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Balkaran Upadya v. Gaya Din Kalwar
Structured Summary of the Opinion — Second Appeal (Mortgage suit)
Factual and Procedural Background
This is a second appeal brought by certain defendants in an action instituted to realise a mortgage dated 24th May 1893. The original mortgagors were Bhole Khan and Faulad Khan, described as proprietors of a share in the mahal known as that of Bhole Khan in Mauza Chak English Zorawar Khan. The mortgage deed purported to mortgage specified plots of sir and khudkasht land, and contained an unusual stipulation that, if the mortgagees failed to obtain possession under the deed or were disturbed in possession, the mortgagees might sue the mortgagors for recovery of the money and, in respect of that suit, choose one of three alternative remedies: (a) enforce recovery against the specified plots mortgaged with possession; (b) recover the money from the person or other property of the mortgagors; or (c) recover it from the zamindari share of one anna to which the specified lands were said to appertain.
The plaintiffs instituted the suit on 23rd May 1910 (about 17 years after the deed). The original relief claimed was recovery of principal and interest by sale of the specified plots. Many defendants were impleaded because of intervening transfers and a partition of the mahal. Four defendants who maintained they had no interest in the plots were the appellants in this second appeal.
Subsequent facts relevant to the procedure: a partition in 1312 fasli had set aside the prior private arrangement for distribution of sir and khudkasht lands, and the plots specified in the mortgage had been assigned in that partition to cosharers other than the original mortgagors; some of those plots had been assigned to the plaintiffs themselves. The plaintiffs applied on 4th January 1912 to amend the plaint to reflect that, and to seek recovery by sale of (inter alia) a zamindari share of "one anna seven pies four karants" which the plaintiffs said represented the zamindari share referred to in the mortgage after partition.
After amendment, the defendants filed a fresh written statement challenging that the mortgage had been executed for valid consideration. The trial Court asked the plaintiffs to elect between alternative remedies; by application dated 29th February 1912 (the date on which the suit was decided by the Munsif) the plaintiffs elected a decree against the zamindari share only. The Munsif decreed sale of a one anna seven pies four karants zamindari share in the possession of the present appellants. On appeal to the District Judge, only two points were pressed: whether consideration had been paid to the original mortgagors and whether the plaintiffs had obtained possession of certain plots in accordance with the deed. The District Judge decided these points in the plaintiffs' favour and noted other points in the memorandum of appeal had been dropped. In this second appeal the appellants again challenged the order permitting amendment of the plaint and contended that the finding on passing of consideration was vitiated by misplacement of the burden of proof.
Legal Issues Presented
- Whether the trial Court properly permitted the plaintiffs to amend the plaint to seek recovery against the zamindari share after the original suit was framed to seek sale of specified plots.
- Whether the plaintiffs' claim was within limitation, having regard to the plaintiffs' reliance on Section 31 of the Limitation Act (9 of 1908).
- Whether the plaintiffs had proved that the consideration for the mortgage deed had been paid to the original mortgagors.
- Whether the plaintiffs had failed to obtain possession under the terms of the mortgage-deed (a condition precedent to bringing a suit for sale) and where the burden of proof lay on that issue.
Arguments of the Parties
Plaintiffs' Arguments
- The plaintiffs pleaded that they were within limitation by virtue of the special provisions of Section 31 of the Limitation Act (9 of 1908).
- After the 1312 fasli partition, the plaintiffs applied to amend the plaint (4th January 1912) to reflect that the plots specified in the mortgage had been re-assigned in partition and that the zamindari share referred to in the mortgage had become a one anna seven pies four karants share; they sought a decree recoverable by sale of that zamindari share (and certain plots they alleged the mortgagors had received in exchange).
- When the Court required an election between remedies, the plaintiffs elected to pursue the zamindari share only (application dated 29th February 1912), and the trial Court granted a decree accordingly.
Defendants' Arguments
- In their original written statements the defendants asserted they were not in possession of, nor had any interest in, the plots sought to be sold and were thus unnecessarily impleaded.
- In a later written statement the defendants challenged the plaintiffs to prove that the mortgage deed had been executed for valid consideration.
