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Sukumari Dev And Others v. On The Death Of Manindra Ch. Dev His Legal Heirs Madan Dev And Others
Factual and Procedural Background
This Second Appeal arises from a suit concerning ancestral property originally owned by four brothers: Late Govinda, Late Kalipada, Late Mahendra, and Sri Nagendra, each holding a one-fourth share. The plaintiffs are successors of Late Govinda and Late Kalipada, while the contesting defendants are successors of Late Mahendra, with Sri Nagendra impleaded as defendant No. 4. Mahendra mortgaged his one-fourth share by a registered mortgage deed (exhibit A) with possession delivered to his brothers. Subsequently, Nagendra sold his one-third share of the mortgaged property and his entire one-fourth share to his brothers Govinda and Kalipada. Both Mahendra and Nagendra left the property to reside elsewhere, while the plaintiffs reside on the suit land as successors of Govinda and Kalipada.
The plaintiffs claimed absolute ownership of the entire land, alleging the mortgage was not redeemed and accused the defendants of raising false title claims over Mahendra’s one-fourth share. The suit sought confirmation of possession, declaration of ownership in favor of the plaintiffs, injunction against defendants for illegal possession, and cancellation of defendants’ mutations in revenue records.
The trial Court decreed the suit in favor of the plaintiffs, but this was reversed by the lower appellate Court, which held that the mortgage had been validly redeemed based on an endorsement on the mortgage deed and rejected the plaintiffs’ adverse possession claim on the ground that adverse possession cannot arise between co-sharers.
Legal Issues Presented
- Whether the mortgage of the one-fourth share was validly redeemed by the defendants in accordance with the Transfer of Property Act, 1882, and the Registration Act.
- Whether adverse possession can be claimed by plaintiffs against co-sharers in the context of the suit land.
- Whether the civil court has jurisdiction to order cancellation of mutation entries in the revenue records under Section 154(1)(c) of the Assam Land and Revenue Regulation, 1886.
Arguments of the Parties
Appellant's Arguments
- The learned lower appellate Court’s finding of mortgage redemption is contrary to Section 60 of the Transfer of Property Act, 1882, which requires delivery of possession, retransfer of property by registered deed, or registered acknowledgment for redemption, none of which occurred here except an endorsement on the mortgage deed.
- The plaintiffs acquired absolute ownership since the mortgage was not redeemed properly and have been in continuous possession adverse to the defendants for more than the statutory period.
- The defendants cannot now seek redemption after 35 years as such a suit would be barred by limitation.
- The civil court is the proper forum to decide title and can direct cancellation of mutation entries despite provisions of Section 154 of the Assam Land and Revenue Regulation, 1886.
Respondents' Arguments
- The endorsement on the back of the registered mortgage deed suffices for redemption since the parties are related.
- The suit land being ejmali land negates the plaintiffs’ claim of adverse possession as per the Apex Court decision in Chhote Khan v. Mal Khan, where adverse possession does not arise between co-sharers.
- Under Section 67 of the Transfer of Property Act, unless foreclosure occurs, plaintiffs cannot acquire right, title, and interest over the mortgaged land.
- The plaintiffs are not entitled to cancellation of mutation in the revenue records due to the bar under Section 154(1)(c) of the Assam Land and Revenue Regulation, 1886.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chhote Khan v. Mal Khan, A.I.R 1954 S.C 575 | Adverse possession does not arise between co-sharers where possession is held under an arrangement. | The court applied this principle to reject the lower appellate Court's reasoning that there can be no adverse possession between co-sharers without considering the loss of ejmali character of the property after mortgage execution. |
Court's Reasoning and Analysis
The court analyzed the requirements of Section 60 of the Transfer of Property Act, 1882, which mandates that redemption of a mortgage must involve either delivery of possession, retransfer of the mortgaged property by registered deed, or a registered written acknowledgment extinguishing the mortgagee’s rights. The mere endorsement on the back of the registered mortgage deed was insufficient to constitute valid redemption. Consequently, the lower appellate Court’s finding of valid redemption was held erroneous.
