additional feature or element in the case but the real reason behind the rule is lack of understanding and appreciation of what an illiterate woman without independent advice, is about. Where ignorance and ill-literacy are proved exposing the woman concerned to the danger and the risk of an unfair deal, it would be a perversion of the rule to deny protection in such case, despite the helplessness of her state, merely on the ground that she is not strictly Pardanashin. The emphasis must be on the factual understanding of the document with reference to the individual concerned and not upon presumptive disability incidental to mere status. Therefore, what follows from this authority is that the persons who base their case on the deed executed by any woman must show that the executant, although an illiterate woman, was capable of understanding what she was doing. Mere ignorance or illiteracy will not be sufficient, but it must be shown that she was fully aware or understood what she was going to do. The perusal of the document Exhibit P-A shows that the property mortgaged consisted of land and house situate at Kasumpti and Bharai and the amount secured is Rs. 13,400/-. This property was mortgaged in the year 1950 when the prices of the properties were not very high and in these circumstances the transaction cannot be said to be unconscionable. Therefore, we have now only to see whether at the time of the execution of the deed of this property the defendant No. 1 was really suffering under any disability so as to lead to the conclusion that this transaction was vitiated. The plaintiff and his father besides Thandu Ram have gone in the witness-box. The plaintiff has stated that Smt. Madna Vati was mentally fit. She was having sound understanding. In cross-examination he stated that in 1950 when he visited her house she possessed good health. However, She might be suffering from illness mentioned in the mortgage deed. In the mortgage deed it has been mentioned that she had been suffering from the trouble of gall-bladder for a long time and had been bearing expenses on treatment and that she was still ill and was in need of money for further treatment. But, it cannot be said that illness of this kind would necessarily enfeeble the mind of a person to such a degree that she would lose her power of understanding. He has also denied the suggestion that at the time of execution of the deed, Exhibit P-A, the defendant No. 1 was mentally weak and she was incapable of understanding the contents of the same. Thandu Ram defendant No. 4 was produced as P. W. 2. He has stated in cross-examination that he had never seen Smt. Madna Vati ill. Ram Dass P. W. 3, who is no doubt the father of the plaintiff, has also stood the test of cross-examination and it can be said that his testimony is reliable. He has stated that Smt. Madna Vati was suffering from the disease of gall-bladder. She was mentally fit and could understand everything and that she was an intelligent and educated lady and belonged to a royal family. In cross-examination also he reiterated that she was in a fit condition to move. She was suffering from some internal trouble pertaining to ladies. Therefore, from this it would abundantly be clear that this lady who belongs to a royal family was mentally quite fit and alert excepting that she was suffering from gall-bladder and some internal trouble pertaining to ladies, but from this it does not follow that she was not capable of understanding what she was doing, it has been pleaded that she was a Pardanashin lady. Therefore, the only thing the Court has to see is whether a lady although not a Pardanashin, had the capacity, when executing a document, of knowing what she was doing without any advice from any quarter. Nothing has been elicited in the examination of this witness, who is said to be the person behind this transaction, which can lead to the conclusion that he is liar.
