RSA No.1301 of 1986(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. 1. RSA No.1301 of 1986(O&M) Smt.Raj Kumari .....Appellant v. Mahant Jawala Dass Chela Mahant Amar Dass Chela Mahant Harnam Dass .....Respondent 2. RSA No.1302 of 1986 (O&M) Smt.Raj Kumari ......Appellant v. Mahant Jawala Dass Chela Mahant Amar Dass Chela Harnam Dass and another .....Respondents Date of Decision: March 25, 2011 CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.G.S.Punia, Advocate for the appellant. None for the respondents. ..... RAM CHAND GUPTA, J. Both the aforementioned Regular Second Appeals are being decided by this common judgment as the same have arisen out of the same judgment rendered by learned trial court as well as by learned first appellate Court. Brief facts leading to both the Regular Second Appeals are as under: Rulda Ram alias Rulda Mal son of Karam Chand was the owner of the suit land measuring 4 kanals 9 marlas, duly described in the plaint as per jamabandi for the year 1974-75 situated in village Agwar Ladhai, Tehsil Jagraon. Present appellant-Smt.Raj Kumari is daughter of Rulda Ram, who has since expired. Suit land was mortgaged by Rulda Ram with Mahant RSA No.1301 of 1986(O&M) -2- Harnam Dass Chela Mahant Bhagwan Dass for consideration of `3,000/- vide mortgage deed dated 27.8.1929, registered on 14.9.1929, Ex.D1. Possession of the land in dispute was delivered to Mahant Harnam Dass in lieu of interest. There is also no dispute that khasra number in dispute was allotted in lieu of previous khasra number mentioned in the mortgage deed at the time of consolidation. Previously, i.e., on 20.10.1970, Rulda Ram filed a suit for redemption of suit land without payment of any amount alongwith suit for recovery of `2,500/- as damages against the defendant, which was got dismissed in default. However, plea was taken that there was compromise dated 20.3.1972 between the parties and as per the said compromise the land was redeemed by Rulda Ram and possession of the land in dispute was also delivered to him by the mortgagee and, however, later on possession was again taken by defendant of the land in dispute in the absence of Rulda Ram without any right or title and thereafter refused to hand over the possession to the plaintiff. Hence, suit has been filed by Smt.Raj Kumari-plaintiff, being daughter of Rulda Ram for possession of the land in dispute on the allegation that defendant is in possession of the same without any right, whereas she is owner of the same, after death of Rulda Ram. Another suit has been filed by Mahant Jawala Dass Chela Mahant Amar Dass Chela Harnam Dass admitting the factum of mortgage. However, it is denied that any compromise was entered between Rulda Ram- deceased and predecessor-in-interest of Mahant Jawala Dass and the land was redeemed. It is also denied that possession was ever taken by Rulda Ram. Rather the plea has been taken that previously Harnam Dass was continuing in possession of the land in dispute as mortgagee since the inception of mortgage deed dated 27.8.1929 and after his death he had been continuing in possession of the same and that neither his predecessor-in- interest nor he was ever dispossessed from the land in dispute. Hence, plea has been taken that his predecessor-in-interest Harnam Singh had become owner of the land in dispute by expiry of time for redemption of mortgage and after his death, he had become owner in possession of the same. As both the suits are regarding the same property and between the same parties, same were ordered to be consolidated by learned trial Court. Proceedings were continued in civil suit filed by Smt.Raj Kumari, RSA No.1301 of 1986(O&M) -3- the present appellant, and the following issues were framed by learned trial Court for adjudication:- “1. Whether the mortgage deed dated 27.8.1929 stands redeemed as alleged? If so its effect? OPP 2. Whether plaintiff has no locus standi to file the suit? OPD 3. Whether the suit is not within time? OPD 4. Relief.” Parties adduced evidence in support of their respective contentions before learned trial Court. Learned trial Court decided issue no.1 against present appellant by holding that the mortgage was never redeemed. Issue nos.2 and 3 have also been decided against appellant-plaintiff and hence, suit filed by Smt.Raj Kumari was dismissed, whereas suit filed by respondent-defendant -Mahant Jawala Dass Chela Mahant Amar Dass Harnam Dass was decreed to the extent that appellant was restrained from dispossessing him from the land in dispute or disturbing his possession as he had become owner of the land in dispute. Present appellant filed appeals against the said judgment in both the suits. Both the appeals were also decided by learned first appellate Court vide the same judgment dated 28.8.1985 vide which both the appeals were dismissed. Aggrieved against the judgments and decrees passed by both the Courts against the present appellant, aforementioned regular second appeals have been filed. Both the appeals were admitted for hearing vide separate orders, dated 24.11.1986 by this Court, without framing substantial questions of law, stated to be arising in these appeals. A Full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab and Haryana 137 had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, RSA No.1301 of 1986(O&M) -4- the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this court under Section 100 of the amended Code of Civil Procedure on a substantial question of law. It may be mentioned here that though question of law was not framed at the time of admission of present appeals, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code of Civil Procedure at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. Hence, in view of this legal proposition, learned counsel for the appellant was asked to file substantial questions of law, stated to be arising in these appeals. Learned counsel for the appellant has filed the following substantial questions of law, stated to be arising in these appeals:- “1. Whether document dated 20.3.1972 has been wrongly interpreted by both the courts below? 