Appeals Nos
1250 and 1251 of 1966
Appeals by special leave from the judgments and decrees dated April 1 1965 of the Punjab High Court in Civil Regular Second Appeals Nos 138 and 139 of 1964
105 KL Gosain and Janardan Sharma for the appellants in both the appeals
Naunit Lal for the respondents Nos 1 to 7 and 9 in both the appeals
The Judgment of the Court was delivered by Hegde  J
The appellants in these appeals are the representatives of the mortgagees of the suit properties
The respondents in both these appeals claim to represent the interest of the mortgagors
Civil Appeal No 1250 of 1966 arises from Suit No 280 of 1961 in the court of Senior Sub Judge Rohtak and Civil Appeal No 1251 of 1966 arises from Suit No 334 of 1961 on the file of the same judge
Both the suits were suits for redemption
The trial court dismissed both the suits on two grounds viz 1 that Kura the person from whom the plaintiffs claim to have purchased the rights of the mortgagors was incapable of entering into a contract as he was insane
Hence the sale deeds executed by him are void and 2 the claim for redemption in respect of the various mortgages sought to be redeemed excepting the one executed on April
26 1912 is barred by limitation
The learned District Judge allowed the appeals and decreed both the suits excepting as regards the mortgage dated January 20 1878
In second appeal Capoor J of the Punjab High Court confirmed the decision of the learned District Judge
The Letters Patent Appeals filed by the appellants were summarily dismissed
Thereafter these appeals were brought after obtaining special leave from this Court
Both the learned District Judge as well as the learned Judge of the High Court have concurrently come to the conclusion that there is no satisfactory evidence to show that Kura was insane at the time he sold the suit properties to the plaintiffs
This is a finding of fact and we see no reason to go behind it
The only other ground on which the appellants are resisting the plaintiffs  claim to redeem the mortgages in question is that according to them the claim for redemption is barred by limitation
For dealing with that question it will be convenient to take up the two appeals separately
In Suit No 28 1 the plaintiffs sought redemption of four different mortgages
Those mortgages were said to have been executed on the following dates 1 April 26 1912 2 December 21 1895 3 December 18 1901 and 4 January 20 1879
235Sup
CI71 106 The original mortgage deeds or even their registration copies have not been produced
The execution of those mortgages have been sought to be proved on the basis of certain mutation proceedings The courts below have relied on those proceedings to prove the factum of the mortgages sought to be redeemed
The execution of those mortgages was not challenged before us
So far as the suit relating to the mortgage executed on January 20 1878 property described in plaint Item No 4 the plaintiffs sought to withdraw their suit on the ground that they are not able to prove their case on the basis of the material in their possession
The learned trial judge did not permit them to withdraw that part of their suit
He dismissed the plaintiffs  claim in that regard
His judgment was upheld in appeal as well as in second appeal
That part of the plaintiffs  case was not pressed before us
Now coming to the mortgage said to have been executed on April 26 1912 the concerned property is described in plaint Item No 1 the claim for redemption is admittedly within time as the suit was filed on November 27 1961 the period of limitation being 60 years
This leaves us with mortgages said to have been executed on December 21 1895 relating to plaint Item No 2 and on December 18 1901 relating to plaint Item No 3
We shall first take up the mortgage said to have been executed on December 21 1895
Prima facie the suit in respect of this property is barred by time but it is said that in view of the acknowledgment made by mortgagors under the original of exhibit P 5 dated 2261906 the suit is within time
There is no satisfactory material to show that Ex
P 5 relates to the mortgage in question
It is not necessary to go into that question in detail as in our opinion it was impermissible for the courts below to rely on Ex
P 5 for the purpose of acknowledgment exhibit P 5 is a certified copy of a statement said to have been made in a mutation proceeding
Its original has not been produced
No witness has been examined to speak to the fact that the persons who are shown to have signed the original have in fact signed the same or those persons were the mortgagors or their representatives
The signature on the original cannot be proved by production of a certified copy
Nor can the courts raise any presumption under section 90 of the Evidence Act in that regard see Harihar Prasad Singh and anr
vs Mst of Munshi Nath Prasad and Ors1 The High Court and the 1st appellate court erroneously thought that they could presume that the persons mentioned as the executants in the copy have signed the original on the strength of section 44 of the Punjab Land Revenue Act and section 1 1 4 e of the Evidence Act
Section 44 of the punjab Land Revenue Act deals with the presumption as regards an entry 1  107 in the record of rights
Herein we are not concerned with any entry in the record of rights
We are concerned with the genuineness of the signature in the original of exhibit P 5 and the identification of the persons who signed it
Hence that section affords no aid
Section 114e of the Evidence Act says that court may presume that judicial and official acts have been regularly performed
Herein we are not concerned with the regularity of the performance of any official act
The identification of an executant or genuineness of a signature in a statement filed before an official as nothing to do with the regularity of his act unless it is shown that he had a duty to identify the person who signed it and further to take the signature in his presence
Therefore exhibit P 5 cannot serve as an acknowledgmentof the mortgage
Hence the plaintiffs claim to redeem the mortgage in respect of item No 2 of the plaint must fail
Now coming to plaint item No 3 the plaint shows that the mortgage in question was executed on December 18 1901 The original mortgage deed or its registered copy has not been produced
For the proof of execution of the mortgage the plaintiffs relied on exhibit P 8 a certified copy of a mutation proceeding
That copy shows that the mutation in question was ordered on 12th June 1901
Therefore the concerned mortgage must have been executed earlier than that date
It appears that the plaintiffs have deliberately given a wrong date of the mortgage in the plaint with view to bring the suit within the period of limitation
I The learned District Judge has opined that the claim for redemption of this item of property is also within time in view of exhibit P 8
Here again no evidence was led to show that the original statement was signed either by the mortgagors or by their representatives
The original was not produced in court
exhibit P 8 is only certified copy
