R.S.A. No. 2320 of 1983 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2320 of 1983 Date of Decision: 26.07.2010 1. Bholia; 2. Ramji Lal; 3. Hari Singh; 4. Balbir; 5. Sarjit; 6. Suraj Bhan; all sons of Gordhan, residents of Tankri, Tehsil Rewari. ... Appellants Versus 1. Sita Ram son of Mangtu Ram; 2. Shib Lal son of Bird Singh; 3. Bharat Singh son of Pahlad Singh; 4. Bachan Singh; 5. Jagan Singh; sons of Jaggu; 6. Attar Singh son of Gordhan; 7. Chhotu Singh son of Ram Chander; 8. Himmat Singh son of Bird Singh; all residents of Tankri, Tehsil Rewari. 9. Rajbir Singh son of Bharata; 10. Bay Ram; 11. Layak Ram; R.S.A. No. 2320 of 1983 2 12. Bhola Ram; sons of Umda Ram; 13. Smt. Hardevi; 14. Smt. Dhankaur; daughters of Umda; 15. Ram Chander son of Trikha Ram; 16. Smt. Asarfi daughter of Tirkha Ram; 17. Kundan Lal son of Man Singh; 18. Smt. Jaidevi; 19. Smt. Dhan Kaur; daughter of Man Singh; 20. Chandu son of Gordhan; 21. Smt. Vidya Devi widow of Satidan; 22. Smt. Sarda; 23. Smt. Saroj; daughters of Satidan; 24. Smt. Salochna; 25. Smt. Lali; 26. Smt. Santosh; daughters of Satidan minor through their guardian Smt. Vidya Devi; 27. Rattan Singh son of Ram Chander; 28. Gokal Singh; 29. Karan Singh; 30. Sher Singh minor son of Satidan through his guardian Vidya Devi; 31. Bhoor Bai widow of Bhurji; all residents of Tankri, Tehsil Rewari. ...Respondents R.S.A. No. 2320 of 1983 3 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.N. Aggarwal, Advocate, for appellants No. 1 to 3 and 6. Mr. Gopal Sharma, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed against the judgement and decree dated 28.09.83, rendered by the Court of District Judge, Narnaul, vide which, it accepted the appeal, against the judgement and decree dated 28.09.79, rendered by the Court of Sub Judge IInd Class, Rewari, partly decreeing the suit of the plaintiffs. 2. The facts, in brief, are that, one Bharta son of Kalu, was the owner in possession of the land, measuring 11 bighas 9 biswas, situated at village Aram Nagar, Tehsil Rewari. He died in October, 1975, issueless and without leaving a widow. However, during his life time, he mortgaged the said land, in favour of Umda and Man Singh, vide usufructuary mortgage, on 13.05.47 and, the mutation, in respect thereof, was sanctioned, in their favour, on 27.05.47. It was stated that, defendants No. 2 to 11, are successors-in-interest of the original mortgagees Umda and Man Singh. It was further stated that, the plaintiffs alongwith defendants No. 19 to 29, are the nearest collateral of Bharta, deceased. It was further stated that, however, mutation, in respect of the estate, belonging to Bharta, deceased, was sanctioned, in R.S.A. No. 2320 of 1983 4 favour of Rajbir, defendant No. 1. It was further stated that, the plaintiffs and defendants No. 19 to 29, filed a Civil Suit, against Rajbir, defendant No. 1, on 08.02.56, challenging the aforesaid mutation, which was disposed of, by the Court of Senior Sub Judge, Gurgaon, vide judgement and decree dated 29.04.57, to the effect, that since Rajbir, defendant, was an illegitimate son of Bharta, as such, he was only entitled to have 1/2 share of the land, in dispute, for his maintenance, but, had no power to alienate the same. It was further stated that, in consolidation of holdings, 53 kanals 6 marlas of land, as fully detailed, in para 3 of the plaint, was allotted, in lieu of the original holding of 11 bighas 9 biswas of Bharta. It was further stated that, Rajbir, defendant No. 1, however, entered into an agreement to sell, on 07.06.73, with defendants No. 12 to 18, in respect of the land, in dispute. It was further stated that, on 23.05.74, defendant No. 1, sold 40 kanals 16 marlas of land, in favour of defendants No. 12 to 18, for a total sale consideration of Rs. 15,000/-. It was further stated that, defendants No. 12 to 18, are the successors-in-interest of the original lessees Gordhan and Shankar etc. of the land, in dispute. It was further stated that, Rajbir, defendant No. 1, had only a limited right, in the land, in dispute, and, as such, was not competent, to alienate the same, in favour of defendants No. 12 to 18. It was further stated that, the plaintiffs, being the heirs of Bharta, had already got the land, in question, redeemed, by paying the mortgage money, to the mortgagees/ defendants No. 2 to 11, vide receipt dated 30.04.77. The defendants, R.S.A. No. 2320 of 1983 5 were many a time asked, to hand over the possession of the land, in dispute, which was got redeemed, but, to no avail. Ultimately, a suit for possession by redemption was filed. 