Gujarat High Court
Vaghela Raghuvirsinh vs Pratapba Wd/O Adesinh on 21 February, 2013
Equivalent citations: 2013 AIR CC 2745 (GUJ), (2013) 128 ALLINDCAS 844 (GUJ), (2014) 1 CURCC 548, (2013) 2 GUJ LR 1074, (2014) 1 ICC 705
Author: C.L.Soni
Bench: C.L. Soni
VAGHELA RAGHUVIRSINH....Appellant(s)V/SPRATAPBA WD/O ADESINH DALALBHAI C/SA/159/1998 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 159 of 1998 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ================================================================ VAGHELA RAGHUVIRSINH....Appellant Versus PRATAPBA WD/O ADESINH DALALBHAI & 6....Respondent ================================================================ Appearance:
Mr. K.G. Vakharia, Sr. Counsel with Mr. MK Vakharia for appellant.
MR MB GANDHI, ADVOCATE for the Respondent(s) No. 1 - 7 MRS TRUSHA M GANDHI, ADVOCATE for the Respondent(s) No. 1 - 7 ================================================================ CORAM:
HONOURABLE MR.JUSTICE C.L. SONI Date : 21/02/2013 CAV JUDGEMNT
1. By this appeal under section 100 of the Code of Civil Procedure, the appellant-original plaintiff has challenged the judgment and decree of the first appellate Court which has confirmed the judgment and decree passed by the trial court whereby the suit of the plaintiff for redemption of mortgaged property against the defendants No. 2 to 8 was dismissed.
2. The plaintiff filed Regular Civil Suit No. 39 of 1990 for redemption of mortgaged property. The case of the plaintiff is that the property bearing survey No. 46 paiki ad measuring 1 acre 28 gunthas situated in Zarodia Taluka Sanand, District Ahmedabad was mortgaged by the father of the plaintiff to the father of defendant no. 1 for Rs.400.00 by registered mortgage deed dated 20.1.1951. Entry No. 102/197 was mutated in the Government record for the transaction of mortgage. As per the terms of mortgage, father of defendant no.1 was to re-transfer the property on plaintiff s father paying the amount of mortgage. Defendant No.1 is the only heir of mortgagee named Jivubhai Udesang. Legal notice was issued on 14.6.1990 to him to release the property from mortgage by accepting the amount but he did not release the property though the plaintiff was ready and willing to pay the mortgage amount. It is the further case of the plaintiff that defendant No.1 has wrongly transferred the property in favour of defendants no.2 to 8. Defendant No.1 is under obligation to re-transfer the property to the plaintiff. Suit is, therefore, filed to get the property released from mortgage.
3. Defendant No.1 did not contest the suit but defendant no.2 to 8 respondent no.2 to 8 herein filed written statement at Exh. 15 denying the allegation of mortgage of the suit property with the father of defendant no.1 and further stating that their father had purchased the suit property from father of the plaintiff and, therefore, the plaintiff has no right or authority to get the property re-transferred. It is further stated that they have inherited the property as ancestral property and the plaintiff is, therefore, not entitled to file the suit and ask for any relief against them.
4. On the basis of the pleadings, learned trial Judge framed the issues at Exh. 17. The main two issues are as under:
Whether the plaintiff proves that his father mortgaged the suit property on 21.5.51 for Rs.400.00 by Registered Mortgage Deed?
Whether the defendants No.2 to 8 prove that their father purchased the suit property from the father of the plaintiff by way of absolute sale?
5. On appreciation of the evidence, learned trial Judge held that the plaintiff has proved that the suit property was mortgaged by father of the plaintiff in favour of father of defendant No.1. The learned trial Judge further found The that there is no registered sale deed in favour of defendants No.2 to 8. Learned trial Judge further came to the conclusion that defendants No.2 to 8 have failed to prove that their father had become owner of the suit property by oral sale. The trial court, however, recorded that the suit property has been in possession of defendants no.2 to 8 for the last 30 to 32 years, and the plaintiff has failed to prove that defendant no.1 had transferred the suit property to defendant no.2 to 8. The trial court thus held that the plaintiff having failed to prove that that defendant no.1 had transferred the suit property to defendants no.2 to 8, the plaintiff is not entitled to any relief against them in the suit which is only for the purpose of redemption of mortgage and on the above such conclusions, the learned trial Judge partly allowed the suit and ordered defendant No.1 to redeem the suit property to the plaintiff by accepting the amount of Rs.400.00 from the plaintiff and dismissed the suit against defendants no.2 to 8 by not passing any order against them.
