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Bakha Singh v. Ram Narain Singh
Structured Summary of the Opinion — Redemption of Mortgages
Factual and Procedural Background
The plaintiffs-appellants instituted a suit for redemption of three mortgages affecting partly common and partly separate properties. The three mortgages were: (i) a mortgage dated 10 June 1865 executed by Sakaldip Singh and Ghazi Mal in favour of Naurang Singh and Ujagar Singh (redemption period fixed at 8 years); (ii) a zaripeshgi lease dated 19 February 1869 by Sakaldip Singh, Suba Karan Singh and Prayag Singh in favour of the same mortgagees for 10 years; and (iii) a mortgage dated 31 March 1870 by Binda Singh in favour of the same mortgagees.
Subsequent transfers: on 26 July 1869 Sakaldip Singh and Prayag Singh sold their interests in the equity of redemption to Bhawani Din Singh, Thakur Prasad Singh and Dawan Singh, leaving part of the sale money for satisfaction of the first two mortgages (it is not clear whether the sums were paid to the mortgagees). On 17 June 1872 Binda Singh sold his equity of redemption to Bhawani Din Singh and Thakur Prasad Singh and left part of the consideration for payment of the third mortgage (again payment to prior mortgagees is unclear).
The plaintiffs claimed to be legal representatives of Thakur Prasad Singh and sued to redeem half the properties allegedly affected by those sales, alleging that Bhawani Din Singh’s interest had passed to Naurang Singh and that Naurang and defendants Nos. 1–5 had caused the mortgaged property to be redeemed to the extent of Ujagar Singh’s interest. The defendants Nos. 1–5 contested the suit on multiple grounds, including allegations of fictitious entries and that Naurang Singh was the real mortgagee and purchaser who had acquired exclusive title by adverse possession.
The trial Court found that the defendants failed to establish fictitious entries, concluded the facts supported co-ownership between Thakur Prasad Singh and Naurang Singh, suggested the transactions may have operated for the benefit of a joint family and that Naurang Singh had been in adverse possession for more than 12 years, barring the claim by limitation. The lower Appellate Court upheld those findings, concluded that Naurang Singh’s exclusive title by adverse possession had been established and effectively held the mortgages had ceased to subsist so that the suit for redemption was not maintainable.
Legal Issues Presented
- Whether the plaintiffs (as representatives of Thakur Prasad Singh) retain a subsisting equity of redemption enabling a suit for redemption of the mortgages.
- Whether the sales/purchases and subsequent entries in revenue records or mutation proceedings operated to extinguish the mortgages or otherwise preclude the plaintiffs’ right to redeem.
- Whether Naurang Singh and his successors can set up an adverse title (including by adverse possession for over 12 years) inconsistent with their position as mortgagees while the equity of redemption subsists.
- Whether the lower Courts could base dismissal on a finding that the mortgages and purchases had been made by a joint family when that ground was not pleaded by the defendants.
Arguments of the Parties
Appellants' (Plaintiffs') Arguments
- The plaintiffs sued as legal representatives of Thakur Prasad Singh seeking redemption of half the properties subject to the mortgages and sales described in the pleadings.
- They alleged that the interest of Bhawani Din Singh (owner of the other half of the equity of redemption) had passed to Naurang Singh and that Naurang and defendants Nos. 1–5 had redeemed the mortgaged property from Ujagar Singh or his heirs only to the extent of Ujagar Singh’s interest.
Respondents' (Defendants') Arguments
- Defendants Nos. 1–5 denied the plaintiffs’ right to sue and alleged that Ujagar Singh’s name was fictitiously entered in the mortgage deeds and that the sale-deed in favour of Thakur Prasad Singh, Bhawani Din Singh and Dawan Singh was also fictitious.
- They contended that Naurang Singh had taken the mortgages with his own funds, had fictitiously entered the name of his brother Ujagar Singh, was the real purchaser of the equity of redemption, and that neither Thakur Prasad Singh nor Bhawani Din Singh nor Dawan Singh had paid the consideration or obtained possession of the disputed property.