3. Defendant No. 1, put in appearance, and filed written statement wherein, he took up various objections, and contested the suit. It was pleaded that the plaintiffs had no locus-standi, to file the suit. It was further pleaded that the suit of the plaintiffs was barred by limitation. It was stated that the date of mortgage, was wrongly mentioned. It was further stated that, defendant No. 1, is the son of Bharta, the original mortgagor. It was further stated that, defendant No. 1, was minor, at the time, when the judgement and decree dated 29.04.57, were passed, by the Senior Sub Judge, Gurgaon, and, as such, his interest therein, had not been properly watched. It was further stated that, since defendant No. 1, was the owner of the land, in dispute, the agreement to sell, executed, by him, in favour of defendants No. 12 to 18, was legal and valid. 4. Defendants No. 12 to 15, 17 and 18, filed a separate written statement, wherein, it was pleaded that proper Court fee had not been affixed. It was further pleaded that the plaintiffs, were estopped, from filing the suit, by their own act and conduct. It was denied that, Rajbir, defendant No. 1, had only right of maintenance, and, was not the owner of the land, in dispute. It was further denied that, the land, in dispute, had been allotted, in lieu of 11 bighas 9 biswas of land, which was mortgaged by Bharta, in favour of Umda and Man Singh. It was stated R.S.A. No. 2320 of 1983 6 that the plaintiffs, throughout, had been admitting Rajbir, defendant No. 1, to be the owner in possession of the land, in dispute. It was further stated that, defendants No. 12 to 15, 17 and 18, are the bonafide purchasers of the land, in dispute for valuable consideration, and, in good-faith. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues, were struck:- (i) Whether the plaintiffs and defendants No. 19 to 29 are entitled to get possession of the suit land, by way of redemption of the same? OPP (ii) Whether the plaintiff has no locus standi to file the present suit? OPD No. 1 (iii) Whether the suit is within limitation? OPP (iv) Whether defendants No. 12 to 18 are bonafide purchasers for consideration, if so to what effect? OPD No. 12 to 18 (v) Relief. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, partly decreed and partly dismissed the suit of the plaintiffs. 7. Feeling aggrieved, an appeal was preferred by the plaintiffs (now respondents), which was accepted, by the Court of District Judge, Narnaul, vide judgement and decree dated 28.09.83. 8. Cross objections, were also filed by defendants No. 12 to 18 (now appellants), which were dismissed by the Court of District Judge, Narnaul, vide judgement and decree dated 28.09.83. R.S.A. No. 2320 of 1983 7 9. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants. 10. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 11. The following proposed substantial questions of law, were framed and submitted by the Counsel for the appellants, for the determination of this Court:- (i) Whether one of the co-mortgagees, can give a valid discharge of the mortgage by receiving the entire mortgage amount? (ii) Whether the receipt of mortgage amount is inadmissible in evidence for want of registration? (iii) Whether the vendees – defendants No. 12 to 18, are bonafide owners, having the protection of Section 41 of the Transfer of Property Act? (iv) Whether the suit is time barred, filed on 26.05.77, for redemption and possession of the mortgage dated 13.05.47? 