6. The plaintiff therefore preferred Regular Civil Appeal No. 59 of 1992 before the first appellate court. The first appellate Court confirmed the finding on the issue about giving the property under the registered mortgage deed to the father of defendant No.1 by recording that such finding of the trial court has not been assailed in the appeal. The first appellate court then observed that the only point which required to be determined in the appeal was whether the appellant was entitled to get decree as prayed for in the suit against defendants No.2 to 8 (respondents No.2 to 7 herein).
7. Learned appellate Judge then on the basis of the appreciation of evidence found that the plaintiff could not prove that the defendant No.1 illegally transferred the suit property to defendants No.2 to 8. The learned appellate Judge observed that it is the specific case of defendants No.2 to 8 that they have purchased the suit property from the father of the plaintiff and the amount of consideration was also paid to him. Learned appellate Judge has considered the deposition of defendant No.4 at Exh. 56 who deposed that his father purchased the suit property from the father of plaintiff and he also produced mutation entry No. 73 as also the mutation entry no. 74 dated 25.12.1962 and 26.12.1962 recording payment of mortgage money and oral sale of the suit property in favour of the father of defendant no.2 to 8 by the father of the plaintiff for Rs.2,000.00. Learned appellate Judge further observed that though the sale for the property, the value of which was more than Rs.1000.00 could be made only by registered instrument, there is no registered instrument for the sale between the father of plaintiff and the father of defendants no.2 to 8 and the alleged oral sale could not be said to be legal. Such oral sale could not pass any title in favour of the purchaser. Such sale transaction being illegal, defendants no.2 to 8 acquired no title. Learned appellate Judge, however, further observed that from the mutation entry, one thing was certain that the transaction was entered into between the father of the plaintiff and father of defendant no.4 and though entry could not be considered so far as sale transaction is concerned but if the same is considered for possession, defendants no.2 to 8 could be said to have been holding the suit property as being given by the father of plaintiff and from which it become clear that the defendant no.1 has not transferred the suit property to defendants No.2 to 8. Learned appellate Judge then considered the provisions of section 60 of the Transfer of Properties Act and observed that though the mortgagee is required to deliver possession of the mortgaged property to mortgagor or to re-transfer the mortgaged property to third party as per the wish of the mortgagor and the right of redemption of mortgage could be extinguished by execution of writing between the parties, and in the instant case, the plaintiff has come out with the case that the mortgage still subsists on the date of filing of the suit. The learned appellate Judge then considered entry no.73 at Exh. 67 to hold that the mortgage was already redeemed on 4.5.1954. On the basis of such entry, the learned appellate Judge came to the conclusion that there was no merit in the submission of the learned advocate for the plaintiff that the mortgage was not redeemed. Mutation entry Exh. 57 was considered for the factum of possession of defendants No.2 to 8 under oral sale. Learned appellate Judge further considered section 135-C of the Land Revenue Code and recorded that by virtue the said provisions, mutation entry no. 67 must have been recorded by the village accountant on being informed by the parties concerned and in absence of any evidence to the contrary, it must be held that the mortgage has already been redeemed plaintiff in the year 1954. The learned appellate Judge then came to the conclusion that so far as the defendants No.2 to 8 are concerned, trial court has rightly come to the conclusion that the defendants no.2 to 8 are in possession of the suit property and the prayer in the suit is for redemption of mortgage against all the respondents which cannot be granted against respondents no.2 to 8 as they are not claiming mortgagee of the suit property. On the above conclusion, the appeal preferred by the plaintiff was dismissed by the learned appellate Judge by judgment and decree dated 20th August, 1998 and the judgment and decree passed by the trial court against the respondent No.2 to 8 came to be confirmed. It is this judgment and decree passed by the learned appellate Judge which is under challenge before this Court in this appeal.
8. This appeal was admitted by order dated 24.7.2002 on the following substantial question of law:
Whether the Courts below have erred at law in not passing decree based on plaintiff s title against defendants NO. 2 to 7 though having come to the conclusion that they are not owners and having no valid title and that too when mortgage with defendant no.1 subsisted till the date of the suit?
