Research › Browse › Judgment

Rajasthan High Court · body

1961 DIGILAW 56 (RAJ)

Lalu v. Pratap

1961-03-14

KHEM CHAND SHARMA, SHYAMLAL

body1961
The circumstances that give rise to this second appeal may briefly be stated thus. Sarvashri Pratap and Mohanlal plaintiffs brought a suit against Sarvashri Lalu and Phookhand defendants for redemption of a mortgage over agricultural land with the allegations that Shri Lalu defendant had mortgaged the disputed land in favour of Shri Phoolchand defendant, that Shri Lalu defendant subsequently sold the equity of redemption for Rs. 99/- in favour of the plaintiffs, that the sale deed was reduced to writing but was not registered, that subsequently Sri Lalu defendant refused to have the sale deed registered, that the plaintiffs offered to redeem the mortgage, and that the mortgagee Shri Phool Chand refused to accept the mortgage money. It was therefore prayed that a decree for redemption be passed and that possession of the mortgage property be transferred in favour of the plaintiffs. The defendants contested the suit on the ground that the sale deed was unregistered, that no possession was transferred along with the sale deed and hence the plaintiffs had no cause of action. The trial court upheld this plea and rejected the suit. The learned Additional Commissioner relying on A.I.R. 1928 Allahabad 726 held that as possession was transferred in favour of the plaintiffs and as the consideration was less than Rs. 100 registration of the sale deed of the equity of redemption was not necessary. He, therefore, remanded the case to the trial court for a further trial and decision on merits. Hence this second appeal. We have heard the learned counsel for the parties and have examined the record as well. The only question involved for determination in the case is as to whether the sale deed re- • lied on by the plaintiffs passed any interest or charge in their favour or not. It has not been disputed before us that this sale deed is unregistered. Sec. 54 of the Transfer of Property Act lays down that a sale in the case of tangible immovable property of the value of Rs. 100/-and upwards, or in the case of a reversion of other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than Rs. 100/-, such transfer may be made by a registered instrument or by delivery of the property. 100/-and upwards, or in the case of a reversion of other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than Rs. 100/-, such transfer may be made by a registered instrument or by delivery of the property. The question naturally arises therefore as to whether the equity of redemption should be held to be tangible or intangible immovable property. Land and things attached to the earth are things which can be touched and are therefore tangible immovable property. Thus a field or a house is tangible immovable property. A benefit to arise out of land is immovable property and is an interest in land. But such interests may or may not be tangible. The equity of redemption in a simple mortgage is tangible because the mortgagor is in possession. But in a usufructuary mortgage it is intangible because he is not in physical possession. Conversely the interest of the mortgagee is intangible if the mortgage is a simple mortgage, but tangible if the mortgage is a usufructuary mortgage. But the judicial decisions on the point disclose a deep rooted conflict. In 1928 Allahabad 726, case cited by the learned appellate court, Sulaiman C.J. said "a mortgaged property is undoubtedly tangible, but the interest of the mortgagor in the property, when the mortgage is usufructuary is not identical with the property itself, as some interest has already passed to the mortgagee including the right to remain in possession and appropriate the profits. To interest which the mortgagor possesses is not itself capable of being touched, nor is it such that an actual delivery of its possession can be effected by the mortgagor to the mortgage. It seems difficult to conceive of a thing being tangible when it is not capable of actual delivery of possession." This is a dissentient judgment. But the judgment of the majority of the Judges was that the interest of a mortgagor in a usufructuary mortgage is tangible. The majority view of the Allahabad High Court has been followed by the Patna High Court (1936, 15 Patna 772) and by the Bombay High Court. If it beheld in this case that the interest of the mortgagor is intangible immovable property then the plaintiffs shall have no case for the obvious reason that without registered instrument there can be no sale of the interest. If it beheld in this case that the interest of the mortgagor is intangible immovable property then the plaintiffs shall have no case for the obvious reason that without registered instrument there can be no sale of the interest. In view of the preponderance of judicial opinion we hold that the equity of redemption comes within the definition of tangible immovable property and would therefore now proceed to determine as to whether the plaintiffs can be held to have any valid claim or not. As pointed out above, in the case of tangible immovable property of a value less than Rs. 100/- such transfer may be made either by a registered instrument or by delivery of the property. No registered instrument came into existence in the present case. The only question to be seen therefore is as to whether there was or was not any delivery of the property. As observed by their Lordships of the Privy Council in Bissunath Pershad Vs. Chander Narain, for the purpose of sec. 54 T.P. Act there must be a real delivery of the property. Similarly in Patel Bikha Bhai Vs. Shah Chimmanlal ( 55 Bom. L.R. 641 ) a Full Bench of the Bombay High Court held that the delivery of possession contemplated by sec. 54 is not constructive or symbolic possession, but actual or real delivery. We would now examine A.I.R. 1928 Allahabad 726. The learned Commissioner appears to have omitted the real significance of this decision. In that case there was a usufructuary mortgage of a certain house property made in the year 1873 for Rs. 1060/- In course of time the property came to be owned by one Damodar who represented therefore the original mortgagor. In course of time the mortgagees, interest came to be owned by Raghamal defendant. On 8.2.1901 Damodar executed a deed of sale in favour of Raghamal in respect of the mortgaged property for a sum of Rs. 90/-. The sale deed was never registered. The mortgagee and their successors in interest continued to be in possession. Damodar died in 1914. His brother and heir Krishanram processed to sell the property to the plaintiffs in 1919. They brought a suit for redemption. The learned judges who decided the case were divided in their opinion on the point as to whether the equity of redemption was tangible or intangible immovable property. Damodar died in 1914. His brother and heir Krishanram processed to sell the property to the plaintiffs in 1919. They brought a suit for redemption. The learned judges who decided the case were divided in their opinion on the point as to whether the equity of redemption was tangible or intangible immovable property. But there was no difference on the point that as there was no actual delivery of possession in respect of the sale it was not effective. It was further held that as Raghamals title had matured by 12 years adverse possession against Damodar the suit was held to be beyond limitation. This decision is therefore a clear authority for the proposition that where tangible immovable property of a value of less than Rs.100/- is transferred and there is no registered instrument then there ought to be actual delivery of the property. In the present case which we have before us the plaintiff itself made it clear that actual possession was never transferred to the plaintiffs and hence no question of actual delivery of possession can arise. A.I.R. 1939 Bombay 31 was also cited before us in this connection. In that case the mortgagor of a usufructuary mortgage sold his equity of redemption to the vendee. It was provided in the contract of sale that the vendee was to pay off the mortgagee and enjoy the property. The vendee did in fact pay off the mortgagee on the very same day and got possession. It was held that it could be fairly said that the vendee got possession with the assent of the vendor and that it amounted to delivery of property. No such premises exist in the present case. The plaint itself makes it clear that the plaintiffs had been clamouring for possession and that they had never been successful therein. Under these circumstances it cannot be held that there was any delivery of property within the meaning of sec. 54 of the Transfer of Property Act. To conclude therefore we hold that even if it be held that the equity of redemption is tangible immovable property the plaintiffs can have no available claim for the obvious reason that there was no delivery of the property as laid down in sec. 54 of the T.P. Act. 54 of the Transfer of Property Act. To conclude therefore we hold that even if it be held that the equity of redemption is tangible immovable property the plaintiffs can have no available claim for the obvious reason that there was no delivery of the property as laid down in sec. 54 of the T.P. Act. We, therefore, allow this appeal, set aside the judgment and decree of the lower appellate court and restore those of the trial court. The suit of the plaintiffs for redemption shall stand dismissed and the parties shall bear their own costs throughout.