Singh Vs. Guran Ditta Singh  INSC 54 (20 February 1991)
K. Ramaswamy, K. Kasliwal, N.M. (J)
1991 SCR (1) 614 1991 SCC (2) 523 JT 1991 (2) 138 1991 SCALE (1)345
of Mortgages (Punjab) Act 2 of 1913-Sections 4, 12 and 13-Application for
redemption dismissed-Whether mortgagor's right of redemption barred-Whether
suit for redemption under section 60-Transfer of Property Act maintainable and
civil court has jurisdiction.
Singh predecessor of the respondents executed three mortgages hypothecating
agricultural lands in favour of the appellants. The mortgagor filed an
application under Section 4 of the Redemption of Mortgages (Punjab) Act 2 of 1913 and sought
redemption of the mortgages, by paying Rs.10 in respect of each of the
mortgage. The parties compromised regarding the amount payable and the
Collector passed the order on compromise under Section 11 of the Act on Feb. 3, 1964. The mortgagor having committed
default in making the payment within the time allowed for the purpose, the
petitions were dismissed by the Collector. Thereupon the mortgagor filed three
separate suits against each mortgagee for redemption within one year under
Section 12 of the Act on June
12, 1964 and during
the pendency of the suits, he having died the suits were dismissed. The
respondents after obtaining mutation of their names in the revenue records,
filed separate suits for redemption of the mortgages but beyond one year as
contemplated under section 12 read with Art.14 of the Limitation Act 1908. The
suits were dismissed by the trial court; which order was later affirmed both by
the first appellate Court as also by the High Court. On a further appeal under
the Letter Patent Act, the Division Bench of the High Court allowed the appeals
and set aside the judgments and Decrees of the courts below and granted decree
of redemption holding that the suits were not barred by limitation. The
appellants have thus filed these appeals after obtaining special leave.
appellants have reiterated their contention amongst others that the suits were
barred by limitation and further the High Court was not right in applying the
provisions of Section 60 of the Transfer of Property Act.
the appeals this Court, 615
Section 13 creates a bar to make any further petition under the Act by the
mortgagor or his successor in interest. A reading of Section 12 clearly
postulates that the aggrieved party, be it mortgagor or mortgagee, against an
order made under ss. 6 to 11 is empowered to institute a suit to establish his
right in respect of the mortgage.
to the result of the suit, the order passed by the Collector shall be
conclusive. Article 14 of the Limitation Act, 1908 which is equivalent to
Article 100 of the Limitation Act, 1963, prescribes limitation of one year from
the date of the decision or the order of the officer of the Government in his
official capacity. Article 61 of the present Limitation Act provides 30 years
for redemption and recovery of the possession of the hypotheca. The limitation
of 30 years runs from the date when the right to redemption or posession
accrues. Articles 105, 134 and 145 of the old Limitation Act would apply to the
present litigation and the limitation is 60 years.(619A-C) The creation of
mortgage is an act intervivos and not a statutory or common law right. The Act
accords summary remedy and the default of compliance entails with dismissal of
the application and section 13 prohibits second application for the self same
relief. The remedy of civil suit for redemption available at common law,
subject to limitation, is not taken away. Civil suit is not a declaratory suit,
but one to redeem the mortgage and to recover possession of mortgage property.