12. The Counsel for the appellants, submitted that, one of the co-mortgagees, could not give a valid discharge of the mortgage, by receiving the entire mortgage amount. He further submitted that, since the other mortgagees, did not join one of the co-mortgagees, receipt of mortgage money by him, could not give a valid discharge. He further submitted that, even the receipt of mortgage amount, was inadmissible into evidence, for want of registration. He further submitted that, defendants No. 12 to 18, are the bonafide purchasers for valuable R.S.A. No. 2320 of 1983 8 consideration, in good-faith, and without notice of any defect, in the title of Rajbir Singh, in the land, in dispute, but, the first Appellate Court, was wrong, in holding otherwise. He further submitted that, since the name of Rajbir Singh, existed, in the revenue record, as the owner of the property, in dispute, the vendees, could only inspect the same. He further submitted that, after inspection of the revenue record, the vendees, were satisfied, that Rajbir Singh, was the owner of the property, in dispute, and, as such, they could be said to be bonafide purchasers for valuable consideration. He further submitted that, the suit, was also barred by time. He further submitted that the judgement and decree of the first Appellate Court, are, thus, perverse and illegal. 13. On the other hand, the Counsel for the respondents, submitted that, one of the co-mortgagees, after receipt of the entire mortgage money, could certainly give a valid discharge. He further submitted that the other co-mortgagees never objected to the acts of one of the co-mortgagees. He further submitted that, as such, after payment of mortgage money, to one of the co-mortgagees, valid discharge, was given, by him, and, the land, in dispute, stood redeemed. He further submitted that, even the other co-mortgagees, never contested the act of a co-mortgagee, who was paid the entire mortgage amount. He further submitted that, the receipt, did not amount to extinction of mortgage, and, as such, was not required, to be registered, and, was not inadmissible into evidence. He further submitted that, no bonafide enquiries, were made, by the vendees, before the purchase of R.S.A. No. 2320 of 1983 9 land from Rajbir Singh. He further submitted that, the vendees, were tenants, under the mortgagees, in the land, in dispute, and, also knew, that Bharta, had no son, whereas, Rajbir Singh, claimed himself, to be his son, and, in that capacity, he was recorded, as co-owner of the property. He further submitted that, this circumstance, was sufficient, to put the vendees, on alert that, since Bharta, died issueless, how Rajbir Singh, could claim himself to be his son. He further submitted that, no bonafide enquiry, was made, by the vendees, from the mortgagees, their lessors, under whom, they were lessees, and, as such, the first Appellate Court, was right, in holding that, they were not the bonafide purchasers for valuable consideration, in good-faith. He further submitted that, there is no period for redemption of usufructuary mortgage, and, as such, the suit, was not barred by limitation. 14. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, were the result of misreading and misappreciation of evidence or law, on the point. The first question, that arises for consideration, is, as to whether, some of the co- mortgagees, could give a valid discharge on receipt of the entire R.S.A. No. 2320 of 1983 10 mortgage amount from the mortgagor(s) or not. PW1/1, is the receipt, dated 23.04.77. It is evident, from PW2/1, copy of the rapat roznamcha, that the suit land, was mortgaged, in favour of Umda and Man Singh, on 13.05.47. In my considered opinion, the payment of the mortgage money, to one of the several co-mortgagees, can amount to a valid discharge. The Counsel for the appellants, however, placed reliance, on Mathra Dass Vs. Ram Sarup and others, AIR, 1917, Lahore, 443 , to contend, that payment of mortgage money to one of the several mortgagees without their consent, could not give a valid discharge. The principle of law, laid down, in Ankalamma Vs. Bellam Chenchayya and others, AIR, 1918, Madras, 29, relied upon, by the Counsel for the appellants, did not relate to the discharge of the mortgage debt by payment of the same, to one of the mortgagees. In (Syed) Abbas and others Vs. Misri Lal and others, AIR, 1921, Patna, 27, it was held, that payment to one, does not necessarily discharge the mortgagor's liability, to the other mortgage. