Tara Singh and another vs Lehna Singh and another

D.K. Mahajan, J.—This appeal is directed against the decision of the Subordinate Judge. 1st Class, Patiala, dismissing the Plaintiffs suit. The Plaintiffs are Tara Singh and Gajja Singh. Lehna Singh and Amar Singh Defendants borrowed a sum of Rs. 6000/- under the document, Exhibit P. A./1. As lot of controversy has centred round this document, the same is reproduced in extenso for facility of reference:

Account of Lehna Singh agriculturist, son of Jai Ram, and Amar Singh, son of Lehna Singh, under date Phalgun Shudi Ika-dashi Sambat 2011, correpsonding to the 4th March, 1955.

Amar Singh and Lehna Singh have taken Rs. 3,000/- (rupees three thousand) in cash, half of which comes to Rs. 1,500/-(rupees fifteen hundred), from Tara Singh, son of Dalip Singh, on interest, and have agreed to pay compound interest at the rate of Re. 1/- per cent. In lieu of the interest he (Tara Singh) took 23(1/2) bighas of land for cultivation He (they) agreed that they will get the land the day they pay the amount.

Dated Phalgun Shudi Ikadashi Sambat 2011, corresponding to the 4th March, 1955. According to Lehna Singh and Amar Singh, 1(sic)/3rd turn of water was orally agreed to be taken.

Amar Singh and Lehna Singh have taken Rs. 3000/-(Rupees thirty hundred. the half of which comes to Rs. 1,500/ (Rupees fifteen hundred), from Gaija Singh on interest and have agreed to pay compound interest at the rate of Re 1/ per cent. In lieu of the interest land measuring 23(1/2) bighas-7(1/4) Bighas Chahi, 8(3/4) Bighas "Barani and 7(1/2) Bighas Banjar and 1/3rd turn of the well (water) is to be cultivated It was agreed that the land would be got released On payment of the amount. The land is to be cultivated in lieu of the interest.

Dated today, Phalgun Shudi Ikadshi Sambhat 2011, corresponding to 4th March, 1955." This document was executed on the 4th of March. 1955 and the present suit was filed for recovery of the amount of Rs. 6,000/- on the 1st of March, 1958. The Plaintiffs claimed interest on the amount in dispute at the rate of 1 per cent. per mensum in addition to the principal amount. It is not specified from which date interest is claimed, but it is maintained that future interest is claimed and no claim is made on account of interest prior to the date of the institution of the suit.

The plaint is not very artistically worded. Undoubtedly the claim was made on the basis of the document already set oat above. It was maintained that the Plaintiffs were deprived of the land, possession of which was given to them under the document to counter balance the interest due under the same. Claim to the money was also made under the provisions of Section 68 (l)(d) of the Transfer of Property Act in the alternative on the supposition that the document is a mortgage-deed and being unregistered would be inadmissible in evidence In the written statement filed by the Defendants, the stand taken up by them was that possession of the land was not delivered to the Plaintiffs under the document. In fact the execution of the document was denied. It was claimed that the Plaintiffs were tenants of some land and, as they failed to pay batai they (the Plaintiffs) delivered possession of the land to the Defendants at their instance. It was maintained that no suit was competent on the basis of the document. Some additional pleas were raised as to misjoinder of parties and misjoinder of causes of action and that even if the document was proved to have been executed by the Defendants, the Plaintiffs were not entitled to recover the amount in suit. On the pleadings of the parties the following issues were framed:-�

Whether the writings in dispute were executed by the Defendants in favour of the Plaintiffs with a stipulation to pay interest ?

Whether the Plaintiffs occupied the property in dispute according to the terms of the writings ?

Whether the suit is bad for misjoinder of parties and for causes of action ?

The trial Court came to the concluison that the writing in dispute was executed by the Defendants and there was a stipulation to pay interest ; that the Plaintiffs never occupied the property in dispute according to the terms of the writings and that the suit was not bad for misjoinder of parties and causes of action. A further finding was recorded by the trial Court that the document in question was a mortgage-deed and, being unregistered, no claim for money could be based on it because the document did not create personal liability. In this view of the matter, the Plaintiffs'' suit was dismissed. The Plaintiffs, who are dissatisfied with this decision, have come up in appeal to this Court.