By merely producing a copy it cannot be said hat the plaintiffs have succeeded in proving that the signature in original statement is that of the mortgagors or their represents gives
As discussed earlier the plaintiffs cannot take the benefit of section 90 of the Evidence Act or section 44 of the Punjab Land Revenue Act or section 114e of the Evidence Act to prove that the original was signed by the mortgagors or their representatives
Hence the plaintiffs  claim in respect of plaint item No 3 must also fail
In the result Civil Appeal No 1250 of 1966 is partly allowed and the plaintiffs  claim for redemption of plaint items Nos 3 and 4 is dismissed and the decree for redemption of plaint item No 1 is upheld
Now we shall take up Civil Appeal No 1251 of 1966 arising from Suit No 334 of 1961
Therein redemption of two mort gages said to have been executed on June 19 1894 and May 15 1896 was sought
Prima facie the suit is barred by limitation
108 But it was contended and that contention was accepted by the appellate court and the High Court that the suit is within time in view of 1 the acknowledgments made by the mortgagors or their representatives on several occasions the last of which was on June 25 1919 and 2 in view of the application made by the plaintiffs respondents under section 4 of the Redemption of Mortgages Punjab Act 1913 Act No 11 of 1913
We shall first take up the question of acknowledgments
The acknowledgments in question were ought to be proved by production of certain certified copies
The originals of those copies were not produced
No evidence was led to show that the originals were signed either by the mortgagors or by their representatives
For the reasons earlier mentioned those copies cannot serve as acknowledgments
Now coming to the application made under section 4 of the Redemp tion of Mortgages Punjab Act 1913 the same was made on May 16 1959 and it was dismissed on April 18 1961
There in the parties were referred to a civil suit
Even if the period taken in prosecuting the said application is excluded in computing the period of limitation the suit for redemption is admittedly barred
But what was urged on behalf of the plaintiffs is that in view of section 12 of the Redemption of Mortgages Punjab Act 1913 the plaintiffs were entitled to bring the suit within one year from April 18 1961 the date on which their application was dismissed
There is no dispute that for the suit contemplated by the aforesaid section 12 the period of limitation prescribed is one year from the date of the order
The dismissal of the petition in this case was made under section 10 of the Redemption of Mortgages Punjab Act 1913
Therefore the order made on that application comes within the scope of section 12
But the real question is whether section 12 enlarges the period of limitation for a redemption suit
That section to the extent material for our present purpose reads as follows Any party aggrieved by an order made under sections 6 7 8 9 10 and 1 1 of this Act may institute a suit to establish his rights in respect of the mortgage but subject to the result of such suit if any the order shall be conclusive
 This section merely provides that a summary order made under sections 6 7 8 9 10 and 1 1 of the Redemption of Mortgages Punjab Act 1913 becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period
From this provision we are unable to hold that in view of that section the period of limitation fixed for redemption of mortgages can be enlarged
Several decisions of the Lahore High Court holding that if a suit as required by section 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for 109 redemption has not expired
It is not necessary to go into the correctness of those decisions though prima facie we are inclined to accept their correctness because they merely Jay down that if  any party aggrieved by an order under sections 6 7 8 9 10 and 11 of the Redemption of Mortgages Punjab Act 1913 does not institute a suit to establish his rights in respect of the mortgage within the time prescribed his right to sue for redemption is lost
Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired if only he files that suit within a period of one year from the date of the order dismissing his petition under section 4
No decision taking that view was brought to our notice
What is made conclusive by section 12 is the order made by the Collector if the suit as contemplated by section 12 is not instituted within the prescribed time
That provision does not lend any support for the contention that if an application which fulfils the requirements 4 section 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant
For the reasons mentioned above Civil Appeal No 1251 of 1966 is allowed and the plantiffs  suit No 334 of 1961 is dismissed
Appellants had falsely pleaded that Kura was insane
Because of that plea the plaintiffs had to adduce considerable evidence
Taking into consideration the various circumstances appearing in these cases we think it would be appropriate to direct the parties to bear their own costs throughout
VPS Appeals allowed


Summary:
Suits were filed by the representatives of the mortgagors to redeem certain mortgages beyond 60 years from the dates of the mortgages
In order to get over the bar of limitation the plaintiffs relied upon certain acknowledgments made by the mortgagors
The acknowledgments were alleged to have been made more than 30 years ago in mutation proceedings and certified copies of the statements were produced
With respect to Some mortgages applicants were made under section 4 of the Redemption of Mortgages Punjab Act 1913 and they were dismissed under section 10
It was contended that the suits filed with respect to those mortgages were within time under section 12 of that Act because they were filed within one year of the date of the dismissal of the applications
HELD  1 As the originals of the acknowledgments were not produced and no witness was examined to speak to the fact that the persons who we re shown to have signed the originals have in fact signed them or that they were the mortgagors or their representatives there was no proof of the signatures and the Court cannot raise any presumption under section 90 of the Evidence Act
106 F G Harihar Prasad Singh vs Mst
of Munshi Nath Prasad   followed
Section 114e of the Evidence Act does not apply because the identification of an executant or the genuineness of a signature in a statement filed before an official has nothing to do with the regularity of his act unless he had a duty to take the signature in his presence and to identify the person who signed
107 B C Section 44 of the Punjab Land Revenue Act deals with the presumption as regards entries in the record of rights but this case is not concerned with any such entry
107 A 2Section 12 of the Redemption of Mortgages Punjab Act 1913 merely provides that a summary order made under sections 6 to II of that Act becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period of one year
From this provision it cannot be held that the period of limitation fixed for redemption of mortgages is enlarged
108 G H