Arab Ali vs Farid Ali Barlaskar

Mehrotra, J.—This is defendant''s appeal arising out of a suit for redemption. Plaintiff-respondent brought a suit for redemption of an Ijara (usufructuary) mortgage. The plaintiff''s case is that on the 4th February 1954 he executed a usufructuary mortgage in favour of the defendant in respect of 3 kedars of land for Rs. 200/-. Out of the usufruct the defendant was to adjust Rs. 12/- per annum towards the principal and the plaintiff was entitled to redeem the mortgage after expiry of three years, giving credit to Rs. 36/-. After the expiry of the period of three years he offered Rs. 164/- to the defendant who refused to accept the same.

Thereupon the plaintiff made a deposit u/s 83 of the Transfer of Property Act, but the defendant refused to accept the amount and vacate the land. On these facts the present suit for redemption of the land described above has been brought on payment of Rs. 164/-. The defence taken was that the plaintiff was insane and his daughter contracted to sell the land including the suit land to the defendant for Rs. 4,000/-. A sum of Rs. 1,000/- was actually paid to the plaintiff''s party but as the plaintiff''s party was to obtain a certificate from the District Judge, the matter was delayed. Thereafter the defendant paid Anr. sum of Rs. 200/- and obtained possession of the land.

The defendant claims to'' be in possession of the property not as a mortgagee but in part performance of the contract of sale and in the alternative the defendant claimed that the plaintiff was; not entitled to get possession without payment of; Rs. 1,200/-. The courts below held that the mort gage has not been denied by the defendant. In the written statement filed in the proceedings u/s 83 of the Transfer of Property Act the defendant never denied the existence of the mort-gage. The defendant further failed to prove that he was in possession in part performance of the contract for sale. The defendant''s allegation that plaintiff was insane was also repelled by the court below. The courts below found on these facts that the defendant was in possession under the mortgage and decreed the suit for redemption.

In the present appeal it is contended that the plaintiff himself filed a certified copy of the mortgage which had no signature of any attesting witness nor that of any scribe appearing on the document. There was therefore no mortgage and the plaintiff was not entitled to any decree without the proof of the mortgage. Section 59 of the Transfer of Properly Act lays down that

where the principal money seemed is one hundred rupees or upwards, a mortgage, other than a mortgage by deposit of title-deeds can he effect-ed only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

The plaintiff respondent has contended that u/s 68 of the Evidence Act if a document is required by law to be attested, it will no doubt be not used as evidence until one, attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. But there is a proviso to Section 68 which lays down that

it shall not be necessary to call an attesting witness in proof, of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.

In the present case the execution of the mortgage was never specifically denied and it cannot be disputed that in the written statement filed in the proceedings u/s 83 of the Transfer of Property Act the existence of the mortgage was admitted. It was therefore not necessary to call an attesting witness to prove the document. It was however urged by the defendant that when the suit was brought on a particular mortgage, unless the proper evidence was produced to prove the mortgage, no decree could be given for redemption on the admission of the defendant. Reliance was placed on the case of Krishna Pillai v. Rangasami Pillai, ILR 1918 Mad 462. It was held in that case that

the plaintiff having failed to establish the kanom on which the suit was based should not have been allowed to fall back upon some other as to which the defendants had made the admissions in question.

In that case there was a clear finding that the plaintiff had failed to prove the genuineness of the document on which he had relied for relief of redemption and the suit was thus dismissed and no decree given on the admissions made by the defendant. In the present case it cannot be said that the mortgage alleged by the plaintiff has been held to be fictitious. Reliance was then placed on the case of Ratan Kuar v. Tiwan (sic) All 194 (FB). In this case the plaintiffs brought a suit on the allegation that their ancestors had mortgaged three villages to the defendants'' ancestors for Rs. 500/- putting the into possession. The defendants admitting the proprietary title of the ancestor of the plaintiffs to the villages alleged that 10 biswas of each village had been sold to their ancestors and the remaining 10 biswas of each village were subsequently mortgaged to their ancestors for Rs. 14.000 -- and the money (sic) due. It was held by a majority of the Full Bench that

the plaintiffs, having failed to prove the averments on which their suit was based, were not entitled to any relief in respect of that portion of the property in suit of which the defendants admitted their possession as mortgagees.

The next case referred to by the plaintiff is Sheo Prasad v. Lalit Kuar, ILR 18 All 403 wherein it was also held that

the plaintiffs were not entitled in that suit to a decree for redemption of other mortgages which might be found to subsist between the parties, but which formed no part of the cause of action upon which the plaintiffs came into court.

Reliance was also placed on the case of Sheikh Bhukhan Mian Vs. Srimati Radhika Kumari Debi and Another, In this case it was held that

where a written mortgage deed is inadmissible in evidence for want of registration, the rights of the parties have to be determined in the absence of such deed;'' although such deed could be used for any other collateral purpose, yet if it sought to prove the rights of the mortgagor to redeem, the purpose will not amount to collateral purpose but will be tantamount to proving the contract between the parties which is prohibited by statute.

The counsel for the respondent relied upon the case of Kailash Rai Vs. Mt. Jaga Kuer, wherein it was held that

although the specific terms of the mortgages were not proved, the finding that the plaintiff had title to the trees and the defendants were the mortgagees of the same, coupled "with the fact that the defendants did not prove their title otherwise, was sufficient to enable the plaintiff to redeem.