- They advanced a claim that Naurang Singh had acquired exclusive title by adverse possession for over 12 years.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Seshamma Shettati v. Chickaya Begade (1902) 25 Mad. 507 | The principle that a person lawfully in possession as a mortgagee cannot, during the continuance of that relation, set up a title adverse to the mortgagor; a mortgagee in possession cannot convert that possession into an adverse title inconsistent with the mortgage while the equity of redemption subsists. | The Court relied on this authority to hold that Naurang Singh (and his successors) could not set up an adverse title so long as the plaintiffs’ right to redeem subsisted and was not barred by limitation. |
| Kunwar Sen v. Darbari Lal (1916) 38 All. 411 | Enforcement of the same rule stated above regarding a mortgagee in possession and the limits on asserting an adverse title. | The Court cited this case as another instance in which that rule was enforced, supporting the conclusion that possession as mortgagee does not permit assertion of an adverse ownership title while the equity of redemption endures. |
| Khairaj Mal v. Daim (1905) 32 Cal. 296 | The same principle regarding the mortgagee in possession and inability to assert an adverse title inconsistent with the mortgage relation. | Referred to as a case enforcing the same rule; the Court treated it as confirming the legal proposition applied to the facts here. |
Court's Reasoning and Analysis
The Court examined the findings of the trial Court and the lower Appellate Court and scrutinized both the factual findings and the legal basis on which the lower courts dismissed the plaintiffs’ claim.
Key analytical steps, confined to the materials in the opinion:
- The courts below had found the defendants failed to prove fictitious entries in the mortgage deeds or in the sale deeds and found facts consistent with co-ownership between Thakur Prasad Singh and Naurang Singh after the disputed sales.
- The trial Court suggested an explanation for Naurang Singh’s exclusive possession: that the mortgages and sales may have been for the benefit of a joint family, effectively extinguishing the mortgages, and that by arrangement Naurang became exclusive possessor. On that basis it found adverse possession for more than 12 years and barred the suit by limitation.
- The lower Appellate Court accepted the finding of exclusive title by adverse possession, noting historical attempts (in 1902 and subsequently) by Naurang to exclude Thakur Prasad Singh or his successors from the revenue records and possession, and treated those events as establishing adverse possession and extinguishing the mortgages.
- The appellate Division (this Court) identified legal and factual defects in that approach: (a) neither party had pleaded that mortgages were held by or purchases made for the benefit of a joint Hindu family; (b) one mortgagor, Ghazi Mal, had not joined in the sales so his equity remained unaffected; and (c) purchasers included Bhawani Din Singh (a member of Dayal Singh’s branch), which undermines the joint-family extinguishment theory. Therefore the basis on which the lower courts proceeded (joint-family extinguishment) was not established in the pleadings and could not be sustained.
- The Court invoked established precedents that a mortgagee in lawful possession cannot, during the subsistence of the mortgagee–mortgagor relation, set up an adverse title inconsistent with the relation; therefore Naurang Singh could not assert adverse title while the plaintiffs’ right to redeem subsisted and was not time-barred.
- The Court concluded that the mutation or revenue entries (orders in mutation proceedings) did not extinguish the plaintiffs’ title; the continued possession of Naurang Singh despite entry of Thakur Prasad Singh and his son’s names in revenue records could be attributed to the mortgagee title, which does not preclude redemption in due course of law.
Holding and Implications
Holding: The appeal is allowed and the case is remanded to the lower Appellate Court with directions to reinstate the appeal to its original number and to dispose of it after deciding the other points involved in the case in the manner provided by law.
Implications and direct consequences:
- The previous dismissal of the plaintiffs’ redemption suit on the ground that the mortgages had ceased to subsist (by virtue of an asserted joint-family purchase and adverse possession) was set aside because that ground was not pleaded and could not be sustained on the record before the Courts below.
- The matter returns to the lower Appellate Court for further adjudication on the other issues in accordance with law; the plaintiffs retain their claim to redeem unless and until the equity of redemption is shown to have been properly extinguished or barred by limitation.
- The orders in mutation (revenue entries) do not, of themselves, extinguish the plaintiffs’ right to redeem while the equity of redemption subsists.
- Costs: the costs here and hitherto will abide the result; costs in this Court will include fees on the higher scale (as explicitly stated in the opinion).
The opinion does not purport to lay down any broader new principle of law beyond applying existing authorities on the limits of a mortgagee’s ability to assert an adverse title while the equity of redemption subsists.
