Patna High Court
Thakur Prasad Singh And Anr. vs Raghubar Prasad Singh on 21 April, 1952
Equivalent citations: AIR1952PAT469, AIR 1952 PATNA 469
JUDGMENT Reuben, J.
1. This is an appeal by the plaintiffs from a decision of the Additional Subordinate Judge at Monghyr dismissing a suit for redemption of a mortgage.
2. The plaintiffs-appellants are father and son and members of a joint Mitakshara family. The mortgage sought to be redeemed was created by a 'sadhawa patawa' bond executed by Bhagwat Prasad Singh deceased, lather of the plaintiff No. 1 Thakur Prasad Singh, both as karta of the joint Mitakshara family consisting of himself and his son, and as guardian of his son. By this deed, the mortgagors hypothecated four items of proprietary interest (1) 3 annas and odd share in mauza Azizpur Piparia, touzi No. 838, (2) 16 annas khas patti in Azizpur Piparia, tauzi No. 840, (3) 8 annas out of 16 annas in respect of 4 annas patti in mauza Jagdishpur Saiyadpur, touzi No. 987, and (4) 8 annas out of 16 annas in respect of 4 annas patti in Jagdishpur, touzi No. 8994, to secure an amount of Rs. 17,000/- for the period 1st Asin 1336 to 30th Bhado 1351 Fasli. The property was to remain in the possession of the mortgagee Dalip Narain Singh, defendant No. 1 since deceased, who would be responsible for the payment of Government revenue and cess. The income of the property, after making a certain allowance for the cost of collection, was to be applied first to the payment of the interest payable under the 'sadhawa patawa' deed and the balance, if any, towards the satisfaction of the principal amount of the said mortgage-debt. There was to be a yearly rendering of accounts. If within the term of the mortgage the debt was not satisfied the sadhawa patawa was to continue till the date of payment of the entire mortgage dues.
2a. There was a special provision regarding 180 bighas 15 kathas of bakasht land, 107 bighas of which lay within tauzi No. 840 and the balance 73 bighas 15 kathas within touzi No. 838. I reproduce the provision:
"We the executants have khud kasht land in the properties let out in 'sadhawa patawa'.
Out of the said lands jamabandi (rent) has been fixed with regard to some land which has been recorded as nakdi kaimi land in the name of minor son, Thakur Prasad Singh in the jamabandi list which has been signed by me and made over to Rai Bahadur the said creditor. B. Thakur Prasad shall keep, in possession and occupation the said land till the payment of the 'sadhawa patawa' money, the said Rai Bahadur shall continue to receive the rent thereof according to the list submitted by us, the executants year after year."
There was no accounting between the parties. Also, no payment was made by the mortgagors in respect of the 180 bighas 15 kathas. It appears that in 1931 the mortgagee filed a suit against the mortgagors in respect of arrear rent due for this land and obtained a decree in execution of which he put to sale and purchased the mortgaged property.
3. The plaintiffs filed the suit on the basis that their interest was unaffected by the execution sales and that the mortgage dues were fully satisfied by the usufruct of the mortgaged property. They pleaded:
"The plaintiffs have come to know that defendant No. 1 instituted a rent suit in respect of the said land against the family of the plaintiffs and obtained a decree fraudulently and surreptitiously and thereafter executing the said decree by taking surreptitious steps purchased all the jot lands and the properties let out in sadhawa patawa for a meagre amount of Rs. 300. The plaintiffs beg to submit that the said decree was a money decree. The plaintiffs have come to know that defendant No. 1 had never obtained permission from the Court for purchasing at the auction-sale. As the said decree was in respect of the subject-matter of the sadhawa patawa deed, hence the purchase by defendant No. 1 at auction sale is by all means illegal and ineffective. The plaintiffs beg to submit that the defendants are up till now in possession and occupation of the properties let out in sadhawa patawa as sadhawa patawadar. The plaintiffs have by all means the right to re-deem the rehan, "They therefore prayed
1. for a decree for redemption with an order for rendition of accounts of the entire income of the property and
2. "if the Court be pleased to consider it necessary to set aside the purchase of defendant No. 1 at auction sale, then the said auction sale may be set aside."
4. The learned Subordinate Judge rejected the story of fraud both in the rent suit and in the execution proceedings. He held that the claim in the rent suit did not arise under the mortgage. Further he expressed the view that even if it did arise under the mortgage & there was a contravention of Order XXXIV, Rule 14, such a sale is voidable and not void and therefore the sale must be taken to be valid in the present case as the time limited by Article 12 of the Schedule to the Limitation Act for instituting a suit for setting aside such a sale has expired. He pointed out in addition that a suit for setting aside the sale on the ground of fraud or irregularity in the execution proceedings is barred by Order XXI, Rule 92, Sub-rule (3), Civil P. C. On these findings he held that the plaintiffs had no right to redeem the mortgage and dismissed the suit.
