SAHIB SINGH Vs. GURDEV SINGH

JUDGEMENT

(1.) Briefly stated facts of the case are that the plaintiffs Sh. Gurdev Singh and Sh. Hakam Singh, both sons of Sh. Ranjit Singh alias Jeet Ram, residents of village Nanduali, Tehsil Naraingarh, District Ambala had brought a suit against defendants Sh. Sahib Singh, Sh. Singh Ram and Sh. Balbir Singh seeking a declaration that the stipulation of the mortgage 99 years as recorded in mutation No. 1853 of year 1961 while creating oral mortgage is illegal, null and void as it amounts to clog on the equity of redemption and further for a declaration that the plaintiffs are entitled to redeem the mortgage forthwith created over the land measuring 29 kanals 11 marlas detailed in the head-note of the plaint.

(2.) As per the version of the plaintiffs, the land measuring 16 kanals 14 marlas i.e. 1/3rd share out of total land measuring 50 kanals 3 marlas, 8 kanals 19 marlas i.e. 1/3rd share out of total land measuring 26 kanals 16 marlas; 2 marlas i.e. 2/9th share out of total land measuring 13 marlas, 1 kanal 3 marlas i.e. 1/3rd share out of total land measuring 3 kanals 11 marlas, 1 kanal 13 marlas i.e. 2/12th share out of total land measuring 15 kanals 18 marlas situated at village Majra, Tehsil Naraingarh, District Ambala as per jamabandi for the year 1994-95 was mortgaged by their predecessor-in-interest Sh. Ranjit Singh for a period of 99 years vide mutation No. 1853 as per jamabandi for the year 1959-60 delivering the possession to the mortgagees in 1961 itself; that the mortgage was to be redeemed after payment of Rs.3,000.00 after 99 years; that the mortgagor was in financial difficulty as he was a spend-thrift and was addicted to alcohol; that the defendants took advantage of poverty and helplessness of mortgagor Sh. Ranjit Singh and got the stipulation recorded in mutation for the oral mortgage sanctioned vide No. 1853 to the effect that the mortgage was for 99 years. According to the plaintiffs this is a clog in the right of redemption and is illegal, null and void. The plaintiffs further contended that Amar Singh mortgagee had sold his mortgage rights to S/Sh. Sahib Singh, Singh Ram and Balbir Singh - defendants vide sale deed dtd. 28/3/2003 for a sum of Rs.3,000.00, resultantly defendants No. 1 to 3 stepped into the shoes of mortgagor; that the plaintiffs requested the defendants several times to admit their claim and to redeem the mortgage after taking money but they refused, giving rise to a cause of action to the plaintiffs to bring the suit in question.

(3.) On notice, the defendants appeared and filed a written statement contesting the suit raising various legal objections with regard to maintainability of the suit, locus standi of the plaintiff to bring the same; that the suit was vague and misconceived further submitting that the plaintiffs were estopped by their act and conduct from filing the suit and they had concealed material facts from the Court etc. On merits, the defendants came up with a plea that the transaction was in the nature of mortgage by conditional sale, which was made by Sh. Ranjit Singh for betterment/necessity of the family and the plaintiffs have no right to change such nature; that the entry of mutation itself was legal and valid; that huge amount of Rs.3,000.00 was paid by Sh. Ranjit Singh in the year 1961, therefore, the plaintiffs cannot re-agitate the matter and say that it was just a mortgage and they have got a right to redeem the land. Refuting the remaining allegations, the defendants prayed for dismissal of the suit.