Bapuji and Others vs Kukaji and Others

Chaturvedi, J.—This is second appeal file (sic) Defendants Nos. 1 to 4 in a suit for red (sic) filed by the Plaintiffs against them. The (sic) Defendants 5 and 6 are the original owners of (sic) house in dispute and the fact is not disputed (sic) on 2-8-1935 they had mortgaged their (sic) Defendants Nos. 1 to 4 for a sum of Rs. (sic) The Plaintiffs thereafter purchased the (sic) from the Defendants 5 to 6 on 17-1-1944 for (sic) of Rs. 500/- by a registered sale-deed. The (sic) tiffs then offered the mortgage-money Rs. (sic) the Defendants but as they refused to acc (sic) money the Plaintiffs filed this suit for reder (sic) of the mortgage. The suit was not resis (sic) the original mortgagors-Defendants 5 and 6 (sic) whom the proceeding were ex parte.

Defendants 1 to 4 who are the Appellant (sic) Court resisted the suit on the ground that (sic) the mortgage of 2-8-1935 in their favour, the (sic) gagor on 17-9-1936 sold the equity of rede (sic) by means of a document which had not (sic) gistered and the total sum advanced by (sic) the mortgagors was at that time Rs. 242-8 (sic) trial Court held the view that though the (sic) ment of sale of equity of redemption was (sic) sorily registrable under the Gwalior Regi (sic) Act, yet Section 53A, Transfer of Property Act (sic) the Defendants in resisting the suit. It, (sic) dismissed the Suit. The first appellate Court reserved the decree and judgment on the ground that the consideration for the document of 17-9-1936 has not been proved and as the document was compulsorily registrable under the Gwalior Registration Act, Section 53A cannot help the Defendants as at that time the Transfer of Property Act was not applicable in Gwalior State. The Defendants Nos. 1 to 4 have now come in second appeal before this Court.

Mr. Pancholi, on behalf of the Appellants, places reliance on - Milkha Singh v. Mst. Shankari AIR 1947 Lah 1 (FB) (A), which is a decision of five Judges'' Full Bench of the Lahore High Court which hold that Section 53A, Transfer of Property Act is based on the equitable principles which were previously applicable to the whole of India, and though the Transfer of Property Act was not in force in the Punjab still the position (sic) respect of the defence of part performance is exactly the same as in the provinces where the transfer of property Act was in force. I need not (sic) other rulings, but so far as the Gwalior sate territory of Madhya Bharat State is con- (sic) the (sic) in Section 53A had been even before (sic) the judicial Committee''s(sic) 367 (sic) that the principle of (sic) applicable to this part of (sic) State.

But this alone cannot solve the problem in this case; for, the proviso to Section 53A is important which is as follows:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

I agree with Justice Mackney in - ''Ko Mar v. (sic) May'' AIR 1935 Rang 12 (C), that from the (sic) cording of the section it is clear that it is for (sic) person claiming benefit of the doctrine of part (sic) performance to show that the transferee, who (sic) herwise has a legal title, had notice of the con-(sic) act or of the part performance thereof. In the (sic) sent case there was in fast no reason why the (sic) Plaintiffs should have made any inquiries as to in (sic) the Defendants 1 to 4 were in pos-(sic) of the house. It was very well known that (sic) were usufructuary mortgagees and as such (sic) the registered mortgage-deed their posses-(sic) must have been in that capacity. I do not (sic) that the Plaintiffs were bound to make (sic) perching inquiries through their spies as to whe-(sic) or not under some purdah-ridden arrange-(sic) the equity of redemption had been sold to (sic) mortgagees under some unregistered sale-deed.

(sic) Section 53A in my opinion lays down that the (sic) feree must show that in part performance of (sic) contract some overt or rather express act has (sic) done. When the usufructuary mortgagees (sic) already in possession of the house, they are (sic) to show two things in such matters: first, (sic) some overt or rather express act had been (sic) furtherance of the sale, and secondly, (sic) vendee for consideration had notice of (sic) tract or of the part performance thereof. (sic) Defendants failed to establish both these (sic).

I need not go into the question whether the (sic) redeem" possessed by the mortgagor is (sic) or an intangible property. But one (sic) certain that it is not capable of easy ac-(sic) to the mortgagee. The interest which (sic) can transfer when the mortgage is (sic) cannot be regarded as identical with the property; and so in cases of sale of equity of redemption in a usufructuary mortgage if the mortgagee pleads part performance he must show some distinct overt act (besides his possession which he had as usufructuary mortgagee) in furtherance of the contract. He may show that a declaration in a Panchayat renouncing his rights in the property was made by the mortgagor and that the name of the mortgagee was got recorded in Record of Rights or in a relevant Register of the Municipality, as the case may be. Nothing of the sort has been done in this case.

I also agree with the learned District Judge that the unregistered document is tainted with suspicion. When the mortgage-deed had been registered what was there to prevent the Defendants 1 to 4 to get the subsequent document (which was a sale-deed) also to be registered? This unregistered document is dated 17-9-1936. It recites that Bhuwan borrowed Rs. 242/8/- from Bapuji and had sold his house which was already mortgaged to Bapu. It was necessary to have produced either Bhuwan or Bapuji'' to prove consideration but none of them has been produced. Bhuwan is dead but his brother Lachhman says that Bhuwan had not agreed to sell, nor he had taken any money. Then there are two attesting witness who are alleged to have been dead so the consideration could not be proved by any unimpeachable evidence; Jhunnulal comes as a scribe but the document does not show that he had written it. He deposes that Rs. 200/- were not paid in his presence. He also says that the attesting witnesses had not signed it in his presence. I agree with the learned District Judge that Kunwarlal is a chance witness who has been produced in order to patch up the weak points and as the document does not itself indicate his presence when it was executed, his statement fourteen years after the execution cannot be relied upon. No explanation is forthcoming why Bapu Defendant who is alleged to have paid Rs. 200/- to Bhuwan did not come to the Court as a witness. In these circumstances so far as the payment of consideration is concerned I do not think that it will be proper for me to take any view different from that taken by the first appellate Court. I, therefore, dismiss the appeal with costs.