Gauhati High Court
Babar Ali Choudhury And Ors vs Mannan Choudhury And Ors on 1 August, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 169/2004
Md. Babar Ali Choudhury and others ...... Appellants
-Versus-
On the death of Md. Abdul Mannan Choudhury,
His legal heirs -
Msstt. Anowara Begum and others ..... Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appellants : Mr. SK Ghosh
Advocate
For the Respondents : Mr. FU Barbhuiya
Advocate
Date of Hearing : 01.08.2017
Date of delivery of
Judgment and Order : 01.08.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. SK Ghosh, learned counsel for the appellants and Mr. FU Barbhuiya, learned counsel appearing on behalf of the respondents.
2. The present second appeal has been preferred by the appellants who are the plaintiffs in Title Suit No. 54/1998. It is the case of the plaintiffs/ appellants that one Kanu Mia was the original owner of 6B 4K 1Ch of land covered by patta No. 16. The said land was resurveyed to R.S. Patta No. 19 under Dags No. 103, Page 1 of 14 RSA 169/2004 104, 104/215 and 105 and subsequently resurveyed in the second R.S. Patta No. 36 under Dag Nos. 75, 97 and 98. On the death of Kanu Mia, his wife Nabiza Bibi and two sons, namely, Arjan Ali and Amber Ali inherited the property left by him. Subsequently, on the death of Nabiza Bibi both Arjan Ali and Amber Ali inherited the said land equally measuring 3B 2K 10G each. Arjan Ali died leaving behind his wife Nekjan Bibi, Hamid Ali (son) and three daughters, namely, Potoi Bibi, Arijan Bibi and Kutina Bibi. The said legal heirs of Arjan Ali inherited the properties left by him. Amber Ali and Nekjan Bibi mortgaged 2B 8K 8Ch of land covered by the second R.S. patta No. 19 to one Latai Mia vide registered deed No. 2447 dated 20.03.1944 (Exhibit-8). The said mortgage was for a period of 3 years and after creation of the said mortgage possession was delivered to the mortgagee, Latai Mia. It is the case of the plaintiffs/ appellants that prior to the death of Amber Ali, the mortgage so created was redeemed by way of an unregistered deed of release and also got the possession thereon. Amber Ali died leaving behind his wife Alekjan Bibi and four sons, namely, Ayub Ali, Shayub Ali, Jamir Uddin @ Nendu Mia and Asab Ali and four daughters, namely, Sariful Bibi, Beloi Bibi, Fulenur Bibi and Aroi Bibi. It is stated that Nekjan Bibi and Ayub Ali and other co-sharers subsequently sold excess land by different sale deeds to one Hasan Raja Choudhury. The purchaser got no title over the excess land except the land measuring 8K 6C 10G 1Kora. The plaintiffs/ appellants No. 2 to 4 purchased land measuring 2B 3Ch vide registered deed No. 6144 dated 23.06.1980 from other legal heirs of Amber Ali. Again on 02.04.1982, the plaintiffs/ appellants No. 1, 2 and 3 purchased land measuring 7K from Sariful Bibi vide deed No. 2447 and accordingly became the owner of 2B 7K 3Ch of land Page 2 of 14 RSA 169/2004 in the suit patta and dags described in the first schedule of the land which is the suit land. It is further stated that though the land mortgaged to Latai Mia was released but he managed to get mutated his name in the suit patta and taking advantage of that mutation, Ayub Ali in collusion with Latai Mia prepared a sale deed dated 01.07.1968 (Exhibit-Ja) in respect of the suit land measuring 2B 8K 8Ch and subsequently defendants/ respondents No. 1 to 8 created some collusive sale deeds mentioned in 2nd Schedule of the plaint vide SL. Nos. 4 to 6 and entered into a quarrel with the plaintiffs/ appellants and forcibly dispossessed them from the Part-II of the 1st Schedule land. Hence, the plaintiffs/ appellants filed the suit for declaration of right, title and interest over the suit land with further prayer for recovery of khas possession of Part-II land of the Schedule-I and for cancellation of deeds mentioned in the 2nd schedule of the plaint and for other reliefs.
