GULAB Vs. KHWAJA MUHAMMAD ISMAIL

JUDGEMENT

(1.) THIS appeal arises out of a suit for redemption. It appears that on the 24th of March 1863 three persons Baldeo, Kesri and Chattar mortgaged the land now in suit to two persons Kundan and Sita Ram for Rs. 400. The mortgage was for a term of 13 years, at the end of which the land was to be given back to the mortgagors without payment; in other words, the mortgage-money was to be satisfied from the usufruct in the course of the 13 years. On June 1st 1866 the three mortgagors sold a moiety of their rights in the mortgaged property to two persons named Ganga Ram and Ghasi Ram, and on June 21st 1S66 they sold the remaining moiety to the mortgagees Kundan and Sita Ram. If these two sales were good and valid, then the mortgagors ceased to have any interest in the property mortgaged by them. But somehow or other the rights of Baldeo and Chattar were sold in execution of a decree on the 20th May 1874 and purchased by the first two defendants. These two defendants then brought a suit for redemption against the mortgagees, which was numbered as 206 of 1892. The mortgagees were the principal defendants in that case and Kesri whose interests were not purchased by the then plaintiffs was impleaded as a pro forma defendant. One of the defences set up by the mortgagees in that suit was that they had purchased a moiety of the mortgagors interests in the mortgaged property on the 21st of June 1836 and that the claim of the plaintiff s with regard to the interests thus purchased was not maintainable. The Court of first instance held in that suit on 23rd June 1893 that the sale of 21st June 1866 did not convey to the mortgagees a good title. As the mortgage had been satisfied from the usufruct it gave the plaintiffs a decree for possession of 2/3rds share owned by Baldeo and Chattar. The plaintiffs, in that suit, seem to have taken possession of the entire mortgaged property in execution of that decree. The present suit has been instituted by the heirs of Kesri as also by the person to whom these heirs have transferred a moiety of their interests. They say that the interests of Kesri in the mortgaged property still subsist and that the plaintiffs as heirs of Kesri and transferee of the rights of such heirs are entitled to maintain the present suit. The Court of first instance held that the suit was maintainable at the instance of the heirs of Kesri and decreed the claim for redemption, so far as their interests were concerned. It dismissed the suit of the transferee on the ground that the sale in his favour was contrary to public policy and was a fictitious transaction and that consequently he was not competent to maintain the suit. From that decree there were two appeals, one by the defendants Nos. 1 and 2 who appealed in so far as the claim of the heirs of Kesri which was decreed was concerned, and the other by the transferee from the heirs of Kesri in so far as his portion of the claim which was dismissed was concerned. The Court below has dismissed the entire suit, on the ground that by the two sale-deeds dated respectively the 1st of June 1S66 and the 21st June 1866 the rights and interests of Kesri were sold to Ganga Bam and Ghasi Ram as also the mortgagees Kundan and Sita Bam and that as nothing was thereafter left to the heirs of Kesri in so far as the latter s interests in the mortgaged property were concerned, the suit for redemption was not maintainable.

(2.) MR. Shyam Krishn Dar has argued in appeal here that the judgment dated the 23rd June 1893 operates as res judicata upon the quesion of the effect of the two sales of the 1st June and 21st June 1836. As to the first of these sales, namely, that of the 1st of June 1865 the mortgagees did not set up that sale in their defence to that suit. Indeed it afforded no defence to the suit from their standpoint of view. There was no decision in that suit whether the sale of 1st June 1866 was or was not valid. The decision, therefore, is not res judicata in so far as that sale was concerned. Coming now to the second sale of January 2lst, 1866, the plaintiffs in that case sued for redemption of the 2/3rds share of Baldeo and Chattar which they had purchased. As the mortgage-debt had been satisfied ong before that suit was brought, they were entitled to claim possession of the 2/3rds share only without payment of any amount. The share of Kesri was not in suit in that case and although he was impleaded as a pro forma defendant along with the mortgagees, the question relating to Kesri s title to the remaining one-third share was neither put in issue nor decided in the case. Kesri was arrayed on the same side as the mortgagees; the decision in that case cannot operate as res judicata upon the question whether Kesri had or had not a subsisting interest in the mortgage. MR. Shyam Krishn Dar has also argued that the sales of the 1st of June and of the 21st June 1866 were fictitious and invalid. In this connection I may refer to the judgment of the Courts below passed in this case. The Court of first instance in dealing with the issue has observed as follows:-- Now I have to see whether the plaintiff Dharman has any right left to him in the said property. It is urged on behalf of the defendants that two deeds of sale were executed in respect of the mortgaged property. One of the said deeds is dated 21st June 1866 and it is Exhibit 33 on the record of Suit No. 206 of 1892 on the file of the Sub-Judge s Court. This deed was, however, found by the Court to be fictitious and, therefore, it is unnecessary to go through it. A copy of the second deed dated 1st June 1866 is produced here. The deed is more than 30 years old and there is no good evidence to prove that the said deed was fictitious. The plaintiffs have examined Baldeo to prove that the deed in question was not acted upon. But his statement is very vague and doubtful and cannot be relied upon Moreover he is connected to Gulab plaintiff and has sympathy for him and cannot be believed. The sale was made to Ghasi and Ganga Ram by all the three mortgagors and half of the mortgaged property was sold. Therefore, Kesri s heir, plaintiff No. 2, cannot have any right to redeem the whole. He can redeem only half of Kesri s share in the mortgaged property. I, therefore, find that Dharman plaintiff No. 2 has half share in the mortgaged share of Kesri." On appeal the learned Judge has held that the execution of these two sale-deeds is not in dispute. He observed: Both these sale- deeds were registered and the fact of their execution is not in dispute. It is alleged, however, that these sales were merely nominal and not intended to have effect.... I decide that these sale-deeds of the 1st and 21st June 1866 represent genuine transactions." On these findings of the lower Appellate Court the plaintiffs have no title left in the property in suit. MR. Dar has argued that there is no evidence to prove that these sale-deeds were genuine. The sale-deeds were more than 30 years old. The Court below was entitled to presume under Section 90 of the Evidence Act that they were genuine sale-deeds. As I have already noted, the fact of their execution was not in dispute in the Court below and the only question was whether the circumstances of the case show that they were nominal transactions. The reasons given by the Court below for holding that they represent genuine transactions are good and cannot be impugned in second appeal. I, therefore, dismiss the appeal with costs.