The Allahabad cases referred to above were considered in this case. Having considered these authorities, in my opinion the decision will depend on the facts of each individual case. The plaintiff here has come forward with the definite case that the mortgage was executed by him in favour of the defendant. He has produced a certified copy of the mortgage deed. The plaintiff has stated about the mortgage and its terms. The defendant never denied the existence of the mortgage. Under these circumstances it cannot be said that the plaintiff has failed to prove the mortgage and the burden has not been discharged by him and that he was not entitled to any decree for redemption.

4 The most formidable argument however on behalf of the defendant is that the certified copy'' of the mortgage deed filed by the plaintiff at a later stage shows that it bears no signature of any attesting witness. There was therefore, no mortgage at all in the eye of law in view of the mandatory provision of Section 59 of the Transfer of Property Act and no decree could be given to the plaintiff on the basis of an invalid mortgage, or, in effect the argument was that there being no mortgage as alleged by the plaintiff, he was not entitled to get any decree for redemption.

In reply to the contention of the appellant it is urged by the counsel for the respondent that when the execution is not denied, there will be a presumption that the mortgage was properly attested and there was a valid mortgage. This may be a valid argument provided the mortgage deed had not been produced before the court. If, there was no specific denial of the proper execution of the mortgage, the presumption that the mortgage deed was properly attested could have been availed of by the plaintiff. But in the present case the mortgage deed was produced by the plaintiff. It bore no signature of the attesting witnesses.

It could not therefore be aruged by the plaintiff that there was a valid mortgage. The appellant''s counsel relied upon the case of R. M. A. R. M. Chettiar Firm v. U Htaw AIR 1933 Ran 6, where in it was held that

the proviso to Section 68 only removes the necessity of calling an attesting witness to prove the execution of the documents therein referred to and does not purport to relieve the party of the necessity of proving a mortgage in the form prescribed u/s 59, T. P. Act.

The counsel for the respondent has referred to the case of Munshi Ram v. Baisakhi Ram, AIR 1947 Lah 335 wherein it was held that where the defendant admits his possession as the mortgagee and is willing to restore the possession on payment of the mortgage money, the question of admissibility of the mortgage due to non-registration does not arise and the redemption suit is maintainable. It was also held however in this case as follows :

In a suit brought in order to enforce the very right conferred upon the mortgagor by this clause, it is evident that the unregistered document cannot be said to be usable for any collateral purpose, at least in relation to this clause. But such a document merely; reciting that a mortgage has been created may be looked at for the purpose of explaining the possession of the mortgagee.

Considering the provisions of Section 59 of the Transfer of Property Act, in my opinion when the deed is before the court and the court finds that the deed was not attested at all, there was no valid mortgage at all in the eye of law and the question of the admissibility of the document will not arise; nor can it be said that as the duo execution of the mortgage has been admitted, the court can ignore the deed relied upon by the plaintiff and hold that the mortgage is valid even though the deed bears no signature, of an attesting witness.

The next question however which requires consideration is that even if the mortgage deed was not valid, could the plaintiff be allowed to sue on the Basis of title and recover possession of the property from the defendant who has failed to prove his title to the property? Mr. Singh who appears for the appellant contends that the plaintiff claimed for a decree for redemption on the basis of the mortgage. He cannot now be allowed to amend his pliant and get a decree on the basis of his title, He has referred to the following cases in support of his contention:

Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 PC 249, Pitram v. Lalit Chandra AIR 1951 GAU 68, U Naing v. Ko Sein AIR 1938 Ran 125 and Tohlu Mai v. Buta AIR 1921 Lah 53. These cases, to my mind, are distinguishable from the facts of the present case. It cannot be doubted that under Order 6 Rule 17 C. P. C. no amendment of the plaint can be allowed if it changes the nature of the suit. But a suit for redempption on payment of the mortgage money is in effect a suit for possession of the property on the basis of the title offering to pay the mortgage money and if the plaintiff in the present case is allowed a decree on the basis of his title, it cannot be said that the nature of the suit has changed. It is not disputed that the plain tiff has title to the land.

In view of the allegation of the plaintiff that the defendant was in possession as a mortgagee, his possession cannot be adverse to that of the plain-tiff. In fact he never claims any right to the property by adverse possession. The contention of the defendant was that he was in possession in part performance of the contract. On the findings arrived at by the courts below that the defendant has failed to prove the alleged contract and that he has further not succeeded in proving that he advanced Rs. 1200/-to the plaintiff, his possession cannot be maintained.

In the case of, Ma Kyi v. Maung Thom AIR 1935. Rang 230 referred to by the counsel for the appellant, a suit was brought by the owner of certain land for the possession of the property on redemption of a usufructuary mortgage. It was, found that the mortgage was for over Rs. 100/-and not being registered was not admissible in evidence. In these circumstances it was observed by the Full Bench as follows:

Where a usufructuary mortgage for over Rs. 100 is not registered, a suit by the owner for the possession of the property on redemption is not competent as the plaintiff pleads and relies on an oral mortgage nor are the defendants entitled to prove the alleged mortgage for an additional sum.

The proper course for the plaintiff; would be to sue for possession relying on his title which was not and could not be disputed. To such a suit there cannot be any defence, for the only ground upon which the defendants can have claimed to remain in possession would be based, upon the alleged rights which they had acquired under the oral mortgage on which it is not permissible for them to rest their tide and which could not be proved.

In my opinion therefore there is no force in this appeal and it must be rejected but as I am rejecting the appeal on a ground different from the one on which the courts below decreed the suit, the parties will bear their own costs in this appeal.

H. Deka, J.

I agree.