Sheodhyan Singh and Others v. Musammat Santchara Kuer and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 497 of 57

Decision Date: 4 May, 1961

Coram: K.N. Wanchoo, P.B. Gajendragadkar

In the case titled Sheodhyan Singh and Others versus Musammat Santchara Kuer and Others, the judgment was delivered on 4 May 1961 by the Supreme Court of India. The opinion was authored by Justice K.N. Wanchoo, who was joined by Justices P.B. Gajendragadkar and K.N. Wanchoo on the bench. The petitioners in the proceeding were Sheodhyan Singh and several others, while the respondents were Musammat Santchara Kuer and a group of co‑respondents. The citation for the decision appears as 1963 AIR 1879 and 1962 SCR (2) 753. The central issue involved a final decree of sale in a mortgage suit and the accompanying sale certificate wherein the property was fully described but the plot number was incorrectly recorded. The appellants argued that the decree could not stand because of this error, asserting that the decree should be void for misidentifying the property.

The High Court, prior to this appeal, had examined the discrepancy and concluded that the number “160” appearing in the final decree and the sale certificate was a mistake for the correct number “1060.” The court observed that there was no plot numbered 160 in the specific khata, and that despite the erroneous numeral, the description of the land was sufficient to identify the property unambiguously. Accordingly, the High Court classified the situation as one of misdescription rather than a dispute over the identity of the land. In a separate matter concerning another plot, the respondents sought subrogation on behalf of second mortgagees, claiming that the first mortgage had been redeemed by the second mortgagees. The court noted that the mortgage deed of the second mortgagees made no reference to the earlier mortgage and that no consideration had been paid to effect a redemption. Consequently, the High Court held that the claim of subrogation could not be entertained without a contractual stipulation providing for it. On appeal, the Supreme Court affirmed the High Court’s reasoning. The Court held that the High Court was correct in determining that the error in the plot number constituted a misdescription, and because the identity of the property was clearly established by the remaining description, the appellants’ contention failed. The Court cited earlier decisions such as Thakur Barhma v. Jibon Marware (1913) L.R. 41 I.A. 38 and Gossain Das Kundu v. Mrithujoy Agran Sarda (1913) 18 C.L.J. 541 in support of its view, while distinguishing Rambhadra Naidu v. Kadiruja Sami Naicker (1921) L.R. 48 I.A. 155. Regarding subrogation, the Court agreed that in the absence of an explicit agreement conferring a right of subrogation in the second mortgage, the claim could not be raised. The judgment was rendered in the Civil Appellate Jurisdiction as Civil Appeal No. 497 of 1957, arising from a decree dated 10 October 1955 of the Patna High Court, which itself was an appeal from Original Decree No. 483 of 1947. Counsel for the appellants were L.K. Jha and P.K. Chatterjee, while the respondents were represented by A.V. Viswanatha Sastri and R.C. Prasad. The Court’s order affirmed the lower court’s findings and dismissed the appeal.

The defendants had obtained a mortgage bond and, on that basis, had instituted a suit in 1932. The suit was decided against the appellants, and after the decree the other defendants acquired the mortgaged property when it was sold by auction in execution and they purchased it in 1936. Following this purchase, those defendants were placed in possession of the property by order of the court. They continued to hold the property and, in 1943, they sold the land to the respondents. The respondents then took possession of the land. From 1942 onward the appellants started creating disturbances. After the sale to the respondents, the appellants engaged in further misconduct that resulted in criminal proceedings under section 144 of the Code of Criminal Procedure, and the court ordered that the appellants were not to approach the disputed property. Subsequently, the appellants were bound by section 107 of the Code of Criminal Procedure to keep the peace. In 1945 a murder occurred in connection with the property; some of the appellants were tried before the court of session but were acquitted. Additional conflicts over the cultivation of the plots also arose in 1945. After their acquittal, the appellants forcibly entered the property and expelled the respondents. Consequently, the respondents instituted a suit in July 1946 to recover possession, and that suit gives rise to the present appeal. The respondents’ suit was contested on many grounds, but those grounds are not the subject of the current appeal. The only issue raised before the Court by counsel for the appellants concerned three of the ten plots that formed the subject matter of the suit. The trial court accepted the respondents’ case, granted them possession of the land and ordered that mesne profits would be fixed later. The appellants appealed to the High Court; the High Court dismissed the appeal except with respect to one plot, where it dismissed the respondents’ suit. Because the decree was partly varied, the High Court issued a certificate, and the present appeal came before this Court.