3. The defendants/ respondents No. 1 to 13 contested the claim of the plaintiffs/ appellants by filing a common written statement. It is the defence taken by them that the predecessor of the defendants/ respondents No. 1 to 8 purchased the suit land along with other land vide registered deed No. 3216 dated 17.04.1978, deed No. 4512 dated 20.05.1975, deed No. 5085 dated 06.06.1978 and deed No. 5568 dated 06.06.1979 from Ayub Ali in the suit patta. After the death of Hasan Raja Choudhury, his legal heirs i.e. defendants/ respondents No. 1 to 8 sold some land to defendants/ respondents No. 10 to 13. The plaintiffs/ appellants created some false documents in respect of the suit land in the year 1980-82. The said defendants/ respondents No. 1 to 8 entered into an agreement for sale of the land with the defendants/ respondents No. 10 Page 3 of 14 RSA 169/2004 to 13 including the suit schedule land and received earnest money and thereafter handed over possession in their favour. The said defendants/ respondents No. 10 to 13 are possessing the same by digging a pond on the northern part and cultivated on the southern part of the suit land. The defendants/ respondents applied for obtaining No Objection Certificate (NOC) from the office of the D.C., Hailakandi to sell the same against which the plaintiff/ appellant No. 1 filed objection which was rejected by the concerned office. Accordingly, a village bichar was held regarding the dispute and in the said bichar, the claim of the answering defendants/ respondents over the land on the southern portion of the E & D Bandh was accepted. On the said premises the defendants/ respondents prayed for dismissal of the suit.
4. On the basis of the pleadings, the following issues were framed by the learned trial court:-
1. Is there any cause of action for the suit?
2. Is the suit bad for defect of parties?
3. Whether the plaintiffs have right, title and interest over the suit land?
4. Whether the plaintiffs are entitled to get recovery of possession of the 2nd Schedule land of the plaint?
5. To what relief(s) the parties are entitled to?
Additional I ssue:-
6. Whether the sale deeds of Schedule-II of the plaint are forged, fraudulent, illegal and inoperative and plaintiff is entitled to get the declaration as above?
5. During trial, both the parties examined witnesses and exhibited various documents in support of their respective contentions. The learned trial court partially decreed the suit in favour of the plaintiffs/ respondents thereby declaring their right, title and interest and possession over the plot of land Page 4 of 14 RSA 169/2004 measuring 10K 9Ch 19Gs situated on the northern side of the E & D Bandh. However, the other prayers of the plaintiffs/ appellants were rejected.
6. Being aggrieved, the plaintiffs/ appellants preferred Title Appeal No. 22/2003 in the court of learned Civil Judge (Sr. Divn.), Hailakandi. The learned first appellate court vide judgment and decree dated 15.06.2004 by reversing the findings of the learned trial court dismissed the appeal.
7. Thereafter the plaintiffs/ appellants have preferred this second appeal which was admitted on 13.10.2004 on the following substantial questions of law:-
1. Whether the title of the mortgagor or his successor in interest can get extinguished by efflux of time and without any decree u/s 67 of the Transfer of Property Act in favour of purchaser and mortgagee's in interest?
2. Whether the plaintiff had acquired valid right title interest over the suit land vide Ext. 1 and 2?
Later on, vide order dated 10.11.2016 another substantial question of law was formulated which is quoted below:-
3. In the absence of any cross objection filed by the defendant, whether the partial decree passed in a suit can be set aside by the appellate court in an appeal preferred by the plaintiffs?
However, while arguing the said second appeal both the learned counsels appearing on behalf of the parties to the appeal submitted that another substantial question of law is to be formulated which was accordingly formulated as follows:-
4. Whether execution of Exhibit-Ja by Latai Mia, the mortgagee in favour of Ayub Ali, one of the legal heirs of Amber Ali (the Page 5 of 14 RSA 169/2004 mortgagor) amounts to redemption of the mortgaged property which was mortgaged vide Exhibit-8, the registered mortgage deed bearing No. 2447 dated 20.03.1944 for a period of 3 years on the face of failure on the part of the plaintiffs/ appellants to prove the unregistered deed of release purportedly executed by Latai Mia?"
