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PETITIONER: SHIV LAL & ORS.

       Vs.

RESPONDENT: CHET RAM & ORS.

DATE OF JUDGMENT: 09/09/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. GROVER, A.N.

CITATION:  1971 AIR 2342            1971 SCR  (2) 104

ACT: Evidence Act (1 of 1872), ss. 90 and 114(e) and Punjab  Land Revenue Act, s. 44-Presumptions under-Scope of. Redemption  of Mortgages (Punjab) Act (2 of 1913), s.  "cope of.

HEADNOTE: Suits were filed by the representatives of the mortgagors to redeem ,certain mortgages beyond 60 years from the dates  of the  mortgages.  In order to get over the bar of  limitation the  plaintiffs relied upon certain acknowledgments made  by the  mortgagors.  The acknowledgments were alleged  to  have been made more than 30 years ago in mutation proceedings and certified  copies  of the statements  were  produced.   With respect to .Some mortgages, applicants were made under s.  4 of the Redemption of Mortgages (Punjab) Act, 1913, and  they were dismissed under s. 10.  It was contended that the suits filed with respect to those mortgages were within time under s. 12 of that Act, because, they were filed within one  year of the date of the dismissal of the applications. HELD : (1) As the originals of the acknowledgments were  not produced  and no witness was examined to speak to  the  fact that  the  persons  who  we’re  shown  to  have  signed  the originals  have  in fact signed them or that they  were  the mortgagors  or their representatives, there was no proof  of the  signatures; and the Court cannot raise any  presumption under s. 90 of the Evidence Act. [106 F-G] Harihar  Prasad Singh v. Mst. of Munshi Nath  Prasad  [1956] S.C.R. 1, followed. Section  114(e) of the Evidence Act does not  apply  because the  identification of an executant or the genuineness of  a signature  in  a  statement filed  before  an  official  has nothing to do with the regularity of his act, unless he  had a duty to take the signature in his presence and to identify the person who signed. [107 B-C] Section  44  of the Punjab Land Revenue Act deals  with  the presumption as regards entries in the record of rights,  but this case is not concerned with any such entry. [107 A] (2)Section 12 of the Redemption of Mortgages (Punjab) Act, 1913, merely provides that a summary order made under ss.  6 to  II of that Act becomes final unless a suit to  establish

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the  rights  of  the mortgagors  is  instituted  within  the prescribed  period  of  one year.  From  this  provision  it cannot  be  held  that the period of  limitation  fixed  for redemption of mortgages is enlarged. [108 G-H]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1250  and 1251 of 1966. Appeals  by  special leave from the  judgments  and  decrees dated  April  1,  1965 of the Punjab  High  Court  in  Civil Regular Second Appeals Nos. 138 and 139 of 1964. 105 K.L. Gosain and Janardan Sharma, for the appellants (in both the appeals). Naunit  Lal, for the respondents Nos. 1 to 7 and 9 (in  both the appeals). The Judgment of the Court was delivered by Hegde’   J.  The  appellants  in  these  appeals   are   the representatives  of the mortgagees of the  suit  properties. The respondents in both these appeals claim to represent the interest  of the mortgagors.  Civil Appeal No. 1250 of  1966 arises from Suit No. 280 of 1961 in the court of Senior  Sub Judge, Rohtak and Civil Appeal No. 1251 of 1966 arises  from Suit  No. 334 of 1961 on the file of the same  judge.   Both the  suits  were  suits for  redemption.   The  trial  court dismissed both the suits on two grounds viz. (1) that  Kura, the person from whom the plaintiffs claim to have  purchased the rights of the mortgagors was incapable of entering  into a contract as he was insane.  Hence the sale deeds  executed by him are void and (2) the claim for redemption in  respect of the various mortgages sought to be redeemed excepting the one  executed  on April. 26, 1912 is barred  by  limitation. The  learned District Judge allowed the appeals and  decreed both  the  suits  excepting as regards  the  mortgage  dated January 20, 1878.  In second appeal Capoor J. of the  Punjab High  Court confirmed the decision of the  learned  District Judge.   The Letters Patent Appeals filed by the  appellants were  summarily  dismissed.  Thereafter these  appeals  were brought after obtaining special leave from this Court. Both the learned District Judge as well as the learned Judge of  the High Court have concurrently come to the  conclusion that there is no satisfactory evidence to show that Kura was insane  at  the  time he sold the  suit  properties  to  the plaintiffs.  This is a finding of fact and we see no  reason to go behind it. The only other ground on which the appellants are  resisting the plaintiffs’ claim to redeem the mortgages in question is that according to them the claim for redemption is barred by limitation.   For  dealing with that question,  it  will  be convenient to take up the two appeals separately. In  Suit No. 28 1, the plaintiffs sought redemption of  four different mortgages.  Those mortgages were said to have been executed on the following dates:-- (1)  April 26, 1912; (2)  December 21, 1895; (3)  December 18, 1901 and (4)  January 20, 1879. 235Sup.CI/71 106 The  original  mortgage  deeds or  even  their  registration copies  have  not  been produced.  The  execution  of  those mortgages  have  been sought to be proved on  the  basis  of certain  mutation proceedings, The courts below have  relied