18. Defendant No. 1 has also gone in the witness-box as D. W. 5. She has stated that she was illiterate and could only sign in Hindi. The mortgagee had to show that even though she was illiterate yet she could understand what she was doing. She has stated that her husband had died quite a long time back and that she remained ill and was still ill and was suffering from fits, stomach pain and pains in all parts of the body. There is no doubt she remains ill but from that it cannot be deduced that her mental faculty had been impaired or affected. On the contrary the plaintiff and his father have stated that she possessed full understanding although she was ill. D. W. 1 is her brother, Kr. Bhervi Singh. He has stated that first she remained ill and sine had pains in her stomach for which she was operated upon and later on she had turned mad. But this statement of her brother is not corroborated by defendant No. 1 herself although she had stated that she remained ill and is still ill but she has nowhere stated that she had at any stage suffered from insanity. Therefore, the statement of D. W. I is false and as such cannot be relied upon. Smt. Madna Vati has stated in cross-examination that after the death of her husband Kr. Mohan Singh. she leased out the house and the land of Bharai to Shanker Lal and then she says that she sold a house to Reshmu and also sold land to Panu Ram. Furtheron she stated that one of her taxis was running on the Kalka-Simla road which means that she must be having route permit for the same and she was managing the affairs of her land and taxis herself. She furtheron stated that she had servants and drivers and she used to manage her property and taxis through them. So, from the statement of defendant No. 1 it follows that she had been managing her property by her own self without the help of her brothers or anybody else. It is incomprehensible how she could be said to be suffering from mental disability. This evidence is not sufficient to rebut the evidence which had been led by the plaintiff to substantiate the case that defendant No. 1 had full understanding at the time of the execution of the deed and she was not suffering from any mental disability. Smt. Reshmu also appeared in the witness-box. She also stated that defendant no. 1 gave the property to her husband on lease at Rs. 175/- per annum. Panu Ram guardian of defendant No. 4 also appeared as D. W. 4/1. He also states that in 1960 he purchased land from Smt. Madna Vati. From their statements also it would appear that this lady has been making further transactions with other persons and it cannot be said to be an act of a lady of poor intelligence.
19. P. W. 1 has stated that when Smt. Madna Vati produced the deed, Exhibit P-A, before the Sub-Registrar she was present at the time of its attestation. It was read over to Smt. Madna Vati by the Sub Registrar, she admitted the same and also admitted the receipt of the mortgage money. P. W. 3 has also stated that Smt. Madna Vati presented the document, Exhibit P-A, before the Sub Registrar, who read over the same to her. Smt. Madna Vati after admitting the same as correct put her signatures on it. Smt. Madna Vati, however, has denied if the deed was ever read over to her by anybody. She. however, has admitted having signed the document, Ex. P-A, at her house but she denied that she had appeared before the Sub-Registrar for the attestation of the mortgage deed. The mortgage deed shows that it was presented by Smt. Madna Vati, 'renowned Kr. Rani of Mohan Singh resident of Junga' personally for attestation of the registry before the Sub-Registrar at Kasumpti and the Sub-Registrar had put down his signatures in token of tile presentation by Smt. Madna Vati, who also signed the endorsement of presentation in Hindi at mark Exhibit P-A/2. Thereafter there is a further endorsement by the Sub-Registrar which shows that the executant admitted completely the correctness of this document of simple mortgage in his presence and the contents of the mortgage deed had been read over and explained to the mortgagor word by word and after hearing and understanding the same in his presence she admitted the same to be correct. She also admitted the receipt of Rs. 13,400/- from the mortgagee and there is a further endorsement that she had been identified by Kr. Jowala Singh, who was no other than her own brother, and then below that appears the signature of Smt. Madna Vati executant and which is marked as Exhibit A/6. Then there is the certificate of registration which also shows that the mortgagor and the mortgagee had put their signatures on both the writings in the presence of the Sub-Registrar.
