- (1.) THIS is a defendants' appeal directed against the concurrent judgments and decrees of the two courts below declaring that the plaintiff has become full and complete owner of the land in suit as the impugned mortgage has not be redeemed within the statutory period of 60 years and the defendants' right of redemption has been extinguished. It is alleged that Deva Singh, the original owner, mortgaged the land in question to Kahan Singh for a sum of Rs. 160/- vide a mutation attested on 10-8-1884 and that these mortgagee rights were later transferred to one Sarwan singh, who, in his turn, transferred them to the plaintiff. Deva Singh is said to have died issueless and his rights were inherited by the owners of the patti. The mortgage having never been redeemed, it has been claimed by the plaintiff that the right of redemption has been lost by the expiry of more than 60 years and that he has thus become the exclusive owner of the suit-land. The Courts below have held that the mortgage in question is more than 60 years' old and having not been redeemed, the right of redemption has been extinguished and the plaintiff has become the absolute owner of the and in suit. Two points were raised in the Courts below and the same have been re-agitated before me at the Bar. It is contended on behalf of the appellant that the mutations by which the mortgagee rights were transferred amount to an acknowledgment of the mortgage and therefore fresh period of limitation should be deemed to have started from those dates. It is contended that in 1911-1912 there was a variation in the revenue entries and this variation amounted to a novation of the contract of mortgage and therefore the period of 60 years should be counted from this date.
(2.) MR. Durga Das Khanna also raised another point which does not seem to have been agitated in the lower appellate Court. He submits that the plaintiff applied under O. 1, R. 8 of the Code of civil Procedure praying that some of the owners of the patti as defendants should be permitted to represent all the owners defendants in whom the right of redemption had vested on the death of deva Singh issueless. The counsel urges that the mandatory provisions of O. I, R. 8, code of civil Procedure, were not complied with and therefore the whole trial is vitiated. Reliance has been placed in this connection on Kumaravelu Chettiar v. T. P. Ramaswami Ayyar, AIR 1933 pc 183, where their Lordships of the Privy Council observed that the procedure prescribed by O. I, R. 8, Code of Civil Procedure, is mandatory and if all the persons interested are to be bound by the decision in such a case, then the provisions of R. 8 of O. I, must be strictly complied with. I find from the record that an application under O. I, R. 8 of the Code of Civil Procedure was actually filed by the plaintiff on 21-6-1952 and the Court ordered a notice to be given by proclamation under O. V, R. 20, although, as the list of the proprietors attached to the petition shows, there were only 57 persons who had to be served. In my opinion, the number of persons to be served could by no means be considered to be so large as to render personal service not reasonably practicable. I also find from the record that there was neither any affidavit of the person, who is said to have effected the substituted service, nor has any such person been examined by the Court. If such service is to be deemed to be as effectual as personal service is to be deemed to be as effectual as personal service, then in fairness to the defendants who are not actually made parties, and in the interests of justice, the Courts should always satisfy themselves that such substituted service had actually been properly and lawfully effected. It is not clear, on the present record, whether even the contents of the plaint were disclosed to the persons to be server, nor is it clear as to when and where and by what means, the substituted service was effected. A decision in a suit, in which defendants have been served under O. I, R. 8, code of Civil Procedure, operates as res judicata, even as against all those persons for and on whose behalf the actual parties on the record purport to defend the suit. In these circumstances, in my opinion, the trial Court has to be particularly careful and vigilant in satisfying itself that the provisions of law have been strictly complied with. In the present case, I find that the trial of the suit is vitiated by this omission and it would perhaps be open to all the other owners, who are not actually made defendants in the suit, to come forward and challenge the binding nature of the decision in the present case. Of course, this decision would be binding on those persons, who have actually been impleaded by the plaintiff, and who have been personally served. It was contended on behalf of the respondents that this plea having not been taken in the Courts below should not be allowed to be raised here. But if the non-parties can come forward in a subsequent litigation, and can show that the mandatory provisions of O. I, R. 8, Code of Civil Procedure, having not been complied with, the decision in the present case should not be held to operate as res judicata as against them, it can hardly be contended with any logic or sense of justice, that in the course of the same proceedings, this Court should refuse to take notice of this vital objection.
(3.) ON the merits reliance has been placed by Mr. Khanna on Exhibit P. 4 which is a copy of mutation whereby the mortgagee rights were transferred by Mst. Bhagi mother of Sarwan Singh in favour of Mastan Singh. In the patwari's report it is stated that Mst. Bhagi had made a statement that the mortgagee rights had been sold in favour of Mastan Singh and that the possession had been given to the vendee. These parties are again said to have appeared before the revenue officer before whom also the transfer of mortgagee rights was admitted, with the result that the transfer was sanctioned on 10-12-1915. Mr. Khanna contends, on the authority of gul Muhammad v. Akbar, 145 Pun Re 1889, that the patwari in the present case should be deemed to have been authorised by the mortgagees to sign the statement made by them on their behalf. The following observations at page 495 of the report, in the above case, has been particularly relied upon by Mr. Khanna: "now, there can be no doubt that the words of the entry itself amount to the fullest acknowledgement of plaintiff's right to redeem, and the only question is whether it is signed by the defendants, or by an agent 'generally' or specially authorised on their behalf. It is not very material whether the actual signatures to the Muntakhib and pedigree-table are defendants' or not; for if they are not, there can be no doubt that they were made by some one else, probably a settlement official acting for them with their full authority". Reliance has next been placed on Jeba v. Chaman, 16 Pun Re 1891, the head note of which reads thus: "in a suit for redemption of mortgage, it appeared that in a similar suit for redemption brought in 1860, one of the present defendants and the father of the other, made one statement in which they acknowledged that they held the land on mortgage. At the end of this statement was a mark of the pen under the words 'alabd muzhir', and the names of the deponents were written at the head of the statement. Held, that this was a sufficient acknowledgement in writing signed by the mortgagees within the meaning of S. 19, Limitation Act, 1877. " For their decision in this case reliance had been placed by the learned Judges on Ram Ditta v. Ibrahim-ud-din, 122 Pun Re 1889 and 145 Pun Re 1889. In Dasaundhi Ram v. Mool Chand, AIR 1933 Lah 12, Tek Chand J. who wrote the main judgment, approvingly referred to 122 Pun Re 1889, and observed that there was ample authority for the proposition that the signature of the debtor need not appear at the foot of the acknowledgment, but his name written, either by himself or at his dictation, at the top of the document, was sufficient as an acknowledgment.;