8. Mr. Ghosh, learned counsel for the appellant, submits that the learned first appellate court while deciding the point for determination No. 3 failed to consider the Exhibit-Ja in the proper perspective and accordingly came to a wrong finding and reversed the findings of the learned trial court. It is submitted that the learned first appellate court while deciding the point for determination No. 1 as to whether mortgage property was released by the mortgagee Amber Ali, held that Amber Ali and his legal heirs failed to redeem the mortgage land which was mortgaged by way of Exhibit-8. Thereafter, keeping that mindset the learned first appellate court observed that the suit land was not redeemed by the mortgagor Amber Ali and his legal heirs within the statutory period of 30 years. It is also observed that the mortgagee Latai Mia sold out the land to Ayub Ali vide Exhibit-Ja dated 01.07.1968 without obtaining any decree for foreclosure or for sale within the prescribed period of limitation of 30 years. Subsequent thereto, Ayub Ali sold the same land to one Hasan Raja Choudhury vide Exhibits - 'Neo', 'Ta' and 'Tha' including other land in the year 1977-79. The said land was subsequently purchased by the plaintiffs/ appellants vide Exhibits - 1 and 2 in the year 1980-82 from the legal heirs of mortgagor Amber Ali. It came to the finding further that a sale without decree obtaining for foreclosure is not valid and cannot confer title in favour of the subsequent transferee. But at best they Page 6 of 14 RSA 169/2004 acquired the right of mortgagors. It is also observed that the name of Latai Mia, the mortgagee was mutated in the Jamabandi. On the basis of the said observation, the learned first appellate court came to the finding that since 1968 to 1980, the legal heirs of original mortgagor remained silent as to the development of the events and taking shelter of Section 67 of the Transfer of Property Act, the learned first appellate court came to the finding that the said sale by Latai Mia to Ayub Ali and the subsequent sale by said Ayub Ali to Hasan Raja Choudhury is invalid. Accordingly, Mr. Ghosh submits that the findings arrived at by the learned first appellate court cannot be accepted, inasmuch as, the said mortgage was released as pleaded by the plaintiffs/ appellants. Mr. Ghosh further submits that the title of the mortgagor or its successor-in-interest is not extinguished by efflux of time and that too, without any decree under Section 67 of the Transfer of Property Act by the mortgagee. As such, the plaintiffs/ appellants have acquired valid right, title and interest over the suit land, inasmuch as, the sale of land to the predecessor-in-interest of the defendants/ respondents No. 1 to 8 is null and void as Ayub Ali had no share at all to transfer to the said predecessor-in-interest of defendants/ respondents No. 1 to 8. Accordingly, substantial questions of law No. 1 and 2 are to be decided in favour of the plaintiffs/ appellants.
9. Regarding the finding of the learned first appellate court, Mr. Ghosh submits that the Exhibit-Ja is a sale deed and the mortgagee, Latai Mia had no right to sale the suit land unless and until he obtained a decree for foreclosure of the mortgage.
Page 7 of 14 RSA 169/2004
10. Mr. Barbhuiya, learned counsel for the respondents, submits that the question as to whether a mortgage was created and whether the same was redeemed is a question of fact. The plaintiffs/ appellants failed to prove that there was redemption of the suit land which was mortgaged in favour of the mortgagee. However, he insisted that the learned first appellate court arrived at the finding on the basis of the materials on record. The Exhibit-Ja which is a sale deed, cannot be taken into consideration as the redemption of the mortgaged property rather, it is the sale on the basis of which Ayub Ali was endowed with the status of the land holder and the subsequent sale to the predecessor-in- interest of the defendants/ respondents No. 1 to 8 is valid one. The admission on the part of the plaintiffs/ appellants that they purchased the said land which was mortgaged subsequent to Hasan Raja Choudhury itself goes to show that no title was transferred on the said sale made to the plaintiffs/ appellants. Finally, Mr. Barbhuiya supporting the findings of the learned first appellate court submits that the substantial questions of law so formulated has no bearing on the findings given by the learned first appellate court while reversing the findings of the learned trial court.
11. Considered the submissions of both the learned counsels and perused the judgments passed by the learned courts below and also the records. From the contention made by the learned counsels and on the basis of the records, the factual matrix is as follows:-
(i) The legal heirs of Kanu Mia mortgaged land measuring 2B 8K 8Ch by way of Exhibit-8 which is the registered mortgage deed executed by Nekjan Bibi and Amber Ali. On the basis of the said mortgage deed, the mortgage was created Page 8 of 14 RSA 169/2004 with respect to the said land and possession was also delivered to the mortgagee, Latai Mia. The said mortgage was for a period of 3 years and the amount so borrowed was Rs. 300/-.
(ii) By way of Exhibit-Ja i.e. a registered deed bearing No. 6326 dated 01.07.1968 Latai Mia sold the land measuring 2B 8K 8Ch to Ayub Ali, one of the sons of Late Amber Ali. Late Amber Ali was one of the mortgagors along with Nekjan Bibi. Nekjan Bibi along with her two daughters Kutina Bibi and Potoi Bibi sold land by way of a registered sale deed to Ayub Ali, the son of Late Amber Ali.