- The appellants contended the trial Court erred in permitting the amendment of the plaint and later contended that the finding as to passing of consideration was vitiated because the burden of proof had been wrongly placed on the defendants (with reference to the ruling in Bihari v. Ram Chander).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bihari v. Ram Chander | The opinion notes that reference was made to a ruling in this case in relation to the placement of the burden of proof on the question of passing of consideration. | The Court observed the reference and acknowledged discussion of that ruling by the District Judge; the Court noted the equities were doubtful and remarked that the burden of proof lay on the plaintiffs as failure to obtain possession was a condition precedent, but did not reverse on that ground because the point had not been challenged in the memorandum of appeal before the present Court. |
| Muhammad Sadiq v. Abdul Majid | It was laid down that while Courts have wide discretion to permit amendment of pleadings, no Court may allow a new cause of action to be introduced into a plaint after that cause of action has been barred by limitation; where the amendment merely changes the description of property and not the cause of action it may be permissible. | The Court relied on this principle to conclude that the amendment permitting the plaintiffs to change the relief claimed so as to enforce recovery against the zamindari share (a different remedy) was effectively to introduce a new cause of action after limitation for enforcing a simple mortgage on that zamindari share had expired; therefore the amendment should not have been allowed and the decree for sale of the zamindari share could not be sustained. |
Court's Reasoning and Analysis
The Court proceeded by examining both factual equities and legal principle. It noted first facts that gave rise to suspicion: the plaintiffs delayed some 17 years before instituting suit on the mortgage-deed, and during the partition proceedings of 1312 fasli the plaintiffs did not assert their rights under the deed even though some plots mentioned in the deed were assigned to them in partition. The Court observed that such delay and the conduct in partition could justify inferences either of failure of payment of consideration or that the plaintiffs had in some way enjoyed part of their interest by separate possession of some plots.
On evidentiary issues the Court held that the burden of proving failure to obtain possession (a condition precedent to suing for sale) lay on the plaintiffs. The Court criticised the District Judge for not assigning greater weight to the partition conduct and delay and for not putting the plaintiffs to stricter proof of consideration passing and of failure to obtain possession. Nevertheless, because the finding on failure to obtain possession had not been challenged in the memorandum of appeal before the present Court, the Court declined to overturn the lower appellate Court's decision on that basis alone.
The decisive element of the Court's analysis was limitation and the propriety of the amendment of the plaint. The Court observed that both Courts below had overlooked the question of limitation when permitting the plaint to be amended after the plaintiffs had originally sued only for sale of specified plots. Applying the principle from Muhammad Sadiq v. Abdul Majid, the Court stated that although Courts have wide discretion to permit amendments, they cannot allow a new cause of action to be introduced after limitation has run. On the facts of this case the mortgage-deed gave alternative remedies; the plaintiffs had initially elected to sue for sale of specified plots, but after the limitation period for enforcing a simple mortgage on the zamindari share had expired the plaintiffs were permitted to amend to seek recovery against that zamindari share. The Court held that this amendment effectively introduced a new cause of action barred by limitation and should not have been allowed.
Given this conclusion the Court held that the decrees of both the Munsif and the District Judge, insofar as they sustained the decree for sale of the zamindari share, could not stand. The Court therefore allowed the appeal on that ground despite the other equities and evidentiary doubts it had raised.
Holding and Implications
Holding: The appeal is accepted; the decrees of both Courts below are set aside and the plaintiffs' suit is dismissed with costs (including fees on the higher scale).
Implications:
- The immediate, direct effect on the parties is that the decree for sale of the one anna seven pies four karants zamindari share is set aside and the plaintiffs' suit is dismissed.
- The Court's decision rests on the limitation principle respecting amendments to pleadings: a party may not be allowed effectively to introduce a new cause of action by amendment after the limitation period for that cause of action has expired. The Court applied this principle to the specific facts of a mortgage deed giving alternative remedies and to the timing of the plaintiffs' amendment.
- The opinion does not purport to lay down a new general rule beyond application of the cited authority (Muhammad Sadiq v. Abdul Majid) to these facts; the judgment confines itself to reversing the allowance of the amendment and dismissing the suit on limitation grounds and attendant procedural equities.