[621B-C] In the instant case, applying the principle of Justice, Equity and
Good conscience though section 60 of the Transfer of Property Act, per se, did
not apply, the principles in section 60 would apply. [622G] Though the
application for redemption was dismissed under section 11 of the Act and and
became conclusive under section 12, the mortgagor's right to redemption is not
barred. A suit for redemption under section 60 of the Transfer of Property Act
will be maintainable and civil court has jurisdiction to grant the decree of
The suits for redemption are admittedly within limitation either under the old
Limitation or under the new Limitation Act. The bar of section 12 of the Act
does not oust the jurisdiction of the civil court to entertain and grant decree
of redemption. [623B] Raghunath Singh & Ors. v. Mt. Hansraj Kanwar
and Ors. A.I.R. 1934 P.C. 205; Tulsi Dass @ Nirmal Das Ors., v. diala Ram AIR
1943. 616 Lah. 176; Sheo Lal & Ors. v. Sultan and Ors.  2 SCR 405; Mussammat
Bhagwan Devi v. Mussammat Bunyadi Khanum  Punjab Record 348; Safdar Ali
v. Ghulam Mohi-ud-din Ors.,  (1) Punjab Record 406; Mian Nizam & Din
Mohammed v. Lala Ramsukh Das, AIR 1938 Lah. 286; Milkha Singh v. Mst. Shankari
& Ors., AIR (34) Lahore 1;Ms. Ram Gopal Dula Singh v. Sardar Gurbux Singh Jiwan
Singh and Ors., AIR 1955 Punjab 215; Atma Singh & Gian Singh v. Mangal
Singh and Ors., ILR 1957 Jan.-June (Vol. 10) 79; Ganesh Lal v. Jyoti Pershad,
 SCC 243, Suryanarayan v. Sri ramulu,  (25) M L.J.P.16;-Referred
& Ors., v. Maharaj Das & Ors., ILR 15 Lahore 380; Kaura v. Ram Chand,  ILR 6,
Lah.206-Distinguished. Bhagat Ram & Ors. v. Jamna Ram and Ors.,  114
APPELLATE JURISDICTION: Civil Appeal Nos. 12224 of 1975.
the Judgment and Orders dated 9.4.1974 of the Punjab & Haryana High Court
in L.P.A. Nos. 213,214 and 215 of 1973.
Mehta, Dhruv Mehta and Aman Vachher, for the Appellants.
for the Respondents.
Judgment of the Court was delivered by K. RAMASWAMY, J. The appellants are
mortgagees. The respondents are the heirs of Kala Singh, the mortgagor.
Singh executed three mortgages in favour of the appellants Resham Singh, Jaswant
Singh and Harbans Singh on September 17, 1962, June 17, 1961 and May 31, 1962 respectively hypothecating the agricultural lands of 16 kanals
16 marlas in each of the first two mortgages and 16 kanals in the third
mortgage. The mortgagor filed an application under Sec. 4 of the Redemption of
Mortgages (Punjab) Act, 2 of 1913, for short 'the
Act'. He deposited a sum of Rs.10 in each mortgage and sought redemption of the
mortgages. Ultimately the parties compromised and the mortgagor agreed to pay
the balance of Rs.340 to each mortgagee within a month from May 1, 1964. The Collector passed the order on compromise under
s.11 thereof on February
3, 1964. He committed
default in the payment thereof. The petitions were dismis- 617 sed. He filed
separate suits against each mortgagee for redemption within one year under Sec.
12 of the Act on June
12, 1964. Pending
suits he died. Thereafter the suits were dismissed. After obtaining mutation of
their names in the revenue records the respondents filed separate suits for
redemption of the mortgages, but beyond one year as contemplated under Sec. 12
read with Art. 14 of the Limitation Act, 1903. The suits were dismissed by the
Trial Court and were confirmed by the First Appellate Court and by the High
Court in Second Appeals. But the Division Bench under Clause (10) of the Letter
of Patent allowed the appeals and set aside the Judgments and Decrees of the
courts below and granted decree of redemption in terms of the prayer by
Judgment dated April 9,
1974. Assailing the
legality thereof the appeals have been filed after obtaining leave under the
Art. 136 of the Constitution. Since common questions of facts and law arise for
decision in these appeals, they are disposed of by a common judgment.
only question that was argued before the High Court and reiterated in this
Court is whether the suits are barred by limitation. The contention of Shri
Mehta, the learned counsel for the appellants is that the order passed by the
Collector under Sec. 12 of the Act is conclusive between the parties unless the
suits are laid under Art. 14 of the Limitation Act within one year from the
date of the Order.
the present suits have been filed beyond such limitation of one year. The High
Court committed a grave error of law in applying the provisions of Sec. 60 of
the Transfer of property Act and the ratio of the Privy council in Raghunath
Singh & Ors. v. MT. Hansraj Kanwar & Ors., A.I.R. 1934 P.C. 205. He contends that
the Act provides a right and remedy to the mortgagor and mortgagees. Section 12
of the Act makes the order conclusive and binding and Sec. 13 bars second
application in that regard unless the suit is filed within one year from the
date of the order.
not open to the Civil
Court to go behind
the order of the Collector and enlarge the limitation provided under Art.
the Limitation Act. All the provisions of Transfer of Property Act were not
applicable to State of Punjab.
