Raghunath & Ors. v. Kedar Nath
Ramaswami, J. In the suit which is the subject matter of
these appeals the plaintiff alleged that one Dwarka Prasad took
a loan of Rs. 1700 from Madho Ram, father of the defendants,
and that on 27th July, 1922, Dwarka Prasad along with one
Mst. Kunta. his maternal grand mother, executed a possessory
mortgage deed of the disputed house for Rs. 1700 in favour of
Madho Ram. The tenns of the mortgage deed were that the
mortgagor was to pay interest of Rs. 12, 12/- per month out of
which the rent amounting to Rs. 6/- which was the agreed
usufruct of the house in suit was to be adjusted and the mortgagor
was to pay Rs. 6/12/- per month in cash towards the balance of
the interest. The parties agreed that the mortgage would be re
deemable within twenty years after paying the principal amount
and that portion of interest which was not discharged by the usu
fruct and other amounts. When Dwarka Prasad wiis unable to
pay the amount of Rs. 6/12/- per month, he delivered possession
of the house to Madho Ram who let out the house on a monthly
RAGHUNATH v. KEDAR NATH (Ramaswami, J.) 499
rent of Rs. 25. The mortgagors Dwarka Prasad and Mst. Kunta
died leaving Mst. Radha Bai as Dwarka Prasad's heir. Radha
Bai sold the house in dispute to the plaintiff on 2nd February,
1953 and executed a sale deed. The plaintiff, therefore, became
entitled to redeem the mortgage and asked the defendants to ren
der accounts. The defendants contested the suit on the ground
that Madho Ram was not the mortgagor nor were the defendants
mortgagees. It was alleged that in the locality where the house
was situated, there was a custom of paying Haqe-chaharum and
to avoid that payment, the original deed dated 27th July, 1922
was drafted and executed in the form of a mortgage though it was
actually an out-right sale. According to the defendants, the house
was actually sold to Madho Ram and was not mortgaged. The
defendants also pleaded that if the deed dated 27th July, 1922 was
held to be a mortgage, the mortgagees were entitled to get the pay
ment of Rs. 6442/8/- as interest, Rs. 2315 as costs of repairs etc.
The trial court held that the deed dated 27th July, 1922 was a
mortgage deed, that Dwarka Prasad did not sell the house to
Madho Ram and that the plaintiff was entitled to redeem the
mortgage on payment of Rs. 1709/14/.. The trial court.accord
ingly decreed the plaintiff's suit for redemption on payment of
Rs. 1709/14/-. Against the judgment of the trial court the
defendants preferred an appeal before the District Judge, Vara
nasi, who allowed the appeal and dismissed the plaintiff's suit.
The plaintiff took the matter in second appeal to the High Court
which framed an issue and remanded the case back to the lower
appellate court for a fresh decision. The issue framed by the
High Court was "Have the defendants become the owners of the
property in dispute by adverse possession ?" The High Court also
directed the lower appellate court to decide the question oi admissi
bility of Exts. A-25 and A-26. After remand the lower appellate
court held that the deed dated 27th July, 1922 was a mortgage deed
and not a sale-deed, and, therefore, the plaintiff was entitled to re
deem the mortgage. The lower appellate court further held that the
defendants had failed to prove that they had acquired title by
adverse possession. The lower appellate court made the follow
ing order:-
'The appeal is allowed with half costs in this way
that the suit is decreed for the redemption of the mort
gage in question if the. plaintiff pays within six months
Rs. 1700 as principal, Rs. 9.87 N.P. Prajawat paid
before this suit and any Prajawat paid by the defen
dants during the pendency of this suit till the plaintiff
deposits the entire sum due under this decree and the
interest at the rate of Rs. 6/12/- per month from
27-7-19?.2 till the plaintiff deposits the entire sum due
under this decree. The costs of the trial court are
made easy. Let the preliminary decree under Order
34, R. 7, C.P.C. be modified accordingly".
Against the judgment and decree of the lower appellate court both
the plaintiff and the defendants filed appeals before the High
Court. The plaintiff prayed that the decree of the lower appellate
court should be set aside and the decree of the trial court should
be restored. The defendants, on the other hand, prayed that the
decree of the lower courts should be set aside and the plaintiff's
suit should be dismissed with costs. By its judgment dated
27th April, 1964 the High Court dismissed the secoind appeal pre
ferred by the defendants but allowed the plaintiff's appeal and set
aside the judgment of the lower appellate court and restored the
judgment of the trial court. The High Court further remanded
the case to the lower appellate court with the direction that "the
defendants be asked to render accounts before they claim any
payment from the plaintiff at the time of redempti® of the mort
gage". The present appeals are brought by special leave against
the judgment of the Allahabad High Court dated 27th April, 1964
in second Appeals Nos. 4940 and 3660 of 196!.