5. The correctness of the propositions of law enunciated by the Additional Subordinate Judge has not been challenged. The question of fraud in the execution of the decree and the effect of the provisions of Order XXXIV, Rule 14 on the validity of the execution sales therefore was not agitated before us. The learned Advocate-General who represented the appellants, confined his argument to the contention that in spite of the execution sales plaintiffs still retain their interest in the mortgaged property and are entitled to redeem the mortgage. This contention he based on three grounds:
1. The plaintiff No. 1 was a minor at the time of the compromise decree in the rent suit and it has not been proved that the Court permitted his guardian ad litem in the suit to enter into the compromise.
2. that the mortgage in this case being a purely usufructuary mortgage, the mortgagors were merely entitled to recover possession under Section 62, Transfer of Property Act, and had no interest in the property which could pass by the execution sale, and
3. that the interest of the plaintiffs in the 180 bighas 15 kathas of bakasht land was not affected by the sale in Execution Case No. 995 of 1933, and the land is still in possession of the plaintiffs.
6. On the pleadings and on the evidence adduced in the case, I do not think the first ground is tenable. The plaint alleges in general language that the decree was "fraudulently and surreptitiously obtained". This was denied in the written statement, and in the evidence no reference was made to fraud or any irregularity in obtaining the decree. Plaintiff No. 1 who was examined as the first witness for the plaintiffs, confined his deposition in examination-in-chief to the execution proceedings, denying the service of the processes and knowledge of the sales. Questioned about the decree in question he merely denied knowledge of it but did not suggest fraud. This may be because he was a minor at the time the decree was obtained and therefore not likely to have any direct knowledge. This observation does not apply to Medni Prasad Singh (P.W. 4) who according to his evidence was in the service of Dalip Narayan at the time when the suit was instituted and the decree was obtained. He mentions the decree without suggesting that there was anything irregular or fraudulent in the manner in which it was obtained and then goes on to say that the decree was executed fraudulently. The same is the case with Ram Kishun Singh (P.W. 11) an old servant of the plaintiffs' family who after mentioning that he was the karpardaz of the family from the time of the father of plaintiff No. 1 and used to go to Dalip Narayan for demanding a rendering of accounts every year, continues; "No, process of execution was served according to law." The other witnesses examined to prove fraud similarly confined their depositions to the execution proceedings (P.Ws. 2, 3 and 5 to 10).
7. The circumstances I have set out explain why the first ground proceeded on the basis that the permission of the Court to enter into the compromise has not been proved. In my opinion this is the wrong approach to the question. Under the law, when a minor is concerned as a party to a proceeding in Court and compromise is proposed, it is the duty of the Court to look after the minor's interest. The Code, therefore, prescribes that the guardian ad litem of a minor must obtain the permission of the Court before entering into the compromise. When the question of the regularity of the compromise arises subsequently the presumption under Section 114, Evidence Act, is that the Court performed its duty, the onus of proof falls on the party which asserts that permission was not given by the Court. There is nothing in the present case to transfer that onus to the defendants. A reference has been made to the fact that the rent suit was instituted in February for arrears of rent fur 1336 to 1338 Fasli though the year 1338 Fasli had not yet ended. Exhibit I, which is the Suit Register merely mentions the years to which the claims relate. It may be that the claim did not relate to the whole of the year 1338. In this connection, it is relevant to note that, whereas the claim was laid at Rs. 1654, the suit was compromised for Rs. 1524. Further plaintiff No. 1 admits in his evidence that no payment was made of rent due on account of the bakasht land. This suggests that there was a basis for the claim in the suit and that the compromise was not unreal. The mere fact that the claim was exaggerated is not enough to transfer the onus to the defendants.
8. In support of his second ground the learned Advocate General stressed the difference between Sections 60 and 62, Transfer of Property Act. Section 60 provides that at any time after the principal money has become due the mortgagor has a right on payment or tender of the mortgage-money to require the mortgagee, (a) to deliver to the mortgagor the mortgage deed, (b) where the mortgagee is in possession, to deliver possession thereof to the mortgagor, and (c) to retransfer the mortgaged property to him or to register an acknowledgment that the mortgagee's interest in the property has ceased. This right, the section defines, is the right to redeem. As against this Section 62 provides in the case of a usufructuary mortgage that the mortgagor has a right to recover possession of the property with all the relevant documents: (a) Where the mortgagee is authorised to pay himself the mortgage-money out of the usufruct, when such money is paid and (b) where the mortgagee is authorised to pay himself only a part of the mortgage-money, when the term prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders the mortgage-money or the balance thereof or deposits it as provided in the Act.
9. A suit under this section is really a suit by the owner to recover possession of the property on his title, though from its analogy to a redemption suit and for want of a better term it is generally called a suit for redemption. The contention of the learned Advocate-General is that till the title reverts to the mortgagor by the mortgage dues being satisfied as aforesaid the mortgagor has no interest in the property and therefore by the execution sales in this case no interest passed to the decree-holder auction-purchaser.
