GURBUX SINGH Vs. CHINTI

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment of a learned Single Judge D/- 3-9- 1973, passed in S. A. No. 103 of 1963. The short point involved in this appeal is whether the gift-deed (Exhibit P. 1) amounts to acknowledgment of subsisting mortgage by Inder Singh in favour of Smt. Bishni. The facts, which have given rise to the point of law involved in the case, arc that Khazana mortgaged land measuring 22 bighas 9 biswas in favour of Bhagwana on June 14, 1893, for Rs. 650/ -. The mutation in respect of that mortgage was sanctioned in 1894. Jamabandi for the year 1912-13 (Exhibit P. 31) shows that land measuring 17 bighas 15 biswas instead of 22 bighas 9 biswas was under mortgage with Chirta son of Bhagwana as mortgagee. The mortgagors of that land at that time were Attru, Dittu and Naraina, sons of Khazana, and Inder Singh and Arjan Singh, sons of Harnam Singh, another son of Khazana, who died in 1898. Dittu and Naraina died issueless and after their death Inder Singh and Arjan Singh to the extent of one-half and Attru to the extent of the other half were the mortgagors of the land. Attru also died leaving behind Smt. Bishni, so that she became the mortgagor of one-half of the land of Khazana. Inder Singh and Arjan Singh purchased mortgagee rights from China in respect of that land and became mortgagees thereof.

(2.) ATTRU son of Khazana mortgaged 5 bighas 5 biswas of land for Rs. 188/- in favour of Balak Ram and Rama Nand with regard to which mutation was sanctioned on June 23, 1897, vide Exhibit P. 16. According to this mutation, the mortgage was for Rs. 250/- from which it becomes clear that Attru received another sum of Rs. 62/- from Balak Ram and Rama Nand before the mutation was sanctioned. Balak Ram and Rama Nand died and their heirs sold their mortgagee rights in favour of Inder Singh and Arjan Singh for Rs. 250/- vide mutation, copy of which is Exhibit P. 19. Inclcr Singh made a gift of his entire land, including the mortgagee rights, in favour of Jagir Singh, vide gift-deed Exhibit P. 1, duly registered. In this gift-deed, he described the various properties gifted as under:-1. Land measuring 14 bighas and 7 bighas 7 biswas comprised in various khasra numbers which belonged to him as full owner. 2. Mortgagee rights in the land measuring 9 bighas 17 biswas owned by Smt. Bishni, widow of Attru, co-sharer out of possession as under :--5 bighas 3 biswas comprised in khasra No. 311 and 4 bighas 14 biswas, half of 9 bighas 8 biswas comprised in khewat No. 37, Khatauni No. 80.

(3.) POSSESSORY rights acquired against Smt. Bishni co-sharer in some land and share of Shamlat etc. 3. We are concerned with the property mentioned as mortgagee rights. Smt. Bishni died and on her death, two widows of Inder Singh, Smt. Chinti and Smt. Basanti, succeeded in equal shares. Jagir Singh donee from Inder Singh sold his mortgagee rights in favour of Mehma Singh and Gurbaksh Singh, sons of Arjan Singh, for a sum of Rs. 700/- on January 30. 1959. Smt. Chinti filed a suit for redemption of land measuring 23 kanals 19 marlas on payment of Rs. 575/-as mortgage money or the amount that might be fixed by the Court. Mehma Singh and Gurbaksh Singh are defendants 1 and 2, Jagir Singh is defendant 3 and Arjan Singh son of Uttam Singh, is defendant No. 4. It appears that after the death of Inder Singh, Smt. Basanti married Uttam Singh and Arjan Singh, defendant 4, is their son. Defendants 1 and 2 denied that the plaintiff was a mortgagor of the land in suit or was entitled to redeem it. Jagir Singh defendant conceded the plaintiff's claim in his written statement. He stated that he had delivered all the properly in suit to defendants 1 and 2, to whom he had sold the mortgagee rights for a sum of Rs. 700/- but no sale-deed had been executed by him in their favour. Arjan Singh defendant 4, did not appear to contest the suit. The learned trial Court framed the following issues :- -1. Whether the suit is within time? 2. Whether the plaintiff has right of redemption?