# SMT. DILBOO (DEAD) BY LRS. AND ORS v. SMT. DHANRAJI (DEAD) AND ORS

- **Citation:** [2000] Supp. 3 S.C.R. 214
- **Court:** Supreme Court of India
- **Decided:** 2000-09-12
- **Case number:** Civil Appeal No. 3673 of 1982
- **Bench:** V.N. Khare, S.N. Variava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-dilboo-dead-by-lrs-and-ors-v-smt-dhanraji-dead-and-ors-17483
- **Pages:** 21

## Headnote

Code of Civil Procedure, 1908 : Section 100-Mortgage executed by
Lin 1902-Suitfor redemption of mortgage filed by R-1in19~1 i.e. 59 years
thereafter-Question of fact arose whether predecessors in title of R-1 were
C heirs of £-Predecessors in title were party defendants in the suit-D~ring
the trial, none of them came to the witness box to confirm the contents of the
documents on record to prove that they were heirs of L-After appreciation
of evidence, trial court held the said predecessors in title not to be heirs of
L and dismissed the suit-First appellate Court, dismissing the appeal, uplz_eld
D the findings of the trial court-On second appeal, High Court ~~ersed the
findings of the Courts below holding that non-examination of predecessors
in title of R-1 did not matter as they would only hav'1. confirmed contents of
documents on record-On appeal, Held : The question whether predecessors
·,
in title of R-1 were heirs of L was a question of fact-Both.the Court$ below
had given a concurrent finding that they were not heirs of L.-:..courts below
E had not excluded the documents on record rather had considered the same....:....
High Court erred in law and fact in re-appn~ciating the evidence and arriving
at a contrary conclusion.
Limitation Act, 1908/Evidence Act: Articles 134 and 148/Sections 101,
F 102, 103, and 104-Mortgage-Suit for redemption filed by the title holder
59 years thereafter-Third party interest created by the mortgagee in
·between-Fact of creating third party interest in (he knowledge of predecessors
in title-Held: According to Article 148 of the Act suit/or redemption of
mortgage is to be filed within 60 years-If mortgagee creates third party
interest in excess of right enjoyed by him then the suit for recovery of
G possession from the third party has to be filed within 12 years according to
Article 134 of the Act-After the lapse of 12 years, title of third party in
possession gets perfected-Period of 12 years runs from the date of knowledge
of the plaintiff-Onus of proof is on the plaintiff to prove that the suit is
within time-In the absence of proof, plaintiff's claim would fail-Where the
H document creating third party interest is registered, date of registration is
214
-
SMT. DILBOO v. SMT. DHANRAJI
215
the date of deemed knowledge.
A
In 1902, a widow L mortgaged two houses 'X' & 'Y' and twenty trees
in favour of R Six years thereafter when L died, a person claiming to be the
heir of L's husband claimed the said properties by filing a suit which was
dismissed holding the said person not to be the heir of L's husband. Later,
in 1914, another person claimed the said properties by filing a suit on the B
ground of being an heir of L which was also dismissed. In the written
statement in the said suit, R and his brother S stated that the said property
had come to them under an oral Will made by L's husband. Thus Rand S
were setting up a title adverse to the estate. In 1916, Rand S mortgaged 'Y'
house to one H for a period often years. The mortgagee was put is possession. C
As no mortgage had been created in favour of S, now an interest in excess
of the interest of the mortgagee was being created. In 1942, R sold a part
of 'X' house to T. R sold it as an absolute owner. In 1954 T sold it to U and
V. In the meantime in 1948 sons of Rand S sold the house which had been
mortgaged to H, to Mand K with a right to redeem the mortgage. In 1959,
M and K i.e. the purchasers of right of redemption of 'Y' house filed a suit D
for redemption against H which was compromised and a decree for redemption
was passed in,favour of M and K. After a year, six persons claiming to be
the heirs of L, sold to the 1st Respondent their equity of redemption in
respect of the property mortgaged to R by L. This was done by way of two
sale deeds dated 01-03-1960 and 21_-_93-1960. Three years thereafter the E
said sale deeds were confirmed by two more sale deeds which were registered.
However, before these subsequent registered sale deeds, Re

## Text

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A
SMT. DILBOO (DEAD) BY LRS. AND ORS.
v.
SMT. DHANRAJI (DEAD) AND ORS.
SEPTEMBER 12, 2000
s·
[V.N. KHARE AND S.N. VARIAVA, JJ.]
Code of Civil Procedure, 1908 : Section 100-Mortgage executed by
Lin 1902-Suitfor redemption of mortgage filed by R-1in19~1 i.e. 59 years
thereafter-Question of fact arose whether predecessors in title of R-1 were
C heirs of £-Predecessors in title were party defendants in the suit-D~ring
the trial, none of them came to the witness box to confirm the contents of the
documents on record to prove that they were heirs of L-After appreciation
of evidence, trial court held the said predecessors in title not to be heirs of
L and dismissed the suit-First appellate Court, dismissing the appeal, uplz_eld
D the findings of the trial court-On second appeal, High Court ~~ersed the
findings of the Courts below holding that non-examination of predecessors
in title of R-1 did not matter as they would only hav'1. confirmed contents of
documents on record-On appeal, Held : The question whether predecessors
·,
in title of R-1 were heirs of L was a question of fact-Both.the Court$ below
had given a concurrent finding that they were not heirs of L.-:..courts below
E had not excluded the documents on record rather had considered the same....:....