Vide Exhbits - 'Neo', 'Ta' and 'Tha', Ayub Ali sold land which was mortgaged to Latai Mia and the said exhibits are registered sale deeds bearing No. 4512 dated 20.05.1978, deed No. 5085 dated 06.06.1978 and deed No. 5568 dated 06.06.1979. The said land, sold to Hasan Raja Choudhury i.e. predecessor in interest of the defendants/ respondents No. 1 to 8, is claimed by the plaintiffs/ appellants which was sold to them by legal heirs of Kanu Mia other than Ayub Ali subsequent to execution of Exhibits - 'Neo', 'Ta' and 'Tha'. It is the case of the plaintiffs/ appellants that as the land was released by way of an unregistered release deed, the land reverted back to the legal heirs of the original mortgagors and accordingly they purchased in the year 1980 and they are the absolute owners with respect to the said land purchased which formed the subject matter of the mortgage created vide Exhibit-8.
12. The trial court refusing the relief of cancellation of the said sale deeds on the basis of which the predecessor in interest of defendants/ respondents No. 1 to 8 purchased, decreed partially that the plaintiffs/ appellants are entitled to land measuring 10K 9Ch 19G only. The said finding of the learned trial court was Page 9 of 14 RSA 169/2004 set aside by the learned first appellate court by holding that the suit land which was mortgaged to Latai Mia was not duly redeemed as the unregistered document of release could not be proved by the plaintiffs/ respondents. Finally, the learned first appellate court holding that since the land in question was not redeemed within the period of limitation and also due to subsequent transfer to the plaintiffs/ appellants, the same shall not confer any right, title and interest and possession in favour of the transferee/ plaintiffs. Further, the learned first appellate court also came to the finding that the transfer carried out by the Exhibit - Ja cannot confer title in favour of the purchaser Ayub Ali, the legal heir of Late Amber Ali, one of the mortgagors. However, coming to a contradictory stand, the learned first appellate court held that due to lapse of time the transferee i.e. the defendants/ respondents acquired good title in respect of the suit land and as such, the learned first appellate court refused t o entertain the claim of the cancellation of the sale deeds, as sought for by the plaintiffs/ appellants. Keeping the finding that the plaintiffs/ appellants had derived no right, title and interest on the basis of the purchase made with respect to the land which was the subject matter of the mortgage intact, the learned first appellate court reversed the finding of the learned trial court and finally dismissed the suit.
12. From the factual matrix, the original mortgagors on their death, the legal heirs inherited the right to redeem the mortgage so created by their predecessor in interest in favour of Latai Mia. Section 60 of the Transfer of Property Act stipulates that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the Page 10 of 14 RSA 169/2004 mortgage-money, to require the mortgagee to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee. Further it is stipulated where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct. As per the proviso, the said right of redemption shall exist till the same has not been extinguished by the act of the parties or by decree of a court.
13. In the case of Achaldas Durgaji Oswal (dead) through LRs v. Ramvilas Gangabisan Heda (dead) through LRs and others reported in (2003) 3 SCC 614, the Hon'ble Apex Court accepted the explanation of Law of Mortgage by Dr. Rashbehary Ghose at pp. 231-32 which is reproduced below:-
"13. In the Law of Mortgage by Dr Rashbehary Ghose at pp. 231-32 under the heading "Once a mortgage, always a mortgage", it is noticed -
"In 1681 Lord Nottingham in the leading case of Howard v. Harris firmly laid down the principle: 'Once a mortgage, always a mortgage'. This is a doctrine to protect the mortgagor's right of redemption: it renders all agreements in a mortgage for forfeiture of the right to redeem and also encumbrances of or dealings with the property by the mortgagee as against a mortgagor coming to redeem. In 1902 the well-known maxim, 'once a mortgage, always a mortgage', was supplemented by the words 'and nothing but a mortgage' added bvy Lord Davey in the leading case of Noakes v. Rice in which the maxim was explained to mean 'that a mortgage cannot be made irredeemable and a provision to that effect is void'. The maxim has been supplemented in the Indian context by the words 'and therefore always redeemable', added by Justice Sarkar of the Supreme Court in the case of Seth Ganga Dhar v. Shankar Lal (AIR 1958 SC 770).