9. I have heard learned advocates for the parties. Mr. K.G. Vakharia, learned Senior Counsel appearing with learned advocate Mr. Mehul K. Vakharia for the appellant submitted that the Courts below have seriously erred in not passing the decree for redemption of mortgage against defendants No.2 to 8 (respondents No.2 to 7 herein) though defendants no.2 to 8 have failed to establish title to the suit property and mortgage was believed to be subsisting on the date of filing of the suit. Mr.Vakharia submitted that the mortgage of the suit property was by registered deed and the finding about mortgage of the suit property by the father of the plaintiff to father of defendant No.1 was not assailed before the first appellate court and, therefore, suit for redemption of mortgage was required to be allowed against all the defendants. He submitted that once defendants No.2 to 8 have failed to prove their assertion of oral sale in the written statement alleged to have been made by the father of the plaintiff in favour of father of defendants no.2 to 8, defendants no.2 to 8 could be said to have acquired possession of the suit property only from defendant no.1. He submitted that once the mortgage was held to be subsisting and once defendants no.2 to 8 had failed to prove the title to the property and once acquisition of possession by defendants no.2 to 8 could be believed to be from defendant no.1, relief in the suit was also required to be granted against defendants no.2 to 8. Mr. Vakharia further submitted that the courts below have committed serious error in holding that the defendants no.2 to 8 could be said to have acquired possession from the father of plaintiffs as reflected from the revenue entry and, therefore, they cannot be considered to be mortgagee of the suit property and no relief for redemption of mortgage could be granted against them. Mr. Vakharia submitted that the suit for redemption of mortgaged property was within the time limit as against all the defendants and when the mortgage was subsisting on the date of filing of the suit, courts below have committed serious error in not granting relief also against defendants no.2 to 8.Mr. Vakharia submitted that the Courts below have seriously erred in relying upon the entry made in revenue record for holding that there was redemption of mortgage property on 25.12.1962. Mr. Vakharia pointed out the provisions of section 60 of the Transfer of Property Act and submitted that the redemption of mortgage could only be either under the decree of the Court or by valid registered instrument. He submitted that no other mode of redemption for extinguishment of right of mortgage is recognized by the Transfer of Property Act. He submitted that since the alleged redemption of mortgage was recorded only by way of entry in revenue record, same could not be construed to be valid and legal redemption of mortgage and, therefore, mortgage subsisted all throughout till the filing of the suit and thus, the defendants no.2 to 8 could not have acquired separate and independent right to the suit property and the relief of redemption of mortgage with recovery of possession against defendant no.2 to 8 was also required to be granted. Mr. Vakharia further submitted that though the Courts below have held that there was no valid sale in favour of defendants no.2 to 8 and though defendants no.2 to 8 have failed to prove their assertion about oral sale made by father of plaintiff in favour of their father, still, courts below have relied on the entries made in the revenue record showing oral sale in favour of father of defendants no.2 to 8 by the father of the plaintiff. He submitted that in absence of any registered document of sale in favour of father of defendants no.2 to 8, courts below could not have relied on such entry for the purpose of holding that the defendants no.2 to 8 are in possession not as transferee of mortgagee of the suit property.
10. Learned Senior Advocate Mr. Vakharia further submitted that even if defendants no.2 to 8 were found to be in possession not as transferee of mortgagee but since they have failed to establish any title in their favour in respect of the suit property, decree against them was required to be passed on the basis of the title of the plaintiff to the suit property. He submitted that the trial court having believed title of the plaintiff to the suit property was competent to grant relief for recovery of possession against defendants no.2 to 8 on the basis of title of the plaintiff especially when relief for redemption was surviving against defendant no.1. He submitted that when the title of the plaintiff to the suit property was proved by evidence, in order to do complete justice between the parties, courts below could have moulded relief and could have granted relief for recovery of possession of the suit property from defendants no.2 to
8. In support of his above submissions, Mr. Vakharia relied on the following judgments and urged to allow this appeal on the above substantial question of law.
Kureshi Hussainbhai Motibhai & Ors. v. Saiyad Sidar Kesharbhai & Ors., reported in 1985 (1) GLR page 138.
L.K. Trust versus EDC Limited and others, reported in (2011) 6 SCC page
780. Kantibhai Ishwarbhai Patel Through His Heirs and Legal Representatives versus Chandrakant Ishwarbhai Patel, reported in 2006(1) GLH page 171.
Ramanbhai Trikamlal v. Vaghri Vaghabhai Oghabhai & Anr., 1979 GLR page
268. Sampuran Singh and others versus Smt. Niranjan Kaur and others, AIR 1999 SC 1047.
11. As against the above arguments, learned advocate Mr. M.B. Gandhi submitted that the Courts below have recorded finding of fact that defendants No.2 to 8 are not in possession as transferee of mortgagee. He submitted that once the plaintiff has not disputed the possession of defendants No.2 to 8 and once the plaintiff has failed to prove that the possession of defendants no.2 to 8 is through or under defendant no.1, the plaintiff could not be held entitled to relief for redemption of mortgaged property against defendants no.2 to 8. Mr. Gandhi submitted that the suit of the plaintiff even for redemption of mortgage was time barred. He submitted that in the case for redemption of mortgage, where the cause of action arose under old Limitation Act, 1908 and the suit is filed after the new Limitation Act, 1963, in such case, the plaintiff would get the period of limitation either of 7 years or remaining period under the old Act whichever expires first. He submitted that in the present case, when the plaintiff filed the suit, the period of 7 years had expired first available to the plaintiff under the new Act and, therefore, suit of the plaintiff was time barred.
