Wassan Singh and Ram Singh vs Lakha Singh and Others

K. Kannan, J.—The following substantial questions of law arise for consideration in the second appeal:-

i) Whether the courts below were in error in decreeing the suit relying only on the thumb-impression expert to say that the thumb-impressions found in the sale deed in favour of the defendants were not that of the plaintiffs and, therefore, the sale deed dated 26.08.1980 was not true?

ii) Whether the defendants could be taken as having been lawfully subrogated to the rights of the mortgagee and hold back possession till the mortgage is lawfully redeemed by the plaintiffs?

The suit was filed by the plaintiffs claiming themselves to be the owners of the property as legal representatives of one Achharo and Jawali, who, in turn, obtained title to the property by a gift from their father Veer Singh. It was an admitted case that Achharo had mortgaged the property in favour of Arjan Singh and Surta Singh on 07.03.1972. The plaintiffs would contend that the defendants 1 to 3 had claimed the property as though they had purchased the property from them. The plaintiffs had not sold the property and, therefore, they are entitled to recover possession of the property.

The principal contention was taken on behalf of respondents-defendants 1 to 3, who claimed that they had purchased the property on 26.08.1980 for Rs. 33,000/-. Out of the total consideration mentioned, Rs. 22,750/- had been paid to the mortgagees for redemption of the mortgage and Rs. 10,250/- had been paid in cash. There had been also a contest regarding the frame of the suit for recovery of possession and the manner of payment of court fee.

Since the plaintiffs had denied the execution of the sale deed and contended that they had not executed the same at all, the trial Court directed the thumb-impressions found in the sale deed to be compared with the admitted signatures of the parties taken in the presence of the Court. The parties were identified by the plaintiffs'' counsel and the thumb-impression of three parties, namely, Mohindero, Giano and Mukha Singh, who are respectively plaintiffs 4, 3 and 2, were taken in the presence of the subordinate Judge on 17.12.1982. Lakha Singh''s thumb-impression had been taken by the subordinate Judge at Tarn Taran separately on 17.12.1982, the person having been identified again by the counsel. The original sale deed had not been produced by the defendants and, therefore, the register containing the thumb-impressions from the Registrar''s office had been brought to Court and taken for comparison. The plaintiffs'' counsel had proposed interrogatories to be submitted to the Fingerprint Expert for eliciting answers on the reports prepared by them and the counsel appearing on behalf of the defendants had also given replies to the formulation of interrogatories. The expert also gave his response to the interrogatories proposed giving his evidence making a comparison to thumb-impressions found in the Bahi of the Registrar''s office and opining that the thumb-impressions did not tally with the sample thumb-impressions taken by the Court in its presence. Both the courts below have relied on the report of the thumb-impression expert to find that the thumb impressions found in the sale deed were not that of the plaintiffs and, therefore, decreed the suit. In so doing, they were also rejecting a plea of the defendants that they cannot also be subrogated to the position of a mortgagee, although evidence was given by the mortgagee that the amounts had been paid by the defendants 1 to 3 and they took possession through them. The original mortgage in their favour had been exhibited as D2. The Court relied on decisions of several High Courts to hold that a person, who has no interest in the subject matter, cannot discharge a mortgage and take possession and press for a right to be subrogated to the position of a mortgagee. The court held that consistent with its finding that the sale in favour of defendants 1 to 3 was not true, the suit for recovery of possession cannot be resisted by such a person, who had volunteered to make the payment.

The learned counsel for the appellants points out that the comparison of thumb-impressions of the plaintiffs must have been taken from the plaint and that the thumb impressions taken by the court ought not to have been taken for comparison. I reject this argument, for, it was at no point suggested either in the grounds of appeal or at the time when objections were given for comparison of interrogatories to be supplied to the Fingerprint Expert that the thumb impressions taken by the Presiding Officer in his presence after securing the identification from the plaintiffs'' counsel were of persons other than the plaintiffs and that there was in some way any impersonation practiced before the Court to secure the thumb impressions of persons, who were really not the plaintiffs. The counsel points out that the defendants themselves were not present at the time when the thumb impressions were taken. It is true that I do not find any endorsement made by the Judge that the thumb impressions were taken in the presence of the defendants or the counsel, but it is too late in the day to besmirch the conduct of the Presiding Officer in securing the thumb impressions of the plaintiffs by having the identity of the persons affirmed through the counsel appearing on behalf of the plaintiffs as insufficient and not trustworthy. I have no ground to suspect that there was anything amiss in securing the identity of parties before the Presiding Officer at the time when the thumb impressions were taken. I will not, therefore, take the arguments that the comparisons must have been only with reference to the thumb impressions found in the plaint.

The learned counsel also points out to me that the photographs taken from the BAHI at the Registrar''s office (Q9) had been admitted by the Fingerprint expert himself to be faint and not fit for comparison. The report was, therefore, not conclusive with reference to one of the parties. I take this objection to be tenable but this error alone cannot render judgment fallible, since the said inability for comparison of one thumb impression must be seen in the whole context of how the thumb impression of every other plaintiffs was not found to be true. It must also be seen in the context of all plaintiffs who were examined in court and who had denied their presence at the Sub Registrar''s office for execution or admission of the document. On an overall consideration, the courts below were justified in finding that the sale deed had not been established. In this case, the courts below have pointed out that even the original sale deed had not been filed by the defendants. I have not found any explanation offered by the defendants as to why the original could not be produced in Court. When the suit was filed by the plaintiffs contending that they had never executed the sale deed, the most important document should have been only the original sale deed to be brought by the defendants in support of their defence. The non-production was very material and I will not find any error in the court in making an adverse comment about its non-production and proceeding to find that the sale purported to have been made in favour of the defendants 1 to 3 was not valid. That leaves us only for a consideration of whether the defendants, who claimed to have discharged mortgage of the year 1972, could claim a right of subrogation and defeat the plaintiffs'' right to recover possession of the property. The trial Court has referred to 3 decisions, one of Sarjug Devi and Others Vs. Dulhin Kishori Kuer and Others, another of A.P.N. Venkatachalam Chettiar and Another Vs. Alagarswami Chettiar and Others, and yet another of Travancore-Cochin (Anantha Raman Pillai Chidambaram Pillai Versus Arunachiam Sarwana Upikker- AIR 1952 Travencore-Cochin 105), all of them holding that a person, who has no right to the property, shall not be entitled to the equitable doctrine of subrogation by paying off the mortgagee and seek to resist action for recovery of possession at the instance of true owner. I have not been shown through any other law to modify the decisions rendered by the two courts below on the basis of the said judgments. The second appeal is dismissed with costs throughout. The plaintiffs shall be entitled to decree for recovery of possession and for mesne profits from the date of institution of suit till the delivery of possession under independent proceedings under Order 20 Rule 12 CPC.