Balwant Kaur vs Ajmer Singh, Etc. on 24 February, 1992

Punjab-Haryana High Court
Balwant Kaur vs Ajmer Singh, Etc. on 24 February, 1992
Equivalent citations: (1992) 101 PLR 690
Author: G Majithia
Bench: G Majithia


JUDGMENT

G.R. Majithia, J.

1. The unsuccessful plaintiff-appellant has come up in regular second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge dismissing her suit for permanent injunction to restrain the defendant-respondents from alienating specific portion or more than their share in the suit property. ‘

2. The facts:-

The plaintiff-appellant (hereinafter the plaintiff) filed a suit for permanent injunction to restrain the defendant-respondents (hereinafter the defendants) from alienating specific portion or more than their share in the suit land; that she alleged that she was a co-sharer alongwith the defendants in land measuring 124 Bighas 1 Biswa situated in Patti Jhuti, Bhatinda; that originally she had 1/6th share whereas l/6th share belonged to her deceased brother Nihal Singh; that Nihal Singh had sold his share to Gurcharan Singh, defendant No. 4 ; that defendants No. 2 and 3 and predecessor-in-interest of defendant No. 1 challenged the sale through a usual declaratory suit; that the said suit was decreed by judgment and decree dated 13.5.2002 BK and the sale was converted into a mortgage redeemable on payment of Rs. 275/- to defendant No, 4, after the death of the vendor ; that after the death of the vendor, defendants No. 1 to 3 got the land redeemed, from defendant No. 4 and entered into possession thereof: that the plaintiff filed an application for partition of the joint land before the Assistant Collector, 1st Grade, Bhatinda; that defendants No. 1 to 3, in order to create hurdles, threatened to sell specific portion of the suit land in excess of their share thus necessitating the filing of the instant suit by the plaintiff for permanent injunction restraining them from selling specific portion or more than their share in the suit land.

3. The suit was contested by defendants No. 2 and 3. Defendant No, 4 was proceeded against ex-parte. The contesting defendants denied the allegations made in the plaint and pleaded that she had sold more than half share in the suit land and thus she had no locus standi to main the suit.

4. From the pleadings of the parties, following issues were framed by the trial Judge:-

1. Whether the plaintiff is a co-sharer to the extent of 1/3rd share in the suit land as alleged ? OPP.

2. Whether the land in suit has already been partitioned and the plaintiff has already sold specific numbers of land which fell to her share in partition? If so, its effect? OPD.

3. Whether the plaintiff is entitled to the injunction prayed for? OPP.

4. Relief.

5. Under issue No. 1, it was held by the trial Judge that the plaintiff was a co-sharer to the extent of l/6th share in the suit land; under issue No. 2, it was held that the land had not been partitioned ; under issue No. 3, it was held that the plaintiff had only 1 Biswa of land in the joint holding when the suit was filed and she denied the relief of permanent injunction. In the result, the trial Court dismissed the suit.

6. The plaintiff preferred first appeal. The first appellate Court affirmed the finding of the trial Judge on all the issues. He held that the plaintiff was the heir of her deceased brother Nihal Singh. She could not claim any benefit of the declaratory decree since she did not bring a suit for possession of the land, subject-matter of the suit ending in judgment, Exhibit D-3, within three years of her brother’s death. Defendants 1 to 3’s declaratory suit ended in judgment, Ex. D-3, by which the sale was converted into a mortgage. They had redeemed the land from defendant No. 4, subject-matter of the decree, after the death of the vendor and their title cannot be disputed by the plaintiff.

7. In this regular second appeal, ,the learned counsel for the plaintiff submitted that the vendor-Nihal Singh died on August 14, 1967, after the commencement of the Hindu Succession Act and the plaintiff being the only heir of the deceased was entitled to inherit the estate of her deceased brother. The effect of the declaratory decree converting the sale into the mortgage, was that a charge was created on the land subject-matter of sale and possession could be obtained on payment of the charged amount on the death of the vendor. The decree declared that the sale interest conveyed in favour of the alienee was to enure during the life time of the alienor. The property alienated reverted to the estate of the vendor at the point of his death and all persons who would, but for the alienation, have taken the estate, would be entitled to inherit the same. The alienor did not leave any other heir except the plaintiff and she was to succeed to his estate. The alienated property on the death of the alienor had reverted to his estate and the plaintiff was entitled to succeed to it. Defendants No. 1 to 3, who had challenged the alienation, made by the plaintiff’s brother, taking advantage of the declaratory decree, got the land redeemed from defendant No. 4 and entered into possession of the same. They could only defeat the claim of the plaintiff if they could establish that they had perfected, their, title by adverse possession which is not their plea. Indisputably, they were not heirs of the deceased Nihal Singh. So, they could not take advantage of the decree. The decree ensured for the benefit of the heirs of the alienor. Section 91 of the Transfer of Property Act (for short, the Act) says that besides the mortgagor, any or the following persons may redeem, or institute a suit for redemption of the mortgaged property, namely,-

(a) Any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;

(b) any surety for the payment of the mortgage debt or any part thereof ; or

(c) any creditor of the mortgagor who in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.

Defendants No. 1 to 3 did not fall in any of these categories any they had no right to redeem. The law permits mortgagees rights to be acquired both by subrogation if the conditions stated in Section 92 of the Act are satisfied and also by purchase. Section 92 deals with legal subrogation, i.e. subrogation by operation of law and subrogation by agreement. Defendants No. 1 to 3 had no right to redeem. They got the land redeemed without any right and they could not be subrogated to the mortgagee. Persons who had no interest in the property redeemed have to be treated a mere volunteer. They have no equity in their favour. In (Maramittathi Theruvil Motha Chettiam Veetil Kelu, v. Kuttiyil Machikandy Chakkara Chappan, A.I.R. 1936 Mad. 308) it was held thus:-

“It was held by a single Judge of the Allahabad High Court in 1924 All. 834 (Bijai Bahadur v. Parameswari Ram), that a person who is not entitled to redeem the mortgaged property, but who pays the mortgage money and gets possession of the property, does not thereby acquire the rights and liabilities of the mortgagee. And it seems to me that the basis of this decision is sound. If a person who has no right in the equity of redemption redeems to mortgage, he is a mere volunteer with no equities in his favour. Presumably he can be ejected by the real owner and he cannot take shelter under the mortgage which he has discharged, for he has no interest in the property, which entitles him to redeem.”

Defendants No. 1 to 3 cannot be treated to have acquired a valid title to the estate of the alienor. The benefit of the declaratory decree, Ex. D-4, will accrue to the plaintiff and she will be entitled to recover possession from the volunteer. The first appellate Court was in error in holding that the plaintiff is not entitled to take the benefit of the declaratory judgment, Ex. D-3. On the death of her brother Nihal Singh, the alienated property will revert to his estate, she “being the only heir will succeed to it. Defendants No. 1 to 3 are entitled to the mortgage amount paid by them to the alienee defendant No. 4. Since they have been in possession of. the land for more than two decades, I am not directing the plaintiff to reimburse defendants No. 1 to 3 for the mortgage amount paid by them to the alienee-defendant No. 4. The net result is that the plaintiff has 1/3rd share in the suit property and not 1/6th share as held by the Courts below and she is entitled to ask for partition of the joint land in which she has l/3rd share.

8. For the reasons stated above, the appeal succeeds. The judgments and decree of the Courts below are set aside and the plaintiff is held entitled to l/3rd share in the suit land and defendants No. 1 to 3 are restrained from selling any specific portion or more than their share in the suit land. There will be no order as to costs.

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