20. Under Section 60 (2) of the Registration Act the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned. Therefore, there is a presumption which attaches to the correctness of the endorsements made on the document by the registering officer. These endorsements show the presentation of the document personally by Smt. Madna Vati for registration. She was identified by Kr. Jowala Singh and her signatures were also obtained by the registering officer on both the endorsements, i. e. the endorsement of presentation and that of admitting the contents of the documents and the receipt of the consideration by her. In order to rebut this it was necessary for defendant No. 1 to have produced the Sub-Registrar. She did not produce him in the witness-box. Therefore, the presumption of correctness shall become conclusive. According to Sennimalai Goundan v. Sellappa Goundan, (AIR 1929 PC 81) where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of the transaction. Similiarly, it has been held in Dinesh Chandra Guha v. Satchindananda Mukherji, (AIR 1972 Orissa 235) that under Section 60 (2) of the Registration Act there is a presumption that the facts mentioned in the endorsement referred in Section 59, i. e. all endorsements made under Sections 52 to 58 have occurred as therein mentioned and there is an initial presumption raised by the endorsement with regard to payment of the consideration. Further, in Mst Jhunkaribahu alias Katrawali v. Phoolchand alias Manikchand Chhotelal Jai, (AIR 1958 Madh Pra 261), also it has been laid down that an endorsement by the sub-registrar on a registered will that its execution was admitted by the executant being an act performed by him in official capacity it should be presumed that he would not make such an endorsement unless the execution was admitted before him by the testator. Therefore, in these circumstances the plaintiff has succeeded in showing that these were all voluntary acts of Smt. Madna Vati and that she possessed sound understanding. Therefore, the rule applicable to Pardanashin ladies will not at all be attracted to the present case. The defendant on the other hand failed to rebut this evidence to show that she was totally ignorant and could not understand or converse.
21. Now the question is that of consideration. Smt. Madna Vati admits her signatures on Exhibit P-A. But what she contends is that her brother Kr. Jowala Singh was under the influence of Ram Dass father of the plaintiff and that Kr. Jowala Singh was addicted to liquor and he executed the mortgage deed on her behalf on 28-2-1950 without any authority and in fact no money was received. Subsequently Ram Dass along with her brother Kr. Jowala Singh and one Hema Ram agent of Ram Dass forced her to execute the mortgage deed. Exhibit P-A. Excepting the testimony of Smt. Madna Vati there is no other evidence on the record to suggest that the previous mortgage for Rs. 4,000/- had been executed by her brother, Kr. Jowala Singh, without any authority. From the perusal of mortgage deed Exhibit D-A it is apparent that the property was mortgaged by Kr. Jowala Singh as the Mukhtiar-Khas of Kr. Rani Madna Vati for Rs. 4,000/- in favour of Ram Dass and the Registrar made an endorsement to this effect. Kr. Jowala Singh had died when the suit in the trial Court was filed. Therefore, there was no other person to be produced to prove that he held the power of attorney. Although defendant No. 1 has denied that he possessed the power of attorney yet it was for her to show that he did not possess any power of attorney. This was in fact not a question directly involved in this case. Therefore, it was for the plaintiff to have produced any other evidence to show that Kr. Jowala Singh did or did not possess the power of attorney when the previous mortgage deed in favour of Ram Dass was executed by defendant No. 1.
22. In so far as the consideration of the present deed. Exhibit P-A, is concerned the same is recited as Rs. 13,400/-. The document, Exhibit P-A, stands proved that it was executed by her of her own volition. Now it was for the defendant to prove that the document was without consideration. The plaintiff has proved by his own statement coupled with the statement of P. W. 3 about the passing of the consideration of Rs. 13,400/- and there is no rebuttal from defendant No. 1. The document Exhibit P-A shows that the two attesting witnesses to the document are Sarvshri Hima Ram and Kr. Jowala Singh. The latter is dead and the former though alive has not been produced by the defendant. Therefore, the inference that can be drawn is that the consideration had passed.
