Hari Singh Kaka Singh vs Harijan Co-operative Society of Chupki

This second appeal is directed against the concurrent decisions of the Courts below dismissing the plaintiff''s suit.

The plaintiff filed the present suit in the following circumstances. Biru and Munshi were the owners of the land. They had mortgaged the land with certain Muslims who became evacuee interest vested in the Custodian, and by reason of the Evacuee (Separation of Interest) Act, 1951, the Competent Officer transferred the mortgagee rights to Hari Singh. The land being Nazool had vested in the State. The Collector, Patiala, vide his order dated 7th July, 1961, allotted this land to Harijan Co-operative Society of village Chupki. Hari Singh appealed against this order of transfer but without success. Thereafter, the Harijan Co-operative Society filed an application for redemption of the mortgage to which the land was subject, on 11th July, 1961. This application was allowed by the Assistant Collector, Ist Grade, Patiala on 20-3-1962. It was held that the defendant -Society was entitled to redeem the land on payment of Rs. 220/- from Hari Singh, the present occupant who had purchased the mortgagee rights under the order of the Competent Officer. Hari Singh, was aggrieved by this order and he consequently filed this suit u/s 12 of the Redemption of Mortgages Act, 1912, on 11th of April, 1962. His sole contention was that the mortgage was beyond 60 years and thus no order of redemption could be passed. The Courts below took the view that the mortgage deed having not been produced, it could not be ascertained whether the mortgage contained a clause that the redemption would be postponed by a certain number of years and on this view of the matter the plaintiff''s suit was dismissed and so also his appeal. the plaintiff has come up in second appeal to this Court.

The short contention that has been advanced by Mr. Jagan Nath Kaushal, learned counsel for the plaintiff -appellant is that the date of the mortgage is clearly mentioned in Exhibits P-5 and P-6, namely 13th Asauj, 1957 Bk. , i. e. , equal to 1900 A. D. The limitation for redemption expired in 1960, i. e. , sixty years expired on that date. The application for redemption was filed on 11th of July, 1961. The application is, therefore, clearly barred by limitation provided the period of limitation has to run from 13th Asauj, 1957 Bk. Mr. Kaushal relies on the decision of the Privy Council in AIR 1948 85 (Privy Council) , wherein their Lordships made the following observations:-

"By force of Sections 17(1)(a) and 19 of the Act of 1940, protection from sale is given in proceeding under the Act of 1934, to the land of an ''agriculturist'' the local rate payable by whom or recoverable from whom does not exceed twenty-five rupees per annum; such land being deemed to be ''protected land'' as defined in the Act of 1934. The question in dispute between the parties to this appeal is whether for the purposes of the protection thus given, the members of a Joint Hindu family should be treated as a single unit, for if so treated they will not be entitled to protection in this case as will be shown presently, they being entitled to ''protection'' only if they are treated separately as individual members of the family. The question is of considerable importance and arises for the first time for decision. The rulings of the Revenue Board mentioned in the order passed by Mr. Dible are not available for reference. Their Lordships have to decide the question solely by constructing the two Acts. "

The rules is well settled that a person who claims exemption or extension of a period of limitation has to show that he is entitled to it. In the case of a mortgage, the period of limitation starts running from the date of the mortgage provided the redemption is postponed. The revenue records, Exhibits P-5 and P-6 clearly mention that the mortgage-deed was a registered deed. It was for the defendant to produce the mortgage-deed or its copy. Indeed, I gave on opportunity to the learned counsel for the respondent to produce the same but with no effect. No affidavit has been filed that the mortgage-deed cannot be produced because the register in which it is copied in the Department of Registration is lost. The only ground for its non-production would be that there is no mention of the postponement of the period of limitation. In any event, I have to proceed on the basis that the mortgage was effected on 13th Asauj, 1957 Bk. And the period of limitation started running from that date unless it was arrested either by the terms of the deed or by acknowledgement. No acknowledgement has been pleaded. Therefore, the Collector erred in ordering redemption of mortgage which was screened by time. Thus, that order cannot be sustained.

Mr. Kuldip Singh then urged that the identitly of the land was not established. This argument is wholly futile. The case before the Courts was whether the order of the Collector dated 20th March, 1962, allowing redemption was invalid because the mortgage was sixty years old. The Courts below held the mortgage to be within 60 years and consequently the order of the Collector to be valid on the ground that period of limitation could not be reckoned from 13th Asauj, 1957 Bk. , because the mortgage-deed may have postponed the period of redemption. This view is wholly untenable. The period of limitation will run from the date of the mortgage and on that basis the Collector''s order is invalid because he has ordered redemption of a mortgage which is beyond 60 years.

For the reasons recorded, I allow this appeal set aside the judgments and decrees of the Courts below and decree the plaintiff''s suit. In the circumstances of the case, there will be no order as to costs.

Appeal allowed.