DES RAJ SOOD Vs. GANESHO

JUDGEMENT

(1.) The following substantial question of law arises for consideration in the second appeal:- Whether the lower appellate Court was justified in reversing the decree for redemption on the ground that the plaintiffs had not shown themselves to be the legal representatives of the original mortgagor when there was substantial evidence therefor

(2.) The second appeal is at the instance of the plaintiffs whose suit for redemption was decreed at the trial Court, but reversed in appeal. The facts pleaded by the plaintiffs were that the properties which were Shop Nos.10 and 11 had been mortgaged by one Paras Ram on 25.11.1951 under the original of P2 in favour of Krishan Dass. Krishan Dass had assigned the mortgage to the defendant Ganesho on 21.10.1971. D2 to D4 were lessees under the mortgagee. Paras Ram was reported to have died on 30.01.1967 leaving behind the plaintiffs, who are the sons and the daughters. On the suit for redemption being filed, the principal contentions were that the plaintiffs did not have the locus standi to file a suit since the plaintiffs were not the legal representatives of the deceased mortgagor. The further contention was that the suit was barred by limitation. On the issue relating to the representative character of the plaintiffs, amongst the plaintiffs, two of the sons and the daughters had been examined. P3 was the college degree certificate showing Kulwant Rai one of the plaintiffs as the son of Paras Ram. P4 is high school pass certificate. The school certificate did not give the father's name, but it still became relevant as a document issued before the college degree certificate and that it should have been with reference to the same person. PX was the matriculation examination certificate of the year 1933 issued in the name of Des Raj Sood, whose date of birth had been shown as 28.07.1914 and he was also referred to as the son of Paras Ram. PY is some receipt issued by the Sub Inspector Excise describing Des Raj as the son of Paras Ram Sood of Tapa. The trial Court has relied on these documents and granted decree. It also held that there was no bar of limitation. The appellate Court reversed the judgment and went into elaborate consideration of how the documents cannot be relied on without proof of marriage and that further no witnesses were examined, who could have known the marriage of Paras Ram and known the plaintiffs as the sons and daughters of Paras Ram. The appellate Court has also examined as to the effect of non-production of birth certificate when the eldest amongst the sons Des Raj was nearly 70 years of age and the school certificate PY will show him as a person born in the year 1914.

(3.) Paras Ram himself must have been born in the 19th century. The suit was instituted in the year 1980 and the witnesses were examined in the year 1981. It should have been impossible for the plaintiff to secure direct evidence of any person who was present at the marriage of Paras Ram. Some of the plaintiffs have gone to school and had produced school certificate and the college certificate. The description of the plaintiffs as the sons of Paras Ram and their own assertions that they are the sons of Paras Ram ought to have been taken to be sufficient. It was not as if there was an inter se dispute amongst the heirs of Paras Ram where some claiming themselves to be the heirs and denying the plaintiffs as the heirs. The quality of evidence that is necessary in a case where a suit for redemption is filed by persons claiming to be the sons of mortgagor, the burden of proof is very light. All that was necessary shall be that the Court could not have passed a decree for redemption in favour of the total stranger that could vex a mortgagee by yet another action at the instance of some other persons claiming to be the legal representatives of the mortgagor. The enquiry into heirship must, therefore, be seen only to ward off any possible claim by some other person and applying for redemption in respect of the very same property. The appellate Court was wholly unjustified in suspecting the evidence of the plaintiffs themselves who spoke themselves to be the sons of their father Paras Ram to produce evidence of marriage of their father with their mother which must have taken place nearly 100 years before. The appreciation of evidence and the standard of proof which the Court was looking for was absolutely perverse and the appellate Court was unjustified in setting aside the finding regarding the representative character of the plaintiffs for their suit for redemption. An application under Order 41 Rule 27 CPC has also been filed with 11 documents viz. Birth certificate, bank passbook, death certificate of Des Raj, passport issued to Kulwant Rai, etc. all of which show the heirship of some of the plaintiffs as sons of Paras Ram. I have not the slightest doubt in my mind that the plaintiffs are the sons of the mortgagor Paras Ram.