Patna High Court
Janki Sah And Ors. vs Girja Singh And Ors. on 24 November, 1972
Equivalent citations: AIR1973PAT211, AIR 1973 PATNA 211
JUDGMENT
1. This appeal is by defendants first party. It arises out of a suit in which the plaintiff-respondents claimed redemption of a zarpeshgi deed, dated the 2nd January, 1905 executed by Nakchhed, their predecessor-in-interest, in favour of Jado Lal, the predecessor-in-interest of the appellants, for a sum of Rs. 1,000/-. It also included some lands which had been previously given in zarpeshgi by Nakchhed to Madari, brother of Hito Singh, by a deed, dated the 17th September, 1885. In the alternative, the plaintiff-respondents claimed a decree for Rs. 51,000/- as compensation in case it was found that they were not entitled to redeem the zarpeshgi bond. The plaintiff-respondents alleged that, though the mortgagee was liable to pay the rent of the mortgaged land to the landlord, he deliberately defaulted in payment thereof, and, in collusion with the agents of the landlord, got a suit for recovery of arrears of rent filed, which ended in a money decree, and, in execution thereof, an area of 16 bighas and odd of khata No. 152 was put to sale and purchased by Sitararn, son of Hito Singh, in the name of one Biltu.
2. Admittedly, the relief for redemption in respect of the property mortgaged by Nakchhed under the deed dated the 17th September, 1885 had become time-barred on the date the suit was instituted. The suit was, therefore, pressed only in respect of the property mortgaged under the deed dated the 2nd January, 1905, excluding that mortgaged by the deed dated the 17th September, 1885. The appellants did not dispute the execution of the zarpeshgi sought to be redeemed, nor did they dispute the allegations that the landlord had brought a suit for recovery of arrears of rent in respect of the land covered by the zarpeshgi, which was decreed, and the land was auction-sold and possession delivered to the auction-purchaser in Execution Case No. 1271 of 1916. They, however, claimed that the auction sale extinguished the right of redemption of the plaintiff-respondents. They denied that the liability to pay rent was on the mortgagee. They further averred that, though they were not bound to pay the rent, they paid the rent to the plaintiff-respondents. According to them, one Imamuddin purchased the interest of the landlord, and transferred an area of 12 bighas of the disputed land to Hito Singh by means of a sale deed dated the 12th May, 1922. Imamuddin also transferred 4 bighas 17 kathas 5 dhurs of land to Ramgulam Singh by virtue of a sale deed dated the 5th May, 1919. On the basis of the sale deed in his favour, Hito Singh filed a suit for redemption against the defendants first party, which was numbered as Title Suit No. 445 of 1923. The plaintiff-respondents were also impleaded in that suit. The suit was ultimately compromised and Hito Singh and others got possession of the land purchased by them from Imamuddin. Thus, according to the defendant-appellants, the mortgage in their favour was extinguished and could not be redeemed by the plaintiffs nor could they get a decree for compensation.
3. Some other defendants, who filed written statements, supported the case of the appellants.
4. The Court of first instance held that the plaintiff-respondents were not entitled to either of the two reliefs. It, accordingly, dismissed the suit in toto. The Lower Appellate Court has held that the sale in execution of the decree for arrears of rent, which had the effect of a money sale, or the compromise in the redemption suit, did not affect the validity of the mortgage in question and the right of the plaintiffs to redeem. It further held that, in terms of the mortgage, the mortgagee-appellants were liable to pay the rent and the landlord had to bring the suit for recovery of arrears of rent as they defaulted in payment thereof. It also disbelieved the case of the appellants that they had paid the rent in respect of the mortgaged land to the plaintiff-respondents. It however, thought that, in view of the redemption of the mortgage by Hito Singh, the plaintiff-respondents could not redeem the mortgage and get back the property; but, as the sale took place on account of default in payment of rent by the appellants, the plaintiff-respondents were entitled to compensation at the rate of Rs. 2,000/- per bighas for the land mortgaged, excluding the land which was the subject-matter of the mortgage of 1885, after deducting the mortgage money of Rs. 1,000/-. From the judgment of the lower Appellate Court, it appears that the learned Additional District Judge was not inclined to believe the case of the plaintiff-respondents of any collusion between the landlord and the appellants.
5. Mr. Kailash Roy, learned counsel for the appellants, has urged the following points:--
(i) that the Court of appeal below is wrong in holding that the right of redemption survived after the sale;
(ii) that the plaintiff-respondents could not claim compensation for loss of the mortgaged property due to the mistake of the defendant-mortgagees;
(iii) that as the plaintiff-respondents did not satisfy the decree of the landlord in the rent suit, there was contributory negligence on their part and hence they could not get any compensation;
(iv) that at any rate, the plaintiff-respondents could not get compensation for the entire property; and
(v) that the relief for compensation, which has been granted, is barred by limitation.
