Swaminatha Udayar vs Mottaya Padayachi and Others

Rajagopala Ayyangar, J.—The relevant facts in this miscellaneous appeal against an order of remand lie within a narrow compass. One

Subramania was the original owner of the property in dispute for the recovery of which the suit out of which this appeal arises has been filed. He

had usufructuarily mortgaged the property to one Marudamuthu Padayachi on 4-12-1893 for Rs. 40. The plaintiff claims title from the heirs of

Subramania, he having purchased the suit property from them by a registered sale deed dated 25-2-1948.

These heirs claimed that the usufructuary mortgage had become extinguished by reason of the provisions of Madras Act IV of 1938 and that

consequently they were entitled to recover possession of the property, and they transferred their title in the property to the plaintiff. On the other

hand the case of the contesting defendants who claim under the usufructuary mortgagee Marudamuthu Was two-fold.

First they pleaded that the property sold to the plaintiff under the deed of sale dated 25-2-1948 was not the property mortgaged to them and of

which they were in possession secondly they contended that Subramania had by an unregistered deed dated 18-8-1900 sold the property to

Marudamuthu, the consideration being discharge of the usufructuary mortgage, viz. Rs. 40 and an extra sum of Rs. 10 paid at the time of the sale.

On this ground they pleaded that the title of Subramania got extinguished both by reason of the sale as well as by Marudamuthu and those claiming

under him having adversely enjoyed the property from 1900, the date of the sale upto the date of the suit.

The learned District Munsif, who tried the suit held that the property purchased by the plaintiff under the deed of 1948, under which he claimed,

did not comprise the property mortgaged which was set out in the schedule to the plaint. He also held that the unregistered deed dated 18-8-1900

was Inadmissible in evidence under Sections 17 and 49 of the Indian Registration Act and refused to admit the document in evidence for proving

either the sale, or the discharge of the mortgage or the change in the character of Marudamuthu''s possession by reason of that transaction. He

accordingly dismissed the suit.

The plaintiff took the matter in appeal and this came on for hearing before the learned Subordinate Judge of Tiruchirapalli. The appellate Judge

held that the property purchased by the plaintiff was identical with that which was covered by the usufructuary mortgage by Subramania. He

however held that the unregistered deed of sale of 1900 was admissible in evidence to prove the discharge of the mortgage on the particular date.

The learned Subordinate Judge went on to add:

......After that date (the date of the sale) If the defendants prove that they have been in possession they will perfect their title by adverse

possession. They get title to the property not under this document nor on the date of the discharge of the mortgage. Even assuming that they get

title to the property by reason of adverse enjoyment for 12 years, they get title only 12 years after the date of this discharge .... I, therefore, hold

that this document is admissible in evidence for the purpose mentioned above.

Having admitted this document he remanded the suit to the lower court for a fresh trial, and it is this order whose correctness is challenged in this

appeal.

In the view which I take of the principle of law applicable to this case. I do not consider it necessary to express any opinion on the reasoning of

the learned Subordinate Judge which has been attacked by Mr. Ramachandra Aiyar, learned counsel for the appellant. In the present case, as

would be seen from the above narration, the value of the property involved in the sale transaction is less than Rs. 100. The relevant portion of

Section 17 of the Indian Registration Act enacts:

Section 17(1): The following documents shall be registered.... (b) other no testamentary instruments which purport or operate to create, declare,

assign, limit, or extinguish, whether in present or in future, any right, title or Interest, whether vested or contingent, of the value of one hundred

rupees and upwards, to or in Immovable property.

No doubt the sale deed which has been admitted in evidence is a non-testamentary instrument which purports to create a right, title, or interest in in

moveable property. But as the value involved is less than Rs. 100 being only Rs. 50, the provisions of Section 17 are not attracted to it and it is not

compulsorily registrable. Consequently Section 49, which enacts that no registered document required by Section 17 to be registered shall affect

any Immovable property comprised therein or be received in evidence of any transaction affecting such property, unless it is registered does not

also apply.

Section 49 however, contains a provision that if a document is required to be registered by any provision of the Transfer of Property Act, the

failure to get that document registered Imposes the same inhibitions as a document required by Section 17 of the Registration Act.

Turning to the Transfer of. Property Act, the relevant provision is to be found In paragraph of Section 54, which reads:

In the case of a tangible Immovable property of a value of less than Rs. 100, such transfer may be made either by a registered instrument or by

delivery of the property.''

The existence of an unregistered instrument does not prevent property from passing provided deli-very of the property has taken place.

In such a case the deed would be evidence of the contract of sale and of negotiations concerning the transaction. If authority were needed I would

only refer to the decision of a Bench of this court reported in Narasimha Ragu v. Bhupati Ragu 29 M LJ 721: AIR 1916 Mad 1126 (A) from

which it is sufficient to extract the headnote in the Madras Law Journal report reading:

The existence of an unregistered sale deed does not prevent title passing where property sold is less than 100 rupees In value and there has been

delivery of possession. The unregistered sale deed may be used for proving the prior agreement to sell.

The next question that has to be considered is whether the fact that Marudamuthu was in possession, of the property as a usufructuary mortgagee

prior to the date of the sale prevents there being a delivery of possession in pursuance of the sale deed.

In regard to this matter, there is some conflict of authority. But there being a direct decision of a Bench of this court, I am relieved from the

necessity of canvassing the rulings of other courts The decision I am referring to is that in M.K. Sheik Dawood Saheb Vs. Moideen Batcha Saheb

and Others, and the headnote of the report runs:

Where property which is the subject of a usufructuary mortgage is sold to the mortgagee in discharge of the mortgage a direction by the vendor to

the vendee to keep the property as absolute owner amounts to delivery of possession. Even if there is no delivery of possession in such a case, the

possession of the vendee from the date of the sale becomes adverse to the vendor.

In any Judgment, therefore, the unregistered sale-deed which was admitted in evidence by the learned Subordinate Judge in appeal, was correctly

admitted, and the order of remand passed by him in consequence is proper and ought to be affirmed.

The appeal fails and is dismissed with costs. There are no merits in the memo of cross- objection which is also dismissed. NO costs.