GHOTO Vs. GOPAL SINGH

JUDGEMENT

(1.) MAGHAR Singh, an agriculturist Jat of village Kotli Kalan, District Bathinda sold his agricultural land to Gopal Singh defendant No. 1 by two sale deeds dated 6.10.1952 for Rs. 6,000/- and 6.11.1952 for Rs. 4,000/-. Mahla Singh brother of the vendor brought a suit for declaration that the two sale deeds were without consideration and legal necessity and that the land being ancestral they could not affect his reversionary rights. The suit was instituted on 17.2.1956 the parties thereto arrived at a comprise (compromise ?) and the operative part of the decree as passed on compromise reads as under :

(2.) AFTER the death of both Maghar Singh and Mahla Singh, Mrs. Ghoto brought a suit alleging that they both died issueless and that she being their real sister is the sole lawful heir. She also pleaded that according to the consent decree referred to above the sales had been converted into mortgages redeemable on the payment of Rs. 10,000/- to Gopal Singh and that she was, therefore, entitled to redeem the same. She had also filed an application before the Collector for the redemption of the mortgages under Redemption of Mortgages (Punjab) Act, 1913 but that was dismissed on 21.6.1974 and, therefore, she instituted the present suit under Section 12 of that Act challenging the Collector's order and also sought possession through redemption on payment of Rs. 10,000/- to the defendants. The defendants resisted the suit on a number of grounds and two of their main pleas were that the sales were never converted into mortgages nor could it be lawfully done and that the suit was barred by time. The trial Court framed the following two preliminary issues :

(3.) THE question that arises for consideration is whether the sales effected by Maghar Singh in favour of Gopal Singh had been converted into mortgages by way of a compromise and whether this would be done lawfully. It is not in dispute that Mahla Singh had filed a declaratory suit challenging the sale deeds dated 6.10.1952 and 6.11.1952 executed by Maghar Singh in favour of Gopal Singh- defendant on the ground that they were without consideration and legal necessity. That suit was compromised and the operative part of the decree passed by the Court has been reproduced above. Such a suit filed by reversioner if the Court finds that the alienation was without consideration or without legal necessity, it can declare that the sale will not affect the reversionary interests of the plaintiff but it cannot convert the sale into a mortgage for the amount of the sale price. If, on the other hand, it is found that only a part of the consideration had passed for legal necessity the Court cannot convert the sale into a mortgage but it can declare that the sale will not affect the reversionary rights of the plaintiff and that before the plaintiff or any other reversioner could claim possession after the death of the alienor he shall have to pay to the alienee or his successors-in-interest the sum equal to the amount for which the consideration had passed for legal necessity. Such a decree could be passed on the principle that one who seeks equity must do equity. In other words the plaintiff who has benefited by the liquidation of the debts that would have been binding on the estate in his hand, must, before taking possession after the alienor's death, repay the benefit so received. The Court could not in my opinion, convert the sales into mortgages entitling the reversioners to have the same redeemed or claim possession through redemption. In this view of the matter the compromise decree passed in the suit filed by Mahla Singh could not convert the sales into mortgages and, therefore, that decree is invalid and did not confer any right on any reversioner to seek possession by way of redemption. The view that I have taken finds support from Fazal Ahmed and others v. Shehab Din and others, 1909 Punjab Records 92. The Courts below were, therefore, right in rejecting the claim of the plaintiff-appellant.