12. Learned advocate Mr. Gandhi submitted that the Courts below have also rightly come to the conclusion that the mortgage was already redeemed on 25.12.1962 and thereafter, the defendants no.2 to 8 were put in possession under the oral sale. He submitted that the entry in the revenue record on 25.12.1962 at Exh. 67 clearly reveals payment of Rs.400.00 to the mortgagor for the purpose of redemption of mortgagor and the entry giving the suit property by oral sale in favour of the father of defendant no.2 to 8 for Rs.2000.00 by the father of the plaintiff was recorded on 26.12.1962 as per Exh. 57. He submitted that the suit is filed in the year 1990 and those entries are not disputed. He submitted that the revenue record recording above entries is more than 30 years old and unless the correctness of the entries in the revenue records is rebutted by cogent evidence by the plaintiff, entries will be presumed to be genuine and correct. Mr. Gandhi submitted that even if defendants No.2 to 8 could be said not to have acquired ownership rights on the basis of oral sale, their long possession for more than 30 years was enough to presume that they acquired possession of the suit property from the father of the plaintiff and not from the father of defendant No.1. He submitted that the Courts below once having recorded finding of fact that defendant no.2 to 8 have been in possession for 30 to 32 years and once such possession of defendant no.2 to 8 is found not to be from father of defendant no.1, the Courts below could not be said to have committed any error in not passing the decree based on the plaintiff s title against defendant no.2 to 8 when the suit was filed for redemption of mortgage. Mr. Gandhi submitted that even though the Courts below have come to the conclusion that defendants no.2 to 8 have not acquired valid title under the oral sale as recorded in the revenue entry, plaintiff could not be granted any relief in the present suit which was not based on title. He submitted that if the plaintiff would have based his suit on title, many other defence would have been available to defendants no.2 to 8 and, therefore, in the suit for redemption, even if the title of the plaintiff is established, the plaintiff is entitled to get relief of redemption of mortgaged property from the mortgagee and from the persons claiming under the mortgagee and not against the persons like defendants no.2 to 8 who are found to be in possession not through the mortgagee. Mr. Gandhi thus urged to dismiss this appeal. In support of his above submissions, learned advocate Mr. Gandhi has relied on the decision in the case of Palaniswami Gounder (died) and others v. Chinnaswami Gounder and others, reported in AIR 1986 Madras 316. Mr. Gandhi has also relied on the decision of the Full Bench of this Court in the case of Ramanbhai Trikamlal v. Vaghri Vaghabhai Oghabhai & Anr. (supra), relied on by Mr. Vakharia.
13. Having heard the learned advocates for the parties and having perused the judgment passed by the Courts below with the record and proceedings of the case, it appears that the father of the plaintiff named Vaghela Govindsingh Chandansingh had mortgaged the suit property to father of defendant No.1 named Vaghela Jibuvha Umedsingh by registered deed dated 21.5.1951 for an amount of Rs. 400. Mortgage deed Exh. 42 clearly provides for re-transfer of the suit property on payment of Rs.400.00. There is no restrictive or prohibitory clause restraining father of the plaintiff or his heirs from redeeming the property till any time period. Therefore, cause for redemption of mortgage was always available to the father of the plaintiff and to the plaintiff from the date of mortgage. Therefore, limitation would be reckoned for the purpose of redemption of mortgage of suit property from the date of the deed. Since the mortgage was when the old Limitation Act was in force, period of60 years was available to the plaintiff for redemption and in absence of new Act, such period would have continued till May, 2011.
14. The plaintiff is the son of original mortgagor who filed the suit for redemption of mortgaged property on 26.6.1990. The suit is, thus, filed after the new Limitation Act, 1963 came into force. In this back ground of the facts, question about limitation raised by the learned advocate Mr. Gandhi is to be examined though it is not formulated as one of the substantial question of law by the Court while admitting the appeal.
15. Learned Senior Counsel Mr. Vakharia heavily relied on the judgment of the Full Bench of this Court in the case of Ramanbhai Trikamlal (Supra) and submitted that the suit of the plaintiff would be governed by the provisions of section 30 of the Limitation Act, 1930. He submitted that as per decision of the Full Bench, if the time of 7 years was provided in section 30 expires earlier than the time remained with the plaintiff under the old Act when the suit was filed, and both put together is shorter than the limitation as provided in the new Act for filing the suit, then, in such case, entire period of limitation under the new Act is available to the plaintiff. He submitted that in the present case, putting both the times together, time available to the plaintiff was shorter than as provided under the new Act and, therefore, whole period of 30 years for filing the suit for redemption was available to the plaintiff. However, the submission of Mr. Gandhi was that correct reading of judgment of Full Bench would be that only those persons whose time limit for filing the suit was expiring, 7 years maximum time was made available so as to see that their cause for filing the suit would not suffer on account of coming into force of the new Act.
