RSA No. 138 of 1986 [ 1 ] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 18.9.2009 [1] Regular Second Appeal No. 138 of 1986 Smt. Bholi ......Appellant Versus Fateh Chand and others ......Respondents Present: None for the appellant. Shri Gopi Chand, Advocate, for the respondents. [2] Regular Second Appeal No. 318 of 1986 Fateh Chand and others ......Appellants Versus Smt. Bholi Bai and others ......Respondents Present: Shri Gopi Chand, Advocate, for the appellants. None for the respondent. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? RSA No. 138 of 1986 [ 2 ] HEMANT GUPTA, J. (Oral). This order shall dispose of RSA Nos. 138 and 318 of 1986. RSA No. 138 of 1986 has been filed plaintiff No.1-Bholi, arising out of the judgment and decree passed by the learned first Appellate Court, whereby her suit for declaration that she has become owner of the suit property on account of the failure of the mortgagor to redeem the same within the period of limitation from the date of mortgage, was dismissed. Regular Second Appeal No. 318 of 1986 has been filed by the defendants, aggrieved against the judgment and decree passed by the learned first Appellate Court decreeing the suit of plaintiffs No. 2 and 3 holding the said plaintiffs to be owners of the suit land as the defendants have failed to redeem the same within the period of limitation from the date of mortgage. I am of the opinion that the following substantial questions of law arise for consideration in the present appeals:- 1. Whether the mortgagees is entitled to declaration of their title after the suit of the mortgagors for redemption of the land was dismissed? 2. Whether the plaintiff-Bholi is entitled to a declaration in respect of the share of her husband on account of her being an heir even if the Will allegedly executed by her husband in her favour is not proved? I have heard Shri Gopi Chand, learned counsel for the appellants in Regular Second Appeal No. 318 of 1986 and for the respondents in Regular Second Appeal No. 138 of 1986. None has put RSA No. 138 of 1986 [ 3 ] in appearance on behalf of the plaintiff-Bholi, even though registered notices were ordered to be issued to her. One Sidhu Ram, father of the appellants in RSA No. 318 of 1986 was allotted the land measuring 66 kanals 3 marlas as mortgagor, which is evident from excerpts Exhibit R.1. Jamabandi for the year 1950-51 shows the allotment of the land to Sidhu Ram as a mortgagor. The plaintiffs came in possession as mortgagees, which is reflected in the jamabandi for the year 1955-56 and upto 1974-75. Earlier the defendants filed a suit for redemption. The said suit was dismissed by the trial Court on 30.8.1967. The first appeal against the said judgment was dismissed on 10.7.1968. Regular Second Appeal No. 1721 of 1968 against the aforesaid judgment and decree was dismissed by this Court on 25.1.1974. A copy of the aforesaid judgment is Exhibit P.4, wherein it was held to the following effect:- “There has been no such admission of the documents, Exhibits P.2 and P.W.10/6, by the respondents or their counsel in the present case. The terms and conditions of the mortgage, like the principal amount, the interest payable thereon, the area of land mortgaged, the amount of rents and profits accruing therefrom, cannot therefore be ascertained nor is it possible to say in the absence of any clear evidence on record that the suit for redemption was filed within the limitation period prescribed by law. The vague reference in the jamabandis received from Pakistan RSA No. 138 of 1986 [ 4 ] that the mortgage had been effected about thirty-five years earlier cannot be relied on. Such endorsements are no part of the records of rights prepared in normal routine. It is not clear as to who had made this endorsement and under what circumstances on the copy of jamabandi received from Pakistan.” After the suit for redemption was dismissed, the plaintiffs herein have sought the declaration. Plaintiff-Bholi claimed 1/3rd share in the land in dispute on the basis of Will executed by her deceased husband in her favour. The suit was dismissed to the extent of share of the husband of Bholi on the ground that the Will propounded by her has not been proved. Consequently, relying upon the previous judgment and decree arising out of the suit for redemption filed by the defendants, the suit was decreed to the extent of share of plaintiff Nos. 2 and 3, whereas the same was dismissed qua the share of plaintiff No.1. Though a Full Bench of this Court in Ram Kishan and others v. Sheo Ram and others, 2008(1) PLR page 1, has held that in case of usufructurory mortgage, the morgagee is not entitled to declaration that he has become owner by efflux of time on account of failure of the mortgagor to seek redemption within the period of limitation from the date of mortgage, but the principles laid down in the aforesaid judgment do not provide any help to the mortgagors as in the previous proceedings inter-se the parties and in respect of the mortgage, a finding has been returend that the mortgagors are not entitled to redemption. The said finding having attained finality, RSA No. 138 of 1986 [ 5 ] cannot be permitted to be avoided in the subsequent proceedings. Therefore, I do not find any patent illegality or irregularity in the finding recorded by the learend first Appellate Court, whereby the suit for declaration regarding title of plaintiff Nos. 2 and 3 was decreed. The suit qua the share of Bholi has been dismissed on the ground that she has not proved Will of her husband Chotu Ram. However, even if the Will is not proved, Bholi as a wife of her husband, is one fo the natural heirs and is entitled to succeed to the estate of Chotu Ram. However, such succession shall be subject to the rights of the other heirs of Chotu Ram in such estate in any other suit or proceedings. Shri Gopi Chand, learned counsel for the mortgagors has vehemently argued that Bholi never claimed estate of her husband by natural succession. It was not pleaded so in the plaint and, therefore, no decree can be granted in her favour on the basis of natural succession. I do not find any merit in the said argument. It is not disputed that Bholi is wife of Chotu Ram. As a wife of Chotu Ram, certain rights accrue to her inclusive of the right of inheritance. Therefore, as a wife of Chotu Ram, even if the Will in her favour is not proved, she would be entitled to a share in such estate of her deceased- husband. Shri Gopi Chand, has further argued that all the mortgagors have not been impleaded as the plaintiffs, therefore, no decree can be granted in favour of the plaintiffs. The said argument is RSA No. 138 of 1986 [ 6 ] misconcieved. The defendants have lost their suit for redemption. Such decree having attained finality, it is not open to the defendants to raise any such arguments to resist the claim of plaintiffs. In view of the above, Regular Second Appeal No. 138 of 1986 filed by the plaintiff is allowed and the judgment and decree of the first Appellate Court to the extent the suit of the appellant was dismissed, is set aside, whereas RSA No. 318 of 1986 is dismissed. (HEMANT GUPTA) JUDGE 18.9.2009 ds