The High Court of Punjab & Haryana dismissed an appeal against the dismissal of a suit for redemption of mortgaged property. The bench held that the doctrine of severability was inapplicable and the appropriate remedy was partition, finding no illegality in the lower courts' judgment.
The appeal is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.5525 of 2016 (O&M)
{1}
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No.5525 of 2016 (O&M) Date of decision:20.11.2018
Seeta Devi
... Appellant
Vs.
Mam Chand (since deceased) through LRs and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:Mr. Ashok Bhardwaj, Advocate for the appellant.
AMIT RAWAL J. (Oral)
The appellant-plaintiff has not been successful in seeking redemption of the suit property by laying challenge to the order dated 11.07.2006 passed by the Collector whereby identical application under local law was dismissed.
It was alleged that vide mutations bearing nos.433 and 449, it was reflected that the suit land measuring 7 bighas 7 biswas was mortgaged. The mortgage amount of `7,000/- had already been deposited in the Government Treasury and the suit land was mortgaged with the original mortgagees, namely, Nand Ram, Ran Singh and Nasib Singh and after their death, defendants were enjoying the usufruct of the suit land.
The defendants opposed the suit while admitting that plaintiff no.2-Mam Raj, vide registered sale deeds dated 21.12.1979 and 14.04.1981 had already sold the land to the defendants which had not been challenged
SAVITA KADIAN 2018.11.26 09:01 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.5525 of 2016 (O&M) {2}
and mutation nos.585 and 732 in this regard were sanctioned. Even if the entries in the jamabandi continued to be in the name of Mam Raj and plaintiff no.1 Seeta Devi, the plaintiffs, would not confer the title of ownership in view of the registered documents.
On preponderance of the evidence, the trial Court dismissed the suit and found that documents Ex.D2 and Ex.D3 have been proved on record. Even if plaintiff no.1 did not form the part of the sale deed, could not get the redemption. The appeal taken before the Lower Appellate Court was also dismissed.
Mr. Ashok Bhardwaj, learned counsel appearing on behalf of the appellants submitted that plaintiff no.1 alongwith other brothers was cosharer in the suit property. It was only Mam Raj who had already parted with the suit property as per the aforementioned sale deed and by applying the doctrine of severability, redemption of the property which was not sold, should have been ordered.
I am afraid the aforementioned argument is not sustainable in the eyes of law, for, an appropriate remedy for the plaintiffs was to seek partition as alongwith defendants/subsequent vendees, who were the mortgagees had acquired the title of co-ownership. After seeking title of coownership, probably cause of action would arise to seek the redemption, if the mortgage deed did not prescribe any time line, for, there is no limitation to seek redemption. Doctrine of severability cannot be applied in such circumstances as the mortgage deed has to be read as whole and cannot be split.
SAVITA KADIAN 2018.11.26 09:01 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.5525 of 2016 (O&M) {3}
As an upshot of my findings, I do not find any illegality and perversity in the judgments and decrees under challenge which are based upon the appreciation of oral and documentary evidence, much less no substantial question of law arises for adjudication of the present appeal.
Resultantly, the appeal is dismissed.
| (AMIT RAWAL) JUDGE |
|
|---|---|
| November 20, 2018 | |
| savita | |
| Whether Speaking/Reasoned | Yes/No |
| Whether Reportable | Yes/No |
SAVITA KADIAN 2018.11.26 09:01 I attest to the accuracy and integrity of this document High Court Chandigarh
2 issues framed by the court
Whether the appellant-plaintiff can seek redemption of the suit property by applying the doctrine of severability after a co-sharer sold his portion.
Whether there is any substantial question of law or illegality in the lower courts' rejection of the redemption suit.
Seeta Devi
Mam Chand (since deceased), Mam Raj and others
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
