N.U. Mohanan vs Dr. K.P. Dhanwanthari Das and others

M.M. Pareed Pillay, J.—Plaintiff in O. S. 45 of 1992 of the Sub Court, Vadakara is the appellant in A. S- 84 of 1993. Appellant in A. S. 172 of 1993 is the first defendant in O. S. 50 of 1992 was filed for declaration that plaintiff and Dr. V. S. Jyothi obtained the plaint A & B schedule] properties as tenants and to restrain the defendants from trespassing upon it. O S. 50 of 1992 was filed for redemption of the mortgage and recovery of the properties. Plaintiff in O. S. 45 of 1992 is the first defendant in O S. 50, of 1992. Plaintiffs in O. S. 50 of 1992 are defendants in O.S. 45 of 1992. Subject metier of both the suits is practically the same.

O. S. 45 of 1992 was treated as the leading case by the trial Court. The position of the parties as It stood fn O.S. 45 of 1992 is followed in the discussion hereunder.

Plaintiff in O.S. 45 of 1992 who is the first defendant in O S. 50 of 1992 contended that the arrangement entered into between him and Dr. Jyothi while taking the building belonging to the defendants cannot be construed as a usufructuary mortgage. Defendants 1 and 2 in O.S. 45 of 1992 who are the plalnitffs in O.S.SO of 1992 contended that the building and property were mortgaged to the plaintiff and Dr. Jyothi for Rs. 20,000/-, thai they agreed to pay Rs. 3,000/- pet month towards the surplus profit and that they have been continuing as mortgagees and therefore they cannot claim any, other right except as mortgagees. Contention of the plaintiff is that Ext. A-1, the alleged mortgage in a device of the defendants to circumvent the provisions of the Kerala Buildings (Lease and Rent Control) Act, that Rs. 20,000/-was paid really as advance rent and that the monthly payment of Rs. 3,000/- is towarde rent and not tor surplus profit. Another contention is that the oral entrustment as seen mentioned in Ext. A-1 was on 28-2-1988 and hence on the basis of a subsequently executed document styled as mortgage defendants cannot claim redemption and recovery of possession.

Plaintiffs contention is that there is no mortgagee-mortgsgor relationship between him and defendants as per Ext. A-1 as the recitals la it mention of oral usufructuary mortgage. It is urged that Ext. A-1 was registered only on 18-4-1988 whereas the recitals in it would show that there was oral mortgage and handing over of possession of the property on 28-2-1988. It is further comended by the plaintiff that the recitals in Ext. A-1 would clearly show that the transaction was entered into between the parties on 28-2-1988 and that period is mentioned as 11 months from 28-2-1988 and as Rs, 20,000/- was paid on that day defendants cannot have any cause of action. In other words it is contended that Ext. A-1 was registered Only on 18-4-1988 whereas at the time when the parties entered into the transaction on 28-2-1988 only oral mortgage was created and so the subsequent registration of the document cannot be of any avail to the defendants.

in view of the definition of the mortgage u/s 58 of the Transfer of Property Act that it is the transfer of an Interest In specific immovable property tor the purpose of securing the payment of money advanced or to be advanced by way of loan, on existing or future debt, or she performance of an engagement which may give rise to a pecuniary liability, there cannot be any doubt that the debt may be an existing one or a future debt. In a usufructuary mortgage what is transferred is a right of possession and enjoyment of the usufructa so long as the mortgage dues are not satisfied. Section 59 of the Act provides that where the principal money secured is Rs. 100/- or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Contention of the plaintiff is that on 28-2-1988 when possession of the property was given to him and Dr. Jyothi there was no legal mortgags and as the registered mortgage came into effect only subsequently their position cannot be considered as that of a mortgagee. The above contention is not tenable as it cannot be held that the subsequently registered mortgage is non est merely on th? ground that at the Inception the mortgage was not registered. Merely because Ext.Al. recites about the oral usufructuary mortgage it does not mean that registration of mortgage on a subsequent date is of no effect. Similarly merely because there are recitals in Ext. A-1 to the effect that plaintiff and Dr. Jyothi had advanced Rs 20,000/- to the defendants on 28-2-1988 and as no mortgage deed was registered on that day the subsequently registered document (Ext. A-1) dons not become invalid. It is not possible to accept ihc contention of the plaintiff that failure to register the document on 28-2-1988 itself invalidates the subsequsntly registered document (Ext. A-1).

The evidence in the case bear ample testimony to the fact that the plaintiff and Dr. Jyothi have treated themselves as mortgagees and not as tenants entitled to (he benefits under the Kerala Buildings (Lease and Rent Control) Act, 1965. Ext. A-1 deed was taken back, from the Sub-Reglstrar''s Oftice on 18-4-1988 by Dr. Jyothi as evidenced by Ext. A-1 Ext. B-2 is the notice Isssuad by Dr. Jyothi to the first defendant. Mention is made therein to the mortgage taken by him and the plaintiff as per Document No. 384/88 dated 18-4-1988. It is further stated that they were running a nursing home in the premises on partnership basis, that the partnership has been dissolved and that Dr. Jyothi has relinquished all his rights in the firm to the plaintiff with effect from 21-4-1992. It calls upon the first defendant to deal with Dr. N. U. Mchanan (plaintiff In O. S. 45 of 1992) neriafur. Ext. B-4 is a letser written by the plaintiff (Dr. Mohanon) and Dr Jyothi to she first defendant. Therein also mention is made to Ext. A-1 as mortgage In unambiguous terms. As per Est. - B4 plaintiff and Dr. Jyothi informed the first defendant that they have lost the receipt for Rs. 3,000/- paid as surplus profit. Ext. B-S dated 3-9-1991 is a photo copy of a receipt issued by (he first defendant to the plaintiff and Dr. Jyothi. this is in reply to Ext. B-4.

Ext, B-1 dated 21-4-1992 is a copy of the deed of dissolution of the partnership entered Into between the plaintiff and Dr. Jyothi Ext. A-1 is specifically mentioned in Ext. B-1 as a usufructuary mortgage. The above documents would certainty show, that plaintiff and his companion Dr Jyothi have executed Ext. Act fully understanding the same as usufructuary mortgage and dealings pursuant to It were also on the basis of the mortgagor mortgagee relationship From the recitals of Ext. A-1 and the evidence in the case it can only be held that the transaction is only a mortgage. Even though it cannot be held that there was no oral usufructuary mortgage on 28-2-1988 the transaction Between the parties was validated by subsequent registration of the mortgage on 18-4-1988 and as the plaintiff and Dr. Jyothi have accepted their position as mortgagees, plaintiff''s present contention that at the inception there was no valid document of mortgage and so the subsequent registration of the document cannot clothe the defendants with any legal right of redemption cannot be accepted.

The Sub Judge was Justified In holding that plaintiff in O. S. 45 of 1992 cannot claim any benefit as a tenant under the Kerala Buildings (Lease and Rent Control) Act, 1965. The finding of the Sub Judge that plaintiffs in O. S. 50 of 1992 are entitled to a decree for redemption of the mortgage does not warrant interference O. S. 50 of 1992 was rightly decreed by the Sub Judge. Cross-objection has been filed with regard to the disallowance of the costs by the trial Court in O. S. 50 of 1992. I find no reason to interfere with the discretion exercised by the trial Court with regard to the costs. The judgments and decrees of the Court below ate confirmed. The appeals stand dismissed with costs. The Cross-objection is dismissed.