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High Court Of Himachal Pradesh
R.S.PATHAK,CHET RAM THAKUR
KANWARANI MADNA VATI - Appellant
Versus
RAGHUNATH SINGH - Respondent
First Appeals Nos. 1 of 1965 and 7 of 1966
Decided On : 10/07/1975
MORTGAGE - Suit for possession of mortgaged property - Mortgage deed executed by widow - Plea of undue influence, misrepresentation and fraud - Consideration - Necessity - Limitation - Whether mortgage deed was valid and enforceable - Whether suit was barred by limitation.
Fact of the Case:
The plaintiff filed a suit for possession of the mortgaged property against the defendant, a widow, who pleaded that the mortgage deed was executed under undue influence, misrepresentation and fraud, that there was no consideration for the mortgage, that she had no necessity to raise a loan, and that the suit was barred by limitation.
Finding of the Court:
The court found that the mortgage deed was executed voluntarily by the defendant, that she had received the consideration for the mortgage, that she had the necessity to raise a loan, and that the suit was within time. The court also found that the defendant had failed to prove the allegations of undue influence, misrepresentation and fraud.
Issues: 1. Whether the mortgage deed was executed voluntarily by the defendant? 2. Whether the defendant received the consideration for the mortgage? 3. Whether the defendant had the necessity to raise a loan? 4. Whether the suit was within time? 5. Whether the defendant had proved the allegations of undue influence, misrepresentation and fraud?
Ratio Decidendi: 1. The court held that the mortgage deed was executed voluntarily by the defendant as she had admitted her signatures on the deed and there was no evidence to suggest that she was forced to execute the deed. 2. The court held that the defendant had received the consideration for the mortgage as the plaintiff had proved the passing of the consideration and there was no rebuttal from the defendant. 3. The court held that the defendant had the necessity to raise a loan as she had stated in the mortgage deed that she needed the money for various purposes, including medical treatment and pilgrimage expenses. 4. The court held that the suit was within time as the limitation period for a suit for possession of mortgaged property is 12 years from the date of default on the part of the mortgagor to pay the mortgage money. 5. The court held that the defendant had failed to prove the allegations of undue influence, misrepresentation and fraud as there was no evidence to support these allegations.
Final Decision: The court dismissed the defendant's appeal and allowed the plaintiff's cross-objections, holding that the mortgage deed was valid and enforceable and that the suit was not barred by limitation.
Thakur, J.:- This R. F. A. 1 of 1965 and the cross-objections and R. F. A. 7 of 1966 arise out of a suit under the provisions of Order 34 of the Civil P. C. for the recovery of Rs. 16,000/- with costs and future interest by sale of mortgaged property described in para. 1 (g) of the plaint and further that in case the sale proceeds fall short of the amount due to the plaintiff for a personal decree to that extent or in the alternative for possession of the mortgaged property and a personal decree for interest and costs filed by the plaintiff against the defendant No. 1.
2. The facts as emerge from the plaint are that the plaintiff is the son of Thakur Ram Dass proprietor of Marina Hotel, Simla. Defendant No. 1 is the widow of Kr. Mohan Singh of Junga, presently residing in Kasumpti Bazar of Simla District. She borrowed Rs. 13,400/- from the plaintiff against the security of the property mentioned in the mortgage deed, PA. This property consisted of several Khasra numbers and buildings thereon. The mortgage was effected on 27-9-1950, but the same was registered on 10-10-1950. She had promised to pay back the loan before the end of May 1951 without interest and get the mortgaged property redeemed. In case she failed to pay the amount before the end of May 1951, it was provided that the plaintiff would be entitled to get possession of the entire property at once without any objection from the mortgagor. Further, in case she failed to deliver possession to the mortgagee, he was at liberty to file a suit for possession and in that case she would be liable to pay costs and also profits and income, etc. realised from the property by way of interest, and for the payment of costs and interest she was personally liable apart from the mortgaged property. Since she failed to deliver possession or to make payment of the money, the plaintiff filed this suit and averred that the amount of interest worked out was at Rs. 11,055/- but he was contented to claim only Rs. 2,600/- and he, therefore, prayed for a decree.
3. It was also pleaded that after the mortgage in favour of the plaintiff, defendant No. 1 created a further mortgage in favour of Thandu Ram (defendant No. 2) of the suit property on 15-12-1950 against Rs. 6,000/- and that mortgage deed was registered on 20-12-1950. The plaintiff came to know about this only a fortnight before the filling of the suit. It was also stated that defendant No. 1 had also sold the house and the land measuring 7 biswas in Khasra No. 74, Khata No. 57 and Khatauni No. 72 in village Bharai to one Mst. Reshmo (defendant No. 3) and that she was in possession of the house and the land attached thereto. About this fact also the plaintiff learnt only a fortnight back of the filing of the suit.
4. The plaintiff also learnt that defendant No. 1 had also sold a portion of the mortgaged property to Shri Virendra Singh (defendant No. 4) and who was also in possession of the same. He, therefore, pleaded that the acts of defendant No. 1 regarding the second mortgage in favour of defendant No. 2 and sale of mortgaged property in favour of defendants 3 and 4 were without the knowledge of the plaintiff and as such were illegal, improper and fraudulent. The plaintiff had a first charge on the property and was entitled to priority over the interests of defendants 2, 3 and 4, and they could not stand in the way of the plaintiff in getting possession of the mortgaged property or in realising the suit amount with costs and interest by sale of the same.
5. The defendant No. 1 pleaded that the suit was barred by time. The suit for sale of the property did not lie. She repudiated the facts stated in the plaint. It was pleaded that she is an illiterate widow who can just clumsily sign in Hindi. She remains almost constantly sick and her mind had been enfeebled by physical and mental distress since the year 1950, her husband had died a decade earlier of 1950. She had further none to look after or advise her, two of her real bro
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