# SHIV LAL & ORS v. CHET RAM & ORS

- **Citation:** [1971] 2 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 1970-09-09
- **Case number:** Civil Appeal Nos. 1250 and 12'1 of 1966
- **Bench:** J. C. SHAH. K. S. ffEGDE, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-lal-ors-v-chet-ram-ors-5301
- **Pages:** 6

## Headnote

Evidence Act (I of 1872), ss. 90 and I 14(e) and Puniab Land Revenue
Act, s. 44-Pres111nptions under-Scope of.
A
B
Redemption of Mortgages (Punjab) Act (2 o/ 1913), s. 4--Scope of.
Suits were filed by the representatives of the mortgagors to redeem
certain mortgages beyond 60 years from the date11 of the mortgages.
In
C
order to get over the bar of limitation the plaintiffs relied upon certain
acknowledgments made by the m6rtgagors.
The acknowledgments were
alleged to have been made more than 30 years ago in mutation proceedings and certified copies of the statements were produced. With respect to
some mortgages, applicants were made under s. 4 of the Redemption of
Mortgage11 (Punjab) Act, 1913, and they were dismissed under s. 10. It
was contended that the suits filed with respect to those mortgages were
within time under s. 12 of that Act, because, they were filed within one
D
year of the date of the dismissal of the applications.
HELD : (I) As the originals of the acknowledgments were not produced and no :,vitness was examined to speak to the fact that the persons
who were shown to have signed the originals have in fact signed them
or that they were the mortgagors or their representatives, there was no proof
of the signatures; and the Court cannot raise any presumption under s. 90 of
the Evidence Act. [106 F·O]
·
·
E
Harihar Prasad Singh v. Mst. of Munslzi Nath Prasad [1956] S.C.R.
1, followed.
Section 114(e) of the Evidence Act does not apply because the identification of an executant or the genuineness of a signature in a statement
filed before an official has nothing to do with the regularity oi his act,
unless he had a duty to take the sign&ture in his pre;euce and to identify
F
the person who signed. [107 B-C]
Section 44 of the Punjab Land Revenue Act deals with the presumption
as regards entries in the record of rights, but this case is not concerned
with any such entry. [107 Al
(2) Secion 12 of the Redemption of Mortgages (Punjab) Act, 1913,
merely provides that a summary order made under "· 6 to 11 of that Act
becomes final unless a suit to establish the right< of the mortgagors is instituted within the prescribed period oi one year.
From this provision it
rar;not b' held that the period of limitation fixed for redemption of mort•
gages is enlarged. [108 G·Hl

## Text

SHIV LAL & ORS.
v.
CHET RAM & ORS.
September 9, 1970 '
[J. C. SHAH. K. S. ffEGDE AND A. N. GROVER, JJ.]
Evidence Act (I of 1872), ss. 90 and I 14(e) and Puniab Land Revenue
Act, s. 44-Pres111nptions under-Scope of.
A
B
Redemption of Mortgages (Punjab) Act (2 o/ 1913), s. 4--Scope of.
Suits were filed by the representatives of the mortgagors to redeem
certain mortgages beyond 60 years from the date11 of the mortgages.
In
C
order to get over the bar of limitation the plaintiffs relied upon certain
acknowledgments made by the m6rtgagors.
The acknowledgments were
alleged to have been made more than 30 years ago in mutation proceedings and certified copies of the statements were produced. With respect to
some mortgages, applicants were made under s. 4 of the Redemption of
Mortgage11 (Punjab) Act, 1913, and they were dismissed under s. 10. It
was contended that the suits filed with respect to those mortgages were
within time under s. 12 of that Act, because, they were filed within one
D
year of the date of the dismissal of the applications.
HELD : (I) As the originals of the acknowledgments were not produced and no :,vitness was examined to speak to the fact that the persons
who were shown to have signed the originals have in fact signed them
or that they were the mortgagors or their representatives, there was no proof
of the signatures; and the Court cannot raise any presumption under s. 90 of
the Evidence Act. [106 F·O]
·
·
E
Harihar Prasad Singh v. Mst. of Munslzi Nath Prasad [1956] S.C.R.
1, followed.