16. Question before the Full Bench was whether the award under the B.A.D.R. Act could be said a decree and whether the application for execution of award for possession could be treated under the Code of Civil Procedure and to such application, whether the Limitation Act would apply. While dealing with such question, Full Bench explained and interpreted section 30 of the Limitation Act.
17. At this stage, section 30 of the Limitation Act, 1963 is also required to be referred and reproduced as under:
30. Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908.-
Notwithstanding anything contained in this Act, -
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 may be instituted within a period of seven years next after the commencement of this Act, or within the period prescribed for such suit by the Indian Limitation Act, 1908 whichever period expires earlier.
Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908 as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then the suit may be instituted within the period of limitation prescribed therefor under this Act;
(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908 whichever period expires earlier.
18. On construction of section 30 with proviso, the Full Bench has held that where the period of limitation of 7 years expires earlier than the period of limitation prescribed under the 1908 Act, and such period of seven years together with period of limitation in respect of such suit under the 1908 Act has already expired before commencement of 1963 Act, is shorter than the period prescribed under the 1963 Act, then, the suit may be instituted within the period of limitation prescribed under the 1963 Act.
Para 19 of the Full Bench judgment in Ramanbhai Trikamlal (supra) needs to be referred and reproduced herein below:
19. Untwalia J., as he then was in the Patna High Court, dealt with the provisions of sec. 30 of the Limitation Act, 1963 and observed at page 73 in paragraph 8:
.....
the law of limitation which governs an action is the law which prevails on the date when the suit is instituted or when the appeal or application is filed. Under sec. 3 of the Limitation Act of 1963 or under the same section of the Limitation Act of 1908, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
.......
If a suit, appeal or application filed on a particular date after coming into force of the new Limitation Act is not barred under the provisions of this Act, recourse to sec. 30 need not be taken and is not permissible to be taken. In that event, only sec. 31 comes into play, which says that-
Nothing in this Act shall-(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act expired before the commencement of this Act, or
(b) affect any suit, appeal or application instituted, preferred or made before and pending at, such commencement.
That is to say, if the remedy was barred by the expiry of period of limitation prescribed under the old Act of 1908 before the commencement of the new Act of 1963, a larger period, if any, prescribed under any of the Articles of the new Act will not revive the remedy which was barred. But subject to, that, if the filing of the suit, appeal or application is not barred under the new Act on the day it is filed, it is simply not barred. If, however, it is barred on the day when it is filed under sec. 3 of the new Act but it was not so barred by the Limitation Act of 1908, then and then only sec. 30 comes into play in order to find out as to whether by taking recourse to sec. 30, it can be held that the suit, appeal or application filed on a particular day is not barred by limitation.
Then the learned Judge proceeds to give illustration of how sec. 30 should be reasonably interpreted. In paragraph 9, the illustration is given
-
Suppose a suit by Government under the old Limitation Act could be filed within 60 years from the date when the right to sue accrued, the period under the new Act being 30 years. Suppose further that a right to sue accrued to the Government, say, in the year 1930 and the suit is filed in 1966. Obviously, it would be barred under the new Act but not under the old Act. In such a situation, clause (a) of sec. 30 will come into play and the suit can be filed by the Government by the end of 1968 on the expiry of 5 years next after the commencement of this Act. Suppose the right accrued to the Government say, in the year 1905. Then, such a suit could be filed in the year 1965, counting the period of 60 years from 1905, otherwise, the anomalous results will follow. Suppose the right to sue accrued to the Government, under the new law it could be filed by 1988. But if sec. 30 is applied to such a case, it will have to be filed by the end of 1968. That is to say the period of limitation will be neither 60 years nor 30 years but it would be 10 years only.
Such an interpretation of sec. 30 will be highly unreasonable and against the principle underlying it. Similar is the meaning which has got to be given, by necessary rules of construction, to clause (b) of sec. 30 And to emphasize the point again, if an appeal or an application, when filed after 1.1.64 is barred under the new Limitation Act but not under the old one, then, it has to be filed before the expiry of 90 days or the expiry of the period prescribed under the old Act, whichever expires earlier. But in the instant case, when the application filed on 4.4.64 under Order 21 Rule 95 of the Code was not barred under the new Act nor was it barred under the old law on the day of the commencement of the new law, neither sec. 30 nor sec.31 comes into play.