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. In the instant case, none of the other mortgagees came forward to contest the valid discharge, given by some of the co-mortgagees. It means that, they consented to the act of one of the co-mortgagees of giving a valid discharge of the mortgage debt, to whom, the entire mortgage amount, was paid, by the mortgagor(s). In the instant case, it has been held above, that none of the other co-mortgagees, objected to the act of giving valid discharge, by some of the mortgagees, after obtaining the R.S.A. No. 2320 of 1983 11 mortgage debt, from the mortgagors. Had they disputed the act of some of the mortgagees, in giving the valid discharge, after receipt of the entire mortgage debt, the matter, would have been different. In those circumstances, some help, could be drawn, by the Counsel for the appellants, from the aforesaid cases. In P. Rama Swami and others vs. Chandra Kattayya, AIR, 1925, Madras, 261, and, Karri Changamna and another Vs. Jatti Kristanamnah and others, AIR, 1909(1), 219, Madras, the principle of law, laid down, was to the effect that payment of mortgage debt to one of the mortgagees by the mortgagor amounts to giving a valid discharge of mortgage debt. The Courts below, were, thus, right in holding that, one of the mortgagees, after obtaining the entire amount of mortgage debt, from the mortgagor(s), can give a valid discharge to them (mortgagers). The findings of the Courts below, in this regard, being correct, are affirmed. 15. The next question, that arises for consideration, is, as to whether, receipt dated 23.04.77, exhibit PW1/1, was inadmissible, for want of registration or not. It may be stated here, that the receipt did not amount to the extinction of mortgage. The receipt merely evidenced the payment of mortgage debt, by the mortgagor, to some of the mortgagees. The receipt PW1/1, when translated into english, reads as under:- “Receipt regarding mortgage deed. The land of Bharat Singh son of Kallu Singh caste Rajput, resident of Tankri, situated at village Aram Nagar is under mortgage with Sh. Umda Ram and Man Singh sons of Rati Ram Ahir, residents of Nandan for R.S.A. No. 2320 of 1983 12 Rs. 1600/-, half of which is Rs. 800/-. The said amount had been received by Kundan Singh son of Man Singh, Bhai Ram son of Umda Ram and Ram Chander son of Tirkha Ram from Shiv Lal Singh son of Barad Singh caste Rajput, resident of Tankri and they issued the receipt so that the same can be made use of when required 30.04.77.” 16. The perusal of the contents of the receipt, clearly reveals, that it only evidenced the receipt of mortgage amount, but, did not purport to extinguish the mortgage. Under these circumstances, it was not compulsorily registrable, under Section 17(1)(c) of the Registration Act. The Courts below, were right, in holding so. The findings of the Courts below, in this regard, being correct, are affirmed. 17. The Counsel for the appellants, placed reliance, on Gurdial Singh Kehar Singh and others Vs. Kartar Singh and others, AIR, 1964, Punjab, 141, and, Hazura Singh Vs. Jaggar Singh and others, AIR, 1965, Punjab, 479, in support of his contention, that the receipt required registration, in the absence whereof, it was inadmissible. The facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. In both the cases, in the receipt, it was recited that, payment of money under mortgage was made. It was also recited, that it amounted to extinction of the mortgage. Under these circumstances, it was held, that the receipt, required registration, for want whereof, it was inadmissible. The facts of the aforesaid cases, being distinguishable, from the facts of the instant case, no help, can be drawn, by the Counsel for the appellants therefrom. R.S.A. No. 2320 of 1983 13 18. Now coming to the third question, as to whether, the appellants, were bonafide purchasers for valuable consideration, in good-faith of the property, in question. Rajbir Singh, was entered in the jamabandi, for the year 1970-71 PW2/4, as a co-sharer of the property, in dispute. The vendees i.e. defendants No. 12 to 18, were the lessees, under the mortgagees. This circumstance put a greater burden upon them, to make bonafide and reasonable enquiries, from their lessors, under whom, they were holding the lease, as to who was the owner of the property, in dispute, and, who had