1. The suit which has given rise to this appeal was brought by the plaintiffs-appellants for the redemption of three mortgages of different dates and comprising some common and some separate properties. The first mortgage was effected by Sakaldip Singh and Ghazi Mal in favour of Naurang Singh and Ujagar Singh on the 10th of June, 1865, and the period fixed for redemption was 8 years. The second mortgage was effected byway of a zaripeshgi lease by Sakaldip Singh, Suba Karan Singh and Prayag Singh on the 19th of February, 1869, in favour of the same mortgagees for a period of 10 years. The third mortgage was made by Binda Singh in favour of the same mortgagees on the 31st of March, 1870,
2. On the 26th of July 1869, Sakaldip Singh and Prayag Singh sold their interests in the equity of redemption to Bhawani Din Singh, Thakur Prasad Singh and Dawan Sing and left a portion of the sale consideration for the satisfaction of the first two mortgages. Bhawani Din Singh was the uncle and Thakur Prasad Singh was the nephew of the mortgagees. Dawan Singh is said ho have been the brother of the wife of Ujagar Singh, and it is common ground that his name was fictitiously entered in the sale-dead. Whether the vendees paid the money left with them for the satisfaction of the prior mortgages to the prior mortgagees is not clear. On the 17th of June, 1872, Binda Singh sold his interest is the equity of redemption to Bhawani Din Singh and Thakur Prasad Singh and left a portion of the sale consideration for the payment of the third mortgage above referred to, but whether the vendees paid the money to the prior mortgagees is not clear.
3. The plaintiffs claimed to be the legal representatives of Thakur Prasad Singh and as such they sued for the redemption of half the properties sol 1 by the above deeds of sale alleging that the interest of Bhawani Din Singh, the owner of the other half of the equity of redemption had passed to Naurang Singh; the predecessor-in-title of the defendants Nos. 1 to 5 and that Naurang Singh and the defendants Nos. 1 to 5 had in their capacity as the owners of the other half of the equity of redemption got the mortgaged property redeemed from Ujagar Singh or his heirs to the extent of the interest of Ujagar Singh in the said mortgages. The suit was contested by the defendants Nos. 1 to 5 on various grounds. In order to understand the nature of their defence it will be necessary to refer to the pedigree appended to the judgment of the lower Appellate Court, showing that one Subansa Singh had two sons, Pheran Singh and Dayal Singh. Pheran Singh was the father of Naurang Singh and Ujagar Singh the mortgagees. Dayal Singh was the father of Bhawani Din Singh, one of the purchasers of the equity of redemption. Thakur Prasad Singh, the other purchaser was the son of Sarabjit Singh, a brother of Naurang Singh and Ujagar Singh. The defendants Non. 1 to 5 denied that the plaintiffs had any right to sue and pleaded that the name of Ujagar Singh was fictitiously entered in the mortgage deed, that he had never bean in possession of the mortgaged property and that the sale-deed in favour of Thakur Prasad Singh, Bhawani Din Singh and Dawan Singh was similarly fictitious. Their contention really was that Naurang Singh had taken the mortgages in question with his own funds and had got the name of his brother Ujagar Singh fictitiously entered in the deeds, that the real purchaser of the equity of redemption from the original owners was Naurang Singh himself and that neither Thakur Prasad Singh nor Dawan Singh nor Bhawani Din Singh had paid any portion of the consideration or obtained possession of any portion of the property in dispute. In other words they set up Naurang Singh's exclusive title as a mortgagee and then as a vendee and thereafter by reason of his adverse possession for a period of more than 12 years.
4. It is admitted in the written statement that there had been a separation in the family of the parties in the time of Pheran Singh and Dayal Singh and that the sons of Pheran Singh had also separated after the death of Pheran Singh, but it is nowhere asserted that the mortgages in question had been obtained by Naurang Singh and Ujagar Singh as members of a joint Hindu family or that the sales aforesaid had been obtained by Thakur Prasad Singh and Bhawani Din Singh for the benefit of the said family in satisfaction of the said mortgages.
5. The Court of first instance found that the defendants had failed to establish that the name of Ujagar Singh was entered fictitiously in the deeds of mortgage and that the names of Thakur Prasad Singh and Bawani Din Singh were fictitiously entered in the deeds of sale. It also found that every fact and document were consistent with the theory of the co-ownership of Thakur Prasad Singh and Naurang Singh after the disputed sales, and as an explanation for the exclusive possession of Naurang Singh it suggested that the mortgages and sales were taken for the benefit of the joint family comprising the two mortgagees and Thakur Prasad Singh, that the sales had thus the effect of extinguishing the mortgages and that by some arrangement Naurang Singh had become the exclusive possessor of the disputed properties. It then proceeded to find that Naurang Singh had been in adverse possession of the properties in question for more than 12 years prior to the suit and that the claim was barred by limitation.