Section 114(e) of the Evidence Act does not apply because the identification of an executant or the genuineness of a signature in a statement
filed before an official has nothing to do with the regularity oi his act,
unless he had a duty to take the sign&ture in his pre;euce and to identify
F
the person who signed. [107 B-C]
Section 44 of the Punjab Land Revenue Act deals with the presumption
as regards entries in the record of rights, but this case is not concerned
with any such entry. [107 Al
(2) Secion 12 of the Redemption of Mortgages (Punjab) Act, 1913,
merely provides that a summary order made under "· 6 to 11 of that Act
becomes final unless a suit to establish the right< of the mortgagors is instituted within the prescribed period oi one year.
From this provision it
rar;not b' held that the period of limitation fixed for redemption of mort•
gages is enlarged. [108 G·Hl
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1250 and
12'1 of 1966.
·
Appeals by special leave from the judgments and decrees dated
April 1, 1965 of the Poojab High Court in Civil Regular Second
Appeals Nos. 138 and 139 of 1964.
G
H
SHIV LAL v. CHET RAM (liegde, J.)
105
A
K. L. Gosain and Janardan Sharma, for the appellants (in both
B
the appeals) .
Naunit Lal, for the respondents Nos. ! to 7 and 9 (in both
the appeals) .
The Judgment of the Court was delivered by
Hegde, J. The aJ:lpellants in these appeals are the representatives of the mortgagees of the suit properties. The respondents
in both these appeals claim to represent the interest of the mortgagors. Civil Appeal No. 1250 of 1966 arises from Suit No. 280
of 1961 in the court of Senior Sub Judge;Rvhtak and Civil Appeal
c
No. 1251 of 1966 arises from Suit No. 334 of 1961 on the file
of the same judge.
Both the suits were suits for redemption.
The trial court dismissed both the suits on two grounds viz. ( 1 j
D
E
that Kura, the person from whom the plaintiffs claim to have
purchased the nghts of the mortgagors was incapable of entering
into a contract as he was insane. Hence the sale deeds executed
by him are void and ( 2) the claim for redemption in respect of
the various mortgages sought to be redeemed excepting the one
executed on April 26, 1912 is barred by limitation. The learned
District Judge allowed the appeals and decreed both the suit&
excepting as regards the mortgage dated January 20, 1878. In
second appeal Capoor J. of the Punjab High Court confirmed the
decision of the learned District Judge.
The Letters Patent
Appeals filed by the appellants were summarily dismissed. Thereafter these appeals were brought after obtaining special leave from
this Court.
Both the learned District Judge as well as the learned Judge
of the High Court have concurrently come to the conclusion that
there is no satisfactory evidence to show that Kura was insane at
F
the time he sold the suit properties to the plaintiffs. This is a
finding of fact and we see no reason to go behind it.
The only other ground on which the appellants are i:esistilig
the plaintiffs' claim to redeem the mortgages in question is that
according to them the claim for redemption is barred by limitation. For dealing with that question, it will be convenient to take
G
up the two appeals separately.
In Suit No. 281, the plaintilfs sought redemption of four
different mortgages.
Those mortgages were said to have been
executed on the following dates :-
(1) April 26, 1912;
H
(2) December 21, 1895;
(3) December 18, 1901 and
( 4) January 20, 1879.
8-L23SSup.CI/71
106
SUPREME COURT REPORTS "
[1971] 2 S.C.R.
The original mortgage deeds or even their registration copies 'have
not been produced. The executiov of those mortgages have been
sought to be proved on the basis of certain. mutation ·proceedings
The courts below have relied on those proceedings to prove 'the
·factum of the mortgages sought to be redeeniep. The execution
of those mortgages was not chall:onged before us.:So. far as the
suit relating to the·morig"age executed on January 20, 1878 (property described in plaint Item r-fo. 4); the plaintiffs sought \o
withdraw their suit on· the grounq, that they are not able to prove
their case 'on the pasis, of the.'1'rJ.aterial in their possession. • The
learned trial judge did not pemiit them to withdraw that part of
their suit He tlismissed the plaintiffs' claim in that· regard.· His
judgment was upheld in appear-as-well as in second appeal'. 'That
part of the plaintiffs' case was fiot pfessed before us.
,Now coming to .the mortgage said to have been executed on
Awil 26, 1912 (the· concerned property is described in plaint
Item No. 1), the cTaim for redemption is admittedly within 1illle
:is the suit was filed on November 27, '!.961, the period of limitation being 60 years.'