High Court erred in law and fact in re-appn~ciating the evidence and arriving
at a contrary conclusion.
Limitation Act, 1908/Evidence Act: Articles 134 and 148/Sections 101,
F 102, 103, and 104-Mortgage-Suit for redemption filed by the title holder
59 years thereafter-Third party interest created by the mortgagee in
·between-Fact of creating third party interest in (he knowledge of predecessors
in title-Held: According to Article 148 of the Act suit/or redemption of
mortgage is to be filed within 60 years-If mortgagee creates third party
interest in excess of right enjoyed by him then the suit for recovery of
G possession from the third party has to be filed within 12 years according to
Article 134 of the Act-After the lapse of 12 years, title of third party in
possession gets perfected-Period of 12 years runs from the date of knowledge
of the plaintiff-Onus of proof is on the plaintiff to prove that the suit is
within time-In the absence of proof, plaintiff's claim would fail-Where the
H document creating third party interest is registered, date of registration is
214
-
SMT. DILBOO v. SMT. DHANRAJI
215
the date of deemed knowledge.
A
In 1902, a widow L mortgaged two houses 'X' & 'Y' and twenty trees
in favour of R Six years thereafter when L died, a person claiming to be the
heir of L's husband claimed the said properties by filing a suit which was
dismissed holding the said person not to be the heir of L's husband. Later,
in 1914, another person claimed the said properties by filing a suit on the B
ground of being an heir of L which was also dismissed. In the written
statement in the said suit, R and his brother S stated that the said property
had come to them under an oral Will made by L's husband. Thus Rand S
were setting up a title adverse to the estate. In 1916, Rand S mortgaged 'Y'
house to one H for a period often years. The mortgagee was put is possession. C
As no mortgage had been created in favour of S, now an interest in excess
of the interest of the mortgagee was being created. In 1942, R sold a part
of 'X' house to T. R sold it as an absolute owner. In 1954 T sold it to U and
V. In the meantime in 1948 sons of Rand S sold the house which had been
mortgaged to H, to Mand K with a right to redeem the mortgage. In 1959,
M and K i.e. the purchasers of right of redemption of 'Y' house filed a suit D
for redemption against H which was compromised and a decree for redemption
was passed in,favour of M and K. After a year, six persons claiming to be
the heirs of L, sold to the 1st Respondent their equity of redemption in
respect of the property mortgaged to R by L. This was done by way of two
sale deeds dated 01-03-1960 and 21_-_93-1960. Three years thereafter the E
said sale deeds were confirmed by two more sale deeds which were registered.
However, before these subsequent registered sale deeds, Respondent 1
demanded redemption of the mortgage executed by L which was refused.
Consequently, a suit for redemption of mortgage of the said property was
filed by Respondent 1. The said suit did not challenge the sale deeds of 1942
and 1948 i.e. the deeds executed by R in favour ofT and the other executed F
by the sons of R and S in favour of M and K. The plaint also referred to the
suit of 1914 filed by a person claiming to be the heir of L meaning thereby
that Respondent 1 and his predecessors-in-title were aware of the adverse
claim of Rand S in respect of the suit property. The said suit was dismissed
by the Trial Court on the basis of the fact that everi though the predecessors- G
in-title ofR-1 were party defendants in the suit yet none of them came to the
witness box to prove that they were the heirs of L. The suit was also held
to be barred by li"!itation. T, Mand K were held to be bonafide purchasers
for value without notice. First appeal preferred by Respondent 1 was dismissed.
On second appeal, the High Court reversing the finding of facts by the
Courts below held that the suit was not barred by limitation. The High Court H
216
SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.
A also held that non-examination of predecessors-in-title of Respondent 1 did
not matter as they would have only confirmed the statements in the documents.
Hence, the present appeal.