10. The answer to the contention is two fold. First of all, I do not think that the mortgage in question was a pure usufructuary mortgage. I have referred above to 180 bighas 15 kathas of bakasht land of which the mortgagors retained possession, agreeing in respect of it to pay to the mortgagee the rent shown as due on account of it in the landlord's jamabandi. This area lay within the tauzis 838 and 840 both of which were the subject-matter of the mortgage. These touzis were hypothecated "together with kamat khudkasht & bakasht land, etc." The mortgage, therefore, covered this area. The sadhawa patawa describes the land as khudkasht (a word used loosely for bakasht) & notes that it has been "recorded as nakdi kaimi in the name of Thakur Prasad". Evidently the mortgagors regarded the land as the bakasht land of the mortgagors and were giving a description of the entries in the jamabandi for fixing its identity and for fixing the payment which was to be made to the mortgagee on account of the retention of this land in the possession of the mortgagors. It is thus clear that under the mortgage the mortgagee was not entitled to possession of the entire mortgaged property.
11. Secondly, I cannot agree that when the owner of property hypothecates that property by a usufructuary mortgage he ceases to have any interest in that property until the mortgage-debt is satisfied in due course and he is in a position to sue for recovery of possession under Section 62, Transfer of Property Act. -- 'Ram Prasad v. Bishambhar Singh', A.I.R. 1946 All 400 which has been 'relied upon is not authority for this proposition. The ownership of property connotes a bundle of rights in respect of that property. In a transaction of mortgage the owner of that bundle of rights transfers some of those rights to the mortgagee. The remainder of that bundle of rights still remains with him and can be transferred. So long as the usufructuary mortgage continues however the owner by reason of the mortgage is deprived of his right to immediate possession of that property. It is this right which he recovers when in course of time, the mortgage-debt is satisfied or when after the time prescribed for payment of the mortgage-money he makes the necessary deposit. This is the proposition enunciated by Braund, J. when he observes:
"At the moment when the rents and profits of the mortgaged property sufficed to discharge the principal secured by the mortgage, the mortgage came to an end and the correlative right arose in the mortgagor to recover possession of the property".
12. With reference to his third ground the learned Advocate-General points out that, whereas the area 180 bighas 15 kathas was the bakasht land of the plaintiff No. 1 and his father, it has been described in the sale certificate (Ext. K (1)) as "kaemi occupancy nakdi jot land". He contends that no such right existed in the judgment-debtors and so no interest passed by the sale. He further points out that as regards this property no evidence has been given that the auction-purchasers obtained delivery of possession through the Court, and that on their side there is evidence that the plaintiffs are in possession of it (P. Ws. 1, 3, 7, 8). In my opinion, the consideration of the points raised is not relevant to the decision of this suit. This area of land lies in touzi Nos. 838 and 840 and was held by the proprietors as their bakasht. The proprietary interest was mortgaged under the sadhawa patawa deed and under a lease back the mortgagors were permitted to continue in possession of this land. On the 31st March 1932 the proprietary interest of the mortgagors in tauzis 838 and 840 was sold and passed to the mortgagee. The mortgagors were however allowed to continue in possession of the land. Their interest in it was described by the mortgagor as "kaemi occupancy nahdi" when he put up the property to sale in February 1934 (vide Ex. K (1)). This indicates that after the purchase of tauzis Nos. 838 and 840, the mortgagee treated the mortgagors as tenants holding the land under him as proprietor. The remaining proprietary interest of the mortgagors in the mortgaged property passed to the mortgagee when he purchased tauzis Nos. 987 and 8944. By this transfer the entire property mortgaged vested in the mortgagee and the mortgage was extinguished. After that the interest, if any, which the mortgagors still retain in respect of the area of 180 bighas 15 kathas would not entitle them to sue for redemption of the mortgage. It is therefore unnecessary to determine what interest the mortgagors retained in the property after the sale of the tauzis 838 and 840, whether that interest* was affected by the sale on the 15th February 1934, and whether the plaintiffs are or are not in possession of the land.
13. In passing our attention has been drawn to the fact that in support of the purchases of the mortgagors' interest in tauzis Nos. 987 and 8944 what is produced is not the sale certificate but only the writ of delivery of possession (Ext. G) and the entry in the Register of the Suits relating to the execution case in which the sale was held (Ext. L). The fact of the sale, however, was admitted in paragraph 4 of the plaint which I have cited above. There the plaintiffs spoke of having come to know that in execution of his decree defendant No. 1 "purchased all the said jote land and property let out in sadhawa patawa." This was also admitted at the trial for the Subordinate Judge observes in the judgment:
"The plaintiffs do not deny the purchase of the properties in question by the defendant No. 1 in execution of his rent decrees against them. But they attack the purchase on the ground that it comes within the mischief of Order XXXIV, Rule 14."
14. This makes it clear that only the legal , effect and not the factum of the sales was denied. It was in these circumstances that the evidence adduced by the defendants to prove the sale was accepted by the Court. It is not possible at the appellate stage to put the defendants to strict proof of the purchase. A full description of the property is given in Ext. G. It tallies with the description in the sadhawa patawa deed. In these circumstances there is no doubt about the identity of the property sold.
15. For the reasons set out above the appeal must fail. The result is that for a small amount due on account of the rent for the bakasht land the mortgagors have lost their valuable property. I would not penalise them further by saddling them with costs. I would therefore dismiss the appeal and direct that the parties bear their own costs of the appeal.
Lakshmikanta Jha, C.J.
16. I agree.