Patna High Court
Ramlochan Singh And Ors. vs Pradip Singh And Ors. on 24 August, 1958
Equivalent citations: AIR1959PAT230, 1958(6)BLJR738, AIR 1959 PATNA 230
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. There are two appeals, Second Appeal No. 1667, of 1951 and Second Appeal No. 1545 of 1953. These two consolidated appeals have been heard analogously and will be disposed of by this judgment. It will be more convenient to deal with them separately SECOND APPEAL NO. 1667 of 1951.
2. This is an appeal by the plaintiff from the judgment and decree of the learned Subordinate Judge, Begusarai, dated 8-9-1951, by which he, in reversal of the judgment of the learned Munsif dated 6-6-1950, dismissed the appellant's suit for redemption of a usufructuary mortgage bond dated 1-7-1901 executed by the ancestors of defendants second party in favour of Mukhilal Singh ancestor of defendants first party.
The mortgaged land is 4 bighas 18 kathas which formed part of a holding of 6 bighas 6 kathas 9 dhurs.
In 1929 defendants second party transferred to the plaintiff 6 bighas 6 kathas 14 dhurs of land including the mortgaged property by a registered sale deed dated 18-5-1929, for a consideration of Rs. 1000. The mortgage money due under the usufructuary mortgage bond of 1-7-1901 was leit in deposit with the plaintiff for payment to the mortgagee, namely, defendants first party.
The plaintiff, it is alleged, tendered the mortgage money to them, and, when they refused to accept the money, he deposited the same in court under S. 83 of the Transfer of property Act on 3r5-1945. Notice of "this deposit was given to the defendants first party; still they did not accept the money and give up possession. Thereupon the plaintiff instituted the present suit for redemption of the mortgage and for possession of the mortgaged property.
3. The defence, in the main, was that the document of date 1-7-1901 was not a usufructuary mortgage bond, but a sale deed out and out, and the defendants had acquired, by virtue, of the said instrument of transfer an absolute right to the property in dispute, and the plaintiff, by virtue of the sale deed dated 18-5-1929, acquired no valid title and is not entitled in law to ask for redemption.
4. The learned Munsif held that the usufructuary mortgage bond dated 1-7-1901, was in letter and in essence a mortgage bond and not a sale deed, nor was it intended to be an absolute sale. He further held that under Section 92 of the Evidence Act, evidence of act and conduct of parties is not admissible in order to contradict or vary the terms of a written document and to show that a document which was, on the face of it, a mortgage was in reality a kebala. He accordingly gave the plaintiff a decree for redemption subject to payment of an additional sum. In his opinion the mortgage money deposited by the plaintiff was short by Rs. 445-8-0 and this is the additional amount which the plaintiff was directed to deposit. He also gave the plaintiff a decree for mesne profits from the date of the deposit of the said additional sum.
5. In appeal, the learned subordinate Judge affirmed the view of the learned Munsif that subsequent acts and conduct of the parties are not admissible under Section 92 of the Evidence Act to show that a deed of mortgage was in reality a deed of sale. He, however, held that the defendants first party had acquired title as raiyat in respect of the mortgaged property by virtue of adverse possession and is such the plaintiff was not entitled to redeem the mortgage which stood extinguisned.
He further held in the alternative, that if the document was a mortgage, the deposit was short by Rs. 607-8-0, and not by Rs. 445-8-0, only as determined by the learned Munsif. He further held that, in addition to this, the defendants were entitled to recover from the plaintiff rents paid by the defendants as evidenced by the rent receipts. On the main finding, however, that the mortgage was extinguished, he dismissed the plaintiffs suit.
The only question which has been argued before us is one of limitation. Mr. S.N. Datta appearing for the appellant contended, in the first place, that the plea of acquisition of title by adverse possession was not raised in the pleadings, and, therefore, the mortgagees were not entitled in law to contend that they had acquired a good title to the mortgaged property by adverse possession. It is true that the question of adverse possession was not specifically raised by the mortgagees in their written-statement. Mr. S. N. Datta referred to several decisions in support of his contention. In the case of Khub Lal Upadhya v. Jugdish Prasad Singh ILR 1 Patna 23: (AIR 1922 Pat 398), Das J. delivering the judgment of the Division Bench, observed as follows:
"Now it seems to me that on the pleadings in the case it is not open to him to take up either of these points. The only point which he has raised in the written statement is that the plaintiff's suit is barred by limitation. It is an issue in bar and entitles the defendant to argue that upon the allegations made in the plaint the plaintiffs suit is barred by limitation. Upon the allegations made in the plaint the plaintiffs suit is clearly within time. If it was the object of the defendants to raise any questions of facts in connection with the issue as to limitations, then it was obligatory on them to state those facts in the written statement and invite the Court to raise an issue on the particular facts alleged by them."