Two contentions have been advanced by the learned Counsel for the Plaintiffs. The first contention is that the document is not a mortgage-deed and therefore, as money was raised under it, the Defendants are liable to return the same to the Plaintiffs. The second contention is that even if the document is held to be a mortgage deed, the Defendants are liable to return the money in view of the provisions of Section 68 (I)(d) of the Transfer of Property Act. In support of this contention reliance is placed upon Sucha Singh v. Gulzara Singh 1963 Cri. L J (P&H.) 19.

The contention of the learned Counsel for the Defendants, on the other hand, is that the document in question is a mortgage-deed and, in fact, is a usufructuary mortgage-deed. As such, there is no personal liability of the Defendants to pay back the amount, to secure which the document was executed. It is also maintained that the document, being unregistered, cannot be looked at for any purpose. It is maintained that the suit is liable to fail on this short ground.

After hearing the learned Counsel for the parties, we are of the view that the contentions of the learned Counsel for the Appellants are sound and must prevail. It will be seem from the tenor of the document that no specific immovable property is mentioned which was to serve as security for the loan that was raised by the Defendants. It is merely stated that 23(1/2) bighas of land of one Defendant and similar area of land of the other Defendant were given possession of. The finding recorded by the trial Court at the instance of the Defendants is that no such possession was delivered in terms of the document. It cannot be pinpointed which land of the Defendants was to be taken possession of by the Plaintiffs. It is, therefore, idle to suggest that the document embraces any specific immovable property. The word ''specific'' has to be given meaning in Section 58 of the Transfer of Property Act, which defines the term ''mortgage''. If the phraseology of this provision is compared with Section 100 of the Transfer of Property Act, whereunder ''charge'' is de-fined, it will be noticed that the word ''specific'' is omitted from Section 100 This difference proves the fact that a mortgage can only be of specific immovable property, and unless there is some specific immovable property which is offerred as security there can be no mortgage. We are, therefore, clearly of the view that the document in question does not create a mortgage, because it does not answer the definition of ''mortgage'' in Section 58. It is conceded by Mr. Baldev Singh Jawanda, the learned Counsel for the Respondents, that if the document is held to be not a mortgage the Plaintiffs would be entitled to a decree.

Apart from this, we are of the view that the present case is covered by the decision of this Court in Sucha Singh''s case supra The facts of that case were identical with the facts of the present case. In any event, the view that was taken in that case gets full support from the decision of the Privy Council in Ramnarian Singh v. Adhindra(sic) Nath Mukerji, A. I. R. 1916 P. C. 119 and that of the Lahore High Court in Wadhawa Singh v. Kunj Lal, A. I. R. 1938 Lah. 417 As at present advised, we see no reason to take a view different from that taken in these decisions. In fact, the contention of the learned Counsel for the Respondents is fully answered by these decisions Section 68 of the Transfer of Property Act makes no reference to the validity of a mortgage. ''Mortgage'' is defined in Section 58, and a document may be a mortgage and yet if it does not comply with certain provisions of the. Transfer of Property Act, for instance that it is not attested or registered as required by S 59 of the Act, it will not operate as a mortgage. But all the same, the transaction would be a mortgage, though invalid. Therefore the question of giving relief u/s 68 would only arise when there is a mortgage, apart from the fact that it is not a valid mortgage. This view finds ample support from the decision of the Privy Council already referred to In that case the mortgage was held to be invalid for want of attestation and yet relief was granted u/s 68 of the Transfer of Property Act.

For the reasons recorded above, we allow this appeal, set aside the judgment and decree of the trial Court and decree the Plaintiffs'' suit. The Plaintiffs have claimed future interest and we award them future interest at the rate of 6 per cent. per annum from the date of the suit till realisation. The learned Counsel for the Respondents prays that his clients may be permitted to pay the amount in instalments. Mr. Kaushal, the learned Counsel for the Appellants, has no objection to this course, provided reasonable instalments are fixed. We accordingly, grant the prayer of the learned Counsel for the Respondents to this extent that the decretal amount will be paid in three equal instalments in three years with effect from 1st May, 1970. In case there is a default in payment of any instalment, the balance will be realisable forthwith. The first instalment will be payable on the 1st of May, 1970. In the circumstances, there will be no order as to cots of this appeal. Koshal j.-I agree.