Lakka Devassya vs Eapen Thomman

Subramania Iyer, J.—The obstructor to delivery of certain Immovable property in execution of a decree for redemption of a mortgage seeks revision of the order passed by the Court below dismissing his petition. The Plaintiff-decree-holder is the Respondent. He mortgaged the property in favour of Defendant 1 who gave two sub-mortgages of different parcels in favour of Defendants 5 and 7. He assigned his equity of redemption and also the right over the two cocoanut trees which were excluded from the sub-mortgages, to one Raman Nair. The document was executed a few days before, but was registered only some time after the suit was filed. The Petitioner is the transferee from Raman Nair of his rights under the aforesaid sale deed. As such purchaser the Petitioner paid off the sub-mortgages to Defendants 5 and 7 and obtained possession obviously after the suit. The Court below found against the Petitioner on the ground that though the deed of transfer in favour of Raman Nair of the rights of Defendant 1 was a few days before suit, having been registered only subsequent thereto, it came into effect only from the date of registration, that is during the pendency of the suit. The Court below is wrong in its view that the operation of a document commences only from the date of its registration and not before. Section 40, Travancore Registration Act, 11 of 1087 (Corresponding to Section 47 of the Indian Act) provides that:

A registered document shall operate from the time from which it would have commenced to operate, if no registration thereof had been required or made, and not from the time of its registration.

If a document is registered, it takes effect not from the date of registration, but from the date, of its execution, though it may not take effect at all if it be compulsorily registrable and be not registered. Learned Counsel for the Respondent says that the document not having been registered before suit, it was not possible for the Plaintiff to know about the transaction and implead the transferee. While appreciating the difficulty of the Plaintiff, the operation of the law cannot be avoided to accommodate a Plaintiff or any other party whatever may be their difficulties or inconvenience. The decree passed in the suit for redemption of the mortgage given by the Plaintiff in favour of Defendant 1 cannot bind the transferee Raman Nair and cannot, therefore, bind Raman Nair''s transferee who is the Petitioner. Neither had the Court jurisdiction to pass the decree as the mortgage sought to be redeemed was not represented in the suit because though the mortgagee was impleaded as Defendant 1 he had, as already found parted with all his rights before the date of suit and the transferee was not on record.

Learned Counsel for the Respondent further contends that possession of the properties having been secured by the Petitioner from the sub-mortgagees, Defendants 5 and 7, after the suit, that transfer of possession is vitiated by ''lis pendens'' and therefore the Petitioner is not entitled to obstruct delivery of possession to the Plaintiff-Respondent. The answer to this contention given by learned Counsel for the Petitioner is that the suit was for redemption of the mortgage in favour of Defendant 1 and was not and could not be for the redemption of the sub-mortgages granted by Defendant 1. The Plaintiff mortgagor is entitled to redeem the mortgage granted by him as the owner of the equity of redemption and if that mortgage be redeemed, the sub-mortgage granted by the mortgagee would not survive and it would be competent for the mortgagor to get possession of the properties on such redemption from even a sub-mortgagee or other party to whom the mortgagee may have transferred possession. The fact that the Plaintiff-mortgagor is entitled to get possession from whichever party is found in possession deriving it from the mortgagee does not mean that the Plaintiff is redeeming the sub-mortgagee directly. Transfer of possession ''pendente lite'' will be transfer of "property" within the meaning of Section 52, Transfer of Property Act, but the lis must be such as can effect possession. It is only a lis pending in. a Court having jurisdiction to entertain it and grant the relief sought that would hit transfers during its pendency: See- Karusinga Kushansing Vs. Narsinha Rangrao Patil, .

The possession of Defendants 5 and 7 as sub-mortgagees is not one that was sought to be effected in the case by the Plaintiff-mortgagor except as incidental to the redemption of the mortgage granted by him, which however was not possible in the absence of the transferee of the mortgage. The result is that the transfer of possession by Defendants 5 and 7 as sub-mortgagees in favour of the Petitioner who was the transferee''s transferee of the mortgage right cannot be a transfer which is vitiated by the pendency of the proceeding which was one only for the redemption of the mortgage.

As regards the two cocoanut trees which were in the possession of Defendant 1 even after the sub-mortgage in favour of Defendants 5 and 7, the title thereto having been transferred even before the suit along with the title to the Immovable property on which those trees stood, it must be taken that their possession left Defendant 1 on the date on which the document of transfer was executed and if any possession was left with him, it could not have been on his own account but could only have been on account of the transferee. The result is that the order passed by the Court below disallowing the obstruction of the Petitioner cannot be supported which is hereby set aside and the C.R.P. allowed with costs.