There is another Bench decision in the case of Alimuddin v. Salim, 10 Pat LT 207, where the same principle has been enunciated. It has been laid down by the Division Bench that a declaration of title based upon proof of twelve years' possession cannot be given on a title by adverse possession not distinctly stated in the plaint or raised in the issues. Again, in the case of Kameshwar Prasad Singh v. Meghan Garain, AIR 1951 Pat 137, Ramaswami, J. (as he then was) delivering the judgment of the Full Bench made, in relation to a cognate question, the following observations:
"Upon the pleadings of the parties and the issues framed in the present case, it is, in my opinion impossible to grant a decree for redemption to the plaintiff on the ground that the defendants had prescribed for the limited title of a mortgagee by remaining in possession for over 12 years. If the plaintiff had intended to rely upon the plea that the defendants had prescribed only for the limited interest of a mortgagee, he should have distinctly stated so in the plaint or raised it in the issue framed by the trial court."
Therefore, when the defendants were prima facie mortgagees and claimed to have acquired indefeasible title to the mortgaged property by adverse possession, it was essential for them to raise this question specifically in the written statement, and when they did not raise the plea of title on the strength of adverse possession, they cannot be permitted to raise this question either in evidence or at the time of argument in the court of first instance or in the appellate courts. Mr. Kailash Rai appearing for the respondents pointed out that an issue about limitation was in fact raised and agitated in both the courts below. It appears that in the suit a general issue about estoppel and limitation was raised in the following form : "Issue No. 3 :-- Is the suit barred' by law of estoppel and limitation"? This was a general issue. What is necessary to plead is to state the facts in the written statement which, if proved would constitute adverse possession. A general plea of limitation will not avail in such cases. The suit may be barred by limitation on the allegations made in the plaint itself. If the defendants wanted to raise the question of acquisition of title by adverse possession, it was imperative for them to state all the facts which would establish title by prescription, and not merely to raise a general issue of limitation in the aforesaid form.
The learned Munsif disposed of this issue summarily by saying that no case of adverse possession, has been pleaded, and I think correctly. The learned Subordinate Judge was, therefore, wrong in permitting the mortgagee-defendants, who were the appellants before him, to raise the question of adverse possession. In my opinion, in the absence of a specific plea with respect to acquisition of a perfected title by adverse possession in derogation of the mortgagors' right to redeem, the defendants cannot be permitted to raise as a bar to the suit for redemption a plea of absolute title founded upon adverse possession.
6. Next Mr. Datta contended that possession of a mortgagee cannot be regarded as adverse to the mortgagor. This contention is also well-founded and must be accepted as correct. Adverse possession is possession in denial of the right of another to immediate possession. Consequently, possession cannot be regarded as adverse against a person who is not entitled in law to possession.
So long as the mortgagee remains in possession, the mortgagor has no immediate right to claim possession of the mortgaged property. How can then the possession of a mortgagee be regarded as adverse to the mortgagor? There is ample authority in support of this proposition. In the case of Khaiarajmal v. Daim, ILR 32 Cal 296, the Judicial Committee of the Privy Council has observed as follows:
"Their Lordships are satisfied that the possession has been that of the mortgagees throughout, and the question at issue is exclusively one between mortgagor and mortgagee. As between them, neither exclusive possession of the mortgagee for any length of time short of the statutory period of sixty years nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem."
In the case of Dinanath Rai v. Rama Rai, ILR 6 Pat 102: (AIR 1926 Pat 512), a Division Bench of this court had held that a mortgagee cannot acquire title by adverse possession against his mortgagor. Relying upon the decision of the Privy Council referred to above it was further held in the case of Mir Wajid Ali v. Alidad Khan, AIR 1940 Pat 45, as follows:
"......a mortgagee who enters into possession of the mortgaged property, in his capacity as a mortgagee can never during the continuance of the mortgage assert any adverse possession against the mortgagor. The mortgagor's right to redeem remains alive for sixty years and no question of adverse possession arises until after the expiration of that period."
As against this Mr. Kailash Rai relied upon a decision of this court in the case of Baldeo Singh v. Muhammad Akhtar, AIR 1939 Pat 488. In this case the well-known principle that a mortgagee in possession cannot prescribe against the mortgagor was accepted as correct. But it was observed that in certain circumstances the mortgagee in possession could prescribe against the mortgagor.