B
Allowing the appeal, the Court
HELD : 1.1. As admitted by the High Court, the question whether the
predecessors-in-title of Respondent 1 were heirs of L was purely a question
of fact. Both the Courts below had given concurrent findings that it was not
proved that the predecessors-in-title of Respondent 1 were related to L. The
justification sought to be given by the Judge that there was an error of law
C in excluding documents from consideration is patently wrong. Both the
Courts below had not excluded the documents from consideration. Both the
Courts below had considered the documents. Both the Courts below had
rightly held that mere statements in documents prepared by concerned/
interested parties cannot establish proof of facts stated therein. Parties who
could establish the relationship were available. They were party defendants
D to the suit. Both the Courts below had rightly noted that these parties had
chosen not to step into the witness box. Both the Courts below had correctly
appreciated the evidence and arrived at the correct1 conclusion. The High
Court in re-appreciating the evidence and arriving at a contrary conclusion
erred not only in law but also on facts. (224-F-H)
E
2.1. The High Court also seriously erred in reversing the finding of
both the Courts below that the Suit was barred by limitation. The suit was
governed by Limitation Act, 1908. Thus, according to Article 148 of the Act
a suit for redemption of mortgage could be filed within 60 years. But if the
mortgagee had created an interest in excess of the right enjoyed by him then
F to recover possession against the third party, the suit had to be filed within
12 years of the transfer becoming known to the plaintiff, under Article 134
of the Act. The rational in cutting down the period of 60 years to 12 years
is clear. The 60 years period is granted as a mortgagee always remains a
mortgagee and thus the rights remain the same. However when an interest
G in excess of the interest of the mortgagee is created then the third party is
not claiming under the mortgagee. The position of such a person could not
be worse than that of a rank trespasser who was in open and hostile
possession. As the title of the rank trespasser would get perfected by adverse
possession on expiry of 12 years, so also the title of such transferee would
get perfected by adverse possession on expiry of 12 years. The period of 12
H years has to run from the date of knowledge by the plaintiff of such transfer.
SMT. DILBOO v. SMT. DHANRAJI
217
It is always for the party who files the suit to show that the suit is within A
time. Thus in cases where the suit is filed beyond the period of 12 years,
the plaintiff would have to ever and then prove that the suit is within 12 years
of his/her knowledge. In the absence of any averment or proof, to show that
the suit is within time, it is the plaintiff who would fail Whenever a document
is registered the date of registration becomes the date of deemed knowledge. B
In other cases where a fact could be discovered by due diligence then deemed
knowledge would be attributed to the plaintiff because a party cannot be
allowed to extend period of limitation by merely claiming that he had no
knowledge. [226-G-H; 227-A-B]
2.2. It is clear that S was claiming ownership rights from as far back C
as 1914/1915. It is not the plaintifrs case that her predecessors were not
aware of Suit No. 17of1914 or the pleadings therein. On the contrary in
para 10 of the plaint a mention is made about this suit. This clearly shows
that predecessors in title were aware of the suit and the claim made therein.
They and/or the other heirs of L, who were alive at that time, chose not to
challenge S within 12 years of such assertion. As S was not a mortgagee D
so his title got perfected by adverse possession long before 1960 when this
suit was filed. It is clear that the predecessors in title had informed plaintiff
about Suit No. 17of1914. It was for the plaintiff to aver and prove that her
suit was in time against S and his family members. There is no averment
or proof as to how the suit was in time. [227-D-El
E
2.3. In the plaint there is no averment or statement that predecessors
in title of Respondent 1 were not aware of these transactions. The mortgagee
i.e. Hand the purchasers i.e. T, Mand K were put in possession of the
property sold to them. There was no attempt to hide these transactions. The
moment the respective person i.e. H, then T and then M and K took possession F
the predecessors were put to notice that some right had been created in
favour of the third party. With a little diligence and minimal enquiry it could
have been found out what that right was. The fact that there is no evidence
that the predecessors in title were not aware clearly establishes that they
were aware. The suit was only filed on 06-12-1960. On this date it was G
clearly time barred as R had created a mortgage for 10 years of 'Y' house
on 12-09-1916 and R alongwith Shad sold part of 'X' house to Ton 26-101942. [227-H; 228-A-C)
2.4. In respect of mortgage of 1916 in favour ofH the High Court held
that the said mortgage had been re-deemed vide compromise dated 11-04- H
218
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A 1962 in the suit for redemption filed by Mand Kin 1959. In so holding the
High Court conveniently ignored the fact that the redemption only took place
in 1959 while long before that the right to make a claim, provided predecessors
in title stepped into shoes of mortgagor, against H was already time barred.
The redemption by Mand K was not on behalf of the mortgagors but under
B an independent right claimed by them. Therefore, the redemption did not
extend limitation or give any fresh right to Respondent 1 or his predecessors.
It has to be remembered that Mand K were permitted to redeem in their own
right inspite of the objections by the predecessors-in-title of Respondent 1.
Also it is entirely erroneous to hold that Article 134 of the Act would not
apply to a transaction of mortgage where an interest in excess of the right
C of the mortgagee has been created. Thus the finding of the High Court on
this count cannot be sustained at all. [228-H; 226-A)
2.5. In respect of sale in favour of T in 1942, the High Court seeks
to hold that the suit is in time on the ground that U was not able to sustain
his averment that the plaintifrs predecessors had knowledge of the nature
D of the sale executed. The High Court has seriously erred in forgetting that
it was for the plaintiff to aver and to prove that her predecessors had no
knowledge of this sale or its nature. In para 4 of the plaint a reference is
made to this sale. Thus R-1 and her predecessors had knowledge of this sale.