The counsel for the appellants limited his arguments to three specific plots, identified as numbers 1060, 427 and 1128, which were among the ten plots in dispute in the lower courts. He contended that, irrespective of any other considerations, the lower courts erred in granting possession of these three plots to the respondents. Accordingly, this Court will consider only the contentions relating to those three plots. Regarding plot number 1060, the appellants argue that the plot was neither listed in the final decree that authorized the sale in favour of the respondents’ predecessors‑in‑interest nor mentioned in the sale certificate. On that basis, they assert that the plot could not be the subject of a decree granting possession to the respondents.

The Court observed that the lower courts were not empowered to issue a decree in favour of the respondents concerning plot number 1060 because that plot did not appear in either the final decree for sale or in the accompanying sale certificate. The final decree listed ten plots and, for each plot, specified the Tauzi number, the Khasra number, the Thana number, the Survey number, the area and the boundaries. Among those ten entries the decree recorded a plot identified as number 160, but there was no entry for a plot numbered 1060. The sale certificate reproduced the same ten plots and, similarly, set out for each the khata number, the plot number, the area and the boundaries. In the certificate as well the number 160 appeared and the number 1060 was absent. The High Court therefore held that the reference to plot 160 in both the final decree and the sale certificate was a clerical mistake and should be read as plot 1060. It further concluded that this mistake constituted a misdescription rather than a dispute over the identity of the land, because the identity of the plot referred to in the decree and the certificate was not uncertain. The Court pointed out that the khata number, the area and the boundaries given in the final decree correspond exactly with the khata number, the area and the boundaries of plot 1060. It also noted that the writ of delivery of possession to the respondents’ predecessors and the sale deed executed in favour of the respondents both correctly identified the plot as 1060. Moreover, the Court observed that no plot bearing the number 160 exists in khata number 97. Consequently, because the khata number, the area and the boundaries match plot 1060, the Court held that the identity of the land was clear and that the only error was the omission of a zero in the plot number in both the decree and the certificate. In support of this view, counsel for the appellants relied on the decision in Rambhadra Naidu v. Kadiriyasami Naicker, where it was held that sale certificates are documents of title that should not be lightly disregarded or loosely interpreted, and that when a purchaser receives a sale certificate that plainly includes certain property and takes possession, a later suit by the mortgagor’s representative cannot revert to the original mortgage deed to claim that the property was not sold under the decree. The Court, however, noted that the facts of that precedent were materially different from those of the present case. In the earlier case the mortgage covered pannai lands that were, at the time of the mortgage, in the mortgator’s enjoyment, but some of those lands were not in his possession when the mortgage was created; later, during execution, the lands were sold and the purchaser obtained possession, and the Privy Council held that it was not possible to revert to the mortgage deed to determine what had been sold, also invoking section 47 of the Code of Civil Procedure to bar a suit. In the present appeal, counsel for the respondents does not seek to go beyond the sale certificate and the final decree for sale, contending instead that the issue is merely a clerical misdescription that does not affect the substantive rights of the parties.

In the earlier case the execution proceedings were instituted after a mortgage decree. At the time the mortgage had been executed, the individual who occupied certain pannai lands was deceased. Consequently, the final decree and the subsequent execution proceedings directed that all pannai lands belonging to the mortgagor and enjoyed by him were to be sold. The mortgagor contested the sale, asserting that some of the pannai lands lay outside the mortgage and therefore should not have been subject to sale. The objection was rejected, and the court ordered the sale of every pannai land, which was then recorded in the sale certificate and handed over to the purchasers. Under these facts the Privy Council ruled that it was impossible to revert to the original mortgage deed to determine precisely what had been sold, and it further held that, pursuant to section 47 of the Code of Civil Procedure, no further suit could be maintained in the circumstances.