23. The plaintiff, as his own witness, has stated that no money was paid back by Smt. Madna Vati. A notice was served on her through Shri Chandu Lal and the copy of the same is Exhibit P-B and Exhibit P-C is the post office receipt and Exhibit P-D is the acknowledgment receipt of Smt. Madna Vati. In this document. Exhibit P-B, she had been asked to pay the amount with interest due on the basis of the mortgage, deed. Exhibits P-C and P-D show that notice had been delivered to Smt. Madna Vati. She has admitted in her statement the receipt of the notice but has stated that she had sent a reply to the same and a copy of the same was being searched for and that presently the same was not available. In cross-examination also the has stated that a notice was issued to her through Shri Chandu Lal. The defendant had pleaded in her written statement towards the end of para. 1 on merits that :
'In point of fact, the recitals of earlier mortgage, the redemption thereof, the alleged receipt of the consideration of Rs. 13,400/- by this defendant at home in her village and several others made in the suit mortgage deed were all incorrect to the very knowledge of the plaintiff who was then only a student In fact none of these recitals were ever intended to be acted upon, nor were they actually acted upon by the plaintiff right from 27-9-1950 till suit. On the other hand, this defendant through notices and otherwise had always been repudiating the suit mortgage liabilities which position the plaintiff had never the moral courage to controvert all these last so many years. The claim made in para. 1 of the plaint is therefore false to the very knowledge of the plaintiff and is liable to be repelled.'
But the defendant has nowhere stated while she went in the witness-box whether she ever sent any notice to the plaintiff repudiating her liability although she admits the receipt of the notice from the plaintiff through her counsel Shri Chandu Lal. She could not produce any reply if any sent to that notice and what were the contents of notice issued by her repudiating the liabilities as pleaded in para. 1 of the written statement. She has stated in quite unmistakable words that she did not give any notice except the reply to the notice. Therefore, this also belies her plea in the written statement as contained in para. 1. Thus this pleading of the defendant is totally false. In her cross-examination she had also stated that the deed was brought there duly written. She did not ask them to read out the deed and she did not report this matter anywhere that she had been forced to put her signatures by her brother, Ram Dass and Hima Ram, According to her she had said at the time of signing the deed that she had never received any money from Ram Dass and she would give reply when he filed the suit. She has furtheron stated:
'I do not know who is Thakur Ram Dass and where he resides. Even I was not knowing what type of man he is but now after the suit I understand him.'
So, this will so to show that the defendant received the consideration but now she has put up altogether a false story. Not only this that she did not receive the consideration, she has also denied that she knew Ram. Dass even on the day when she made her statement in the Court on 25-7-1974, whereas this document Exhibit P-A on which she states to have put her signatures was executed in 1950 and these signatures according to her were put by her under the pressure of her brother, Ram Dass and Hima Ram. Therefore from this it follows that defendant No. 1 is admittedly a clever and an intelligent lady.
24. It was one of the pleas taken by the defendant that the plaintiff had no source of income. He was still a student and his father also did not have such funds as to enable him to advance an amount of Rs. 13,400/- to the defendant. But from the statement of P. W. 3 it is clear that he was getting Rs. 500/- per month as his salary from the Mercantile Bank where he was employed as an Accountant and he had been getting Rs 500/- per month as insurance commission. He also owned land in his village. He also used to get income from the sale of potatoes, the produce of his land and orchard. He had a poultry farm. He also derived income from the sale of vegetables. He used to give gifts to his sons on occasions, like birthdays and festivals and the money that he used to pay to his son, i. e. the plaintiff was kept at home and he never spent anything out of that money. Therefore, in these circumstances, there is nothing surprising if the plaintiff had sufficient money to advance to the defendant against the security of land. The defendant had summoned Shri Ram Dass to produce the assessment record which he did not produce and, therefore, from this the defendant wants that an adverse inference should be raised that the plaintiff had no money nor his father had any resources nor he could keep this money at his home. Failure of Ram Dass to produce the assessment record will not lead to the conclusion that his statement is totally false. It is a fact that agricultural income was not taxable during the days when this transaction took place, and if the money was kept at home that will also not belie the story of the plaintiff because people in the villages before 1950 preferred to keep money at their homes instead of depositing the same in the banks. Therefore, merely on this ground that he did not produce the assessment records and that the money was kept at home it cannot be held that the version given by the plaintiff and his father that the money was given from the home chest is false. Therefore, from the above it follows that the defendant has failed to show that the recital of the consideration having passed is false.
