1978 Supreme(Sikk) 4

Sikkim High Court
MAN MOHAN SINGH GUJRAL,A. M. BHATTACHARJEE
Bishnu Kala Karki Dholi - Appellant
Versus
Bishnu Maya Darjeeni - Respondent
Decided On : 03/06/1978

Headnote:

REDEMPTION OF MORTGAGE - INVALIDITY OF MORTGAGE - SUIT FOR REDEMPTION - MAINTAINABILITY - ADMISSION OF MORTGAGE - EFFECT - TITLE OF MORTGAGOR - PROOF - ADVERSE POSSESSION - LIMITATION - PART PERFORMANCE - DOCTRINE OF - APPLICABILITY - MARRIAGE BETWEEN HINDU MALE AND CHHETRI FEMALE - VALIDITY - HINDU MARRIAGES VALIDITY ACT, 1949 - APPLICABILITY - LEGAL REPRESENTATIVE - SUBSTITUTION - OBJECTION - WAIVER.

Fact of the Case:

Kaloo Darjee, the original plaintiff and the predecessor of the present plaintiff Bishnu Maya, purchased the suit land by and under a registered deed of sale in the year 1950 from one Jit Bahadur for Rupees six hundred and got the land mutated in his name in due course. Kaloo Darjee fell ill and took a loan from his brother Kaziman and Lall Bahadur in consideration of which he "entrusted" the suit property, being the aforesaid land together with structures thereon, with the said brothers "in the shape of a mortgage with clear understanding that they would restore the land and house to the original plaintiff Kaloo on his return after treatment. But though after his return Kaloo Karki requested his brothers to vacate the suit property on repayment of the loan, they refused to do so and thereafter Kaloo Darjee served a notice to his brother on 12th July, 1971 by registered post and ultimately he filed the suit on 16th Aug. 1971.

Finding of the Court:

1. A suit for redemption of mortgage is maintainable even if the mortgage deed is invalid for want of registration, provided the factum of mortgage is admitted by the defendants in their pleadings or otherwise. 2. Admission of the factum of mortgage by the defendants in their pleadings or otherwise does not cure the illegality of an unregistered mortgage and cannot sustain a suit for redemption. 3. In a suit for redemption of mortgage, if the mortgage is invalid for want of registration, the plaintiff may be entitled to a decree for possession on proof of title. 4. Adverse possession by the defendants cannot be established merely by their assertion that they repeatedly reminded the plaintiff to redeem the mortgaged property and that they sent a letter to the plaintiff asking him to hurry up to redeem his property. 5. The doctrine of part performance as enunciated in S.53-A of the Transfer of Property Act, 1882 is not applicable as a principle of equity and justice even under the Act before the insertion of the aforesaid Section by the Amendment Act of 1929 and, therefore, cannot be applied in Sikkim as such a principle. 6. A marriage between a Hindu male and a Chhetri female is not invalid under the Shastric Hindu Law and customs, if any, having the force of law. 7. The Hindu Marriages Validity Act, 1949 does not extend to Sikkim and, therefore, does not apply to marriages between Hindus belonging to different castes or sects domiciled in Sikkim. 8. A person intermeddling with the estate of a deceased person may be his legal representative for the purpose of a civil suit, even though such person is not the legal heir. 9. If no objection is taken to the substitution of a person as the legal representative of a deceased plaintiff, it is no longer open to the defendants to contend at a later stage that true legal representative have not been brought on record and that the suit must fail.

Issues: 1. Whether a mortgagor is entitled to file a suit and to obtain a decree for redemption of mortgage where the deed of mortgage is invalid for want of registration? 2. If not, whether the mortgagor is entitled in such a suit to a decree of recovery of possession on proof of title? 3. Whether a marriage between a Darjee male and a chhetri female is illegal and invalid and as such fails to create any right of inheritance in favour of the wife or the issues of such marriage?

Ratio Decidendi: 1. A suit for redemption of mortgage is maintainable even if the mortgage deed is invalid for want of registration, provided the factum of mortgage is admitted by the defendants in their pleadings or otherwise. 2. Admission of the factum of mortgage by the defendants in their pleadings or otherwise does not cure the illegality of an unregistered mortgage and cannot sustain a suit for redemption. 3. In a suit for redemption of mortgage, if the mortgage is invalid for want of registration, the plaintiff may be entitled to a decree for possession on proof of title. 4. Adverse possession by the defendants cannot be established merely by their assertion that they repeatedly reminded the plaintiff to redeem the mortgaged property and that they sent a letter to the plaintiff asking him to hurry up to redeem his property. 5. The doctrine of part performance as enunciated in S.53-A of the Transfer of Property Act, 1882 is not applicable as a principle of equity and justice even under the Act before the insertion of the aforesaid Section by the Amendment Act of 1929 and, therefore, cannot be applied in Sikkim as such a principle. 6. A marriage between a Hindu male and a Chhetri female is not invalid under the Shastric Hindu Law and customs, if any, having the force of law. 7. The Hindu Marriages Validity Act, 1949 does not extend to Sikkim and, therefore, does not apply to marriages between Hindus belonging to different castes or sects domiciled in Sikkim. 8. A person intermeddling with the estate of a deceased person may be his legal representative for the purpose of a civil suit, even though such person is not the legal heir. 9. If no objection is taken to the substitution of a person as the legal representative of a deceased plaintiff, it is no longer open to the defendants to contend at a later stage that true legal representative have not been brought on record and that the suit must fail.

Final Decision: The appeal is dismissed with costs. But while the appeal fails, the decree under the appeal shall stand modified to this extent that instead of a preliminary decree for recovery of possession by redemption of mortgage as granted by the learned Additional District Judge, there shall be a decree for recovery of possession on declaration of title. The plaintiff-respondent will, however, get possession on payment of Rupees three thousand as decreed by the lower Court With this modification, the appeal is dismissed with costs.