Order pronounced: "Suit dismissed."
1. This is a second appeal-by certain defendants in a suit for sale upon a mortgage. The mortgage was one dated 24th May 1893, and it was somewhat peculiar in its provisions. The mortgagors; Bhole Khan and Faulad Khan, were said to be the proprietors of a certain share in a mahal known as that of Bhole Khan in Mauza Chak English Zorawar Khan.
2. There was a farther recital to the effect that the sir and khudkasht lands in this mahal were divided by private arrangement amongst the cosharers and that certain specified plots had been assigned under this arrangement to the mortgagors. The deed purported, in the first place, simply to mortgage specified plots of sir and khudkasht land, with possession in return for the money advanced as consideration for the deed. There was however a stipulation to the effect that, if the mortgagees failed to obtain possession under the deed or were disturbed in their possession, they were to be entitled to sue the mortgagors for the recovery of their money and that in respect of this suit for recovery of money they might exercise any one of three alternative reliefs: they might enforce their claim for their money against the specified plots of land mortgaged with possession under the deed, or they might recover the money from the person or other property of the mortgagors, or they might recover it from the zamindari share of one anna to which the specified sir and khudkasht lands were alleged to appertain. This suit was brought on 23rd May 1910, that is to say just about seventeen years after the date of the deed, and the plaintiffs claimed to be within limtation by virtue of the special provisions of Section 31 of the Lim. Act (9 of 1908). In the suit as brought the relief claimed was to recover the principal and interest by bringing to sale the specified plots of land set forth in the mortgage. A large number of defendants were impleaded besides the original mortgagors, there having been in the interval both a number of transfers and a partition of the mahal in question. We are concerned with the defence set up by four of the defendants who are now the appellants before us.
3. The case for these defendants in their written statements as originally filed was that they were not in possession of, and had no interest in, any of the plots of land sought to be sold under the plaintiff's claim and that consequently they had been unnecessarily impleaded as parties to the suit. At a considerably later stage it became clear to the plaintiffs that the suit as brought could not succeed without some sort of amendment of the plaint. This much at any rate was certain: that there had been a partition in the year 1312 fasli by which the private distribution of sir and khudkasht lands amongst the cosharers of the mahal, as it has existed in 1893, was completely set aside, and the particular plots specified in the mortgage deed had been assigned to cosharers other than the original mortgagors. Indeed some of them had been assigned to the plaintiffs themselves who were also cosharers in the mahal. Accordingly the plaintiffs, on 4th January 1912, applied for permission to amend the plaint on various ways. They referred to this partition of 1312 fasli and stated that the original mortgagors had received certain specified plots of land in exchange for those set forth in the mortgage deed. They also explained that, in consequence of the partition, the original share of one anna referred to in the mortgage deed had become a share of one anna seven pies four karants. They now asked the Court to give them a decree for the principal and interest of their mortgage debt, recoverable by sale both of the above mentioned share of one anna seven pies four karants and of certain specified plots of land which they alleged the mortgagors had received in exchange for those set forth in the mortgage deed.
4. After the plaint had been amended, the defendants who are now the appellants before us filed a fresh written statement in the course of which they challenged the plaintiffs to prove that the mortgage deed in suit had been executed for valid consideration. It also became clear at some later stage of the proceedings that the plaintiffs could not under the terms of the deed itself ask for a decree both against the specified plots of land and the zamindari share. The Court accordingly asked the plaintiffs to make a definite election between the two. The plaintiffs replied that, if the Court was of opinion that they were not entitled to a decree against both, then they would prefer to have a decree against the zamindari share only. This was done by an application dated 29th February 1912, being the very date on which the suit was decided by the Court of first instance. The learned Munsif gave the plaintiffs a decree for principal and interest recoverable by sale of a one anna seven pies four karants zamindari share which is in the possession of those defendants who are now the appellants before us. An appeal against this decree was filed in the Court of the. District Judge and a large number of pleas were entered in the memorandum of appeal, including certain pleas impeaching the order of the first Court by which the amendment of the plaint had been permitted.