Provisions relating to Sale-deeds and gifts were made applicable to the State
of Punjab with effect from April 1, 1955 and to the area comprised in the
erstwhile Pepsu State, w.e.f. May 15, 1957.
As on the date when the suits were laid, s. 60 of Transfer of Property Act did
not apply to Punjab and so the ratio in Raghunath
Singh's case (supra) is inapplicable. The High Court committed manifest error
in applying s.60. He cited decisions of Lahore High Court in support of the
contention that the suit shall be laid within one year which we would advert to
at a later stage. Shri Dua, learned counsel for the respondents contended that
the High 618 Court is justified in holding that the suit is not barred by
limitation and the ratio of the decision cited by the appellants cannot be
Act is a beneficial legislation giving right to the mortgagors to seek
redemption and restoration of possession of the hypotheca in summary
proceedings before the revenue courts. The Act applied only to mortgage of land
where the principal money secured under the mortgage does not exceed Rs. 5,000
and the hypotheca does not exceed 50 acres of land. Section 4 gives right to
the mortgagor and other persons entitled to sue for redemption at any time
after the principal money becomes payable and before the suit for redemption is
barred, by presenting a petition to the collector for a direction i.e. mortgage
be redeemed and erstwhile morgages shall put the mortgagor in possession of the
hypotheca, after following the procedure in that behalf.
5 to 11 deal with the procedure. Under s. 11 if the Collector, on an enquiry,
forms an opinion that the sum is rightly due under the mortgage, he shall,
unless he dismisses the petition under Sec. 10, make an order under Sec.6. If
the sum is found larger than the sum deposited, the mortgagor shall deposit the
amount with any further sum that may be due on account of interest upto date of
the deposit; on making deposit within the period or extended period not
exceeding 30 days, thereafter, the Collector shall make an order under Sec.6
thereto. On committing default by the Mortgagor, the Collector shall dismiss
the petition. Section 6 provides the relief of redemption; of restoration of
possession to the martgagor; delivery of the mortgage, deed and payment of the
mortgage money to the mortgagee. Section 12, which is material for the purpose
of this case, reads thus:
"Saving of suits to establish rights-Any party aggrieved by an order made
under Section 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to
establish his right in respect of the mortgage, but subject to the result of
such suit, if any, the order shall be conclusive.
Setting aside ex-parte orders or orders of dismissal-Notwithstanding anything
in this section a mortgagee against whom an ex-parte order under section 7 has
been made or a petitioner, whose petition has been dismissed in default under
section 6 may apply to the Collector to have such order of dismissal set aside,
and Collector may in his discretion set aside such order of dismissal, on such
terms as to costs or otherwise as he may deem fit; provided that the order of
dismissal shall not be set aside unless notice of 619 the application has been
served on the opposite party." Section 13 creates a bar to make any
further petition under the Act by the mortgagor or his successor in interest.
reading of Sec. 12 clearly postulates that the aggrieved party, be it mortgagor
or mortgagee, against an order made under ss. 6 to 11 is empowered to institute
a suit to establish his right in respect of the mortgage, subject to the result
of the suit the order passed by the Collector shall be conclusive. Article 14 of
the Limitation Act, 1908 which is equivalent to Art. 100 of the Limitation Act
1963, prescribes limitation of one year from the date of the decision or the
order of the officer of the Government in his official capacity. Article 61 of
the present Limitation Act provides 30 years for redemption and recovery of the
possession of the hypotheca. The limitation of 30 years runs from the date when
the right to redemption or possession accrues. Articles 105, 134, and 145 of
the Old Limitation Act would apply to the present litigation and the limitation
is 60 years. In Tulsi Dass @ Nirmal Das & Ors. v. Diala Ram, (2) AIR 1943 Lah.
176 a Full Bench for which Tek Chand. J. wrote the leading judgment held at
page 189 thus:
order of the Collector does not affect the rights of the parties in any way; it
is conclusive to this extent only that the petition for summary redemption has
been dismissed and no other petition under the Act would lie. No suit under s.
12 being necessary or comptetent, there was no bar to the mortgagor suing for
redemption in the civil Courts within the period allowed by law in ordinary
course. It must, therefore, be held that the mortgagor's suit in A.I.R. 1929 Lah.
513 was rightly decreed and that the contrary conclusion reached by the Single
Bench in A.I.R. 1927 Lah. 461 and re-affirmed by the Division Bench in A.I.R.