2. Whether the document dated 20.3.1972 does not require registration since it does not refer to any consideration and refer to an agreement earlier? 3. Whether document dated 20.3.1972 amounts to an admission that mortgage no longer exist and is an admission before expiry of period of limitation? 4. Whether the lesser relief of redemption of mortgage can be granted especially when there is no period of limitation for redemption of usufructuary mortgage?” I have heard learned counsel for the appellant and have gone RSA No.1301 of 1986(O&M) -5- through the whole record carefully on the aforementioned substantial questions of law, stated to be arising in these appeals. It has been contended by learned counsel for the appellant that both the Courts below have misread the document mark `A', which is crucial for decision of present suits and as per the said document, no mortgage money was paid and that the same refers to an agreement earlier. Hence, it is contended that the same did not require any stamp and the same was not compulsorily registrable and hence, it is contended that both the Courts below have committed an illegality in not considering the said document on the plea that the same requires registration. He has also placed reliance upon Roshan Singh and others v. Zile Singh and others, AIR 1988 Supreme Court 881. Legal proposition held by Hon'ble Apex Court in Roshan Singh and others' case (supra) on which reliance has been placed by learned counsel for the appellant is that where a document contains recital of a previously completed transaction, the same does not require compulsory registration under Section 17(1) of the Registration Act, 1908, (hereinafter to be referred as `the Act') and, however, if instruments purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right or title or interest whether vested or contingent of the value of `100/- and upwards, to or in immovable property, the same require compulsory registration and as per Section 49 of the Act, the said unregistered document shall not be received as evidence of any transaction affecting such property. Relevant provisions of Sections 17 and 49 of the Act read as under:- “17.Documents of which registration is compulsory.- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:- (a) instruments of gift of immovable property; RSA No.1301 of 1986(O&M) -6- (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property: PROVIDED that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees. 1A. The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to- RSA No.1301 of 1986(O&M) -7- (i) any composition-deed; or (ii) any instrument relating to shares in a joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or (iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such company; or (v) any document other than the documents specified in Sub-section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding; or (vii) any grant of immovable property by government; or (viii) any instrument of partition made by a revenue-officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or (x) any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or RSA No.1301 of 1986(O&M) -8- (xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such treasurer of any property; or (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage- money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a civil or revenue-officer. Explanation: A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. 49. Effect of non-registration of documents required to be registered- No document required by section 17 or by any provision of the Transfer of the Property Act, 1882 (4 of 1882) to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, RSA No.1301 of 1986(O&M) -9- 1877, (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.” Relevant paragraph of the judgment in Roshan Singh and others' case (supra) on which reliance has been placed by learned counsel for the appellant, reads as under:- “9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists which are mere RSA No.1301 of 1986(O&M) -10- records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered to prove the fact of partition: See Mulla's Registration Act, 8th Edn., pp-54-57.” Hence, in view of this legal proposition, this Court is to see as to whether alleged compromise deed, copy of which is marked as `A' requires compulsory registration or not. Facts of the present case are that a suit for redemption was filed by Rulda Ram, predecessor-in-interest of Smt.Raj Kumari, appellant, and, however, the said suit was dismissed in default under Order IX Rule 3 of the Code of the Civil Procedure. Perusal of copy of order passed in that suit, Ex.P3, shows that the suit was dismissed under Order IX Rule 3 of the Code of Civil Procedure when none of the parties appeared. There is no order that suit was passed on account of any compromise entered between the parties. The