25. The plea that Kr. Jowalal Singh was directly under the influence of Ram. Dass and that he dominated the will of defendant No. 1 is totally irrelevant, inasmuch as under Section 16 of the Contract Act the question of dominating the will of another to enter into a contract with him arises only when the transaction itself is unconscionable. In the instant case as stated at the very outset the transaction does not appear to be unconscionable inasmuch as this amount was quite a substantial amount advanced against the security of lands which did not fetch as high a price in 1950 or before as they are fetching now. Smt. Madnal Vati has in categorical words deposed that her brother Kr. Jowala Singh did not manage her affairs. She looked after her affairs personally. Therefore, there does not appear to be any question of dominating her will, it is only the person with whom the contract is entered into who should be in a dominating position to influence the person with whom the bar-gain is struck. Therefore, the question of undue influence in the instant case has got no relevancy at all.
26. The further submission was that of misrepresentation, which is defined under Section 18 of the Contract Act as meaning a positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him; and/or causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement. There is no scintilla of evidence except the allegations made in the pleadings with regard to misrepresentation, etc. The registration deed was written, as evidenced by P. W. 3, at the house of Shri R.N. Malhotra Advocate in the presence of Kr. Jowala Singh. This document was signed by Smt. Madna Vati to whom it was read over and then she herself presented the same before the Registrar. She has admitted her signatures. Therefore, it was for her to have proved that it was obtained by misrepresentation. But, nothing has been elicited out in cross-examination from either P. W. 1 or P. W. 3 whereby it may be inferred that this document was obtained under misrepresentation. Defendant No. 1 has stated only this much that Hima Ram, her brother, Kr. Jowala Singh, and Ram Dass showed her the registered deed. Exhibit D-A and she was told to put her signatures otherwise her property would stand auctioned and it was, according to her, under that pressure that she was made to sign. But, as already stated she did not report this matter anywhere that she had been forced to put her signatures by her brother, Ram Dass and Hima Ram. Towards the fag-end of her statement she has stated that she does not know who is Thakur Ram Dass and where he resides, which is not a trustworthy statement. Therefore, in the presence of this contradictory Statement of the defendant herself it is manifest that no misrepresentation of any kind was made so as to obtain this deed from her under a false pretext.
27. It had been contended that since there were dealings between the father of the plaintiff and Kr. Jowala Singh, as evidenced by DW 4/A, the misrepresentation could be inferred. Exhibit D4/A purports to be a copy of the title of the suit filed by one Lala Karam Chand against Kr. Jowala Singh. The suit is instituted on 27-3-1950 and is decided on 13-7-1951. It appears that there is a list of reliance in which a document as original agreement deed dated 4-4-1950 on behalf of Kr. Jowala Singh in favour of Thakur Ram Dass for proof is mentioned. That may be correct. But, it cannot be inferred, as the learned counsel for the appellant wants us to do, that because of this the transaction between defendant No. 1 and the plaintiff was shady, inasmuch as Kr. Jowala Singh was indebted to the plaintiff's father and that he had any other dealings with him. When this Kr. Jowala Singh was not at all managing the affairs of the defendant it is difficult to accept that this lady who is sufficiently intelligent could have fallen a victim to the nefarious devices, if any, of her brother. It is not shown if by this device Kr. Jowala Singh had been able to liquidate any of has liabilities.
