- Bookmark
- Share
- CaseIQ
Lachhman Singh (Dece... v. Hazara Singh (Deceas...
Factual and Procedural Background
A parcel of land measuring 58 kanals 11 marlas was mortgaged by Sohan Singh and Bahadur Singh (the predecessors-in-interest of the present respondents). Although the exact execution date of the mortgage deed was unknown to the respondents, the property was mutated in the mortgagees’ names on 19 March 1913.
The respondents filed a suit for redemption of the mortgage on 30 December 1970. Both the trial court and the first appellate court dismissed the suit as time-barred because the precise date of mortgage could not be ascertained.
In second appeal, the High Court of Punjab and Haryana reversed those findings. It held that once the mortgagor–mortgagee relationship was proved, the burden shifted to the defendants to show that the suit was barred by limitation, and it accordingly allowed the appeal.
The defendants (now appellants) challenged that decision before the Supreme Court. During the Supreme Court proceedings, the respondents sought to adduce a registered mortgage deed dated 20 February 1913 under Order 41 Rule 27 of the Code of Civil Procedure to establish that the suit was within time.
Legal Issues Presented
- Whether the suit for redemption filed on 30 December 1970 fell within the applicable period of limitation for redemption of mortgages in light of the Limitation Acts of 1908 and 1963.
- Whether the High Court erred in placing the onus on the defendants to prove that the suit was barred by limitation.
- Whether, in appellate proceedings, the respondents should be permitted to introduce the registered mortgage deed as additional evidence under Order 41 Rule 27 CPC.
Arguments of the Parties
Appellant’s Arguments
- Limitation is a question that goes to the jurisdiction of the court; the High Court committed a serious error by shifting the burden of proof to the defendants.
- The date of mutation (19 March 1913) is not the date of mortgage; without proof of the actual execution date, the suit is necessarily time-barred.
Respondents’ Arguments
- An application under Order 41 Rule 27 CPC was filed because a registered mortgage deed—executed on 20 February 1913 in what is now Pakistan—had been traced and could be produced.
- If that deed is admitted, the suit filed on 30 December 1970 would be within limitation because:
- The old Limitation Act prescribed 60 years for redemption.
- Under Section 30(b) of the Limitation Act, 1963, an additional seven years (up to 1 January 1971) was available for such causes of action.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court’s Reasoning and Analysis
The Supreme Court first clarified that limitation is a jurisdictional issue under Section 3 of the Limitation Act; a court cannot entertain a suit that is time-barred. Consequently, the High Court was incorrect in holding that the defendants bore the burden of proving limitation once the mortgage relationship was established.
However, the Court noted that both before the High Court and in the Supreme Court the respondents had applied to produce the registered mortgage deed. Order 41 Rule 27 empowers an appellate court to admit additional evidence when it is required to pronounce judgment or for “any other substantial cause.”
The Court found that, if the deed dated 20 February 1913 is genuine, the suit filed on 30 December 1970 could fall within limitation because the old Limitation Act allowed 60 years, and the transitional provision of the 1963 Act granted a further seven years. Therefore, deciding the appeal without considering that document might result in a miscarriage of justice.
Recognising that applications for additional evidence should be entertained sparingly, the Court nonetheless held that the peculiar facts warranted such indulgence. Accordingly, it exercised its power to remit the matter to the High Court with directions either to record the additional evidence itself or to have it recorded by the trial court under Order 41 Rule 28 CPC.
Holding and Implications
APPEAL ALLOWED; MATTER REMITTED TO THE HIGH COURT FOR TAKING ADDITIONAL EVIDENCE.
Direct Effect: The High Court must now determine, after admitting and assessing the registered mortgage deed (and any related evidence), whether the respondents’ suit is within limitation and decide the appeal afresh.
Broader Implications: The decision reiterates that (i) the question of limitation is jurisdictional and the burden ordinarily lies on the plaintiff to show the suit is in time, and (ii) appellate courts may admit additional evidence under Order 41 Rule 27 when it is essential to reach a just decision. No new precedent is set on substantive mortgage law, but the ruling underscores a cautious yet pragmatic approach to additional evidence at the appellate stage.
S.B Sinha, J.— Leave granted.
2. What would be the period of limitation in a suit for redemption of mortgage in the factual matrix involved in the present case is the question in this appeal which arises out of a judgment and order dated 19-7-2006 passed by the High Court of Punjab and Haryana in RSA No. 1340 of 1980.
3. A transaction of mortgage in respect of the suit property admeasuring 58 kanals 11 marlas was entered into by and between the predecessors-in-interest of the parties herein. The actual date of execution of the deed of mortgage was not known to the respondent-plaintiffs. However, the said mortgaged properties were mutated in the name of the mortgagees on or about 19-3-1913.
