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1947 Supreme(SC) 56
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SIMONDS, MR. M. R. JAYAKAR AND SIR JOHN BEAUMONT.
SIR MOHAMMAD AKBAR KHAN - Appellant
Versus
MUSAMMAT MOTAI - Respondents
On Appeal from the Court of the Judicial Commissioner, North-West Frontier Province.
Decided On : July 29. 1947
Solicitors for appellant:Stanley Johnson & Allen. Solicitors for respondents: T. L. Wilson & Co.
In redemption suits, jurisdiction is based on the amount due to the mortgagee, not the property value. The plaintiff bears the burden of proving the suit is within the limitation period, and Section 20 of the Limitation Act does not extend the period for redemption.
Headnote:(A) Suits Valuation Act, 1887 - Section 8; Court-fees Act, 1870 - Section 7(ix) - Redemption suit - Valuation for purposes of jurisdiction - In a suit for redemption of a mortgage where the mortgagee is in possession, the value for jurisdiction is the amount found due and payable to the mortgagee at the time of the suit, and not the market value of the property or the value of the equity of redemption. The subject-matter of the litigation is the interest of the mortgagee only. (Paras 191-192)
(B) Limitation Act, 1908 - Section 3; Code of Civil Procedure, 1908 - Order VII, Rules 1, 6 and 11(d) - Burden of proof - In a suit for redemption, the burden rests in the first instance on the plaintiff to show that the suit was instituted within the prescribed period of limitation. Proving that a mortgage existed at a certain date does not necessarily shift the burden to the defendant to prove the suit is time-barred, especially where the plaintiff has delayed the claim for several decades. (Paras 192)
(C) Code of Civil Procedure, 1908 - Order XLI, Rule 27(1)(b) - Additional evidence in appellate court - The power to admit further evidence is confined to cases where the court requires a document or witness to enable it to pronounce judgment or for any other substantial cause. This discretionary power does not extend to admitting public documents that the party could have produced at the trial, as doing so would allow a party to fill lacunae in their evidence. (Paras 191)
(D) Limitation Act, 1908 - Section 20 - Extension of limitation - The provision extending the limitation period upon payment of interest or receipt of rent/produce by a mortgagee in possession applies only to the recovery of the mortgage debt or legacy. It does not extend the period within which a mortgagor may exercise the right of redemption. (Paras 192-193)
Facts of the case:
A suit was instituted for the possession of lands by redemption of a mortgage for a nominal sum of Rs. 8. The plaintiff had purchased the equity of redemption from the original mortgagor's heirs. The defendants contested the suit on the grounds of limitation and adverse possession. The suit was valued for jurisdiction at the mortgage amount. The trial court dismissed the suit as barred by limitation, as the plaintiff failed to prove the mortgage was created within the 60-year period prescribed by law. An appellate court had previously remanded the case to admit a public document, which was later set aside.
Findings of Court:
The court found that the trial judge had proper pecuniary jurisdiction as the suit was correctly valued at the mortgage amount. It held that the plaintiff failed to discharge the initial burden of proving the suit was within the limitation period. Furthermore, it determined that the remand for additional evidence was unjustified and that the limitation period for redemption is not extended by the receipt of rent under Section 20 of the Limitation Act.
Issues: Whether the valuation for jurisdiction in a redemption suit should be based on the property value or the mortgage amount; whether the burden of proving the suit is within the limitation period lies with the plaintiff; whether Section 20 of the Limitation Act extends the time for redemption.
Ratio Decidendi: The court ruled that the subject-matter of a redemption suit is the mortgagee's interest, making the amount due the correct basis for jurisdiction. It reaffirmed that the plaintiff must prove the suit is not time-barred under the Code of Civil Procedure and the Limitation Act. It further clarified that Section 20 of the Limitation Act is specific to debt recovery and cannot be read to remove the time limit for redeeming a usufructuary mortgage.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- pecuniary jurisdiction
- appellate procedure
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limitation
- burden of proof
- redemption of mortgage
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civil procedure
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property law
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mortgages
- right of redemption
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mortgages
Judgement
Appeal (No. 77 of 1944), by special leave, from a judgment and decree of the Court of the Judicial Commissioner (April 28, 1941), which affirmed a judgment of the Additional Judge of Peshawar (January 17, 1941), which had affirmed a judgment and decree of the Subordinate Judge, 4th Class, Mardan (June 11, 1937).
The following facts are taken from the judgment of the Judicial Committee. This appeal arose out of a suit brought by the appellant against the respondents for possession of certain lands by redemption of a mortgage on paying the amount due on the mortgage, which was claimed to be Rs.8. The mortgage for the sum of Rs.8 which the appellant sought to redeem had not been produced, and there was no evidence that any written mortgage ever existed. The evidence that the respondents were in possession of the lands in suit as mortgagees consisted of—(a) An entry in the jamabandi (register of owners holding) for the year 1885-86 of the village of Mardan, in which under the heading " Name of owners " with particulars " Burhan-ud-din was mentioned as mortgagor and Fazal Shah was mentioned as mortgagee for Rs.8 in King-Emperors coin. The property was stated to be cultivated by the mortgagees themselves, (b) An extract from the record of rights relating to the village of Mardan for the year 1895-96, in which Burhan-ud-din was stated to be mortgagor, and Mst. Motai, 1st wife, Mst. Mustafa, 2nd wife, Mst. Walagai, 3rd wife, and Mst. Ajjo, 4th wife of Fazal Shah were stated to be mortgagees in equal shares, and to be cultivating themselves, (c) An entry in the mutation register for the village of Mardan relating to the years 1925-26, in which Burhan-ud-din was stated to be mortgagor and the said four wives of Fazal Shah were stated to be mortgagees in equal shares.
Mst. Motai, the first wife of Fazal Shah, was the first respondent. The other respondents claimed under Sherdil, to whom the three other wives of Fazal Shah transferred their rights. On June 1, 1935, the appellant purchased from the sons of Burhan-ud-din, the original mortgagor, the equity of redemption in the property for the sum of Rs.25,000. On August 27, 1936, the appellant instituted the present suit in the court of the Subordinate Judge, Mardan, claiming to redeem the mortgage vested in the respondents on payment of Rs.8, and praying for a decree for possession of the land. The suit was valued in the plaint for purposes of court fee and jurisdiction at Rs.8.
The case was tried by the Subordinate Judge of the 4th Class, Mardan. The learned judge raised various issues, of which the first was "Is the plaintiffs suit within time? " He held that the burden of proving that the suit was within time was on the plaintiff; that, inasmuch as under art. 148 of the Limitation Act a suit for redemption must be brought within 60 years from the time when the right to redeem, or to recover possession, accrued, and there was no evidence that the mortgage was for any fixed term, the plaintiff must prove that the mortgage was effected oil or after August 27, 1876, being sixty years before the date of suit, and that he had failed to do. Accordingly, the suit was dismissed.
In appeal the District Judge of Peshawar admitted in evidence under Or.41, r. 27 (1) (b), a further document which he thought might be material, and remanded the case to the lower court under Or.41,
r. 23, for a decision on all the issues. From the order of the District Judge an appeal was brought to the Court of the Judicial Commissioner, North-West Frontier Province. It was argued for the appellant that the trial judge had no jurisdiction to hear the case, which was beyond the limits of his pecuniary jurisdiction. That argument was rejected. It was then held that an appeal lay from the order of remand
Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai
189
made by the District Judge, and that such order was not justified, since no case for admitting further evidence had been shown. A
