HAZARA SINGH Vs. NAZAR SINGH

JUDGEMENT

(1.) THE appellants are the legal representatives of the plaintiffs who had filed the suit for redemption of usufructuary mortgage. THE suit had been decreed by trial Court but dismissed in appeal. THE plaintiffs had set out the details of the mortgage as having been created in respect of the properties described in suit to secure a payment of Rs.400/-. THE mortgage was said to have been executed about 40 years prior to the institution of the suit. THE suit was instituted in the year 1971. THE further detail in the plaint was that Bahadur Singh, Sohan Singh and Mohan Singh were the sons of Budh Singh. Bahadur Singh and Sohan Singh had executed a mortgage in favour of Assa Singh and after the death of the original mortgagors, the property had survived to Mohan Singh and after his presumptive civil death, on being not known to be alive 7 years prior to the institution of the suit, his interest in the property had survived to his brother's son. Mohan Singh was alleged to have not married and did not return to India after he left several years earlier. THE Jamabandi entries made after consolidation had been completed, referred to the plaintiffs as the mortgagors and the property held by the defendants as mortgagees.

(2.) THE defendants denied that there existed any mortgage and claimed that in any event, the plaintiffs are not the legal heirs of Mohan Singh and there was not even a proof that Mohan Singh had died. THE trial Court as well as lower Appellate Court found on evidence that Mohan Singh was not known to be alive more than 7 years prior to the institution of the suit and therefore, there was a presumption drawn on his civil death. Further adverting to the oral evidence placed and the revenue entries made bringing a mutation in relation to the properties inthe name of the plaintiffs, the Court also found that the claim of the plaintiffs as regards their inheritance had been established. THE trial Court had gone quite a length to identify that the property, which had been stated to belong to them for which a claim for redemption was made had been shown through entries without a break from the year 1915 that the relationship between the mortgagor and the mortgagee had subsisted without a break and there had been no change in the character of possession. It would be necessary to reproduce the reference to the documents as brought out through the judgment of the trial Court, for the Appellate Court has reversed the finding and held that the plaintiffs are not established the details of the mortgage.

(3.) IT cannot be denied that the plaint is the fulcrum on which entire case revolves. If there is any oral evidence, which is brought inconsistent with the pleadings, it is the oral evidence which has to be discarded and not vice versa. If the plaint recorded the fact that there was a mortgage 40 years earlier, there could not have been evidence that there was an oral mortgage by Mohan Singh some time in the year 1928 and take that evidence to discard the plaint. The same way, if the plaint had referred to any particular date of mortgage and the evidence was contra to the averments in the plaint then either the plaint averments must be taken as wrong or the evidence must be discarded. Both cannot be discarded the way it has been done in this case. The plaintiff had not been categoric in giving the details of the mortgage except giving a proximation that it was 40 years earlier. The evidence brought out showed that the mortgage did exist and the mutation secured through Ex.P-12 clearly set out Bahadur and Sohan to be the mortgagors and Assa Singh, the father of the defendant as the mortgagee. I would not take this to be anything inconsistent between the pleading and the evidence. On the other hand, I would find the documentary evidence has brought certitude to an approximate year given in the plaint. Again if the amount stated as due under the mortgage was Rs.400/- and it turned out with reference to documents produced that the principal amount mentioned in the mortgage was not Rs.400/- but it was Rs.1409/-, it cannot be taken as a ground for rejection of the plaint itself. Afterall it is a suit for redemption and it is the duty of the Court to specifically determine the amount payable before a mortgage could be redeemed. This could not have been taken as a ground for rejection of the plaintiffs' suit itself. Every one of the grounds, which was taken by the Appellate Court for rejecting the plaintiffs' right to redeem is clearly unacceptable. The documentary evidence was formidable for two important issues: one, the defendants' possession was as a mortgagee and two, the revenue entries from the year 1915 pointed out to a consistent state of affairs of the subsistence of mortgage and the continuing relationship between the plaintiffs' predecessor as the mortgagor and the defendants' predecessor as the mortgagee.