4. A suit for redemption of the said mortgage was filed by the respondents on or about 30-12-1970. The learned trial court, as also the first appellate court, dismissed the said suit as being barred by limitation opining that the actual date of mortgage being not known, a decree for redemption of mortgage could not be passed.
5. The High Court, however, in the second appeal preferred thereagainst by the respondent herein, formulated the following substantial questions of law:
“1. Whether the finding recorded by the learned first appellate court regarding relationship is sustainable?
2. Whether the suit for possession by way of redemption is within the period of limitation?”
6. It was held that in view of the fact that the relationship between the parties as mortgagor and mortgagee was proved, the onus to prove that suit was barred by limitation was on the defendants.
7. The said second appeal on the said finding was allowed.
8. Mr Shambhu Prasad Singh, learned counsel appearing on behalf of the appellant, would submit that the question of limitation being one of jurisdiction, the High Court committed a serious error in allowing the said second appeal. It was submitted that as the date of mutation was not the date of mortgage, the suit should have been held to be barred by limitation.
9. Mr Manoj Swarup, learned counsel appearing on behalf of the respondents, on the other hand, has drawn our attention to an application filed by the respondent for adduction of additional evidence, as envisaged under Order 41 Rule 27 of the Code of Civil Procedure and submitted that the deed of mortgage which was registered in Village Pangota, Tehsil Taran Taran in the district of Amritsar, now in Pakistan, could be procured by the respondents which, if taken into consideration, would clearly establish that the suit was within the prescribed period of limitation having been executed on 20-2-1913.
10. The relationship between the parties is not in dispute. The respondents filed the aforementioned suit for a decree for redemption of mortgage on payment of a sum as may be found due to the appellants herein. The details of the mortgage were furnished but the actual date of mortgage being not known could not be furnished.
11. Sohan Singh and Bahadur Singh were the original mortgagors. Sohan Singh is said to have been not seen 10 years prior to the institution of the suit and, thus, presumed to be dead. The respondents are said to have inherited the properties of the said mortgagors and, thus, stepped into their shoes. In the written statement, the respondent denied and disputed the relationship between the parties, stating:
“1. Para 1 of the plaint is wrong and incorrect. The suit land is not of the plaintiffs. Rather the total land is under the permanent continuing possession of Defendant 1. The land in dispute as mentioned in Para 1 of the plaint filed by the plaintiffs was never mortgaged with the defendants and the facts mentioned in Para 1 of the plaint regarding the alleged mortgage are forged and fictitious one and the plaint is not with me.”
12. The defendant claimed the ownership as also possession of the suit land in himself. The courts below, as noticed hereinbefore, found that there existed a relationship of mortgagor and mortgagee between the parties to the lis. The suit was dismissed only on the ground of being barred by limitation.
13. The High Court was, in our opinion, entirely wrong in holding that the onus to prove that the suit was beyond the period of limitation was on the defendants. Limitation is a question of jurisdiction. Section 3 of the Limitation Act puts an embargo on the court to entertain a suit if it is found to be barred by limitation.
14. It appears that before the High Court also, an application for adduction of additional evidence was filed. No order thereupon was passed. The respondents, in our opinion, have made out a case for adduction of additional evidence.
15. It was stated that the mortgage deed was registered in the year 1913 in the district of Lahore. As it is a registered document, this Court in a situation of this nature, keeping in view the findings of the courts below, should allow the said application.
16. There cannot be any doubt whatsoever that the court should be loathe to entertain such an application but the respondents have herein made out adequate grounds therefor.
17. The jurisdiction of the appellate court is to be exercised not only when Clause (a) or Clause (aa) of sub-rule (1) of Rule 27 of Order 41 of the Code is attracted but also when such a document is required by the appellate court itself to pronounce judgment or for any other substantial cause. If what the respondents contended is correct, namely, the mortgage was executed in 1913, the period of limitation having been prescribed under the old Limitation Act, namely, 60 years being the period of limitation having regard to the provisions of the new Limitation Act, the suit could be filed within a period of seven years from 1-1-1964 i.e up to 1-1-1971. As the suit was filed on 30-12-1970, it may be held to be within the prescribed period of limitation.
18. We are of the opinion that keeping in view the peculiar facts and circumstances of this case, the respondents should be permitted to adduce evidence. We, therefore, set aside the impugned judgment and remit the matter back to the High Court directing it to take the additional evidence on record either allowing the parties to adduce evidence before it or to prove the said documents by the trial Judge in terms of Order 41 Rule 28 of the Code. Appeal is allowed to the above extent. No costs.
Alert