6. In our opinion, as the appeal must succeed only on two of the grounds urged by Mr. Roy, namely, that the right of the plaintiff-respondents for redemption did not survive after the sale, and that the relief for compensation is barred by limitation, we do not consider it necessary to go into the merits of the other contentions raised by Mr. Roy.
7. As observed earlier, the Courts below have not believed the case of the plaintiffs that there was any collusion between the landlord and the mortgagees and have held that the purchaser at the auction sale was the real purchaser. In that view of the matter no question of the application of Section 90 of the Indian Trusts Act arises. As the decree in the rent suit had the effect of a money decree, the mortgage subsisted, and what was sold was the right of the mortgagors to redeem the mortgage. Therefore, with the sale, the right of the plaintiffs to redeem came to an end. That being the position, though the Court of appeal below has wrongly held that the right of redemption survived even after the sale, it has rightly dismissed the suit so far as the relief for redemption was concerned^
8. The decree for compensation in favour of the plaintiffs has been passed only on the basis that there was breach of contract on the part of the mortgagee-appellants, and the plaintiff-respondents were deprived of the mortgaged property on that account The suit for such a relief filed in the year 1960 would be governed by Article 116 of the First Schedule of the Indian Limitation Act, 1908 (9 of 1908), which prescribed six years' period of limitation for a suit. "For compensation for the breach of a contract in writing registered (as is the case here). That period of six years would begin to run from the time 'when the contract is broken, or (where there are successive breaches.) When the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases. Actually article 116, as to the time from which period begins to run, says "When the period of limitation would begin to run against a suit brought on a similar contract not registered", that is, the time from which the period would begin to run, if the case would have been governed by Article 115, and what has been stated above is actually mentioned in column 3 against Article 115 of the Act. There can be no breach of any term incorporated in a mortgage deed after the equity of redemption was extinguished, or, at best, the mortgage does not subsist. The equity of redemption of the plaintiffs was extinguished on the 7th September, 1916. The mortgage deed itself stood redeemed in the year 1924. The present suit has been filed after much more than six years from either of these two dates. Therefore, the relief for compensation, as claimed in the suit, must be held to be barred.
9. In reply to the contention of learned Counsel for the appellants that the suit was barred by limitation, learned Counsel for the plaintiffs has placed strong reliance on a decision of the Madras High Court in Sivachidambara Mudaliar v. Kamatchi Ammal, (1910) ILR 33 Mad 71. It was held in that case that where the mortgagee in possession, who was bound by the terms of the mortgage deed to pay the Government revenue due on the land, neglected to do so and the mortgaged land was sold, a suit for compensation by the mortgagor, brought more than six years after such sale and less than six years from the date of the decree in the redemption suit brought by the mortgagor, was not barred under Articles 115 and 116 of the Limitation Act, read with Section 23 of the Act. In our opinion, that decision is distinguishable and is of no help to the plaintiff-respondents. In that case, at the revenue sale, which took place on account of the default of the mortgagee to pay the revenue, the entire property mortgaged was not sold; but only certain items of the properties mortgaged were sold. Hence, the equity of redemption of the mortgagor was not extinguished, as he remained a mortgagor in respect of a part of the properties mortgaged. Further, the suit for redemption filed by the mortgagor earlier had already been decreed against the mortgagee and it was no more open to the mortgagee to say that the right of equity of redemption of the mortgagor had come to an end as a result of the revenue sale. The decree in the redemption suit operated as res judicata in the subsequent suit for compensation on the question of existence of the right of redemption in the mortgagor. The expression "so long as the mortgagor's right to redeem is not barred" used in the judgment of their Lordships of the Madras High Court has been used in a wider sense. It does not necessarily mean "barred by limitation". Their Lordships wanted to emphasise that the mortgagee's obligation to put the mortgagor in possession of the properties mortgaged could not cease so long as the mortgagor's right to redeem subsisted. In other words, the said obligation of the mortgagee comes to an end as soon as the mortgagor's right to redeem comes to an end, or the mortgage docs not subsist. In the case before us, the mortgagor's right to redeem came to an end in the year 1916. The mortgagee's obligation to put the original mortgagor, or his successors-in-interest, in possession on redemption also came to an end in the year 1924. The present suit has been filed much beyond six years from either of these two dates.
10. A cross-objection has also been filed on behalf of the plaintiffs-respondents praying that the Court of appeal below ought to have passed a decree for redemption itself, and not for the alternative relief for compensation. But the cross-objection has not been pressed obviously because there is no merit in it
11. In the result, the appeal is allowed, the judgment and the decree of the Court of appeal below are set aside and those of the Court of first instance, except with regard to costs, are restored. In the circumstances of the case, the parties shall bear their own costs throughout.