Back
SUPREME COURT OF INDIA
Hemant Gupta, V. Ramasubramanian, JJ.
Darshna Kumari @ Darshan Kaur & Ors. - Appellants
Versus
Sohan Singh & Ors. Etc. -Respondents
Civil Appeal Nos.1077-1078 of 2012, C.A. NOS.1045-1046 of 2012
Decided On : 04-05-2022
Transfer of Property Act, 1882 – Section 58 – Administration of Evacuee Property Act, 1950 – Sections 7 and 8(2) – Redemption of mortgage – Evacuee property – Evacuee property came to be vested with State by operation of law – State was correctly shown in column of ownership – State has been rightly treated to be mortgagor by High Court – Through Legal Representatives, there is no period to seek redemption of a usufructuary mortgage as it is held that once a mortgage is always a mortgage – Plaintiffs will continue to be mortgagee with State as a mortgagor – On deposit of mortgage amount with Collector, or on payment to mortgagees, mortgage shall stands redeemed and State will be entitled to possession of property – Such order is passed under Article 142 of Constitution of India to do substantial and complete justice. (Paras 14, 15 and 16)
Facts of the case:
Civil Appeal Nos.1077-1078/2012 preferred by plaintiffs are directed against the judgment and decree passed by the High Court dated 19.12.2007 whereby the High Court dismissed the suit of the plaintiffs-appellants seeking declaration of ownership on the ground that mortgage has not been redeemed within a period of 20 years in terms of the decree confirmed by the Lahore High Court vide judgment dated 26.02.1947. Civil Appeal Nos.1045-1046/2012 are preferred by State claiming that the mortgagors were the Muslims who migrated to Pakistan and, therefore, by virtue of the provisions of Administration of Evacuee Property Act, 1950, land came to be vested with the Government. Therefore, the State would be mortgagors and is thus entitled to seek redemption.
Findings of Court:
On deposit of the mortgage amount of Rs. 2500/- with Collector, Amritsar or on payment to the mortgagees, the mortgage shall stands redeemed and the State will be entitled to possession of the property. Thereafter, it will be open to State to take possession of mortgage property in accordance with law. Such order is passed in terms of jurisdiction of this Court under Article 142 of Constitution of India to do substantial and complete justice in this long pending issue of right of the mortgagors to seek redemption.
Result : Appeals Partly allowed.
ORDER :
The Civil Appeal Nos.1077-1078/2012 preferred by the plaintiffs are directed against the judgment and decree passed by the High Court dated 19.12.2007 whereby the High Court dismissed the suit of the plaintiffs – appellants seeking declaration of ownership on the ground that the mortgage has not been redeemed within a period of 20 years in terms of the decree confirmed by the Lahore High Court vide judgment dated 26.02.1947.
2. The Civil Appeal Nos.1045-1046/2012 are preferred by the State claiming that the mortgagors were the Muslims who migrated to Pakistan and, therefore, by virtue of the provisions of the Administration of Evacuee Property Act, 19501[For short, the ‘1950 Act’], the land came to be vested with the Government. Therefore, the State would be the mortgagors and is thus entitled to seek redemption in terms of the Judgment of this Court reported as ‘Singh Ram (Dead) Through Legal Representatives Vs. Sheo Ram & Ors.’, (2014) 9 SCC 185.
3. The brief facts leading to the present appeals are that one Puran Ditta and Sondhi executed three mortgage deeds mortgaging 19 kanals in favour of Shershah on 08.08.1885; 68 kanals in favour of Jai Ram on 22.08.1886 and 21 kanals 19 marlas in favour of Dhani Ram in the year 1887-1888. Kripa Ram, purchased the mortgage rights and came in possession of the mortgage property as mortgagee whereas Hakam Khan purchased the propriety rights of the lands mortgaged. Hakam Khan received an amount of Rs.1,500/-and Rs.1,000/-under subsequent mortgage deeds executed in favour of Kripa Ram on 21.12.1916 and 01.02.1921.
4. Hakam Khan died survived by his three sons – Abdul Satar, Gauna Khan and Abdul Gafoor. The sons of Hakam Khan filed an application under the provisions of the Punjab Redemption of Mortgages Act, 19133[For short, the ‘1913 Act’], for extinguishment of the mortgaged rights. The Special Collector, Amritsar allowed the said application on 13.12.1944. Such order of redemption was challenged in a Civil suit by Kripa Ram claiming that he has a right to remain in possession of land for 20 years from 30.12.1944 or till the payment of Rs.2,500/-.
5. It may be stated that the order of the Collector for redemption of mortgage is final subject to the suit under Section 13 of the 1913 Act. Section 13 reads thus:
“13. Any party aggrieved by an order made under section 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive.
Norwithstanding anything in this section a mortgagee against whom an ex-parte order under section 7 has been made or a petitioner, whose petition has been dismissed in default under section 6 may apply to the Collector to have such order or dismissal set aside, such order or dismissal on such terms as to costs or otherwise as he may deem fit; provided that the order or dismissal shall not be set aside unless notice of the application has bene served on the opposite party.”
6. The reference to the Punjab Restitution of Mortgaged Lands Act, 19384[For short, the ‘1938 Act’] by the learned trial court and by the High Court seems to be mistake as an order passed under the 1913 Act alone can be disputed before the civil court whereas the order passed by the Collector under the 1938 Act is final. The 1938 Act is applicable only to the mortgage created before 08.06.1901, i.e., the date on which the Punjab Alienation of Land Act, 1900 came into force. Kirpa Ram had purchased mortgage rights on 21.12.1916 and 1.2.1921, therefore, 1938 Act was not applicable.
7. The Collector had passed an order on 30.12.1944 that the mortgage be extinguished. The mortgagee was allowed to remain in possession of the land for 20 years from 30.12.1944 or till the payment of Rs.2,500/-to him whichever was earlier by the judgment and decree dated 16.01.1946 granted by the Sub Judge, Ist Class, Amritsar. The appeal against the said judgment and decree and the cross-objections
Redemption of mortgage – Through Legal Representatives, there is no period to seek redemption of a usufructuary mortgage.
The main legal point established in the judgment is the automatic vesting of property in the custodian under the Evacuee Local Act and Evacuee Separation Act, leading to the extinguishment of the mor....
Ownership rights acquired prior to partition are valid, and the jurisdiction of Civil Courts remains intact if property is not declared evacuee property by the custodian.
A subsequent suit claiming foreclosure can be maintained if new grounds arise post-extinguishment of mortgage rights, despite previous dismissals of similar ownership claims.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