This leaves us with' mortgag.-:os said to have been executed on
December 21, ·1895, (relating to plaint Item' No. 2) and on December 18, 1901 (relating to plaint Item No. 3):
We sh'all first take up the mortgage .said to have been executed
on r:>ecember 21, 1895. Prima 1acie the suit in respect of this property is barred by time but it is said that in view of the ackr>.owletlgmellt made by mortgagors under the origin_al of Ex. P-5 dated
22.6.1906, the suit is within time. There is no satisfactory material
10 show that Ex.P-5 relates to the mortgage in question. It is not
necessary to go into thaLquestion in detail as in our opinion, it
was impermissible for the courts below to rely on Ex.P-5 for the
purpose of ackrnowledgment.
Ex. P-5 is a certified copy of a
statement said to have been made in a mutation proceeding. Its
original has not been produced. No witness has been examined
to speak to the fact that the persons who are shown to have signed
the original have in faat signed the same or those persons were
the mortgagors or their representatives.
The ·signature on the
original cannot be proved by production, of 'a certified ~opy, Nor
can ~he courts raise any presumption under s. ·90 of the Evidence
/\ct in that re~ard see Harihar Prasad Sin.~h and anr. v. Ms/. of
M1111sh( Natlz Prasad and Ors.(1)
The High Court and the 1st
apncllatc court erroneously thought that they could presume that
the persons mentioned as the executants in the copy have signed
the oril!inal on the strength of s. 44 of the Punjab Land Revrnue
Act and s. 114 ( e) of the Evidence Act: Section 44,of the Punjab
Land Revenue Act deals with the presumption as fegards :rn entry
(I) [1956] S.C.R. J.
,
A
B
c
D
•
E
F
G
H
A
B
c
D
E
F
G
H
SHIV LAL v. CHET RAM (Hegde, J.)
107
in the record of rights. Herein we are not concerned with any
entry in the record of rights. We are concerned with the genuineness of the signature in the original of Ex. P-5 and the identification
of the persons who signed it. Hence that section affords no aid.
Section 114 ( e) of the Evidence Act says that court may presume
that judicial and official acts have been
regularly performed.
Herein we are not concerned with the regularity of the perfOOJ:l·
ance of any official act. The identification of an execulant or
genuineness of a signature in a statement filed before an official
has nothing to do with the regularity of his act unless it is shown
that he bad a ·duty to identify the person who ·signed it and further
to take the signature 'in his presence. Therefore Ex. P-5 cannot
serve as an acknowledgment of the mortgage. Hence the plaintiffs claim to redeem the mortgage in respect of item No. 2 of the
plaint must fail.
·
Now coming to plaint item No. 3, the plaint shows that the
mortgage in question was executed on December 18, 1901. The
original mortgage deed or its registered copy has not been pro"
duced. For the proof of execution of the mortgage the plaintiffs
relied on Ex. P-8," a certified copy of a mutation proceeding. That
copy shows that the mutation in question was ordered on 12th Jtme
1901.
Therefore the concerned mortgage
must have been
executed earlier than that date. It appears that the plaintiffs have
deliberately given a wrong date of the mortgage in the plaint with
a view to bring the suit within the period of limitation. The
learned District Judge has opined that the claim for redemption
of this item o.f property is also within time in-view of Ex. P-8.
Here again no evidence was led to show that the original statement was signed either by the mortgagors. or by their 'representatives. The original was not produced in court. Ex. P-8 is only
a certified copy. By merely producing a copy, it cannot be said
that the plaintiffs have succeeded in proving that the signature in
original statement is that of the mortj!agors or their representatives.
As discussed earlier the plaintiffs cannot take the benefit
of s. 90 of the Evidence Act or s. 44 of the Punjab Land Revenue
Act or s. 114 (el of the Evidence Act to prove that the original
was signed by th11 mortgagors or their representatives.
Hence
the plaintiffs' claim in respect of plaint item No. 3 must also fail.
In the result Civil Appeal No. 1250 of 1966 is partly allowed
and the plaintiffs' claim for redemption of plaint items Nos. 2, 3
and 4 is dismissed al!ld the decree for redemption of plaint item
No. 1 is upheld.
