Puran Mahton vs Bhogo Mahton and Others

Agarwala, J.—This is an appeal by the plaintiff. Plot No. 117 of Khata No. 5 in village Rustampore Fateha belonged to Sukar Gope, defendant 12. He executed a usufructuary mortgage in respect of this plot in favour of defendants 2 and 9 for a period of seven years from 1342 to 1348 and put the mortgagees in possession. In 1936 he purported to sell the plot to defendant 10 for Rs. 80. No document was executed or registered in respect of this sale. In 1939 defendant 10 paid off the mortgage of defendants 2 and 9. Thereafter, in 1940, defendant 12 executed a registered sale-deed in favour of the plaintiff for a consideration of Rs. 100. The plaintiff thereupon deposited the mortgagees'' dues u/s 83, T.P. Act. As the mortgagees refused to accept this money, stating that the mortgage had already been redeemed by defendant 10 the plaintiff instituted the suit out of which this appeal has arisen for a declaration of his title and for recovery of possession.

The question that arises for decision is whether the sale to defendant 10 passed title in the property to him. Section 54, T.P. Act, provides that a transfer of tangible immovable property of the value less than Rs. 100 may be made either by a registered instrument or by delivery of the property to the transferee. Admittedly there was no registered instrument in favour of defendant 10. At the time of the sale the property was in the possession of the usufructuary mortgagees, and therefore, there could not be, and was not, any delivery of the property to defendant 10 at the date of the alleged sale.

It was contended before me on behalf of the defendants respondents that in the case of a property subject to a usufructuary mortgage or other incumbrance delivery of possession within the meaning of Section 54 occurs if the vendor has done all that was necessary to put the vendee in possession of the subject-matter of the transfer. It has, however, been pointed out by a Full Bench of the Allahabad High Court in Sohan Lal and Others Vs. Mohan Lal and Others, that property subject to a usufructuary mortgage is incapable of being transferred by a delivery of possession.

The same result is deducible from the decision in Sibendrapada Banerjee v. Secretary of State (07) 34 Cal. 207. The facts of this latter case were that the transferee was actually in possession from before the date of the sale. It was held that, as in these circumstances the vendor could not deliver possession, the plaintiff acquired no title by an oral transfer of the property.

Lastly, it was contended that defendant 10 had in fact obtained delivery of possession in 1939 when he deposited the mortgage dues of defendants 2 and 9 which was before the sale to the plaintiff. If the plaintiff''s vendor, defendant 12, had been a party to the deposit by defendant 10, it might perhaps have been arguable that he delivered possession to defendant 10; but that was not the fact. Possession in 1939 was delivered to the defendant, not by the vendor, but by the mortgagees, and the only inference to be drawn from the subsequent transfer to the plaintiff is that the vendor was not a consenting party to the delivery of possession to defendant 10. The plaintiff has already deposited the money due under the mortgage and is entitled to recovery of possession.

The result is that the judgment of the Court of appeal below must be set aside and that of the Munsif restored. The plaintiff is entitled to the costs of this appeal.