SMT. DILBOO (DEAD) BY LRS. AND ORS. versus SMT. DHANRAJI (DEAD) AND ORS.

Citation: [2000] SUPP. 3 S.C.R. 214 · Decided: 12-09-2000 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 
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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 execute

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