6. The lower Appellate Court upheld those findings. It pointed out that an attempt was made in 1902 by Naurang Singh to set up his own exclusive title and seek the removal of the name of Thakur Prasad Singh from the revenue papers but without success. It also pointed out that on the death of Thakur Prasad Singh his son Baksha Singh, one of the plaintiffs to the present suit, applied for the entry of his name in place of Thakur Prasad Singh and. his application was opposed by Naurang Singh on the same ground and that though-the application of Baksha Singh was allowed the name of Naurang Singh continued throughout entered as that of the person in actual possession of the property. From, that fact the lower Appellate Court concluded that the exclusive title of Naurang; Singh and his heirs by adverse possession for more than 12 years had been established beyond dispute-In effect the Court below further hold that the mortgages in question had ceased to subsist and that no suit for redemption. was maintainable.
7. It is conceded that unless the mortgagee were paid or that soma other event had-happened to put an end to the equity of redemption a suit for redemption would be maintainable, if brought within 6O years from the data when the right to redeem accrues. The contesting defendants did not set up anywhere in the pleadings that the mortgages in question had been redeemed except in so far they alleged that Naurang Siugh was really the sole mortgagee and sole purchaser of the equity of redemption. The Courts. below however, found that the entire family owned the mortgages,: including the two mortgagees Naurang Singh and Ujagar Singh and that the entire family had purchased the equity of redemption. It is noticeable, however, that one of the mortgagors, namely Ghazi Mai, had not joined in the sales and his interest in the equity of redemption still remains unaffected. It is-further noticeable that neither party set up in its pleadings any thing suggesting that all the descendants of Pheran Singh, the father of Naurang Singh and Ujagar Singh were the owners of the mortgagee rights or had purchased the equity of redemption of the persons who had effected the sales. On the other hand one of the purchasers was Bhawani Din Singh, the-son of Dayal Singh, who was admitted in the written statement to have been separate from Pheran Singh. The effect of the purchases could not in the circumstances have been to extinguish the mortgages or to vest the rights of the mortgagors in the mortgages except to a limited extent. The Courts below have dismissed the claim of the plaintiffs on a ground which was not set up in the written statement, namely, that the mortgages and the purchases had been made by the joint family and the very basis on which the Courts below have proceeded cannot therefore be sustained.
8. A mortgagee is not in a position to deny the right of the mortgagors or their successors-in-interest to redeem the mortgage so long as the equity of redemption subsists, and as pointed out in Seshamma Shettati v. Chickaya Begade (1902) 25 Mad. 507, a person who lawfully comes into possession of land as a mortgagee cannot by setting up during the continuance of such relation any title adverse to that of the mortgagor inconsistent with the real legal relation between them, and that however notoriously and to the knowledge of the other party acquire, by the operation of the law of adverse possession a title as owner or any other title inconsistent with that under which he was let into possession. In Kunwar Sen v. Darbari Lal (1916) 38 All. 411 and in Khairaj Mal v. Daim (1905) 32 Cal. 296 the same rule was enforced.
9. It is not therefore open to Naurang Singh and his successors-in-interest to set up an adverse title so long as the right of the plaintiffs to redeem the mortgages subsists and is not barred by limitation. The orders passed in the mutation proceedings did not operate to extinguish the title of the plaintiffs. In fact the orders referred to upheld or allowed the entry of the names of Thakur Prasad Singh and his son Bikha Singh in the revenue papers and the possession of Naurang Singh which appears to have continued in spite of the entries of their names can only be attributed to the title which he possessed as a mortgagee, of the whole of the mortgaged properties till redemption was effected in due course of law.
10. The appeal in these circumstances must be allowed and the case remanded to the lower Appellate Court with a direction to reinstate the appeal to its original number and to dispose of it after deciding the other points involved in the case in the manner provided by the law. The costs here and hitherto will abide the result.
11. The cost in this Court will include fees on the higher scale.
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