5. It appears however from the order of the learned District Judge on appeal that the only points pressed before him were whether the consideration for the deed in suit had been paid to the original mortgagors and whether the plaintiffs had or had not obtained possession of certain plots of sir and khudkasht land in accordance with the terms of the mortgage-deed. These points were decided by the lower appellate Court in favour of the plaintiffs, and it was noted in the judgment that the other points raised in the memorandum of appeal “had been dropped.” In the second appeal now before this Court the defendants-appellants again challenge the order of the first Court permitting the amendment of the plaint and they contend further that the finding with regard to the passing of consideration is vitiated by the fact that the burden of proof had been wrongly laid on the defendant. With regard to this latter point reference is made to a ruling of this Court in Bihari v. Ram Chander (1) which has been discussed by the learned District Judge also. There can be no doubt that there is something peculiar and open to suspicion in the conduct of the plaintiffs having refrained from bringing any suit on the mortgage-deed for so long a period as 17 years. The Court might have been entitled to infer from this delay with reference to the terms of the deed and the circumstance of the case generally either that there had been failure of payment of the consideration, or that the plaintiffs must in some way or other have enjoyed their interest for part at any rate of the period in question by separate possession over some of the plots of sir and khudkast land.
6. Moreover the inference to this effect would be strengthened by consideration of the fact that the plaintiffs during the partition proceedings of 1312 fasli never raised any question about their rights under the mortgage deed in suit, even though some of the plots specified in this deed were actually assigned to them as part of their share on partition. The learned District Judge might, in our opinion, have assigned greater weight to these considerations and put the plaintiffs to strict proof both of the passing of consideration and as to their having failed to obtain possession under the terms of the mortgage deed. We notice that on this latter point the District Judge has remarked that the defendants failed to prove that the plaintiffs had not obtained possession under the deed. The burden of proof, in our opinion, lay clearly on the plaintiffs inasmuch as their failure to obtain possession was a condition precedent to their title to bring a suit for sale at all. However, the case being now before us in second appeal, and the finding as to the plaintiff's failure to obtain possession not being challenged in the memorandum of appeal before us, we should be reluctant to interfere with the decision of the lower appellate Court on these grounds if they stood alone. We mention them chiefly in order to show that the equities of the case are at least doubtful.
7. There remains for consideration the question of the amendment of the plaint and here it appears to us that both the Courts below have entirely overlooked the question of limitation, when they permitted the plaint to be amended in the way in which they did. We have been referred to a ruling of this Court in Muhammad Sadiq v. Abdul Majid . It was there laid down that in view of the wide discretion allowed by the Code of Civil Procedure in the matter of the amendment of pleadings, the High Court will be slow to interfere in appeal with the exercise of this discretion, but that no Court has power to allow a new caus of action to be introduced into a plaint after that cause of action has become barred by limitation. On the particular facts of this reported case the learned Judges of this Court held that there had not been anything like the introduction of a new cause of action, but only an amendment in the description of the property in suit. How the essential question seems to us to be whether the same could be said of the suit before us. It must be remembered that the mortgage deed in suit is a very peculiar one. Stipulations giving the mortgagees alternative remedies, such as we find in the deed before us, are certainly unusual. The plaintiffs have, whatever may have been their reasons delayed the institution of this suit until the period of limitation was running out. They brought this suit on a dead which allowed them two or three alternative reliefs, and on the suit as framed they expressly claimed to enforce one of those reliefs only, namely of the recovery of their money by sale of the specified plots mentioned in the instrument of mortgage. They are allowed in effect to amend their plaint so as to change the relief by asking for a decree against the zamindari share, and this was done after the period of limitation to enforce a simple mortgage on that zemindari share had expired. This, in our opinion, the plaintiffs should not have been permitted to do; and even though the point was not pressed in the lower appellate Court it seems to us that we are bound to bake notice of it in second appeal, inasmuch as a question of limitation is involved. In our opinion the amendment of the plaint should not have been allowed and the decree passed for the sale of the zamindari share cannot be sustained. We therefore accept this appeal and set aside the decrees of both the Courts below. We dismiss the plaintiff's suit with costs throughout which will be in this Court including fees on the higher scale.
V.B/R.K
8. Suit dismissed.
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