This case stands by itself and is clearly distinguishable. In that case the mortgagee set up a purchase of the equity of redemption by an unregistered sale deed. Although an unregistered sale deed was invalid to pass a good title in law, it was admitted in evidence to explain the nature and character of the possession thenceforth held by the party. In that case although the instrument of sale was invalid for want of registration, the character of the possession of the mortgagee no doubt changed, arid thereafter he began to possess the property, not as a mortgagee, but as a purchaser, and if the mortgagee remained in possession for the statutory period he would certainly acquire title by adverse possession. In such a case the mortgagee was not prescribing against the mortgagor as mortgagee.
He possessed the property as a full owner, and the title which at its inception was ineffectual became perfect after the expiry of twelve years. It is well settled by a long series of authorities that where a person acquires possession of property under colour of a transfer which is invalid and inoperative, his possession becomes adverse to the true owner from the beginning. The reason in such cases is not far to seek.
The instrument of transfer, invalid in law, did not pass a good title to the transferee, and, therefore, the possession of such transferee cannot be referred to valid title and is obviously in contravention of the title of the true owner. Therefore, if there was a transfer of the equity of redemption and that transfer was found to be inoperative, the character of possession of the mortgagee nevertheless changes from that of mortgagee to one without title and, therefore, the mortgagee will acquire a perfected title after the expiration of the statutory period of twelve years.
In my opinion, that case is not an authority for the proposition that a mortgagee may acquire title by adverse possession in all cases. The principle laid down there cannot be extended beyond the facts of that case.
7. The other case referred to by Mr. Kailash Rai namely, Sribhagwan Singh v. Mt. Rambasi Kuer, 1956 BLJR 703: (AIR 1957 Pat 157), only reiterates the principle I have enunciated above. It lays down that a transferee under an invalid sale acquires a perfectly good title to the property if he continues in possession of - the property for more than twelve years. This case also does not support the proposition enunciated by Mr. Rai.
8. Mr. Rai also referred to the decision of a Single Judge of tin's Court in the case of Gudar Mahton v. Budhu Mahton, Second Appeal No. 808 of 1952; D/-29-4-1954 (Pat). This decision has followed the decision in the case of AIR 1939 Pat 488, already referred to above. It does not lay down any new principle. In the present case the defendants mortgagees did not base their title on adverse possession.
Their sole defence was that the deed of mortgage was really a sale deed. This question I shall presently consider. It was not a case where the mortgagee claimed to have acquired the equity of redemption subsequently, either orally or by some instrument. The learned Subordinate Judge has Found that the mortgagee defendants had acquired title as raiyat by adverse possession for more than twelve years. The facts found by him do not necessarily lead to this conclusion.
This conclusion is rested on the fact that in the year 1311 Fasli the name of defendant No. 1 (mortgagee) was mutated in the landlords' serishta with the consent of the original raiyats, the mortgagors (who are defendants second party) 'and since then defendants first party have been in possession and have been paying rent, not as sudbharanadars. but as raiyats. It is not shown what was the basis for mutation of the name of the mortgagees in the landlords serishta. The learned Subordinate Judge has referred to the evidence, though he has not found it as a fact that Dukhi Sao, the mortgagor, surrendered the holding to the landlords.
There was no issue as to surrender. Even if they surrendered this will not extinguigh the mortgage but the landlords will be the mortgagors in place of the previous tenant mortgagors. I do not see how this can be a basis for acquisition of adverse possession. Therefore, on merits also adverse possession cannot be inferred from the facts found by the learned Subordinate Judge. It is manifest that in principle as well as on merit the mortgagee respondents did not acquire title to the mortgaged property by adverse possession and the mortgage had, not been extinguished thereby.
9. Mr. Kailash Rai revived the contention raised in the courts below that the document, though mortgage in form, was in reality a sale deed. Both the courts have found against him. They have concurrently held that under Section 92 of the Evidence Act oral evidence was not admissible to prove that the mortgage bond was in reality a kebala, nor could the terms of a written document be varied or contradicted by evidence of subsequent acts and conduct of the parties. This contention ot Mr. Rai also has no substance. As to the admissibility of oral evidence of intention or conduct of the parties in contravention of the terms of a writtert document under Section 92 of the Evidence Act, their Lordships of the Privy Council made the following observations in the case of Balkishen Das v. Legge, 27 Ind. App 58 (PC), at p. 65:
"Evidence of the respondent and of a person named Man was admitted by the Subordinate Judge for the purpose of proving the real intention of the parties, and such evidence was to some extent relied on in both Courts. Their Lordships do not think that oral evidence of intention was admissible for the purpose of construing the deeds or ascertaining the intention of the parties. By Section 92 of the Indian Evidence Act (Act I of 1872) no evidence of any oral agreement or statement can be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, or adding to or subtracting from its terms subject to the exceptions contained in the several provisos. It was conceded that his case would not be brought within any of them. The cases in the English Court of Chancery which were referred to by the learned Judges in the High Court have not, in the opinion of their Lordships, any application to the law of India as laid down in the Acts of the Indian Legislature. The case must therefore be decided on a consideration of the contents of the documents themselves, with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts."