Now we shall take up Civil Appeal No. 1251 of 1966 arising
from Suit No. 334 of 1961. Therein redemption of two mortgages said to have been executed on June 19, 1894 and May 15,
1896 was sought.
Prima facie the suit is barred by limitation.
108
SUPREME COURT REPORTS
[1971] 2 S.C.R.
But it was contended and that contention was accepted by the
appellate court and the High Court that the suit is within time in
view of (1) the acknowledgments made uy the mortgagors or
their representatives on several occasions, the last of which was
on June 25, 1919 and (2) in view of the application made by the
plaintiffs-respondents under s. 4 of the Redemption of Mortgages
(Punjab) Act, 1913 (Act No. II of 1913). We shall first take
up the question of acknowledgments.
The acknowledgments in
question were ought to be proved by production of certain certified
copies. The originals of those r.opies were not produced.
No
evidence was led to show that the originals were signed either by
the mortgagors or by their representatives.
For the reasons earlier
mentioned those copies cilillllot serve as acknowledgments.
Now coming to the application made under s. 4 of the Redemption of Mortgages (Punjab) Act, 1913, the same was made on
May 16, 1959 and it was dismissed on April 18, 1961. Therein
the parties were referred to a civil suit. Even if the period taken
in prosecuting the said application is excluded in computing the
period of limitation, the suit for redemptiori is admitt~dly barred.
But what was urged on behalf of the plaintiffs is that in view of
s. 12 of the Redemption of Mortgages (Punjab) Act, 1913, the
plaintiffs were entitled to bring the suit within one year from
April 18, 1961, the date on which their application wa~ dismissed.
There is no dispute that for the suit contemplated by the aforesaid
s. 12, the period of limitation prescribed is one y:ar from the date
of the order. The dismissal of the. petition in this case was made
under s. 10 of the Redemption of Mortgages (Punjab) Act. 1913.
Therefore the order made on that application comes within the
scope of s. 12. But the real question is whether s. 12 enlarges
the period of limitation for a redemption suit. That section to
the extent material for our present purpose reads as follows :
"Any party aggrieved by an order made under ss. 6,
7, 8, 9, 10 and 11 of this Act may institute a suit to
establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be
conclusive."
This section merely provides that a summary order made under
ss. 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgai;es (Punjab)
Act, 1913 becomes final unless a suit to establish the rights of the
mortgagors is .instituted within the prescribed period. From this
provision we are unable to hold that in view of that section, the
period of !imitation fixed for redemption of mortgages can be
enlarged.
Several decisions of the Lahore High Court holding
that if a suit as required by s. 12 is not filed within the time
prescribed then the right of redemption will be lost even if the
time prescribed under the Limitation Act for instituting a suit for
A
B
c
D
E
F
G
H
I
A
B
c
SHIV IAL v. CHET RAM (Hegde, J.)
109
redemption has not expired. It is not necessary ,o go into the
correctness of. those decisions though prima facie we arc inclined
to accept their correctness, because they merely lay down that if
any party aggrieved by an order under ss. 6, 7, 8, 9, 10 and 11
of the Redemption of Mortgages (Punjab) Act, 1913 does not
institute a suit to establish. his rights in respect of the mortgage
within the time prescribed hls right to sue for redemption is lost.
Those decisions do not support the contention of the plaintiffs that
a mortgagor whose application for redemption under s. 4 of the
aforesaid Act is dismissed can file a suit for redemption of the
mortgage e>"en though the limitation prescribed for such a suit
had expired, if only he files that suit within a period of one year
from the date of the order dismissing his petition under s. 4.
No decision taking that view was brought to our notice. What is
made conclusive by s. 12 is the order made by the Collector if
the suit as contemplated by s. 12 is not instituted within the prescribed time, That provision does not lend any support for the
contention that if an application which fulfils the requirements
of s. 4 is brought then the period of limitation prescribed for
D
a redemption suit becomes irrelevant.
E
For the reasons mentioned above Civil Appeal No. 125 l of
1966 is allowed and the plantilfs' suit No. 334 of 1961 is dis·
missed.
Appellants had falsely pleaded that Kura was insane.
Because of that plea the plaintiffs had to adduce considerable
evidence.
Taking into cor.sideration the various circumstances
appearing in these cases we think it would be appropriate to
direct the parties to bear their oW\11 costs throughout.
V.P.S.
Appeals allowed.