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1958 DIGILAW 41 (RAJ)

Bhanwarlal v. Dhulilal

1958-02-06

BAPNA, RANAWAT

body1958
Bapna, J.—This case has been referred to a Division Bench by a learned judge sitting in Single Bench, before whom the case first came for hearing. 2. The respondents Dhulilal and Chandralal instituted a suit in the court of the Munsif, Nainwa, on the allegations that the first defendant Sukhdeva had mortgaged a mango tree in village Jajawar, situated in the land of Dewlawala well, and latter on by document of Kartik Sudi 12, Smt. Year 1998 (November, 1941), the said mortgagor transferred his ownership of the mango tree to the plaintiffs for a consideration of Rs.72/-, the stipulation being that the plaintiffs will continue to enjoy the fruits of the tree so long as it will exist. It was alleged that the said defendant Sukhdeva wrongfully purported to sell the same tree by registered document of 7th November, 1950 to defendants Nos. 2 to 5, Bhanwarlal, Birdhilal, Mohanlal and Sualal. The plaintiffs instituted the suit for declaration that the said document was null and void, as the vendor had no interest left in the tree which could be transferred to defendants Nos. 2 to 5. The findings of the trial court were that the tree had been mortgaged with the plaintiffs and thereafter the mortgagor excuted the deed of transfer in favour of the plaintiffs. On Kartik Sudi is of Smt. year 1998, but the said transfer was invalid, owing to non-registration. It was further held that the defendants 2 to 5 had taken possession of the mango tree after notice of the prior sale to the plaintiffs, but as a result of the finding of the invalidity sale to the plaintiff the suit was dismissed by judgment dated 14th December, 1951. 3. On appeal the learned Civil Judge of Bundi was of opinion that the transfer in favour of the plaintiffs by document of Smt. year 1998 was of tangible immovable property of the value of under Rs. 100/-, and the document did not require registration. He held that the plaintiffs being already in possession as mortgagees, the recitals contained in the document of Smt. year 1998, amounted to delivery of property contemplated by sec. 54 of the Transfer of Property Act, and made the sale valid and complete. 100/-, and the document did not require registration. He held that the plaintiffs being already in possession as mortgagees, the recitals contained in the document of Smt. year 1998, amounted to delivery of property contemplated by sec. 54 of the Transfer of Property Act, and made the sale valid and complete. As a consequence he held that the sale made by Sukhdeva in favour of defendants 2 to 5 was not valid, as the vendee was not left with any interest in the property after the prior sale to plaintiffs. He accordingly allowed the appeal, set aside the judgment and decree of the Munsif, Nainwa, and declared the sale-deed of 7th November, 1950, to be ineffective against the rights and interest of plaintiffs. 4. The defendants Bhanwarlal and Mohanlal have filed this appeal and two others Birdhilal and Suwalal have been joined as proforma respondents. It was contended that the transfer in favour of Dhulilal and Chandralal was of an intangible immovable property and could be done only by a registered instrument as provided in sec. 54 of the Transfer of Property Act. On behalf of the respondents it was urged that the Transfer of Property Act was not properly brought into force in the former State of Bundi and in any case the transfer was of tangible immovable property and had been properly effected by the execution of the document of Smt. year 1998, which purported to transfer delivery of possession also. 5. The learned Single Judge while referring the case pointed out that there were two questions involved in this appeal, (1) Whether the Transfer of Property Act was properly brought into force in the former Bundi State by Robkar No. 90 dated 31st July, 1950, issued from the office of the Diwan of Bundi State? (2) If so, whether under sec. 54 of the Transfer of Property Act the interest of a usufructuary mortgagor is a tangible immovable property or intangible property and if it is tangible immovable property whether the transfer of it to the mortgagee for a sum less than Rs. 100/- by an unregistered document is valid? 6. As there was difference of opinion in the High Courts of India on the second point, the learned Judge referred the case to the Division Bench. 7. 100/- by an unregistered document is valid? 6. As there was difference of opinion in the High Courts of India on the second point, the learned Judge referred the case to the Division Bench. 7. We do not purpose to go into the first question and assume that the Transfer of Property Act was properly brought into force in the former Bundi State by a Robkar No. 90 dated 31st July, 1950, because on the second question we agree with the lower court. 