Bishun Singh and Others vs Sheodhari Das and Others

Agarwala, J.—This appeal is by defendants 1st party. The facts are that Khata No. 61 belonged to Jeolal Gir, the ancestor of defendants 2nd party. He gave the land in oral mortgage to Bundi Singh, the ancestor of defendants 1st party. The plaintiffs alleged that defendants 2nd party had settled the land with them for Rs. 1000 of which Rs. 600, was left with them to redeem the oral mortgage of defendants 1st party. The plaintiffs deposited the mortgage money u/s 83, T.P. Act, but having failed to obtain possession from the defendants, instituted the present suit for possession. The Courts below have granted the plaintiffs a decree, but in appeal it is contended on behalf of defendants 1st party that the case is governed by the decision of the Court in Bhukhan Mian v. Radhika Kumari Debi AIR 1938 Pat. 479

The suit is in effect one to redeem the oral mortgage. It is necessary, therefore, for the plaintiffs to establish that they are mortgagors and that they are entitled to redeem. The only proof that the plaintiffs are mortgagors is the defendants'' admission and an entry in the record of rights that the defendants were in possession as mortgagees. As to the entry in the record of rights, that is merely an entry of what the survey authorities regarded as the legal status of the defendants. If the facts show that they do not possess that legal status, the entry in the record of rights will not confer it. So far as the admission relied upon by the plaintiffs is concerned, it amounts only to this that the defendants were put in possession as mortgagees under an oral mortgage for a consideration of Rs. 600. If an admission is sufficient to create a mortgage, then this admission must have that result. But since the decision of the Privy Council in Ariff''s case AIR 1931 79 (Privy Council) that the requirements of a statute cannot be got over by application of the doctrine of part performance, it is idle to contend that the requirements of Section 59, T.P. Act, can be evaded in this way. Section 59 declares that a mortgage for a consideration of Rs. 100 or more must be by a registered instrument. Admittedly, in this case, there was no instrument either registered or otherwise. There could, therefore, be no mortgage and the defendants'' admission is insufficient to create what the statute prevents. The Court below was referred to an earlier decision of this Court in Rajpati Rai v. Mt. Sukwaro Kuer (21) 63 I.C. 400 where it was observed that:

the mortgagee took possession of the property under invalid deeds and it was for him to have proper and valid deeds executed in his favour. The principle once a mortgage always a mortgage must apply and the mortgagee cannot be in any other position but that of a mortgagee and cannot be permitted to resist the redemption by the mortgagor.

If I may respectfully say so, the reference to the principle once a mortgage always a mortgage begs the whole question. The statute requires a registered instrument for the creation of a mortgage when the amount of the consideration is Rs. 100/-or more. Where there is no registered instrument, there is no mortgage, and therefore the principle once a mortgage always a mortgage has no application.

But, as I have observed above, this case is governed by the decision in AIR 1938 Pat. 479 The facts were that an ejectment suit was instituted upon the allegation that the plaintiff had redeemed certain mortgages of 1921 by depositing the mortgage money in 1932. The defendant denied that he was a mortgagee and contended that he was a lessee. The documents evidencing the transaction between the parties were admittedly inadmissible for want of registration. It wag held that the question to be decided was not the nature and character of the possession of the defendant but the terms on which the defendant held the land and that the plaintiff being unable to prove that he was a mortgagor as the unregistered instruments were inadmissible for that purpose, the suit must fail and he was not entitled to take advantage of the fact that the defendant had sought to use the documents for the purpose of proving his contention that he was a lessee. The present case is very much stronger, there being no document of any kind at all. The appeal must, therefore, be allowed, the decisions of the Courts below set aside and the plaintiff''s suit dismissed with costs throughout.