The court further considered the claim of adverse possession. It acknowledged the settled legal principle that adverse possession cannot be claimed against a co-sharer, as supported by the cited Apex Court decision. However, the court distinguished the present case by noting that the ejmali character of the property was lost upon execution of the mortgage deed with delivery of possession. Since no valid redemption occurred, the plaintiffs’ adverse possession claim was sustainable.
Regarding the cancellation of mutation entries in the revenue record, the court interpreted Section 154(1)(c) of the Assam Land and Revenue Regulation, 1886, which bars civil courts from exercising jurisdiction over formation or alteration of record-of-rights. The court held that this provision does not preclude civil courts from deciding title disputes or directing cancellation of mutations, relying on Section 62 of the Regulation which preserves the right to bring suits for possession or declaration of title. The court emphasized that entries in revenue records do not confer title but serve only as evidence.
Holding and Implications
The court allowed the appeal, set aside the impugned judgment and decree of the lower appellate Court, and restored the decree of the trial Court.
Holding: The mortgage was not validly redeemed by the defendants as required by law; the plaintiffs’ claim of ownership and possession is upheld, and the civil court has jurisdiction to order cancellation of mutation entries in the revenue record.
Implications: This decision confirms that redemption of a mortgage must comply strictly with statutory requirements and that adverse possession claims can be valid against co-sharers under specific circumstances, such as loss of ejmali character. It also clarifies that civil courts retain jurisdiction to decide title disputes and direct cancellation of revenue mutations despite regulatory provisions to the contrary. No new precedent beyond these direct effects was established.
1. This Second Appeal is by the plaintiffs. The learned trial Court decreed the suit which was reversed by the learned lower appellate Court.
2. The following facts are not disputed. Late Govinda, Late Kalipada, Late Mahendra and Sri Nagendra were brothers and the suit land was ancestral property. The plaintiffs No. 1 to 12 are the successors of Late Govinda, Plaintiffs No. 13 and 14 of Late Kalipada. The contesting defendants No. 1, 2 and 3 are successors of Late Mahendra and Sri Nagendra has been impleaded as defendant No. 4. All the 4 brothers got ¼th share each of the joint property. On 25.5.31 by a registered mortgage deed, exhibit A Mahendra mortgaged his ¼th share with delivery of possession to his 3 brothers and on 3.9.35 Nagendra, defendant No. 4 sold his ⅓rd share of the mortgaged property and his entire ¼th share to his brothers Late Govinda and late Kalipada. Eoth Mahendra and Nagendra left the place for residing elsewhere, and plaintiffs are successors of Late Govinda and Kalipada are residing on the suit land.
3. According to the plaintiffs in view of the above fact they became the absolute owner of the entire land and they have also alleged that the mortgage was not redeemed. Plaintiffs have alleged that the defendants Nos. 1, 2 and 3 are powerful and rich people and out of grudge and on the strength of money they have raised false claim of their title in respect of ¼th share of the suit land. Hence, the present suit has been filed for confirmation of possession upon declaration of ownership of the plaintiffs, injunction against defendants restraining them from taking illegal possession of the suit land and also for cancellation of the mutation of the names of the defendants No. 1, 2 and 3 in the revenue record.
4. As stated above, the learned trial Court decreed the suit which was reversed by the learned lower appellate Court. It may be mentioned that in the registered mortgaged deed, exhibit-A there is an endorsement in Bengali stating that ‘received all money of the deed’. This endorsement was alleged to have been signed by the mortgagors. According to the learned lower appellate Court in view of the above endorsement there was a valid redemption of the mortgage by the contesting defendants as pleaded. The learned lower appellate Court rejected the contention that the redemption should have been by a registered instrument. The plaintiffs have also claimed title by adverse possession which was rejected by the learned lower appellate Court on the ground that there cannot be any adverse possession between co-sharers.
5. I have heard Mr. B.K Acharyya and also Mr. B.L Singh learned counsel for the parties.
6. The learned counsel for the appellant has urged that the finding of the learned lower appellate Court that the property was redeemed by the contesting defendants is contrary to the provisions of the Transfer of Property Act, 1882, for short, the Act,. and in this connection learned counsel has drawn my attention to the Section 60 of the Act.
