MT GOMTI Vs. MEGHRAJ SINGH

JUDGEMENT

(1.) This is a second appeal by the defendants in a redemption suit which has been decreed by the trial Court and the decree affirmed by the lower appellate Court. The suit has been very hotly contested in all Courts as, although the alleged mortgage was for a sum of Rs. 2,550 only, the property with the constructions upon it is now said to be worth well over a lac of rupees. The plaintiffs case was that on 25 March 1844 one Gulab Singh whose representatives in interest are Bhojraj Singh and Meghraj Singh, plaintiffs 1 and 2, executed a sale-deed by which he transferred 5 biswas of four villages, all of which are now included in the town of Bahjoi, district Moradabad, to Het Ram and Tulla Ram, the predecessors in interest of the defendants, some of whom are the legal representatives of the alleged mortgagors and others transferees of portions of the property. On the same date Het Ram and Tulla Ram executed an agreement by which they covenanted to return the property on the payment by Gulab Singh or his heirs of the amount of the sale-deed at any time after the expiry of 25 years. The plaintiffs contended that these documents constituted a mortgage by conditional sale. As the plaintiffs Bhojraj Singh and Meghraj Singh were unable to provide the funds to redeem the mortgage, they sold a portion of the property to plaintiffs 3-5 and the suit was instituted on 8 September 1928, about six months before the expiry of 60 years from the date on which the right accrued under the agreement to get back the property on repayment of the sale consideration.

(2.) A large number of defendants resisted the suit and a number of written statements were filed. The contesting defendants challenged the genuineness of the alleged agreement. They maintained that the property had been sold out right by Gulab Singh to their predecessors-in-interest and that the agreement produced by the plaintiffs, was a forgery. They further contended that in any case the documents did not amount to mortgage by conditional sale, but that the one constituted an out and out sale and the other a separate contract to reconvey the property. A number of other pleas was taken by the parties but with these we are not concerned for the purposes of the present appeal as they have not been pressed before us. During the 84 years that had elapsed since the transactions before the institution of the suit a large number of titles had been created by sales of portions of the property by Het Ram or Tulla Ram or their heirs, sales in execution of Court decrees and a deed of gift, in all of which transactions the property was treated as having been in the full ownership of Het Ram and Tulla Ram.

(3.) As the agreement purported to be over 30 years old and was produced from proper custody the trial Court made the presumption mentioned in Section 90, Evidence Act, and admitted the document in evidence without calling upon the plaintiffs to prove it. It held that the agreement was genuine document and that the sale-deed and agreement constituted a mortgage by conditional sale. It accordingly decreed the plaintiffs suit. On appeal by a number of the defendants the lower appellate Court affirmed the findings of the trial Court on both points and dismissed the appeal. Thirteen of the defendants have come to this Court in second appeal. The task of the learned Counsel for the appellants has been rendered a difficult one by his being precluded from questioning in second appeal the finding of fact of the lower appellate Court that the agreement of 25 March 1844 is a genuine document.. We ourselves must confess that if the matter had been still at large, we should have felt considerable hesitation in accepting the document as genuine, but we are also bound by the finding of the Court below. Accepting this finding the learned Counsel has contended firstly, that the document, was improperly admitted in evidence and secondly, that the Courts below were wrong in holding that the two documents constituted a mortgage by conditional sale and not the one an. out and out sale and the other a separate agreement to reconvey the property. With regard to the second point we do not think that, accepting the agreement as genuine, there can be any doubt that the two documents together constituted a mortgage by conditional sale. The transaction as phrased in the first document is ostensibly a sale and purports to convey an absolute interest. The agreement of the same date is as follows: Thakur Gulab Singh, zamindar of Qasba Bhajoi aforesaid, has sold (paper torn) the said Qasba to these executants for Ks. 2,550 of the kaldar coins and the mutation of names will be effected in the Nizamat Office, District Moradabad. Henco we have covenanted and given in writing that whenever Thakur Gulab Singh, vendor of the: said village or his collateral heirs pay the amount of the sale-deed in a lump sum after expiry of the period of 25 years, i. e., with effect from 1251 Fasli to 1275 Pasli these executants or our heirs shall willingly get the names of Gulab Singh and his heirs recorded in and our names and those of: our heirs expunged from the papers of the Nizamat Court, District Moradabad, we or our heirs shall put forth no excuse. If perchance we or our heirs make any excuse in accepting the amount of the sale-deed in respect of the said village, Gulab Singh or his heirs shall be authorized to deposit the amount of the sale-deed in the Hon ble High. Court, get their names recorded and our names or those of our heirs expunged. We or our heirs shall have no objection. After expiry of the period of 25 years Thakur Gulab Singh or his heirs shall be authorized to pay the amount of the sale-deed whenever they may like it and get the property sold, released from us or our heirs and representatives. We or our heirs shall have no objection. If we do so, it shall not be entertained in the Nizamat Court or the High Court. Hence we have executed these few presents by way of a conditional agreement so that it may serve as evidence and be of use whenever needed.