alleged original compromise has not been placed on record on the plea that the same was lost. However, learned trial Court granted permission to lead secondary evidence and in the secondary evidence appellant-plaintiff has filed mark `A', which is a photo-copy of an extract from the register of deed Writer, PW1- Ram Murti, wherein the alleged compromise was entered at Sr.No.202 of the register. In the said document, it has been mentioned that on account of civil suit pending between the parties, compromise was effected between the parties and that defendant redeemed the land in dispute without any payment vide the said compromise and plaintiff were held entitled to obtain possession as per procedure. Hence, learned courts below have rightly come to the conclusion that right in the property have been allegedly extinguished by Rulda Ram (deceased) vide alleged compromise entered in the register of the deed Writer, photocopy of which is marked `A'. There is no force in the argument of learned counsel for the appellant that vide this document, some previous transaction was acknowledged. Rather, there was no mention of any previous transaction. Nor any date or particulars of any previous transaction has been mentioned. There is also no mention as to whether and in which manner the mortgage money was paid. The said document was never produced in the pending civil suit, which was dismissed in default, without any reference to the RSA No.1301 of 1986(O&M) -11- alleged compromise. Hence, document mark `A' was rightly not taken as evidence of the fact of redemption of mortgage by the Courts below, as on these facts, the same requires compulsory registration and in view of bar created under Section 49 of the Act, the same cannot be taken into evidence. The suit has been filed by appellant-plaintiff for possession on the ground that mortgage already stood redeemed vide document mark `A' and, however, as document mark `A' cannot be taken into evidence in proving the said fact, learned courts below rightly come to the conclusion that mortgage, which was created by registered mortgage deed Ex.D1 was never redeemed. Appellant-plaintiff has also failed to prove that Rulda Ram ever came in possession of the land in dispute. There is no entry regarding possession of Rulda Ram over the land in dispute after possession was handed over to the mortgagee, i.e., present respondent-defendant. Hence, appellant-plaintiff has also failed to prove that land was redeemed and the possession was handed over to Rulda Ram and, thereafter, he was dispossessed by respondent-defendant. Even no date of alleged handing over the possession to Rulda Ram and alleged dispossession of Rulda Ram by respondent-defendant has been given. Hence, there is no force in the argument of learned counsel for the appellant-plaintiff that document mark `A' has been wrongly interpreted by both the Courts below and that the document does not require compulsory registration and that the same can be taken into evidence. The second point argued by learned counsel for the appellant is that after decision of Full Bench of this Court in Ram Kishan and others v. Sheo Ram and others, 2008(1) RCR (civil) 334: 2008(1) PLR 1: 2008 AIR (Punjab) 77, there is no time limit fixed for redemption of usufractuary mortgage and that mortgagor has the right to seek redemption at any time on payment of mortgage debt. Hence, it is contended that leaned courts below have illegally held that respondent-defendant has become owner of the land in dispute by expiry of period of redemption of mortgage. There is force in the argument of learned counsel for the appellant so far as this plea is concerned. Law has been settled by Full Bench of this Court in Ram Kishan and others's case (supra) that in case of usufractuary mortgage of RSA No.1301 of 1986(O&M) -12- land, if no time limit is fixed for redemption, mortgagor is having right to seek redemption at any time on payment of mortgage debt and that period of thirty years, i.e., the period of limitation under the Limitation Act, is not applicable. However, as the suit has not been filed by appellant-plaintiff for redemption of mortgage and rather the suit has been filed for possession on the ground that mortgage already stood redeemed, relief of redemption of mortgage cannot be granted to appellant-plaintiff. Hence, all the aforementioned substantial questions of law, as framed by learned counsel for the appellant, are decided against appellant- plaintiff, Smt.Raj Kumari and in favour of respondent-defendant. However, in view of the decision of Full Bench of this Court in Ram Kishan and others' case (supra) finding of courts below that respondent-defendant has become owner after expiry of period of limitation for redemption cannot be sustained in the eyes of law. When there is no period of redemption fixed for redemption of usufractuary mortgage, mortgagor is having right to redeem the same on payment of mortgage money and mortgagee, i.e., respondent-defendant has not become owner by prescription. In view of the above discussion, Regular Second Appeal No.1301 of 1986 filed against the judgment and decree passed by courts below in the suit filed by present appellant-plaintiff- Smt.Raj Kumari, is, hereby, dismissed. However, Regular Second Appeal No.1302 of 1986 filed against the judgment and decree passed by learned courts below regarding the suit filed by respondent-defendant is partly accepted and modified to the extent that he is not declared owner of the property in dispute