In the appeal presently before the Court, counsel for the respondents does not seek to look beyond the sale certificate and the final decree of sale. Their argument is limited to the claim that the two documents contain a simple misdescription of the plot number, and that the true identity of the plot sold can be ascertained from the surrounding circumstances already set out. To support this position the respondents rely on the precedent set in Thakar Barmha v. Jiban Ram Marwari (2). In that earlier case the judgment‑debtor owned a mahal in which a ten‑annas share was mortgaged while the remainder was free of encumbrances. A creditor obtained attachment and ordered the sale of six annas share out of the mortgaged portion. When the purchasers of the auctioned property applied for a sale certificate, they alleged that a mistake had been made in the schedule of the property to be sold: the word “not” had been omitted, and they argued that the property should have been described as six annas not mortgaged. The executing court allowed this prayer, but the appeal to the High Court was dismissed. Upon further appeal, the Privy Council held that, in a judicial sale, only the property that has been attached may be sold and that the property is conclusively described by the schedule to which the attachment refers, namely the six‑annas share subject to an existing mortgage. The Privy Council allowed the appeal and observed that a case of misdescription could be treated as a mere irregularity, but stressed that the case before it concerned a question of identity rather than misdescription. It was pointed out that a property fully identified in the schedule may be inaccurately described in certain respects, which would constitute a different situation. Accordingly, the effect of that decision is that where the identity of the property is not in doubt and only the description is erroneous, the error may be treated as a simple procedural irregularity. Another case on which reliance has been placed on behalf of the respondents is Gossain Das.

In the earlier decision of Kundu v. Mrittunjoy Agnan Sardar (3), the Court observed that the land which had been sold was described by reference to its boundaries and its area, although the stated area was later found to be inaccurate. The Court classified that situation as a misdescription of the area and held that the description of the boundaries would prevail over the erroneous measurement. The Court in the present matter considered the present facts to be analogous to a misdescription case. It noted that the area, the khata number and the boundaries all pointed to plot number 1060, and that the only error was the omission of a single zero when the number was recorded, resulting in the number 160 being written instead of 1060. Moreover, there was no plot bearing the number 160 in khata 97. In view of these circumstances, the Court agreed with the High Court’s finding that the error amounted only to a misdescription and that the identity of the property remained clearly established as plot 1060.

The Court further explained that the result might have been different if the final decree for sale and the sale certificate had contained only the plot number without any reference to the boundaries. However, because both the boundaries and the plot number were provided, and because the surrounding facts were similar to the present case, the mistake in recording the plot number was to be treated as a mere misdescription that did not affect the identity of the property that had been sold. Consequently, the appellants’ claim concerning that plot could not succeed.

The Court then turned to the historical mortgage transactions affecting the plot. It recorded that the plot had originally been mortgaged together with two other plots in the year 1920 for a sum of Rs 400. Subsequently, in 1927, the mortgagor had granted a usufructuary mortgage over this same plot, together with several others, to Ramzan Mian and another mortgagee for a consideration of Rs 2,500. The deed of that mortgage did not indicate that any money had been retained by the mortgagees for the purpose of redeeming the plots that were mortgaged to the other defendants. The Court found that, shortly after the mortgage to Ramzan Mian was executed, the earlier mortgage in favor of the other defendants was redeemed by the payment of the amount due to them, a payment that was made through Nizam‑ud‑din and Shams‑ud‑din. It was asserted that this payment had been made on behalf of Ramzan Mian, thereby subrogating Ramzan Mian and the other mortgagee in the position of the former defendants with respect to the plot in question.