1938 Lah. 638 that it is the form of the order of the Collector which has to be
seen and not the substance of it, is erroneous.
view was approved by this Court in Sheo Lal & Ors. v. Sultan & Ors.,
 2 SCR 405 by a Bench of three Judges. The facts were that the Collector
did not decide the dispute on merits, but rejected the application filed under
Sec. 4 of the Act holding that the application raised complicated question of
facts and law and thereby he declined to exercise summary jurisdiction under
the Act. On institution of the suit the plea of limitation under Art. 14 of Old
Limitation Act was raised which was upheld by the Trial Court, but on 620
appeal the decree of redemption was granted and was confirmed by the High Court
in Second Appeal. The same contention was reiterated before this Court. In that
context Shah, J. as he then was, speaking for the court, held that it is not
the form of the order of dismissal but its substance will determine the
application of the period of limitation prescribed by Art. 14 of the Limitation
order relegating the mortgagor to a civil suit for obtaining an order of
redemption, event if becomes final, does not bar a suit for redemption for it
raises no cloud on the title of the mortgagor arising out of the mortgage.
an order is not one which is required to be set aside.
order required to be set aside is one which the officer making it has
jurisdiction to make it and has the effect of barring the claim for relief
unless it is set aside.
clear that an order passed by the Collector under ss. 6 to 11 is only
conclusive for what was decided therein and if the adjudication made by the
Collector in summary proceedings are sought to be reopened, certainly, unless
the order is got over, either by the martgagor or by the mortgagee, or any
person claiming right, title or interest through them being an aggrieved person
within the meaning of Sec. 12, the order of the Collector binds the parties or
the persons claiming right, title or interest from the parties.
for instance, there is a dispute as in the present case about the mortgage
money before the Collector. Kala Singh disputed the money secured of
hypothecation but had compromised and agreed to pay the amount mentioned in the
mortgages bond, namely, Rs.850-Rs. 10 in each of the mortages disputed but in
the suit filed within one year he reiterated his original stand. Had the same
stand been taken by the respsondents disputing the mortgage money, certainly it
would not be open to the respondents as successor in interest of the mortgagor
to contend that the money advanced under the mortgage was not Rs. 850, but
something less. That is not the case in the present suit.
agreed to pay Rs. 850 as decided by the Collector and sought redemption in the
civil suit. Thereby they are not seeking to set aside the order of the
Collector, but they are seeking redemption of the mortage. Take another
instance where the mortgagor disputed the execution or validity of the
mortgage, bond itself and the finding was recorded against the mortgagee, i.e.
the mortgage bond was not either executed or is void for being vitiated by
fraud, coercion or undue influence, etc. The mortgagor successfully avoided the
mortgage by a specific order passed by the Collector under the relevant
provisions of the Act.
suit was filed within a period of one year, the findings of the Collector
become conclusive between the mortgagee and the mortgagor and it is not open to
assail the order of the Collector after one year in a suit of 621 foreclosure
or sale by the mortgagee. Therefore, what was prohibited by Sec. 12 is only the
substance of the order and not the form.
mortgage always a mortgage and gets extinguished by payment of mortgage money
by the mortgagor or decree of redemption is passed and satisfied. The creation
of mortgage is an act intervivos and not a statutory or common law right. The
Act accords summary remedy and the default of compliance entails with dismissal
of the application and s. 13 prohibits second applications for the self same
relief. The remedy of civil suit for redemption available at common law,
subject to limitation, is not taken away.
suit is not a declaratory suit, but one to redeem the mortgage and to recover
possession of mortgaged property.
question then is whether the respondents are entitled to redemption of the
mortgage. Section 60 of the Transfer of Property Act, 1882 gives right to
redemption of the mortgage by instituting a suit for redemption of the mortgage
property. But as seen, at the relevant time section 6D was not made applicable
to Punjab. In Mussammat Bhagwan Devi v. Mussammat
Bunyadi Khanum,  Punjab Record 348 the Division Bench held that although
the Transfer of Property Act and the Indian Easement Act are not in force in
Punjab, the Punjab Courts when deciding cases in which principles of law dealt
with by the provisions of those Acts are involved, may adopt those provisions
as embodying law applicable to the case especially when the law enunciated
therein coincides with the principles of equity, good conscience and justice
for which there is no statutory law applicable to the Punjab. In that it was
held that the mortgagor in possession had no authority, without the consent of
the mortgagee, to do an act which was likely to prove destructive or
permanently injurious to the property mortgaged.