7. Section 60, inter alia, provides that at any time after the principal money has become due, the mortgagor has a right on payment or tender of the mortgagcd money (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgegad property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such third person as he may direct, or to execute and where the mortgage has been effect by a registered deed to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.
8. In the case in hand except the endorsement on the back of the registered mortgaged deed, exhibit A, there was neither any re-delivery of possession or execution of any registered deed as required by this Section or under Section 17(I)(c) of the Registration Act. Thus I hold that the plea of the defendants that the mortgage property was redeemed is not sustainable and accordingly the finding of the learned lower appellate Court is erroneous in law.
9. Mr. Singh, learned counsel for the respondents has streneously urged that the endorsement itself is sufficient inasmuch as parties are all related. I am unable to accept the contention of Mr. Singh in view of the specific legal provisions.
10. Incidently, it may be mentioned that on going through the judgment of the learned trial Court, I find that the regitered deed, exhibit-A was produced by the defendant No. 4 and not by the contesting defendants.
11. Mr. Singh, learned counsel for the respondents has streneousfy surged that the suit land being esmali land the claim of the plaintiffs' of adverse possesion is not tenable in law. In this connection learned counsel has placed reliance in a decision of the Apex Court in Chhote Khan v. Mal Khan, A.I.R 1954 S.C 575 wherein their Lordships held that no question of adverse passession arises where the possession is held under an arrangement between the co-sharers. There is no legal dispute that normally there can not be any adverse possession against a co-sharer. In the case in hand though the property was originally ejmali byexe-cuting the mortgage deed, exhibit-A with delivery of possession the ejmali character was lost. Though Mr. Singh has tried to impress this Court that after redemption of mortgage the ejmali character revived I am unable to accept this contention more particularly as I have held that there was no redemption of mortgage as required under the law. The learned lower appellate Court also erred in law in not considering this aspect of the matter while holding that there cannot be any adverse possession between co-sharers. Mr. Acharyya has rightly pointed out that after lapse of 35 year the defendants cannot now pray for redemption by filing a separate suit as it is barred by limitation.
12. Mr. Singh has urged that in view of Section 67 of the Act unless there is a foreclosure of the mortgaged property the plaintiff cannot acquire right, title and interest over the land. I am unable to accept this contention in view of the fact that the defendants failed to redeem the mortgaged property and as the plaintiffs are in continuous possession adverse to the defendants for more than the statutory period. Mr. Singh has urged that the plaintiffs are not entitled to get a decree for cancellation of the mutatioa in the names of the contesting defendant in view of Section 154(1)(c) of the Assam Land and Revenue Regulation, 1886 which runs as follows:—
“154(1) Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no Civil Court shall exercise jurisdiction in any of the following:—
(a) *********
(b) *********
(c) the formation of the record-of-rights, or the preparation, signing or alteration of any document contained therein;
(d) *********
(m) *********
13. Mr. Acharyya, learned counsel has urged that this is regarding preparation of reveaue records during the settlement operation and that the civil court is the best authority to decide the title and accordingly directed cancellation of the mutation in revenue record. In this, connection I may quote below section 62 of the Regulation which runs as follows:
“62. Nothing contained in this Chapter and nothing done, in accordance therewith shall be deemed to
(a) preclude any person from bringing a suit in the Civil Court for possession of, or for declaration of his right to any immovable property to which he may deem himself entitled, or
(b) render the entry of any land in any register under this Chapter as revenue-free, or an admission on the part of the right of the person in whose name the land may be entered, or an admission of the validity of the title under which the said” land is held revenue-free.”
14. I, therefore, find considerable force in the submissions of Mr. Acharyya and hold that civil court is the best authority to decide the title over propetty to any person and can also direct cancellation of mutation in the revenue record. I further hold that Section 154 of the Assam Land and Revenue Regulation, 1886 is not a bar for issuing such a direction for cancellation. It is needless to say that entry in the revenue record does not confer any title on any person and at tost it a piece of evidence.
15. For the reasors stated above, I find merit in the present appeal and accordingly it is allowed by sotting aside the impugned judgment and decree. The decree of the learned trial Court is restored. Parties to bear their own costs.
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