Their Lordships of the Privy Council affirmed this principle in the case of Maung Kyin v. Ma Shwe Law, 44 Ind App 236: (AIR 1917 PC 207). The documents in that case were just the opposite of what we have to consider. The deeds were in form absolute conveyances. It was contended that they were intended by the parties to operate merely as mortgages. The appellants maintained that they were entitled to set up and prove the acts and conduct of the parties as inconsistent with the transfer of property and only consistent with the true nature of the transaction having been one of mortgage or transfer of mortgage.
Their Lordships of the Privy Council relied upon the decision of Balkishan Das, 27 Ind App 58 (PC), (supra) and negatived this argument and held that oral evidence was not admissible for the purpose of ascertaining the intention of the parties to written documents. As against this, Mr. Rai relied upon another decision of the Privy Council in the case of Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70. There the facts were entirely different. In that case oral evidence was admitted to show that a document executed by a person was never intended to operate as an agreement. It was contended that S. 92 barred such evidence. This case is covered by proviso (1) to Section 92 of the Evidence Act which lays down as follows:
"Proviso (1). Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of consideration, (or mistake in fact or law."
In these circumstances their Lordships laid down as follows:
"Section 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document So also Section 91 only excludes oral evidence as to the terms of a written contract. Oral evidence is admissible therefore to show that a document executed by a person was never intended to operate as an agreement, but was brought into existence solely for the purpose of creating evidence about some other matter.
Even if there were no provisions to Sections 91 and 92, there is nothing in either section to exclude oral evidence in such a case to show that there was no agreement between the parties and therefore no contract."
In the present case it is not the defence that there was no such contract at all. On the contrary, the execution of the document and the existence of the contract are not denied. What is contended is that the document, though mortgage in form, was in essence an absolute conveyance. Therefore, S. 92 clearly bars such evidence. If these distinctions are kept in mind it will not be difficult to appreciate the other decisions relied upon by Mr. Rai, namely, Vithal Diwakar v. N. Parshuram Ayer, AIR 1954 Nag 192; Balumal Dharmdas firm Bankers v. Gollapudi Venkata Chelapatti Rao (S) AIR 1955 Mad 78; and the case of Kandasami Pillai v. Chinnabba, ILR 44 Mad 253: (AIR 1921 Mad 82).
They are distinguishable. In those cases either the proviso to Section 92 was involved or there was some arrangement changing the character of possession. In the last mentioned case there was an oral arrangement between the mortgagor and the usufructuary mortgagee, and under this arrangement the mortgagee retained possession of a portion of the mortgaged properly in full ownership in satisfaction of the mortgage deed and enjoyed it as full owner for more than twelve years after the arrangement. On these facts it was held that the mortgagee had acquired by adverse possession absolute title to the property and that the mortgagor's right to redeem the property was barred by limitation.
As held above no question of acquisition by the mortgagee of the equity of redemption is involved in the present case. To accept evidence of any oral agreement or statement to prove that the mortgage deed was in fact a deed of sale would amount to contradicting, varying, adding to, or subtracting from, the terms of a written contract and would thus clearly be barred under Section 92 of the Evidence Act. In my opinion, the Courts below were right in holding that no such evidence was admissible, and the document was in its terms, a mortgage.
10. To sum up, the plaintiff was entitled to redeem the mortgage.
11. In the result the judgment and decree of the Court of appeal below are set aside and the suit of the plaintiff is decreed with costs throughout. The plaintiff will be entitled to redeem the mortgaged property and obtain khas possession of the mortgaged property on payment of a further sum as found by the lower appellate court. The plaintiff to deposit the amount within three months from to day, and the defendants are directed to deliver possession to the plaintiff, failing which the plaintiff will be delivered possession through Court at the cost of the defendants. The plaintiff will also be entitled to mesne profits from the date of the deposit of the further sum.
SECOND APPEAL NO. 1545 of 1953.
12. This appeal also by the plaintiffs arises out of a suit for redemption of a mortgage. The defence was that the mortgage bond was intended to operate as a sale deed, and further that on the terms of the mortgage bond the mortgagors were not entitled to redeem the mortgage.