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on  those proceedings to prove the factum of  the  mortgages sought to be redeemed.  The execution of those mortgages was not  challenged before us.  So far as the suit  relating  to the   mortgage  executed  on  January  20,  1878   (property described  in plaint Item No. 4), the plaintiffs  sought  to withdraw their suit on the ground that they are not able  to prove  their  case  on the basis of the  material  in  their possession.  The learned trial judge did not permit them  to withdraw  that  part  of  their  suit.   He  dismissed   the plaintiffs’  claim in that regard.  His judgment was  upheld in  appeal  as well as in second appeal.  That part  of  the plaintiffs’ case was not pressed before us. Now  coming  to the mortgage said to have been  executed  on April  26,  1912  (the concerned property  is  described  in plaint  Item No. 1), the claim for redemption is  admittedly within time as the suit was filed on November 27, 1961,  the period of limitation being 60 years. This leaves us with mortgages said to have been executed  on December  21, 1895, (relating to plaint Item No. 2)  and  on December 18, 1901 (relating to plaint Item No. 3). We  shall  first  take up the mortgage  said  to  have  been executed  on  December 21, 1895.  Prima facie  the  suit  in respect  of this property is barred by time but it  is  said that in view of the acknowledgment made by mortgagors  under the original of Ex.  P-5 dated 22.6.1906, the suit is within time.  There is no satisfactory material to show that Ex.P-5 relates to the mortgage in question.  It is not necessary to go  into that question in detail as in our opinion,  it  was impermissible for the courts below to rely on Ex.P-5 for the purpose of acknowledgment  Ex.  P-5 is a certified copy of a statement  said to have been made in a mutation  proceeding. Its  original  has not been produced.  No witness  has  been examined to speak to the fact that the persons who are shown to have signed the original have in fact signed the same  or those persons were the mortgagors or their  representatives. The signature on the original cannot be proved by production of  a  certified  copy.   Nor  can  the  courts  raise   any presumption  under s. 90 of the Evidence Act in that  regard see  Harihar  Prasad Singh and anr. v. Mst. of  Munshi  Nath Prasad  and  Ors.(1) The High Court and  the  1st  appellate court  erroneously thought that they could presume that  the persons mentioned as the executants in the copy have  signed the  original  on the strength of S. 44 of the  Punjab  Land Revenue  Act and s. 1 1 4 (e) of the Evidence Act.   Section 44 of the punjab Land Revenue Act deals with the presumption as regards an entry (1) [1956] S.C.R. 1. 107 in  the record of rights.  Herein we are not concerned  with any  entry in the record of rights.  We are, concerned  with the genuineness of the, signature in the original of Ex.  P- 5  and  the  identification of the persons  who  signed  it. Hence  that section affords no aid.  Section 114(e)  of  the Evidence  Act says that court may presume that judicial  and official acts have been regularly performed.  Herein we  are not concerned with the regularity of the performance of  any official  act.   The  identification  of  an  executant   or genuineness  of a signature in a statement filed  before  an official  as  nothing to do with the regularity of  his  act unless it is shown that he had a duty to identify the person who  signed  it  and further to take the  signature  in  his presence.    Therefore   Ex.   P-5  cannot   serve   as   an acknowledgment,of the mortgage.  Hence the plaintiffs  claim to  redeem  the  mortgage in respect of item No.  2  of  the plaint must fail.