It was for them to aver and prove that their knowledge was within 12 years
of the suit. By wrongly casting the burden on the defendant and by ignoring
E the fact that the plaintiff had neither averred nor proved that her predecessor
did not have knowledge of the transaction prior to 12 years of the filing of
the suit, the High Court has seriously erred in considering the bonajides
·of the transaction of20-12-1954. The remedy was already barred by reason
of the transaction of sale dated 26-10-1942. Thad perfected his rights in the
p
property as that sale was not challenged within 12 yeas of knowledge of the
plaintifrs predecessors. By sale of 20-12-1954 Twas selling rights which
he had acquired. He was not selling mortgagees interest or rights. Thus
considering the bonafide of the purchasers under transaction of 20-12-1954
did not arise at all. Even otherwise in Article 134 the Legislature has
purposely omitted the words "bonafide". All that is required is a purchaser
G for valuable consideration it is also pertinent to note that the High Court
does not hold that the transaction of 26-10-1942 was not bonafide. Thus T
would also get the protection of Section 41 of the Transfer of Property Act.
Thus the findings of the High Court in this regard cannot be sustained at
all. [231-E-H; 232-A-B]
H
2.6. In respect of the transaction of sale dated 04-12-1948 the High
SMT. DILBOO v. SMT. DHANRAJI [S.N. VARIAVA, J.]
219
Court holds that the date of knowledge would be date of registration on 15- A
01-1949 and that the suit was within 12 years of that date. However, what
the High Court ignores is that the sale is also by son of S. As S had perfected
title by adverse possession, therefore, even if the plaintiff had a right, no
relief could have been granted in respect of the share of S. (232-C]
Patel Bhudarbhai Magan/al v. Patel Khemabhai Ambaram, (1997) 10 B
SCC 611; la/ji Jetha v. Kalidas, AIR (1967) SC 978; Sant Lal Jain v. Avtar
Singh, AIR (1985) SC 857 and lshwar Dass Jain v. Sohan Lal, [2000) l SCC
4~4, referred to.
Krishna Prasad y. Baraboni Coal Concern Ltd, AIR (1937) PC 251; C
Jai Nandan v. Umrao Koeri, AIR (1929) All. 305 and Lachman v. Monia, AIR
(1929) All. 759, held inapplicable.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3673 of
1982.
. From the Judgment and Order dated 13.7.82 of the Allahabad High Court
in S.A. No. 2100 of I-973.
Pramod Swarup, T.N. Singh, B.M. Sharma, C.M. Patel, Ms. Pareena
Swamp and S.N. Singh for the Appellants.
V.K.S. Choudhary, A.S. Pundir, Tirupurari Ray, Yash Pal Dhingra,
R.M. Vithlani and S.N. Kalra for the Respondents.
The Judgment of the Court was delivered by
D
E
S. N. V ARIAV A, J. This Appeal is against an Order dated 13th July 1982 F
in a Second Appeal No. 2100 of 1973 wherein the High Court has proceeded
to appreciate evidence and on questions, purely of fact, overruled concurrent
findings of facts by two Courts below. Cross objections have been filed by
the l st Respondent against directions in the impugned Judgment to have
ascertained, amongst others, the state of the different parts or portions of the G
suit property and improvements made therein and their value.
Briefly stated the facts are as follows:
On 30th August 1902 Smt. Lakshamania widow of Narayan Sonar
mortgaged two houses and twenty trees in favour of Ram Charan Sonar. The H
220
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A mortgage was for a sum of Rs. 499. It is claimed by the Appellants that Ram
Charan Sonar and his brother Swaroop Sonar were already staying in the suit
property with Narayan Sonar. The said Smt. Lakshamania died on 3rd November,
1908.
One Smt. Piyari, claiming to be the nearest heir of the husband of Smt.
B Laxmina, filed Suit No. 328of1908 and made a claim to the suit property. This
Suit was dismissed on the ground that Smt. Piyari was not an heir of Shri
Narayan or of Smt. Lakshamania. -
One Shri Bharat Sonar, claiming to the heir of Smt. Laxmina, filed Suit
No. 17 of 1914 making a claim to the suit property. This Suit was also
C dismissed on the ground that Shri Bharat Sonar was not an heir of Smt.
Laxmina. In this Suit Ram Charan Sonar and Swaroop Sonar had averred, in
their written statement, that the suit property had come to them under an oral
Will by Shri Narayan. Thus as far back as in 1914/1915 Ram Charan Sonar and
Swaroop Sonar set up a title adverse to the estate. To be remembered that
D Swaroop Sonar was not a mortgagee under the mortgage deed of 1902.
On 12th September 1916 Ram Charan Sonar and Swaroop Sonar executed
a mortgage in favour of one Hanuman. This mortgage was in respect of one
of the houses (which for sake of convenience is called the 'southern house).
The mortgage was for a fixed period of I 0 years. Thus the rights of the
E mortgagor to red.-!em within the period of I 0 years was being affected. Also,
as indicated above, Swaroop Sonar was not a mortgagee. He had already
claimed ownership of this property in suit No, 17 of 1914. Now he was
mortgaging as owner. Thus an interest in excess of the interest of the mortgagee
was being created. The mortgagee Hanuman was put in possession of the
F southern house as a mortgagee.