mortgaged the property, in their favour. It was also their duty to ascertain from their lessors, as to whether, Bharta, mortgagor was having any son in the name of Rajbir or he died issueless. There is nothing, on the record, that any such enquiry, was made, by the vendees, who were the lessees, from their lessors i.e. the mortgagees. Nothing, was mentioned, in the written statement, that the vendees made bonafide enquiries, regarding the title of Rajbir Singh. No doubt, at the time of evidence, it was attempted to be shown, that the enquiry, was made, from Patwari, but, the Patwari, was never examined. Shiv Lal, plaintiff, when appeared, as PW3, categorically stated that, no enquiry at all, was made, from him, with regard to the title of Rajbir Singh. The statement of Shiv Lal, was rightly held to be reliable, by the first Appellate Court, on the ground, that he could not depose against his own interest, as he had instituted a Civil Suit, against Rajbir Singh and others, in the Court of Senior Subordinate Judge, Gurgaon, where, he was arrayed, as plaintiff No. 2. R.S.A. No. 2320 of 1983 14 Bhola Ram, DW6, one of the vendees, stated that, he made enquiry, from Shiv Lal. He further stated, during the course of his cross- examination, that Bharta, the last male-holder, was not married. When Bhola Ram, knew that, Bharta, was not married, then he must be knowing, as to how could Rajbir Singh, who was recorded, as a co- sharer, in the property, in dispute, could be his son. It was a suspicious circumstance, which could have put the vendees, on their guard, to make bonafide enquiries, about the title of Rajbir Singh, in the property, in dispute. Mere inspection of jamabandi of one year, without making further bonafide and reasonable enquiries, from the mortgagees, under whom, the vendees, were the lessees, or, from other sources, as to who was the owner of the property, in dispute, if the defendants/vendees purchased the property, they could not be said to be bonafide purchasers, for valuable consideration, in good-faith, and, without notice of defect, in the title of Rajbir Singh, in the property, in dispute. The first Appellate Court, was, thus, right in holding, that defendants No. 12 to 18/vendees, were not the bonafide purchasers for valuable consideration, in good-faith. The findings of the first Appellate Court, in this regard, being correct, are affirmed. 19. The Counsel for the appellants, placed reliance, on Shamsher Chand Vs. Bakshi Mehar Chand and others, AIR, 34, 1947, Lahore, 147, Shanti Vs. Suba and others, 1978, PLJ, 349, and, Jagan Nath Vs. Raj Kumar and others, 1988 (2), RLR, 287, in support of his contention, that the appellants, were the bonafide R.S.A. No. 2320 of 1983 15 purchasers for valuable consideration, in good-faith, without knowledge of any defect in the title of the ostensible owner. On careful perusal of the facts of the aforesaid cases, it is evident, that the same are completely distinguishable from the facts of the instant case. In the aforesaid cases, bonafide and reasonable enquiries like a prudent person, were made by the defendants, before purchasing the property. In the instant case, as held above, no bonafide and reasonable enquiries, as warranted by the existing facts and circumstances, were made by the vendees, regarding the title of the ostensible owner. In these circumstances, no help can be drawn by the Counsel for the appellants, from the aforesaid cases. The submission of the Counsel for the appellants, being devoid of merit, is rejected. 20. No doubt, one of the proposed substantial questions of law, is that, the suit, was not within limitation, but, at the time of arguments, the Counsel for the appellants, did not press this proposed substantial question of law. Even otherwise, the Courts below, were right, in holding, that the suit, was within limitation. 21. No other point, was urged, by the Counsel for the parties. 22. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference. The same, are liable to be upheld. 23. The substantial questions of law, depicted above, are R.S.A. No. 2320 of 1983 16 answered, against the appellants. 24. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed, with costs. 26.07.2010 (SHAM SUNDER) Amodh JUDGE