Now it may be pointed out that a Division Bench of this High COurt consisting of S.H. Sheth,J. And one of us (B.K. Mehta,J.) considered the provisions of sec. 30 clause (a) of the 1963 Act and the proviso to that section in Thacker Dungershi v.Thacker Damji, 7 GLR 246,as under at page 253:
Now if the suit could be filed within seven years from the date on which the Limitation Act, 1963 came into force, the period of limitation on that basis would expire on 1st January, 1971. From a comparative analysis of the provisions of the Indian Limitation Act, 1908 and the Limitation Act, 1963, it is quite clear that the plaintiffs could have filed the present suit at any time before 19th September, 1970 which was earlier than 1st January, 1971. Therefore, by virtue of the provisions contained in Article 145 of the Indian Limitation Act, 1908 read with clause (a) of sec. 30 and Article 70 of the Limitation Act, 1963, it is quite clear that the time which was available to the plaintiffs to file the present suit would expire only on 19th September, 1970. The plaintiffs filed the present suit on 17th September, 1968. It was, therefore, within time. Proviso to clause (a) of sec.30 has no application to the facts of the instant case because the period of seven years prescribed by clause (a) of sec. 30 would not expire earlier than the period of limitation prescribed by Art. 145 of the Indian Limitation Act,1908.
We must confess that the proviso to clause (a) of sec. 30 raises a complicated question, but, if the intention of the Legislature in enacting sec. 30 is borne in mind, namely, to alleviate hardship caused by the shorter period of limitation being prescribed by the 1963 Act, as compared to the period prescribed under the 1908 Act, the coundrum can be solved. Under the main body of clause (a) of sec. 30 of the 1963 Act, first the condition must be satisfied that the period of limitation prescribed under the 1908 Act. Secondly it must be found that, applying the period of limitation prescribed by the 1963 Act, the suit is liable to be time barred. If it is not otherwise liable to be time barred, the occasion for invoking the provisions of sec. 30 does not arise at all as pointed out by the Patna High Court in Mani Devi case (supra). It is only if under the 1963 Act, suit would be barred looking to the date of accrual of cause of action and the condition about the period of limitation under the 1963 Act being the shorter period than the period under the 1908 Act is satisfied that clause (a) of sec. 30 may not be applicable and the period cannot be seven years from the date of the commencement of the 1963 Act. However, even in such a case, where the period of limitation of seven years expires earlier than the period of limitation prescribed under the 1908 Act and consequently, the said period of seven years together with so much of the period of limitation in respect of such suit under the 1908 Act has already expired before the commencement of the 1963 Act, is together shorter than the period prescribed under the 1963 Act, then, the suit may be instituted within the period prescribed under the 1963 Act. As has been well-settled law, the function of the proviso is to work as an exception to the main clause. It is obvious that sec. 30(a) is an exception to the general scheme of the provisions of the Act of 1963.
The proviso being an exception to an exception puts the matter at large, that is, the proviso enacts that in the situation contemplated by the proviso the period of limitation would be exactly what it would have been if clause (a) had not been enacted. That is all that is indicated by the proviso, namely, that if the conditions laid down in the proviso to clause (a) of sec. 30 are satisfied, then, the matter would be governed by the period of limitation prescribed under the Act of 1963. Under the general law, every suit, appeal or application would be governed by the law of limitation prevailing on the date on which the suit, appeal or application is filed. It is only the exception which has been provided in clause (a) of sec. 30 so as to prevent hardship when the period of limitation under the new Act is shorter than the period under the old Act. Clause (a) can only be invoked if, under the new Limitation Act, by applying the shorter period of limitation, the suit is likely to be time-barred within the period of seven years from the commencement of the Act of 1963. If it is not likely to be so time-barred, occasion for invoking clause (a) of sec. 30 never arises but if, by application of clause (a) of sec. 30 some hardship is likely to arise, the proviso takes care of such extreme cases.
19. In view of the above law laid down by the Full Bench, contention raised by Mr. Gandhi that on coming into force of new Act, only seven years period is available for filing the suit for which the cause of action had arisen prior to coming into force of the new Act cannot be accepted. In the present case, mortgage is of the year 1951. New Act came into force on 1.1.1964. Therefore, under the old Act, about 13 years time had already expired for filing the suit for redemption. Under the old Act, time available to the plaintiff was upto May, 2011 and, therefore, time of 7 years as per section 30 was expiring earlier than the time available under the old Act. As per proviso to section 30, time period of 7 years as provided in section 30, if added to the time of 13 years already expired before coming into force of the new Act, total would come to 19 years which is shorter than the time limit of 30 years available for institution of the suit for redemption of mortgage after coming into force of the new Act. Therefore, as per the decision of the Full Bench of this court, full period of 30 years was available to the plaintiff for filing the suit. In this view of the matter, suit of the plaintiff was very much within the time limit.
20. The decision of Hon ble the Supreme Court in the case of Sampuran Singh and others (supra) relied on by Mr. Vakharia would not apply to the facts of the case as in the said case, Hon ble the Supreme Court held that the time limit of 60 years was available from 1893. In the facts of the said case, time had already expired prior to coming into force of the new Act. The issue involved in the present case was not the issue involved in the said case.