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Now  coming to plaint item No. 3, the plaint shows that  the mortgage in question was executed on December 18, 1901,  The original  mortgage deed or its registered copy has not  been produced.   For the proof of execution of the  mortgage  the plaintiffs  relied  on  Ex.   P-8, a  certified  copy  of  a mutation  proceeding.  That copy shows that the mutation  in question  was  ordered  on 12th June  1901.   Therefore  the concerned mortgage must have been executed earlier than that date.   It  appears that the  plaintiffs  have  deliberately given  a wrong date of the mortgage in the plaint with  view to  bring the suit within the period of limitation.   I  The learned  District  Judge  has  opined  that  the  claim  for redemption  of this item of-property is also within time  in view  of  Ex.  P-8. Here again no evidence was led  to  show that  the  original  statement  was  signed  either  by  the mortgagors  or by their representatives.  The  original  was not produced in court.  Ex.  P-8 is only certified copy.  By merely  producing  a  copy,  it  cannot  be  said  hat   the plaintiffs  have succeeded in proving that the signature  in original  statement  is  that of  the  mortgagors  or  their represents  gives.   As  discussed  earlier  the  plaintiffs cannot  take the benefit of s. 90 of the Evidence Act or  s. 44  of  the  Punjab Land Revenue Act or  s.  114(e)  of  the Evidence  Act to prove that the original was signed  by  the mortgagors or their representatives.  Hence the  plaintiffs’ claim in respect of plaint item No. 3 must also fail. In  the  result  Civil Appeal No. 1250  of  1966  is  partly allowed  and the plaintiffs’ claim for redemption of  plaint items  Nos.  3  and  4  is  dismissed  and  the  decree  for redemption of plaint item No 1 is upheld. Now  we shall take up Civil Appeal No. 1251 of 1966  arising from Suit No. 334 of 1961.  Therein redemption of two  mort- gages  said to have been executed on June 19, 1894  and  May 15,  1896  was sought.  Prima facie the suit  is  barred  by limitation. 108 But it was contended and that contention was accepted by the appellate  court and the High Court that the suit is  within time  in  view  of  (1)  the  acknowledgments  made  by  the mortgagors  or their representatives on  several  occasions, the  last of which was on June 25, 1919 and (2) in  view  of the application made by the plaintiffs-respondents under  S. 4 of the Redemption of Mortgages (Punjab) Act, 1913 (Act No. 11  of  1913).   We  shall first take  up  the  question  of acknowledgments.  The acknowledgments in question were ought to be proved by production of certain certified copies.  The originals  of those copies were not produced.   No  evidence was led to show that the originals were signed either by the mortgagors  or  by their representatives.  For  the  reasons earlier    mentioned   those   copies   cannot   serve    as acknowledgments. Now coming to the application made under S. 4 of the Redemp- tion  of Mortgages (Punjab) Act, 1913, the same was made  on May 16, 1959 and it was dismissed on April 18, 1961.   There in  the parties were referred to a civil suit.  Even if  the period taken in prosecuting the said application is excluded in  computing  the  period  of  limitation,  the  suit   for redemption  is  admittedly barred.  But what  was  urged  on behalf  of  the plaintiffs is that in view of s. 12  of  the Redemption  of Mortgages (Punjab) Act, 1913, the  plaintiffs were  entitled to bring the suit within one year from  April 18, 1961, the date on which their application was dismissed. There  is no dispute that for the suit contemplated  by  the aforesaid s. 12, the period of limitation prescribed is  one year  from  the  date of the order.  The  dismissal  of  the

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petition in this case was made under s. 10 of the Redemption of  Mortgages (Punjab) Act, 1913.  Therefore the order  made on  that application comes within the scope of S.  12.   But the  real question is whether S. 12 enlarges the  period  of limitation  for  a  redemption suit.  That  section  to  the extent material for our present purpose reads as follows               "Any  party aggrieved by an order  made  under               ss.  6,  7, 8, 9, 10 and 1 1 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." This section merely provides that a summary order made under ss.  6, 7, 8, 9, 10 and 1 1 of the Redemption  of  Mortgages (Punjab) Act, 1913 becomes final unless a suit to  establish the  rights  of  the mortgagors  is  instituted  within  the prescribed  period.   From this provision we are  unable  to hold that in view of that section, the period of  limitation fixed for redemption of mortgages can be enlarged.   Several decisions of the Lahore High Court holding that if a suit as required  by S. 12 is not filed within the  time  prescribed then  the right of redemption will be lost even if the  time prescribed  under the Limitation Act for instituting a  suit for 109 redemption has not expired.  It is not necessary to go  into the correctness of those decisions though prima facie we are inclined  to accept their correctness, because  they  merely Jay down that if’ any party aggrieved by an order under  ss. 6,  7,  8,  9,  10 and 11 of  the  Redemption  of  Mortgages (Punjab)  Act, 1913 does not institute a suit  to  establish his  rights  in  respect of the  mortgage  within  the  time prescribed  his right to sue for redemption is lost.   Those decisions  do not support the contention of  the  plaintiffs that a mortgagor whose application for redemption under s. 4 of  the  aforesaid  Act is dismissed can  file  a  suit  for redemption  of  the  mortgage  even  though  the  limitation prescribed  for  such a suit had expired, if only  he  files that  suit within a period of one year from the date of  the order dismissing his petition under s. 4. No decision taking that  view  was  brought  to  our  notice.   What  is   made conclusive  by s. 12 is the order made by the  Collector  if the  suit as contemplated by s. 12 is not instituted  within the  prescribed  time.   That provision does  not  lend  any support  for  the contention that if  an  application  which fulfils the requirements (4 s. 4 is brought then the  period of  limitation  prescribed  for a  redemption  suit  becomes irrelevant. For  the  reasons mentioned above Civil Appeal No.  1251  of 1966  is allowed and the plantiffs’ suit No. 334 of 1961  is dismissed.   Appellants  had falsely pleaded that  Kura  was insane.   Because of that plea the plaintiffs had to  adduce considerable   evidence.   Taking  into  consideration   the various  circumstances appearing in these cases we think  it would be appropriate to direct the parties to bear their own costs throughout. V.P.S.                                               Appeals allowed. 110