1921 (7) TMI 5 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the plaintiffs are purchasers of the rights of the mortgagor, Ehsan Ali Khan, by deeds dated the 13th December 1882, the 10th January 1909, and the 16th February 1911.
2. Are the plaintiffs' deeds of sale invalid for being without consideration and because they have not been acted upon?
3. Can defendants raise this plea?
4. Are the sons of Ewaz Ali Khan and the heirs of Ehsan Ali Khan necessary parties to the suit?
5. Admissibility of secondary evidence of the deed.
6. The truth of the original transaction.
7. Subsequent dealings by Ehsan Ali Khan with the property.
8. Duty to make Ehsan Ali Khan's heirs parties.
9. Redemption of the mortgage and the terms on which it should be done.

Issue-wise Detailed Analysis:

1. Whether the plaintiffs are purchasers of the rights of the mortgagor, Ehsan Ali Khan, by deeds dated the 13th December 1882, the 10th January 1909, and the 16th February 1911:
The plaintiffs claimed to be the representatives of the original mortgagor based on an alleged deed of sale and subsequent devolution. The Subordinate Judge accepted evidence that the sale deed was lost but registered, allowing a certified copy as secondary evidence. Witnesses confirmed seeing the deed signed and Rs. 200 paid over. The Subordinate Judge concluded that the sale had been effected and declared the plaintiffs had a right to redeem.

2. Are the plaintiffs' deeds of sale invalid for being without consideration and because they have not been acted upon:
The defendants argued that the alleged deed was not genuine or for consideration and that no right accrued from it. They claimed the transaction was abortive and the deed returned to Ehsan Ali Khan. However, no substantive evidence was provided to support this contention. The Subordinate Judge found the sale valid, deeming the subsequent dealings by Ehsan Ali Khan with the property immaterial.

3. Can defendants raise this plea:
The defendants' plea that the deed was invalid for lack of consideration and non-fulfillment was not supported by evidence. The court found that the burden was on the defendants to prove the deed's invalidity, which they failed to do.

4. Are the sons of Ewaz Ali Khan and the heirs of Ehsan Ali Khan necessary parties to the suit:
The Court of Appeal suggested that the heirs of Ehsan Ali Khan should have been made parties. However, the Subordinate Judge and the Privy Council found no such duty, as the defendants themselves pleaded that all rights had been transferred for Rs. 10, thus dispensing the plaintiffs from any necessity to include the heirs.

5. Admissibility of secondary evidence of the deed:
The Subordinate Judge admitted a certified copy of the deed as secondary evidence after accepting evidence of its loss. The Privy Council upheld this decision, noting that the deed was registered, and it was highly improbable that Ehsan Ali Khan would have participated in the registration without receiving the consideration money.

6. The truth of the original transaction:
The Privy Council found that the deed was executed and registered with all due formalities. The burden was on the defendants to prove otherwise, which they did not. The court emphasized that the defendants failed to produce the deed, which should have been in their possession if their claims were true.

7. Subsequent dealings by Ehsan Ali Khan with the property:
The Subordinate Judge dismissed the defendants' claims of subsequent dealings by Ehsan Ali Khan as immaterial. The Privy Council agreed, stating that such dealings could not prove adverse possession since Ehsan Ali Khan was never in possession; the possession remained with the mortgagee.

8. Duty to make Ehsan Ali Khan's heirs parties:
The Privy Council found no duty to make Ehsan Ali Khan's heirs parties to the suit. The plaintiffs provided prima facie evidence of their title to redeem, and it was the defendants' responsibility to rebut it, which they failed to do.

9. Redemption of the mortgage and the terms on which it should be done:
The Subordinate Judge found that the mortgage had been fully discharged and granted the plaintiffs possession without payment to the defendants, along with a decree for Rs. 9,012 and costs. The Privy Council remitted the case to the Court of the Judicial Commissioner to decide other points raised on appeal regarding the terms of redemption, including allowances for penal or illegal interest.

Conclusion:
The Privy Council recommended allowing the appeal, remitting the case to the Court of the Judicial Commissioner to address unresolved issues, and awarding the plaintiff costs in the Court of Appeal and the appeal to His Majesty. The other costs were left to be disposed of by the Court of the Judicial Commissioner.