13. The learned Munsif held that this was intended to operate as a sale deed. He further held that on the terms of the mortgage bond the mortgagees were in possession as full owners and the mortgagors were not entitled to redeem. In appeal the learned District Judge did not record any finding as to whether the document was a morttage or a sale deed. He however, affirmed the decision of the learned Munsif that on the terms of the deed the suit for redemption was barred.
14. Mr. S.S. Datta appearing for the appellants contended, first; that the evidence to show that the document was a sale deed and not a bharna was not admissible in evidence under Section 92 of the Evidence Act, and secondly, that the condition imposed by the mortgage bond on which the Courts below relied was a clog on the equity of redemption. Both these contentions, in my opinion are valid and must be accepted as correct.
15. With regard to his first contention, I have already explained the legal position above, and those reasons apply to this appeal also with equal force and it must be held, on the authorities cited above, that it was not open to the defendants to show that the mortgage bond was in fact a sale deed.
16. As regards the second contention, the Courts below relied upon the following terms in the mortgage bond:
"It is required that the said creditor should enter into and remain in possession and occupation of the land let out in sudbharna hereunder, properly cultivates it and get it cultivated and appropriate the produce thereof year after year, crop after crop in lieu of interest on the aforesaid debt. If I the executant or any heirs and representatives fail to repay the aforesaid debt on the due date of repayment, the said creditor is and shall be competent to get his name entered in the office of the zamindar in place of me, the executant, in respect of the land let out in sudbharna to him. He shall continue to pay Rs. 4/- (Rupees four) as rent including cess year after year to the proprietors or thikadars or the amlas on behalf of the aforesaid proprietors on taking receipt and acquittance receipt and shall obtain receipts and farkhatis (acquittance receipts) from the proprietors or the thikadars. I, the executant, or my heirs and representatives shall have at no time and period any connection and concern with the land, let out in sudbharna hereunder."
Both the Courts below have found that the mortgagees' names were mutated in the landlord's serishta and that they were paying rent. They held that in view of the condition laid down in the mortgage bond, the mortgagees were occupying the mortgaged property as full owners, and that they have been in possession for more than twelve years, and, therefore, the right to redeem was barred. The condition imposed by the terms of the mortgage bond was clearly a clog on equity of redemption. In the case of Mehrban Khan v. Makhana, 57 Ind App 168: (AIR 1930 PC 142), the deed contained the following condition:
"After the expiry of the fixed period, if I pay Rs. 2160 the mortgage money, to the mortgagees, I shall be entitled to receive one pai per path out of the produce as my haq-khuti; and the mortgagees to the remaining dues such as mahsul and jora. The mortgagees shall have the adna (inferior) proprietary rights and the cultivating possession, with which I shall have no concern.'' Their Lordships of the Privy Council held that these provisions in the deed were a clog upon the equity of redemption and were, therefore, void. Similarly, in the case of Sapenswar Pati v. Brindaban, AIR 1934 Pat 397, it was held that a stipulation in a mortgage deed of raiyati lands providing that upon the redemption of the mortgage, those raiyati lands would not come back to the mortgagor was clearly a clog on the equity of redemption.
In the case of Bhimrao Nagojirao v. Sakharam, ILR 46 Bom 409: (AIR 1922 Bom 277), on the very day the mortgage was executed another document was executed purporting to lease the land to the mortgagee as a permanent tenure at a fixed rent. The plaintiff sued to redeem. A Division Bench of the Bombay High Court laid down that the plaintiff was entitled to redeem as the contract for the permanent lease constituted a clog on the equity of redemption.
Mr. Rai referred to a decision of the Madras High Court in the case of Usuman Khan v. N. Dasanna, ILR 37 Mad 545: (AIR 1914 Mad 578 (2)). This case is clearly distinguishable. In that case there was an unregistered agreement between the mortgagor and the mortgagee that the mortgagee shall hold possession as owner and the case was decided on the ground of adverse possession and limitation. This case, therefore, has no application to the facts of the present case. In my opinion, the provisions in the mortgage bond referred to above clearly constitute a clog on the equity of redemption and are, therefore, void.
The plaintiffs' right to redeem was not barred. It must be held, therefore, that the plaintiffs are entitled to redeem the mortgaged property and obtain khas possession. This right, however, is subject to the payment by the plaintiffs of the rent paid by the mortgagees on their account. The Court below will take account of the amount payable by the mortgagors to the mortgagees and on deposit of the amount found due within three months from the date of the order of the Court below the defendants will deliver possession to the plaintiffs, failing which possession will be delivered through court at the cost of the defendants.
17. In the result the appeal is allowed, the judgments find decrees of the Courts below are set aside and the suit is decreed with costs, subject to the direction above.
V. Ramaswami C.J.
18. I agree.