RAM NIVASI Vs. SHAFI

JUDGEMENT

(1.) The facts of this appeal are that the respondent Md. Shafi filed a suit on 27 -11 -70 for redemption of a three storeyed house situated in Girdikot, Jodhpur. There were 10 mortgage deeds executed in respect of this properly in favour of Hira Lal, who died during the pendency of the suit and is now represented by his widow Mst. Ram Nivasi The mortgages were executed during the period 13 -7 -47 to 15 -12 -58 The learned Additional District Judge, Jodhpur, by his judgment dated 29 -4 -74 decreed this suit for redemption and in stead of passing a preliminary decree passed a final decree with costs that the defendant shall at the expenses of the plaintiff execute a deed of acknowledgment of the amount due or shall execute a deed of reconveyance and shall also return all the mortgage deeds produced in the Court and after the time of appeal had expired the defendant shall deliver the possession of the property to the plaintiff. The learned Additional Sessions Judge held that out of the total amounts said to have been advanced on various mortgages, no amount of Rs. 1000 was paid to the mortgagor against the mortgage deed Ex. A4 dated 25 -12 -48 and out of the amount of Rs. 3,000/ - said to have been advanced against the mortgage deed Ex. A6, dated 28 -9 -56 Rs. 500/ - only were paid to the mortgagor. The learned Additional District judge also disallowed the amounts of Rs. 5,000/ - against Ex. A7 dated 22 -12 -56 and Rs. 1,800/ - against Ex. A8 dated 26 -9 -57 because these sums were not cash advances but against amounts of interest capitalised. The trial Judge, therefore determined the principal amount at Rs. 10,499/ -. The trial court further came to the conclusion that the amount of rents and profits received by the mortgagee is not less than Rs. 23,012.31P. Since under the provisions of Sec. 27 of the Rajasthan Money Lenders Act, 1963, the mortgage was not entitled to more than the amount of the principal, nothing remains to be paid by the plaintiff mortgagor. It was also contended before the learned Additional District Judge that Md. Shafi alone could not file the suit for redemption as besides him there were Nayaz Mohammed, Zafar Mumtaz, Abdullatif & Abdul Hakim who had an interest in the right of redemption and were necessary parties. The learned Additional District Judge held that the defendant led no evidence to prove that these persons were alive, while Md Shafi (PW 1) has deposed that these persons have migrated to Pakistan and have not been heard of being alive within the last 10 years nor have any letters been received from them. Under Sec. 180 of the Evidence Act no presumption of their being alive can be drawn. The learned Additional District Judge, therefore, held that in the absence of evidence led by the defendant it was to be held that the afore mentioned persons were not alive. He also observed that they were not necessary parties either.

(2.) Aggrieved by the aforesaid findings the defendant mortgagee has filed this appeal. The plaintiff -mortgagor has also preferred cross objections under Order 41, Rule 22 CPC. The main prayer in the cross -objection is with regard to a decree of refund of excess amount received by the defendant.

(3.) I have heard arguments. The first contention of the learned counsel for the appellant is with regard to the non joinder of parties. Whenever an objection in this behalf was raised the plaintiff added three women as parties but in respect of other persons, his contention was that they were neither necessary parties nor were they heard of being alive. The learned counsel for the appellant urged that under Sec. 107 of the Evidence Act, the defendant was only required to show that the aforesaid mentioned persons were alive within the previous thirty years. It is for the plaintiff to establish the fact on the basis of which the afore mentioned persons could be held to be dead under Sec. 108 of the Evidence Act and since this has not been done it was necessary as required by Order 34, Rule 1 CPC to bring them on record. The issue which was framed by the trial court was as follows: "(1) Whether Navaz Md., Jafar, Mumtaz, Abdul Latif, Abdul Hakim being alive, are necessary parties to the suit? The issue clearly took it for granted that these persons were alive. The defendant was simply required to show that they were necessary parties. It was a purely legal issue If the plaintiff contended that the presumption under Sec. 107 should be drawn, then it was not Sufficient to prove that letters were not received from the aforesaid persons. He should have proved further that he was normally expected to hear of them but has not done so for a period of not less than seven years. The learned counsel relied upon Lal Chand Marwari vs. Mahant Ramrup Gill : AIR 1926 PC 9. Their Lordships of the Privy Council observed as follows: -