28. One of the circumstances in the case which has been pointed out by the learned counsel for the plaintiff-respondent is that there is an admission about the mortgage made in favour of the plaintiff in document, Exhibit PW2/A, which purports to be a mortgage in favour of Thandu Ram. In this mortgage deed she has stated the necessity for the creation of this subsequent mortgage and she has stated therein that she had received Rs. 13,400/- from the plaintiff on the basis of the mortgage deed executed on 5-10-1950 and registered on 10-10-1950. She has clearly mentioned that she had not been able to pay the same till that date. Therefore, she felt the necessity to make a further mortgage in favour of Thandu Ram so as to raise a loan of Rs. 6000/-. Regarding this admission the submission of the defendant-appellant is that it cannot be vised against her unless the same had been put to her. But, the learned counsel appears to be quite forgetful of the fact that Smt. Madna Vati herself admitted the execution of this mortgage deed in favour of Thandu Ram in her written statement. Therefore, even if she did not get the full consideration from Thandu Ram that does not mean that this admission even though not put to her in cross-examination, is false. It was for her to explain when she was in the witness box as to how she made this admission. Therefore, in these circumstances, I am of the view, that this admission is a very strong piece of evidence against her with regard to the receipt of the consideration as also about the execution of the mortgage deed without any undue influence and misrepresentation and that she fully understood what she was about to do and what she had done.
29. It had also been contended by the learned counsel for the appellant that after the execution of the document the plaintiff and his father took no steps to implement the document. Under Section 34 of the Punjab Land Revenue Act it was incumbent upon the plaintiff to report his acquisition of the rights of mortgage to the patwari of the estate, so that the patwari could make an entry in his register of mutations respecting the acquisition of the mortgage. Therefore, according to the learned counsel this was also one of the factors which militated against the validity of the transaction and the necessary presumption would be that there was no mortgage as there was nothing to indicate in the revenue records to that effect. The entries in the revenue record do not indicate any such mortgage and this transaction as such is non est. But, it may be stated that this submission of the appellant is not correct that a presumption is to be drawn against the plaintiff-respondent. Section 34 only enjoins that acquisition shall be reported and Section 39 makes it penal for failure to report any acquisition within three months, but that does not mean that the transaction did not take place at all. Mutation as a matter of fact does not confer any title on a person in whose favour it is so attested.
30. The further contention is that there was no necessity for Smt. Madna Vati to raise a loan and mortgage the property and that she was a widow and at that time a widow was not competent to alienate property except for legal necessity. A bare perusal of the document, Exhibit PA would reveal that she was to pay Rs. 4000/- to Ram Dass and Rs. 2000/- was needed for the repairs of the buildings and houses situate at proper Junga and Badhai. She was suffering from the trouble of Gall bladder for a long time and had to bear the expenses for medical treatment every now and then. She had incurred a debt of Rs. 3000/- which had been paid to the creditors, viz. Pt. Hima Ram Sharma and Pt. Lekh Raj resident of Bhajji. She was still ill and in need of Rs. 4,400/-for further treatment, other domestic necessities and pilgrimage expenses and expenses on documents, etc. Therefore, it is futile on the part of the learned counsel for the appellant to contend that she had no legal necessity. The recital in the deed itself established the legal necessity for which the widow was quite competent to alienate the property. But that apart after 1956 she had become the absolute owner of these properties and now there is no question whether there was any legal necessity or not.
31. Another point that had been argued by the learned counsel for the appellant is with regard to the nature of the transaction. According to him the transaction was Benami inasmuch us the real mortgagee was Ram Dass, who supplied the money. But, I need not go into the details of this question whether the transaction is Benami because it is quite manifest from the statement of Ram Dass as also the plaintiff himself that the plaintiff had his own money. The father had been making gifts on various occasions to his son and daughters. The father had got so many resources that in fact apart from his pay as an Accountant in the Mercantile Bank he had agricultural property, an orchard, grew vegetables and potatoes, and had a dairy farm. Therefore, it cannot be disputed that he could make gifts to his children when he had so many sources of income. It is also proved that this money which was advanced belonged to the plaintiff himself. If this money was not deposited in the bank that does not mean that the plaintiff had no money to advance and that the money in fact was advanced by Ram Dass. Therefore, there is no question of any Benami transaction.