On 26th October, 1942 Ram Charan Sonar sold a part of the other house
(which for sake of convenience is called the northern house) to one Ram
Charan Teli. We have seen the sale deed. Ram Charan Sonar described the
northern house as "my personal property". Thus Ram Charan Sonar sold not
G as a mortgagee but as an absolute owner. Thus again an interest in excess
of the interest of a mortgagee was created. Ram Charan Teli was put in
possession of the house sold to him.
On 4th December, 1948 Appellant No. 8 (who is the son of Ram Charan
Sonar) along with Appellant No. 9 (who is the son of Swaroop Sonar) sold
H the southern house to Ramraj and Lakshman. The Sale Deed was registered
\
SMT. DILBOO v. SMT. DHANRAJI [S.N. VARIAVA, J.]
221
..
on 15th January, 1949. Ramraj and Lakshman were given a right to redeem the A
mortgage from Hanuman. This sale was also on the footing that the sellers
were owners of the property.
On 20th December, 1954 Ram Charan Teli sold the house to Lakhan and
Mahavir Kandu. They were put in possession of the house.
B
Ram Raj and Laxman filed Suit No. 85 of 1959 against Hanuman for
redemption of the mortgage. In this Suit objections were sought to be taken
by some of the predecessors in title of the present Respondent No. l. That
-
Suit was compromised and on the basis of the compromise a decree for
redemption was passed against Hanuman and in favour of Ram Raj and c
Lakshman.
By two sale deeds dt. 1st March 1960 and 21st March 1960 Sita Ram,
Ganesh, Bechni, Rajwanti, Bhoju and Bhuwel, claiming to be the heirs of Smt.
Laxmina, sold their equity of redemption to the l st Respondent. On 25th
February 1963 two further sale deeds confirming the earlier two sale deeds D
were executed. These were got registered. On 4th October 1960 i.e. before the
registration of the subsequent sale deeds, Respondent No. 1 demanded
redemption of the mortgage executed as far back as on 30th August, 1902.
This was refused and, therefore, the 1st Respondent filed the present Suit,
i.e. Suit No. 3 of 1961, for redemption of mortgage.
E
In this suit 1st Defendant was the son of Ram Charan Sonar. The 2nd
Defendant was the grandson of Swaroop Sonar. Ramraj and Lakshman were
Defendants 4 and 5 respectively. Lakhan and Mahavir Khandu were
Defendants 5 and 6 respectively. Hanuman was made Defendant No. 7. Sita
Ram, Ganesh, Bechni, Rajwanti, Bhoju and Bhuwel were Defendants 8 to 13 F
respectively. We have seen the plaint. The Suit is merely for redemption of
mortgage. In the suit, as regards the transfers, it is averred as follows:
"4. That Ram Charan Sonar, mortgagee right in respect ofpa1t of the
mortgaged house given in Schedule Aa of the plaint to Ram Charan
Teli. Thereafter deceased Ram Charan Teli transferred it to the G
"
defendants 5 and 6 who have been in possession thereof as transferees
from the mortgagee and the remaining portion of the house Schedule
'Aa' of the plaint has been in possession of the defendants l and 2
as a mortgagees."
5. That Ram Charan Sonar had executed a fictitious mortgage deed in H
222
A
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
favour of Hanuman, defendant No. 7 in respect of house of Schedule
'Ba' of the plaint and thereafter the defendants 1 and 2 transferred the
said house in favour of Ram Raj and Laxman, defendants 3 and 4 and
their possession will be treated as of mortgagees.
B There. is no averment that the sale deeds are not genuine and/or not binding.
No declaration, challenging the Sale Deeds of 26th October, 1942 and 4th
De_ceD).ber, 1948, has been sought. The only relief claimed is for redemption
of mortgage. At this stage it must be mentioned that in para 10 of the plaint
there is a reference to S,uit No. 17 of 1914. This shows that Respondent No.
l and he~ predecessors in title were aware of the pleadings in that suit and
C were thus ~ware that as far back as 1914/1915 Ram Charan Sonar and his
brother Swaroop Sonar had made a claim adverse to the estate.
Seven written statements were filed by the various sets of Defendants.
A large number of defences were taken up. For purposes of this Appeal we
do not need to reproduce or deal with all the defences. The main defences
D · were that the persons from whom 1 ~t Respondent got title were not he.irs of
Lakshamania and that they had nq right to transfer the equity of redemption.
It was also claimed that the old houses had fallen down and Ram Charan
Sonar and Swaroop Sonar had, to knowledge of all, constructed new houses
on the land and were occupying those as owners. It was claimed that Ram
E Charan Sonar and Swaroop Sonar had perfected title by adverse possession'.
It \\:'as further claimed that the suit was barred by limitation. The transferee .
Defendants also took up defence under Section 41 of the Transfer of Prop~rty
Act. In an additional written statement filed by Defendants l to 4 it was also
contended that on the date the suit was filed the Plaintiff had no- title as the
earlier sale deeds were invalid and that the subsequent sale deeds of 25th
F March 1963 did not cure the defect.