21. Similarly, judgment in Palaniswami Gounder (supra) relied on by learned advocate Mr. M.B.Gandhi would also not apply. Following paragraph needs to be referred.
4. Learned counsel for the appellant submitted that the first appellate court erred in applying Art. 65 of the Limitation Act (Act 36 of 1963) (hereinafter referred to as the new Act) and that the appropriate Article applicable is Art. 61. It is his further contention that at the time when the suit was filed, the Limitation Act (Act 9 of 1908) hereinafter referred to as the old Act) was in force. Therefore, S. 30 of the new Act is attracted to the instant case, and according to S. 30 the period of limitation will be 5 years, from the date of commencement of the new Act. It may be stated that under Act 10 of 1969, 7 years came to be substituted in the place of 5 years. The date of mortgage is 27.7.1924. According to S. 30 of the Act, any suit for which the period of limitation is shorter than the period of limitation prescribed by the old Act may be instituted within a period of six (five) years next after the commencement of the said Act, or within the period prescribed for such suit by the old Act, whichever period expires earlier. Under the old Act, the period for redemption is 60 years, from the date when the right to redeem accrued. Under the new Act, the period is 30 years from the date when the right to redeem accrued. Under the new Act, the period is 30 years from the date when the right to redeem or recover possession accrued. Thus, under the new Act, a shorter period of limitation is prescribed when compared to the corresponding provision under the old Act. If so, the suit can be instituted within a period of 5 years next after the commencement of the said Act, or within the period prescribed for such suit by the old Act, whichever earlier than the period that was prescribed for the suit for redemption by the old Act. Therefore, if the present suit is instituted within 5 years from the date of commencement of the new Act i.e., 1.1.1964, the suit will be certainly be in time. The suit was presented on 11.11.1968 and thus the suit has been instituted well within time, because the appellant had time till 1.1.1969.
Thus, in the above case, the suit was filed within five years and there was no question of invocation of proviso of section 30 of the new Act.
22. The question then remains as to whether the plaintiff would be entitled to a decree based on his title against defendants no.2 to 8 when defendants No.2 to 8 are held not to have any valid title to the suit property and when the mortgage with defendant no.1 subsisted till the filing of the suit.
23. The suit is undoubtedly for redemption of the mortgage. The suit property was mortgaged with the father of defendant No.1 by registered deed. It is the case of the plaintiff in the suit that defendant no.1 wrongly transferred the suit property to defendant no.2 to 8 and, therefore, defendant no.1 is under obligation to re-transfer the suit property to plaintiff. It is true that there is no registered document executed by defendant no.1 for re-transfer of the suit property nor there any registered instrument acknowledging extinguishment of right of redemption. Proviso of section 60 of the Transfer of Property Act provides that the right of redemption subsists unless extinguished by the act of the parties or by decree of the court.
24. In the case of Prithi Nath Singh and others v. Suraj Ahir and others, AIR 1963 SC 1041, Hon ble the Supreme Court has held that in the case of usufructuary mortgage, when the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt due from the mortgagor to the mortgagee and, therefore, the mortgage can no longer continue after the mortgage money has been paid. If the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts which he is bound to do under section 60, the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the reconveyance of that property through court. Exh. 67 is the document of village form no. 6 maintained under the Bombay Land Revenue Code wherein vide entry no.73 made on 25.12.1962, it is recorded that the widow of Govindsang Chandansang (mortgagor) and guardian of the minor Raghuvir (son-plaintiff) and Kanakba (daughter) since paid Rs.400.00 on 4.5.1954 to Vaghela Jivubha Udesangm, the entry is made after recording statement and on production of the original deed. Exh. 57 is the another document of village form no. 6 wherein vide entry no.74 made on 26.12.1962, it is recorded that after taking statements of the parties, entry for oral sale of property accepted by Vaghela Adesang Dalabhai father of defendants No.2 to 8 for Rs.2000.00 and given by widow of Govindsang Chandansang (mortgagor) and guardian of plaintiff and Kanakba (daughter).
25. Above two entries though have only presumptive value and could not transfer any right in the suit property but could not be ignored unless the correctness of the same is rebutted by the plaintiff by cogent evidence. Plaintiff in his cross has accepted that his name is not there in 7/12 form produced at Exh. 48 but the names of defendants no.2 to 8 are entered for the suit property. He has also accepted that entries no.73 and 74 are also made in the revenue record. Decisions in the case of Kureshi Hussainbhai Motibhai (supra) relied on by learned Senior Counsel Mr. Vakharia lays down that the entries in the revenue record has only presumptive value and only civil court can decide the rights finally and the revenue authorities are bound to correct the entry in accordance with the decision of the civil court. However, present is not the case where defendant no.2 to 8 are held to have become owners of the suit property on the basis of the entry, therefore, the said decisions will be of ho help to the appellant.