8. The majority of the decisions of the Indian High Courts have taken the view that the transfer of ownership of the property subject to mortgage by the mortgagor in the case of usufructuary mortgage in favour of the mortgagee is a transfer of tangible immovable property. The principle of the decisions is that a mortgage as defined in sec. 58 of the Transfer of Property Act is the transfer of an interest in specific immovable property but not the ownership of it. What is left after the mortgage with the mortgagor, is the ownership of the property. The notion of English Law that the mortgagee becomes a legal owner of the property and nothing is left in the mortgagor except what is called equity of redemption, is not applicable in India. The Indian Legislature has not imported the expression "equity of redemption" but used the expression "right to redeem", which is not the same thing as the equity of redemption in England. This exposition of law is found in the judgment of Mukerji J. in Sohanlal vs. Mohanlal (1). The other view is that after the property has been mortgaged by usufructuary mortgage what remains is a right to redeem and the transfer of that right does not amount to a transfer of the property itself. It is found in the dissenting judgment of Sulaiman, Acting C. J. in the same case. 9. The first view has found favour in the following decisions M. K. Sheik Dawood Saheb vs. Moideen Batcha Saheb(s), Kulachandra Ghos vs. Jogendrachandro Ghos (3), Maung May Maung vs. Ma Khine (4), Imam Shah vs. Hayat Mohammad (5), Ramnath Singh vs. Gaja-dharlal (6), Tukaram Gonpatrao Surve vs. Atmaram Vinayak Gondhalekar(7), and Pheku Mian vs. Syed Ali(8). 10. 9. The first view has found favour in the following decisions M. K. Sheik Dawood Saheb vs. Moideen Batcha Saheb(s), Kulachandra Ghos vs. Jogendrachandro Ghos (3), Maung May Maung vs. Ma Khine (4), Imam Shah vs. Hayat Mohammad (5), Ramnath Singh vs. Gaja-dharlal (6), Tukaram Gonpatrao Surve vs. Atmaram Vinayak Gondhalekar(7), and Pheku Mian vs. Syed Ali(8). 10. The other view has been taken in the following decisions Kaliram vs. Dulal Ram (9), Mahendra Bahadur Singh vs. Chandrapal Singh (Oudh) (10), Ramnarayan Gope vs. Kula Chandra Chakrabarty (Cal.) (11), Dharameshwar Sarma vs. Lakhyadhar Borgohain (12). 11. In the case of Kaliram vs. Dulalram (9), it is not clear whether the sale was in favour of the mortgagee and in the Assam case (12) while Ram Labhaya J. has taken this view, Thodani C.J. has taken a contrary view. No reasons are given in the other two cases for the view taken. 12. In our opinion the transfer of ownership of property subject to mortgage is a transfer of tangible immovable property and with great respect we agree with the reasons given by Mukerji J. in Sohanlals case(l). 13. The next point for determination is what should be held to be done in order that the delivery of property may be said to have been effected. In the Alld, case (1), the view taken was that although the transfer was of tangible immovable property, there could not be delivery of possession because the property was already in the possession of the mortgagee but the claim of the transferee was upheld on the ground that he had been in possession after the said transfer for a period of more than 12 years. In Pheku Mians case (8), it was found that the mortgagor had renounced his rights and got the name of mortgagee recorded in the Record of Rights, and it was held that this was sufficient compliance with the provisions of sec. 54 of the Transfer of Property Act, in the matter of delivery of possession. 14. In M.K. Sheik Dawood Sahebs case (2), the observations are that a direction by the vendor that the vendee is to keep the property as absolute owner amounts to delivery, in case he is already in possession. It was observed that there was no reason to think that the word "delivery" in sec. 14. In M.K. Sheik Dawood Sahebs case (2), the observations are that a direction by the vendor that the vendee is to keep the property as absolute owner amounts to delivery, in case he is already in possession. It was observed that there was no reason to think that the word "delivery" in sec. 54 is used in peculiar sense or that it is intended to alter the legal sense of the delivery. 15. The observations in Kulochandra Ghoss case (3), are that where the vendee was already in permissive possession of the property on the date of sale, it is enough for such delivery of possession to be sufficient within the meaning of sec. 54, if the character of his possession changes; and this can be effected if the vendor converts by appropriate declarations or acts the previous permissive possession of the vendee into possession as that of vendee. 16. It is not necessary to multiply authorities. In the present case the document of Smt. year 1998 clearly recites on behalf of the transferor that he will have no right or concern with the mango tree hereafter and that he had sold the same to Dhulilal and Chandralal, who are to enjoy the some till the tree exists. The vendor renounced all his rights to the tree with effect from that date. These declarations clearly purport to change the character of the possession of the vendees from that of mortgagees to that of purchasers. In our opinion such declaration amounts to a delivery of possession in the present case within the meaning of sec. 54 of the Transfer of Property Act, and the transfer is completed. 17. There is no force in this appeal. It is accordingly dismissed with costs.