This Suit was dismissed by the Trial Court on 20th March, 1967. The
Trial Court held, on . proper appreciation of evidence, that it had not been
proved by the 1st Respondent or on her behalf that her predecessors in title
G were heirs of Smt. Lakshamania. It was noted by the Trial Court that the
predecessor in title were party defendants in the Suit and yet none had
stepped into the witness box in order to prove that they were the heirs, The
Trial Court took note of the fact that some documents had been relied upon
to prove the relationship. The Trial Court correctly held that no reliance could
be placed on those documents. The Trial Court noted that an admitted relative
H i.e. one Smt. Mantorani gave evidence and stated on oath that some of the
...
SMT. DILBOO v. SMT. DHANRAJI [S.N. VARIAVA, J.]
223
predecessors in title of the 1st Respondent were not heirs of Lakshamania. A
The Trial Court, which was the best judge of her testimony and demeanor,
believed her testimony. The Trial Court held that the 1st Respondent had
acquired no right, title or interest in the suit property and was not entitled
-
to claim redemption. The Trial Court also gave a finding that the predecessors
in title of the 1st Respondent had full knowledge of the transactions of B
mortgage and sale by Ram Charan Sonar and his brother Swaroop Sonar. The
Trial Court noted that in the mortgage deed and the sale deed executed by
the brothers and then by Defendants 1 and 2 they had claimed themselves
to be owners. The Trial Court noted that none of the admitted heirs of
Lakshamania had, in spite of knowledge of such claims, made any protest or
filed a suit. The Trial Court held that the suit was barred by limitation. The C
Trial Court also held that Ram Charan Teli as well as Ramraj and Lakshman
were bona fide purchasers for value without notice.
Being aggrieved by this Judgment lst Respondent filed Civil Appeal
No. 149 of 1967. The first Appellate Court found, on a proper appreciation of
evidence, that Ram Charan Sonar and Swaroop Sonar had been making claims D
to be owners of the property, ever since the death of Lakshamania, and that
no heir of Lakshamania had refuted this claim. The first Appellate Court also
noted that the predecessors in title of the 1st Respondent had not stepped
into the witness box to prove that they were related to Lakshamania. The first
Appellate Court also held that the documents relied upon by the 1st
Respondent viz Ex. 20, Ex. 21 and Ex. 22 would not establish relationship as E
the persons who could give the best evidence had been available and had
not stepped into the witness box. The first Appellate Court noted that the
only family member who gave evidence was Smt. Mantorani and she had
deposed that some of the predecessors in title of the 1st Respondent were
not related. The first Appellate Court thus held that it was not proved that F
the predecessors in title of the 1st Respondent were related to Smt.
Lakshamania. The first Appellate Court also held that the Suit was time barred
so far as the Mortgage Deed of 12th September, 1916 and the Sale Deed of
26th October, 1942 were concerned. The first Appellate Court noticed that the
Sale Deed dated 26th October, 1942 was for a sum of Rs. 800 which created
an interest in excess of the one held by the alleged mortgagee. The first G
Appellate Court held that the Suit against the purchasers was barred by
Article 134 of the Limitation Act. With these findings the Civil Appeal was
dismissed on 20th March, 1967.
l st Respondent then filed Second Appeal No. 2100 of 1973. To be noted
that the question whether or not the predecessors in title of the 1st Respondent H
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SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A were heirs of Smt. Laxmina was purely a question of fact. It went to the root
of the case. That it was purely a question of fact was also noted by the High
Court. This is clear from the fact that in the Judgment it is recorded as follows:
B
"The second point before the lower appellate court related to the
plaintiffs right to sue. The finding that Sitaram was not the son of
.Paltan and Bechni and Rajwanti were not the daughters of Gajadhar
and Madho respectively, is· undoubtedly a finding of fact, but here
again it was contended by Mr. V.K.S. Choudhary that here the finding
is vitiated by errors of law and procedure."
(emphasis supplied)
C In spite of so noting the High Court then proceeds to re-appreciate evidence
in a Second Appeal. Reliance is placed on Exs. 20, 21 and 22 to arrive at a
finding that these documents established the relationship. The High Court
holds that non examination of the predecessors in title of the 1st Respondent
did not matter as they would only have confirmed the statements in these
D documents. The High Court disbelieves evidence of Smt. Mantorani without
any cogent reasons. High Court tries to justify its appreciation of evidence
in the following manner:
" ...... findings arrived at by the lower appellate court were vitiated by
an error of law in excluding from consideration the documentary
E
evidence on this question ... "
The law on the subject is very clear. Even under the unamended Section
100 of the Code of Civil Procedure, the Court could only interfere on a
question of law. As admitted by High Court the question, whether the
predecessors in title were heirs of Lakshamania was purely a question of fact.
F Both the Courts below had given concurrent findings that it was not proved
that the predecessors in title of the 1st Respondent were related to Smt.
Lakshamania. The justification sought to be given by the Judge that there
was an error of law in excluding documents from consideration is patently
wrong. Both the Courts below had not excluded the documents from
G consideration. Both the Courts below had considered the documents. Both
the Courts below had rightly held that mere statements in documents prepared
by concerned/interested parties cannot establish proof of facts stated therein.