It was further urged on behalf of the appellants that Ramzan Mian and the other mortgagee had not been made parties to the suit filed in 1932, and that there was no evidence on record to show that, at the time the suit for the sale of ten plots was brought in 1932, the mortgage created in 1927 in favor of Ramzan Mian and the other mortgagee had been redeemed. Accordingly, the appellants argued that the purchasers in the execution proceedings of that 1932 suit could acquire the property only subject to the mortgage held by Ramzan Mian and the other mortgagee, and therefore could not dispossess the appellants if the appellants were in possession of the plot through those mortgagees.

In response, counsel for the respondents contended that, with regard to the appellants, their right and title in the plot had been wholly extinguished and that the appellants were not entitled to invoke any subrogation claim arising from the mortgage that had been redeemed by Ramzan Mian and the other mortgagee.

In this case the Court observed that the appellants could no longer assert any right over the plot because the mortgage on which they sought to rely had already been redeemed by Ramzan Mian and another. Consequently the appellants were not entitled to claim any right of subrogation in respect of that mortgage. The Court further noted that the record did not contain any evidence showing that, at the time the suit was instituted in 1932, the mortgage created in favour of Ramzan Mian and another was still in existence, nor that the appellants were occupying the land on behalf of those parties. As a result, the appellants could not advance a claim for possession of plot No. 427. Even assuming that Ramzan Mian and another possessed a surviving claim, they could enforce that claim against the respondents in accordance with law, but the appellants themselves could not use that claim to defeat the respondents’ case. The Court expressed that the submissions advanced on behalf of the appellants were without merit. It first explained that it was difficult to comprehend how the appellants could raise a question of subrogation on behalf of Ramzan Mian and another. Secondly, the Court pointed out that subrogation could arise only if the 1920 mortgage deed contained an express agreement indicating that Ramzan Mian and another would be subrogated after they redeemed that earlier mortgage. No such clause was found in the 1927 mortgage deed in their favour; the deed made no reference at all to the earlier mortgage. In the absence of any such agreement, the Court concluded that no subrogation could be said to exist, even if the appellants had attempted to raise the issue before the Court on behalf of Ramzan Mian and another.

The Court then turned to the argument that because Ramzan Mian and another had not been made parties to the mortgage suit, their rights remained unaffected and that, if the appellants held the land from them, they would be entitled to possession and could not be dispossessed. The Court clarified that this line of argument could succeed only if it were established that the 1927 mortgage was still subsisting when the 1932 suit was filed. However, the evidence on record did not demonstrate that the mortgage of Ramzan Mian and another was in force in 1932, and the Court could not determine that fact. Moreover, the High Court had found that, by 1935, the appellants were indeed in possession of plot No. 427. Given the lack of positive proof that the 1927 mortgage continued to exist in 1932 and that the appellants were occupying the plot on behalf of Ramzan Mian and another, the Court could not hold that the mortgage was subsisting at that earlier date. Accordingly, the appellants were unable to resist the respondents’ claim for possession of the plot, and the Court dismissed the appellants’ contention regarding plot No. 427.

The Court observed that the appellants had offered no documentary or testimonial evidence to show that they were occupying plot number four hundred twenty‑seven on behalf of Ramzan Mian and another party. Because the record contained no proof of such a relationship, the Court determined that the appellants could not rely on the ground that they held that plot for the said mortgagees. Consequently, the Court held that the appellants’ contention with respect to plot number four hundred twenty‑seven must fail and no right to possession could be asserted on that basis. The Court then turned to the question of plot number one thousand one hundred twenty‑eight, noting that the factual position was essentially the same as for the earlier plot. The appellants again failed to produce any evidence establishing that they held the second plot on behalf of Ramzan Mian and another, and the Court therefore treated the two matters as identical. On that basis, the Court concluded that the appellants’ contention concerning plot number one thousand one hundred twenty‑eight must also fail for the same reasons. Since no additional points or arguments were raised before the Court, it found that there was no remaining issue to be decided in the appeal. The Court therefore held that the whole appeal could not succeed, dismissed it, and ordered the appellants to pay the costs of the proceedings. The final order expressly stated that the appeal was dismissed.