32. Then there is the question of limitation. The learned Senior Sub Judge held that it was an anomalous mortgage and that it was Article 135 of the Limitation Act of 1908 under which the limitation was 12 years from the date when the mortgagee became entitled to possession. But, the submission made by the learned counsel for the appellant is that it is Article 116 of the Limitation Act of 1908 which would govern the case. Under this Article the limitation provided is 6 years from the date when the contract is broken or upon the failure to pay the money due on the mortgage. In the instant case the agreement was executed on 27-9-1950 and the suit was instituted on 26-9-62. Now the question that arises for consideration is whether it is Article 116 or Article 135, which will govern the case. It may be straightway stated that Article 1.16 is not at all applicable because it is an Article which provides a period of six years for compensation for the breach of a contract in writing registered and the present one is not a suit for compensation of a breach of contract in writing, rather it is a suit for the recovery of money by sale of the mortgaged property for failure of the appellant to pay the money. Mortgage deed, Exhibit PA shows that it was a simple mortgage and the possession remained with the mortgagor. She was required to pay the money by the end of May 1951, failing which it was provided that the mortgagee was given the right to obtain the possession of the entire mortgaged land from the mortgagor immediately. Therefore, it is not a usufructuary mortgage but an anomalous mortgage and under Article 135 time begins to run when the mortgagor's right to possession determines, which clearly means that on default in payment of the mortgage money within the date fixed in the deed, the mortgagee would be entitled to possession, the period of limitation for a suit by the mortgagee for possession runs from the date of default, because the mortgagor's right to possession ceases from that date. In my opinion the learned Senior Sub Judge was perfectly right in applying Article 135 under which there is 12 years' period which is to be computed from the date of the default on the part of the mortgagor to pay the mortgage money and he ceased to have the right to be in possession. Learned counsel for the appellant had relied on Nisar Ahmad Khan v. Raja Mohan Manucha (AIR 1940 PC 2041 to show that it was Article 116 which was applicable and under which the period of limitation was 6 years as it was a suit for money. The present is a case for the recovery of the mortgage money by sale of the property, therefore, this authority is not at all applicable. These were the only points raised and they have all failed. Therefore, the appeal of Smt. Madna Vati against the plaintiff fails.
33. Now I come to the cross-objec-ions filed on behalf of the plaintiff-respondent. The plaintiff had taken two points in his cross-objections, firstly, that the court had wrongly disallowed costs of the suit amounting to Rs. 1979-25 as given in the decree against the contesting defendant, and, secondly, the court had wrongly disallowed Rs. 2,600/- as claim-ed by him by way of interest. The powers of the court under Section 35 of the Civil P. C. are very wide and that may be exercised according to the discretion of the court as the section says that the court has the power to determine by whom or out of what property and to what extent such costs are to be paid. But, this discretion has got to be exercised Judicially and not arbitrarily. The ordinary rule is that costs follow the event of the verdict. It is apparent from the pleadings that Smt. Madna Vati did not comply with the terms of the agreement. She had agreed to pay the amount by the end of May 1951, failing which she was to deliver the possession of the land under mortgage to the plaintiff but she failed to fulfil both the conditions and then there was no other alternative left for the plaintiff but to file the suit. She had been opposing the case on one pretext or the other. She had put up the defence that she had not received any consideration under the mortgage nor had got the deed registered or that her signatures were obtained by her brother under a misrepresentation and undue influence at her house and that she never knew Ram Dass and had seen him only on that date in the court. Therefore, in these circumstances the conduct of defendant No. 1 clearly indicates that it was she who compelled the plaintiff to fife this suit. Hence the costs must follow the event of the verdict. The court has in my opinion arbitrarily acted in disallowing the costs.
34. The second point is about interest. The plaintiff was also justified in claiming interest when his money was not repaid nor the possession was delivered. He was deprived of the income of the land, which could be adjusted towards interest on the mortgage money. Therefore, on that account the submission of the plaintiff-respondent in this behalf is also quite justified and which I am inclined to accept this disposes of the cross-objections of the plaintiff.