Parties who could establish the relationship were available. They were party
Defendants to the suit. Both the Courts below had rightly noted that these
parties had chosen not to step into the witness box. In our view both the
H Courts below had correctly appreciated the evidence and arrived at the correct
-
-
SMT. DILBOO v. SMT. DHANRAJI [S.N. VARIAVA, J.]
225
conclusion. The High Court in re-appreciating evidence and arriving at a A
contrary conclusion erred not only in law but also on facts. To be remembered
that Defendants 3 to 7 were outsiders. They were not members of the family.·
As they had denied relationship the same had to be established. It had to be
established in a manner which would give them an opportunity to repudiate
it. Mere statements made by interested family members in earlier documents B
would not bind them or be proof against them.
Now let us see whether the reliance on these documents is justified.
The documents relied upon are Exs. 20, 21 and 22. Exs. 20 and 21 were
documents in which Sitaram described himself as son of Paltan. One fails to
understand on what basis the Judge holds that this statement of Sitaram in C
the documents would prove relationship. Sitaram is party Defendant No. 8.
He is available to give evidence. He chooses not to step into the witness box.
ln such circumstances both the Courts below had correctly held that no
reliance could be placed on these documents as the person who made the
statement chose not to subject himself to cross-examination. We also find
very strange the comment of the High Court that had he stepped into the D
witness box he would have confirmed the statement in these documents. The
High Court seems to have forgotten that parties may make statements in
documents which are not true but that they may not be willing to support
those statements in the witness box because they would be subject to crossexamination and the falsity of the statement established. The other document E
relied upon by the High Court is Ex. 22. This is the Will of one Nauragi. In
this Will Bechni is described by Nauragi as her daughter. The Court below
had rightly noted that this did not prove that Bechni was daughter of Gajadhar.
The Will does not say so. We fail to understand how the High Court presumes
that this establishes that Bechni is daughter of Gajadhar. More importantly
Bechni is Defendant No. l 0. She does not step into the witness box to depose F
that she is daughter of Gajadhar and/or to support the Will. The Courts below
had thus rightly held that no reliance could be placed on this document. Thus
the finding of the High Court, in the Second Appeal, cannot be sustained at
all. Both the Courts below were right in concluding that it had not been
established that the predecessors in title of the 1st Respondent were related G
to Smt. Lakshamania or Shri Narayan. Both the Courts below were right in
holding that the lst Respondent thus acquired no title and had no right to
claim redemption. The 1st Respondent could thus not maintain the suit and
the same should have been dismissed on this ground itself.
At this stage it must be mentioned that Mr. Chaudhary sought to H
226
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A support the finding of the High Court by submitting that Ram Charan Sonar
and Swaroop Sonar had in the written statement filed in Suit No. 17 of 1914
given a genealogy of the family and that that genealogy established the
relationship. We see no substance in this submission. The Judge has not
based his findings on that genealogy. In 1914 neither Sita Ram nor Bechni
were born. That genealogy does not show Defendants 8 or 9 or IO or 11 or
B 12 or 13. Thus that genealogy does not establish relationship. If anything that
genealogy disproves case that these Defendants were relations. In any case
a genealogy prepared by Ram Charan Sonar and Swaroop Sonar would not
bind Defendants 3 to 7. In this view of the matter nothing further requires to
be considered. However before we part it must be mentioned that the High
C Court also seriously erred in reversing the finding of both the Courts below
that the Suit was barred by limitation.
D
E
F
This Suit was governed by the Limitation Act of 1948. Arts. 134 and 148
read as follows:
134. To recover possession of
immovable
property
conveyed or bequeathed in
trust or mortgaged and
afterwards transferred by the
trustee or mortgagee for a
valuable consideration.
148. Against a mortgagee to
redeem
or to recover
poss.ession of immovable
property mortgaged.
Twelve
years
Sixty
years
When
the
transfer
becomes known to the
plaintiff.
When the right to redeem
or to recover possession
accrues:
Thus a Suit for redemption of mortgage could be filed within 60 years.
But if the mortgagee had created an interest in excess of the right enjoyed
by him then to recover possession against the third party the Suit had to be
filed within 12 years of the transfer becoming known to the Plaintiff. The
G rational in cutting down the period of 60 years to 12 years is clear. The 60
years period is granted as· a mortgagee always remains a mortgagee and thus
the rights remain the same. However when an interest in excess of the interest
of the ·mortgagee is created then the third party is not claiming under the
mortgagee. The position of such a person could not be worse than that of
a rank trespasser who was in open and hostile possession. As the title of the
H rank trespasser would get perfected by adverse possession on expiry of 12
SMT. DILBOO v. SMT. DHANRAJI [S.N. VARIAVA, J.)