In support of these appeals it was contended by Mr. Sinha
that the deed Ex. 4 dated 27th July, 1922 was a sale deed and
not a mortgage deed. It was pointed out that there was a subse
quent deed of sale dated 8th Ock!ber, 1922 Ex. A-26 which is
named 'Titimma Bainama'. The contention was that the docu
ment Ex. 4 dated 27th July, 1922 rr.ust be construed along with
Ex. A.26 which forms part of the same transactio!l and so cons
trued the transaction was not a usufructary mortgage but was an
outright sale. We are unable to accept the argument put forward
on behalf of the appellant. Ex. A.26 dated 8th October, 1922 is
not a registered document, and is hence not admissible in evidence
to prove the nature of the transaction covered by the registered
mortgage deed Ex. 4 dated 27th July, 1922. If Ex. 4 is taken
by itself, there is no doubt that the transaction is one of mortgage.
The document Ex. 4 recites that in consideration of moaey
advanced the executants "mortgage the said house 'Bhog Bh!\Q.dak'
bearing No. 64/71 situate Mohalla Gola Dina Nath.'' Clause 2
provides a period of twenty years for redemption of the mortgage.
Clause 6 of the document stipulates that the cost of refJairs will
be borne by the mortgagors. Clause 1 states :
"That the said sum of Rupees Seventeen hundred
half of which is Rupees Eight hundred and fifty will
carry interest at the rate of twelve annas per cent
monthly. The sum of Rupees six wiH be deducted to
wards rent monthly from the interest which will accrue.
The possession of the house has been delivered to the
RAGHUNATH v. KEDAll NATH (Ramaswami, J.) 50 I
A said mortgage Mahajan (money lender). The mort
gagors will pay the balance of Rupees six annas twelve
month by month to the said mortgagee after deducting
the rent of Rupees six after giving the possession of the
said house and shop".
8 Clause 4 provides :
"That we will go on paying the said Mahajan the
sum of Rupees six twelve annas the balance of the inte
rest monthly. If the whole or part of the interest re
mains unpaid we will pay at the time of redemption.
ll this amount of interest is not paid the said house
c shall not be redeemed".
The reading of these terms clearly shows that Ex. 4 was a mortgage
deed and not a sale deed. It was contended on behalf of the appel
lants that in order to avoid the payment of Haqe-ehaharum, the
original deed dated 27th July, 1922 was drafted and executed in
the form of a mortgage but it was actually meant to be an out-
D right sale. Tn support of this argument reference was made to
Ex. A.26 dated 8th October, 1922. As we have already said Ex.
A.26 was required to be registered under section 54 of the Trans
fer of Property Act. In the absence of such registration this docu
ment cannot be received in evideince of any transaction affecting
the property in view of s. 49 of the Registration Act. It was,
i, however, urged on behalf of the appellants that the effect of
section 4 of the Transfer of Property Act was not to make section
49 of the Registration Act applicable to documents which are
compulsorily registrable by the provisions of s. 54, paragraph 2
of the Transfer of Property Act. In support of this contention
reliance was placed on the decision of the full bench of the
f Allahabad High Court in Sohan Lal & Ors. v. Mohan Lal &:
Ors.( 1 }
Section 4 of the Transfer of Property Act states :
"The chapters and sections of this Act which relate
to contracts shall be taken as part of the Indian Regis
tratio,n Act, 1872.
And sections 54, paragraphs 2 and 3, 59, 107 and
123 shall be read as supplemental to the Indian Regis
tration Act, 1908".
Section 54 of the Transfer of Property Act reads :
" "Sale" is a transfer of ownership in exchange for
a price paid or promised or part-paid and part-pro
mised.
(I) I.LR. 50 All. 986.
Such transfer, iC1 the case of tangible immoveaoJe
property of the value of one hundred rupees and up
wards, or in the case of a reversion or other intangible
thing, can be made only by a registered instrument.
In the case of tangible immoveable property, of a
value less than Qlle hundred rupees, such transfer may
be made either by a registered instrument or by delivery
of the property".