Ali. v. Ghulam Mohi-ud-din & Ors.,  1 Punjab Record 406 the Full
Bench was to consider whether Doctrine of Clogging would apply when the
Transfer of Property Act was not made applicable to Punjab. The Full Bench held
that though the Doctrine of Clogging, in terms does not apply in Punjab, when
there is no statutory prohibition, governing the matter be restricted to case
where something unconscionable or oppressive in the bargain calls for redress.
In terms the Full Bench applied the Principles in the provisions of the
Transfer of Property Act consistent with the Doctrine of Justice, Equity and
Good Conscience. In Mian Nizam & Din Mohammad v. Lala Ram Sukh Das, AIR
1938 Lahore 286 the right of prior mortgagee purchasing property mortgaged to
him be deemed to keep alive for his benefit as against subsequent mort- 622 gagee.
It was held that the principles contained in s. 101 of Transfer of Property Act
would be applicable and applied.
Singh v. Mst. Shankari & Ors., AIR (34) Lahore 1 a Full Bench of five
Judges applied the Doctrine of Part Performance under s. 53A of the Transfer of
Property Act as a defence. It was further held that s. 53A is based on
equitable principles which were previously applicable to whole of India, though the Transfer of Property
Act per se was not applied to Punjab. In M/s
Ram Gopal Dula Singh v. Sardar Gurbux singh Jiwan Singh & Ors., AIR 1955
Punjab 215 Kapur, J., as he then was speaking for the Division Bench, held that
though s. 6 of the Transfer of Property Act is not applicable to Punjab, the
right to expectancy may not be transferred. It was further held that in Punjab and Lahore there is no disagreement as to Principles of Transfer of
Property Act being applicable to Punjab because they are based on Justice, Equity and Good-conscience. This
view was again reiterated in Atma Singh & Gian Singh v. Mangal Singh &
Ors., I.L.R.1957 Jan. -June (Vol.10) 79 and applied ss. 58, 92 and 100,
Doctrine of Subrogation, but excluded the applicability of the technical rules.
This Court in Ganeshi Lal v. Jyoti Pershad,  SCC 243 held that though the
Transfer of Property Act 1882 does not apply to Punjab, the priciple of equity, justice and good conscience would
apply to Punjab. If one of the several mortgagor
redeems the entire mortage by paying a sum less than the full amount due under
the mortgage, he is entitled to receive from his co-mortgagors only their
proportionate shares on the amount actually paid by him. He is not entitled to
claim their proportionate shares on the amount which was due to the mortages
under terms of the mortgage on the date of redemption. The same principle laid
down in Suryanarayan v. Sriramulu,  25 M.L.J. p. 16 was referred to with
approval in Ganeshi Lal's case. Though in Ganeshi Lal's case the entire claim
under the suit for contribution was not decreed, the provision of Transfer of
Property Act were applied, on the Principles of equity, justice and good
conscience and granted degree pro rata.
hold that applying the principle of Justice, Equity and Good Conscience though
s. 60 of the Transfer of Property Act per se did not apply, the principles in
s. 60 would apply. Though the application for redemption was dismissed under
s.11 of the Act and became conclusive under s. 12 the mortgagor's right to
redemption is not barred. A suit for redemption under s. 60 of Transfer of
Property Act will be maintainable and civil court has jurisdiction to grant the
decree of redemption.
& Ors., v. Maharaj Das & Ors., I.L.R. 15 Lahore 380 a 623 Full Bench
following Kaura v. Ram Chand  I.L.R. 6 Lah.
held that unless the order of the Collector be challenged within one year the
civil court has no jurisdiction to entertain the suit. In this case the right
to redemption of mortgage itself was barred by limitation.
the ratio does not apply. Though the ratio in Bhagat Ram & Ors. v. Jamna
Ram & Ors.  114 I.C. 447 is in favour of the appellants, in our view
the ratio therein is not good law. Thus we hold that the suits for redemption
are admittedly within limitation either under the Old Limitation or under the
new Limitation Act. The bar of Sec. 12 of the Act does not oust the
jurisdiction of the civil Court to entertain and grant decree of redemption.
appeals are accordingly dismissed, but in the circumstances parties are
directed to bear their own costs throughout.