It is thus evidence that the very conception of mortgage involves three principles. First, there is the maxim: 'once a mortgage, always a mortgage'. That is to say, a mortgage is always redeemable and if a contrary provision is made, it is invalid. And this is an exception to the aphorism, modus et convention vincunt legem (custom and agreement overrule law). Secondly, the mortgagee cannot reserve to himself any collateral advantage outside the mortgage agreement. Thirdly, as a corollary from the first another principle may be deduced, namely, 'once a mortgage, always a mortgage, and nothing but a mortgage'. In other words, Page 11 of 14 RSA 169/2004 any stipulation which prevents a mortgagor from getting back the property mortgaged is void. That is, a mortgage is always redeemable.
The maxim 'once a mortgage always a mortgage' may be said to be a logical corollary from the doctrine, which is the very foundation of the law of mortgages, that time is not of the essence of the contract in such transactions; for the protection which the law throws around the mortgagor might be rendered wholly illusory, if the right to redeem could be limited by contract between the parties. Right to redeem is an incident of a subsisting mortgage and is inseparable from it so that the right is coextensive with the mortgage itself. The right subsists until it is appropriately and effectively extinguished either by the acts of the parties concerned or by a proper decree of the competent court."
Thus it is found that the title of the mortgagor or his successor-in-interest over the mortgaged property cannot get extinguished by efflux of time. Right to redeem subsists until the same is extinguished by act of parties concerned or by a proper decree from a competent court. Accordingly, the substantial question of law No. 1 is decided in the negative and the findings to that effect by the first appellate court cannot be accepted.
14. Let me consider the Exhibit-Ja executed by Latai Mia in favour of Ayub Ali, one of the legal heirs of Amber Ali for deciding substantial question of law No. 4. The said sale deed was executed by Latai Mia on the strength of his name being mutated in the Jamabandi and the said sale transaction took place at a consideration of Rs. 500/-. From the perusal of the Exhibit-Ja it is apparent that possession of the mortgaged property was delivered to Ayub Ali by the mortgagee Latai Mia. The law is clear that mere mutation entry cannot give title to a person. In such a situation, if Exhibit-Ja is considered keeping in view the provisions under Section 60 of the Transfer of Property Act, 1882, the same amounts to redemption of the mortgage by Ayub Ali as the legal heir of one of the mortgagors. The option for full/ partial redemption of a mortgage by a mortgagor lies with the mortgagee. From Exhibit-Ja, the mortgagee purportedly Page 12 of 14 RSA 169/2004 sold out the total land which was mortgaged to Ayub Ali from which it can be inferred that Latai Mia did not object in transferring the said land in favour of Ayub Ali only i.e. the mortgagee did not object to the act of redemption of the mortgage by one of the heirs of the original mortgagors. From the acts and deeds of the parties to the said Exhibit-Ja it can be concluded that the mortgage which was created way back in the year 1944 by Amber Ali and Nekjan Bibi was duly redeemed by Ayub Ali being the legal heirs of the mortgagors. The learned first appellate court failed to consider the said aspect of the matter and simply discarded the Exhibit-Ja with the finding that Latai Mia had no right, title and interest to sell the said land. Exhibit-Ja satisfies the conditions as required for redemption prescribed under Section 60 of the Transfer of Property Act. The borrowed amount by the mortgagors was Rs. 300/- and the consideration shown in Exhibit-Ja is Rs. 500/-; the mortgage was created by way of a registered deed and the possession was delivered accordingly. Similarly, the possession was also redelivered to Ayub Ali by way of the registered deed i.e. Exhibit-Ja and the khas possession had also been delivered, inasmuch as, this can be prepondered because the defendants/ respondents No. 1 to 8 never disputed that they were not possessing the suit land. Accordingly the said question No. 4 is decided in the affirmative and the redemption of the mortgage created by Exhibit - 8 is effected by acts of the parties.
15. The substantial question of law No. 2 with regard to Exhibits No. 1 and 2, this court comes to the finding that the trial court had correctly come to the finding that same confers title on the plaintiff/ appellant to the extent of 10K 9Ch 18Gs only against the claim of 2B 7K 3Ch. The learned counsel for the appellants Page 13 of 14 RSA 169/2004 submit that he would not press for the substantial question of law No. 3 so formulated. As the said substantial questions of law No. 2 and 4 are also decided in the affirmative, the second appeal succeeds and the judgment and decree passed by the learned first appellate court is accordingly set aside and the one passed by the trial court is restored.
16. Accordingly, this second appeal is allowed.
No order as to costs.
17. Send down the LCRs.
JUDGE BiswaS Page 14 of 14 RSA 169/2004