227
years so also the title of such transferee would get perfected after 12 years. A
The period of 12 years has to run from the date of knowledge by the Plaintiff
of such transfer. It is always for the party who files the Suit to show that the
Suit is within time. Thus in cases where the suit is filed beyond the period
of 12 years, the Plaintiff would have to aver and then prove that the Suit is·
within 12 years of his/her knowledge. In the absence of any averment or
proof, to show that the suit is within time, it is the Plaintiff who would fail. B
Whenever a document is registered the date of registration becomes the date
of deemed knowledge. In other cases where a fact could be discovered by
due diligence then deem~d knowledge would be attributed to the Plaintiff
because a party cannot be allowed to extend period of limitation. by merely
claiming that he had no knowledge.
C
As set out above Swaroop Sonar was claiming ownership rights from
as far back as 1914/1915. It is not the Plaintiffs case that her predecessors
were not aware of Suit No. 17 of 1914 or the pleadings therein. On the contrary
in para 10 of the Plaint a mention is made about this suit. This clearly shows
that predecessors in title were aware of the suit and the claim made therein. D
They and/or the other heirs of Smt. Lakshamania, who were alive at that time,
chose not to challenge Swaroop Sonar within 12 years of such assertion. As
stated above Swaroop Sonar was not a mortgagee. So his title got perfected
by adverse possession long before 1960 when this suit was filed. It is clear
that the predecessors in title had informed Plaintiff about Suit No. 17 of 1914. E
It was for the Plaintiff to aver and prove that her suit was in time against
Swaroop Sonar and his family members. There is no averment or proof as .to
how the suit was in time.
Apart from this, as set out above, other interest in excess of rights of
mortgagee had been created. They are:
F
(a)
Ram Charan Sonar created a mortgage for I 0 years, of the
southern house, on 12th September 1916.
(b) Ram Charan Sonar and Swaroop Sonar sold a part of the northern
house to Ram Charan Teli on 26th October 1942.
(c)
On 4th December 1948 a sale takes place in favour ofRamraj and
Lakshman. This is registered on 15th January 1949.
In the Plaint there is no averment or statement that the predecessors in
title of the 1st Respondent were not aware of these transactions. In evidence
G
1...._
there is no deposition that the predecessors in title were not aware of these H
228
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A transactions. The mortgagee i.e. Hanuman and the purchasers i.e. Ram Charan
Teli and Ramraj and Lakshman were put in possession of the property sold
to them. There was no attempt to hide these transactions. The moment that
the respective person i.e. Hanuman, then Ram Charan Teli and then Ramraj
and Lakshman took possession the predecessors were put to notice that
B some right had been created in favour of a third party. With a little diligence
and minimal enquiry it could have been found out what that right was. The
fact that there is no evidence that the predecessors in title were not aware
clearly establishes that they were aware. The suit is only filed on 6th December
1960. On this date it is clearly time barred so far as transactions at (a) and
(b) above are concerned. Yet the High Court holds that the suit is not time
C barred and grants redemption of the entire property. Let us now see the
erroneous and absolutely fallacious reasoning adopted by the High Court to
hold that the suit was not barred by limitation in respect of these two
transactions.
In respect of the mortgage dt. 12th September 1916 the High Court
D states as follows:
"So far as the mortgage deed of 1916 Ex.A/4 is concerned, it has
already been seen above that Hanuman, defendant No. 7, thus clearly
stated that he was not in possession under that Mortgage deed. The
mortgage has been re-deemed vide-compromise in Suit No. 85 of 1959
E
dated the 11th April, 1962, between Ram, who was the plaintiff in that
F
suit and is third defendant in the present suit, and Hanuman, Mahadeo,
Sankatha and others of whom Hanuman, Mahadeo and Sankatha are
defendants Nos. I, 2 and 7 respectively in the present suit. At any
rate the usufructuary mortgage is not a kind of transfer which could
attract the applicability of Article 134 of the schedule to the Indian
Limitation Act, 1908. Accordingly, I hold that the present suit could
not be said to be barred by limitation under Article 134 by reason of
the transfers made by Ex.A/4."
In so holding the High Court conveniently ignores the fact that the
G redemption only took place in 1959. Long before that the right to make a claim,
provided predecessors in title stepped into shoes of mortgagor, against
Hanuman was already time barred. The redemption by Ramraj and Lakshman
was not on behalf of the mortgagors but under an independent right claimed
by theni. Therefore the redemption did not extend limitation or give any fresh
right to the 1st Respondent or her predecessors. It must be remembered that
H Ramraj and Lakshman were permitted to redeem in their own right in spite of
j
SMT. DILBOO v. SMT. DHANRAJI [S.N. VARIAVA, J.]
229
objections by the predecessors in title of the I st Respondent. Also it is A
entirely erroneous to hold that Article 134 would not apply to a transaction
of mortgage where an interest in excess of the right of the mortgagee has been
created. Thus the finding of the High Court on this count cannot be sustained
at all.
In respect of the sale in favour of Ram Charan Teli on 26th October 1942 B
the High Court holds as follows:
"Another sale deed referred to was that dated the 26th October, 1942
in favour of Ram Charan Teli, who in his tum executed a sale deed
dated the 20th December, 1954 in favour of defendants No. 5 and 6.
This refers to a part of the house under Mad 'As' of the plaint. C
Defendant No.