35. Now I come to the R. F. A. 7 of 1966 filed by Smt. Reshmu. She had taken the grounds that decision on issue No. 21 against her is against law and facts; the court had erred in passing a decree for possession of the land comprised in Khasra Nos. 55, 56, 66, 59, 71, 72, 75 and 77 measuring 9 bighas 9 biswas; and that the court had also (sic) in holding that she had not made any application for acquisition of proprietary rights. Smt. Reshmu had made an application under Order 41 Rule 27 Civil P. C. for permission to adduce additional evidence. The application was allowed by the Judicial Commissioner vide his order, dated 27th October 1966 and she was permitted to file the copy of the order of the Compensation officer additional evidence. The order of the Compensation Officer at page 137 of the paper-book shows that late Shanker Dass husband of Srnt. Reshmu had made an application purporting to be one under Section 11 of the Himachal Pradash Abolition of Big Landed Estates and Land Reforms Act for the acquisition of the right, title and interest of the land-owner, viz. Smt Madna Vati in the land; khasra Nos. 55, 56, 66, 69, 71, 72, 75 and 77 measuring 9 bighas 9 biswas situate in village Bharai. This application, it appears, was made in the year 1960 or thereabout and was decided by the Compensation Officer, Mahasu, on 31st August 1964, granting proprietary rights to Smt Reshmu on payment of Rs. 453-86 paise. Therefore, in the presence of this order it becomes crystal clear that late Shanker Dass was the tenant of the land and Smt. Reshmu succeeded to the tenancy rights after his death. From the copy of the jamabandi for the year 1956-57 it is established that the tenancy was created before 1956 in respect of this land. Even if the tenancy was created after the mortgage was effected Smt. Madna Vati was not precluded from creating tenancy of the mortgaged land. Under Section 65-A of the T. P. Act a mortgagor has the power to make leases of the land and which shall be binding on the mortgagee unless there is a condition in the mortgage deed to the contrary. The mortgage deed, Exhibit PA, does not contain any such condition, therefore, in my opinion, the tenancy shall be binding on the mortgagee. Now she has already acquired the proprietary rights in this land. As regards Khasra No. 74 there is no evidence on the record to establish that this was sold by Smt. Madna Vati to Smt. Reshmu. Consequently, this Khasra No. 74 including the house thereon shall be held by her subject to the rights of the plaintiff as a mortgagee.
36. In so far as the claim of Shri Virendra Singh is concerned he, admittedly, had purchased the land from Smt. Madna Vati. From the statement of Panu Ram, the guardian of Virendra Singh it is established that he purchased 8 bighas of land for Rupees 1000/- from Smt. Madna Vati, defendant No. 1, and she told him that she had not sold or mortgaged this land to any one and that he confirmed this fact from the revenue papers but did not find that the land was transferred and this is correct that no mutation of the mortgage in favour of Ram Dass was made. Therefore, Shri Virendra Singh must be held to be a bona fide purchaser without notice and as such the sale cannot now be challenged by the plaintiff nor the property can be held subject to the rights of the plaintiff. So, in so far as the rights of Smt. Reshmu and Virendra Singh with regard to the land are concerned they can seek their remedy by taking recourse to a civil suit because at present this Court is only concerned with whether the property in question is subject to the rights of the plaintiff under the mortgage. In these circumstances, I hold that barring the land comprised in Khasra Nos. 55, 56, 66, 69, 71, 72, 75 and 77 the plaintiff shall be entitled to recover his money by sale of the other land in case Smt. Madna Vati is not in a position to pay the mortgage money personally. The plaintiff is also allowed interest and costs, as stated above.
37. The result, therefore, is that the appeal of Smt. Madna Vati fails with costs to the respondent plaintiff. The appeal of Smt. Reshmu is allowed with no order as to costs. In so far as the rights of Shri Virendra Singh and Smt. Reshmu are concerned they cannot be decided in this appeal. The cross-objections with regard to the costs and interest tiled by the plaintiff also succeed, as already stated above.