Section 1 7 of the Registration Act states :
"1 7. (1 ) The following documents shall be regis
tered if the property to which they relate is situate in a
district in which, ·and if they have been executed on or
after the date on which, Act No. XVI of 1864 or the
Indian Registration Act, 1866 or the lindian Registration
Act, 1871, or the Indian Registration Act, 1877, or
this Act came or comes into force, namely :
(a) instrument of gift of immoveable property;
(b) other non-testamentary instruments which pur
port or operate to create, declare, assign, limit or ex
tiinguish, 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 immoveable
property;
(c) non-testamentary iristruments which acknow
ledge the receipt or payment of any consideration on
account of the creation, declaration, assignment, limita
tion or extinction of any such right, title or interest; and
( d) leases of immoveable property from year to
year, or for any term exceeding one year, or reserving
a yearly rent;
( e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any award
when such decree or order or award purports or ope
. rates to create, declare, assign, limit or extinguish
whether in present or in future, any right, title or inte
rest, wheiher vested or contingent of the value of one
hundred rupees and upwards to or in immoveable
property".
Section 49 of the Registration Act prior to its. amendment in 1929
read:
"No document required by section 17 to be register
ed shall-
RAGHUNATH v. KEDAR NATH (Ramaswami, !.) 503
(a) affect any immoveable property comprised
therein, or
(b) confer any power to adopt, or
( c) be received as evidence of any transaction
affecting such property or conferring such power, unless
it has been registered".
By section 10 of the Transfer of Property (Amendment) Sup
plementary Act, 1929, section 49 was amended as follows:-
"No document required by section 17 or by any pro
vision of the Transfer of Property Act, 1882 to be regis
tered shall-
( a) affect any immoveable property comprised
there~, or
(b) confer any power to adopt, 01
( c) be received as evidence of any transaction
affecting such property or conferring such power unless
it has been registered.
Provided that an unregistered document affecting
immoveable property a'1d required by this Act or the
Transfer of Property Act, 1882, to be registered may be
received. as evidence of a contract in a suit for specific
performance under Chapter II of the Specific
Relief Act, 1877, or as evidence of part performance
of a contract for the purposes of section 53A of the
Transfer of Property Act, 1882, or as evidence of any
collateral transaction not required to be affected by re
gistered instrument".
The inclusion of tbe words "by any provision of the 'l;'ransfer of
Property Act, 1882" by the Amending Act, 1929 settled the
doubt entertained as to whether the documents of which the re
gistration was compulsory under the Transfer of Property Act, but
not under section 17 of the Registration Act were affected by sec
tion 49 of the Registration Act. Section 4 o.f the Transfer of Pro
perty Act enacts that "sections 54, paragraphs 2 and 3, 59, 107
and 123 shall be read as supplemental to the India,n Registration
Act, 1908". It was previously supposed that the effect of this
section was merely to add to the list of documents of which the
registration was compulsory and not to include them in section t 7
so as to bring them within the scope of section 49. This was the
view taken by the Full Bench of the Allahabad High Court in
Sohan Lal' s case('). The same view was expressed in a Madras
Case Rama Sahu v. Gowro Ratho(') and by MacLeod C.J. in
a Bombay case Dawal v. Dharma('). We are however absolved
(I) l.L.R. SO All. 986. i2) I.L.R. [1921] 44 Mad. 55.
(3) l.L.R. [1918] 41Born.550.
in the present case from examining the correctness of these dec1-
,ions. For these decisions have been superseded by subsequent
legislation i.e. by the enactment of Act 21 of 1922 which by in
serting in section 49 of the Registration Act the words "or
by any provision of the Transfer of Property Act, 1882" has.made
it clear that the documents in the supplemental list i.e. the docu
ments of which registration is llCCCSSary under the Transfer of
Property Act but not under the Registration Act fall within the
scope of section 49 of the Registration Act and if not registered
are not admissible as evidence of any transaction affecting a.ny
immoveable property comprised therein, and do not affect any
such immovable property. We are accordingly of the opinion
that Ex. A.26 being umegistered is not -admissible in evidence. In
our opinion, Mr. Sinha is unable to make good his argument on
this aspect of the case.
Mr. Sinha contended that in any event the High Court should
not have remainded the case to the lower appellate court with a
direction that the defendants should be asked to render accounts
before they claim any payment from the plaintiff at the time of
redemptiqn of the mortgage. It was pointed out that the plaintiff did
not file an appeal against the decree of the trial court and in the
absence of such ·an appeal the High Court was not legally justified in
giving further relief to the plaintiff than that granted by the trial
court. In our opinion, there is justification for this argument. We
accordi,ngly set aside that portion of the decree of the High Court
remanding the case to the lower appellate court with a direction
that the defendants should be asked to render accounts. Otherwise
we Sflirm the decree of the High Court allowing the plaintiffs
appeal with costs and setting aside the judgment and decree of
the lower appellate court and restoring judgmanit and decree of the
trial court dated 31st October, 1956.
Subject to this modification we dismiss these appeals. There F
will be no order as to costs in this Court.
G.C. Appeals dismissed.
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