26. As held by Hon ble the Supreme Court in the case of L.K. Trust (supra), the mortgagor s right of redemption stands extinguished only on execution of re-conveyance of mortgage property by registered instrument or by decree of the court. Therefore, if in a given case the mortgagee takes up stand that the right of mortgagor stands extinguished without proof of execution of conveyance of mortgaged property by registered instrument or in absence of any decree of the court, right of mortgagor of redemption of mortgaged property would not come to an end but would subsist. However, if the mortgagor pays up debt to the mortgagee, mortgage can no longer continue but even after payment of such mortgage money, if the mortgagee refuses to perform the acts which he is bound to perform under section 60, the mortgagor can enforce his right to get mortgage document, possession of mortgaged property and re-conveyance of the property through the court as held by Hon ble the Supreme Court in case of Prithi Nath Singh and others (supra).
27. Exh.
67 is entry No. 73 dated 25.12.1962 regarding payment of mortgage money of Rs.400.00 by the mother of the plaintiff (widow of mortgagor) on 5.4.54. This entry has neither been challenged nor rebutted by the plaintiff by any cogent evidence. Therefore, as per presumptive value of this entry, mortgage could not be said to have continued and on the very next day i.e.26.12.1962, entry no.74 is made in village form No. 6 at Exh. 57 recording transaction of oral sale between the mother of the plaintiff as the guardian of plaintiff and being the widow of the mortgagor in favour of the father of defendant no.2 to 8 for Rs.2000.00. Correctness of this entry has also not been rebutted by the plaintiff by any cogent evidence. Therefore, though right of redemption could not be said to have extinguished in absence of any registered instrument and right, title and interest in the suit property could not have been conferred or transferred in favour of father of defendant no.2 to 8 on the basis of entry recording oral sale, but presumptive value of entries would at least go to show that the father of defendant no.2 to 8 was permitted to enter into possession of the suit property by the mother of the plaintiff and not through or under the mortgagee. At this stage, decision in the case of Vishwa Vijay Bharati versus Fakhrul Hassan and others reported in 1976 (3) SCC 642 is required to be referred wherein Hon ble the Supreme Court has held and observed in para 14 and 15 as under:
14.
It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.
In Amba Prasad v. Mahboob Ali Shah, [(1964) 7 SCR 800 = (AIR 1965 SC
54)], it was held by this Court that Section 20 of the U. P. Act 1 of 1951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati v. Sri Ram, [(1968) 1 SCR 617, 620 = (AIR 1968SC 466, 468)] that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant."
We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.
28. Yet in another decision in the case of Karewwa and others versus Hussensab Khansaheb Wajantri and others, reported in (2002)10 SCC 315, Hon ble the Supreme Court has held and observed in para 3 as under:
3.
Learned counsel then urged that presumption of the correctness of an entry in the revenue record is a rebuttable presumption. The appellant rebutted the presumption by stating in his written statement that respondent No. 1 came into possession of the land on the basis of agreement for sale executed in the year 1972 and, therefore, the entry in the revenue record that the respondent was a tenant of the land in the year 1973 is incorrect. We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect. We, therefore, do not find any merit in the contention.
29. In light of the above, the suit for redemption of mortgaged property filed against the defendants no.2 to 8 was rightly held not maintainable by the Courts below. Once from the evidence, it is established that the father of defendants no.2 to 8 and subsequently defendants no.2 to 8 are in possession of the property not through or under defendant no.1, the courts below cannot be said to have committed any error in passing the decree based on the plaintiff s title to the suit property even though the defendants no.2 to 8 are not held to have any valid title to the suit property. Even if the mortgage subsisted as held by the trial court till the filing of the suit, the plaintiff was not entitled to any relief against defendants no.2 to 8. The appellate court has taken note of presumptive value of the entries in village form no. 6. If such entries are not rebutted by the plaintiff by establishing fraud in making the entry by leading any cogent evidence, presumption would be that the father of defendants no.2 to 8 was given possession of the suit property by the heirs of original mortgagor, mother of the plaintiff and the widow of the mortgagor on her behalf and also on behalf of the plaintiff. Under these circumstances, the courts below could not be said to have committed any error in not passing the decree against defendants no.2 to 8 on the basis of the plaintiff s title. For the reasons stated above, this appeal is required to be dismissed while answering the substantial question of law accordingly.
30. In the result, this appeal is dismissed. The judgment and decree passed by the Courts below are confirmed.
R&P to be sent back forthwith.
Sd/-
(C.L.SONI, J.) anvyas Page 33 of 33