RAOJI APPAJI KULKARNI v. BADIBI — 1971 DIGILAW 6 (KAR)

( 1 ) THIS is a second appeal by the legal representatives of the original plaintiff against the decree passed by the Civil Judge, Belgaum in CA. No. 434 of 1965, confirming the decree passed by the Joint Civil Judge jd. , Chikodi in RCS. No. 599 of 1050. ( 2 ) THE plaintiff brought the suit for taking accounts and redemption of the mortgage deed dated 24-6-1879, produced in this case as Ext. 65 under S. 15 (D) of the Deccan Agriculturists Relief Act, 1879. The property originally belonged to four brothers. Sakharam, Antaji, Appaji and meleiri. They executed an usufructuary mortgage deed in favour of Nabisaheb, khonmirasaheh and Imamsaheb on 24th June, 1879. Subsequently, one of the mortgagors Melgiri died and his line became extinguished The remaining three mortgagors executed a sale deed on 26th May, 1890 in favour of one of the mortgagees, viz. Nabisaheb for a sum of Rs. 600 which document has been produced in this case as Ext. 69. The sale deed was, however, not registered. Nabisaheb continued in possession in pursuance of the sale deed Ext. 69. The plaintiff is one of the successors in interest of the original mortgagors. The plaintiff brought the suit for redemption of mortgage and for accounts under S. 15 (D) of the DAR. Act, on the basis that the mortgage evidenced by Ext. 65 is still subsisting. ( 3 ) DEFENDANTS 1 to 6. the heirs of the original mortgagees, resisted the suit on various grounds. The principal contention taken by them was that they have perfected their title by adverse possession, as a result of which the equity of redemption in favour of the plaintiff has been extinguished long back. In support of this contention of theirs, they relied upon the unregistered sale deed Ext. 69 dated 26th May, 1890. They contended that from the date of the said sale deed, the character of the possession was altered from that of mortgagees in possession to that of owner. They further contended that after the expiry of a period of 12 years from the date of the sale deed Ext. 69, they perfected their title by adverse possession. Both the Courts accepted the contention of defendants 1 to 6 and held that they have perfected their title by adverse possession and that the equity of redemption in favour of the plaintiff has been extinguished long back. 69, they perfected their title by adverse possession. Both the Courts accepted the contention of defendants 1 to 6 and held that they have perfected their title by adverse possession and that the equity of redemption in favour of the plaintiff has been extinguished long back. Consequently, both the Courts dismissed the plaintiff's suit. ( 4 ) IT is the legality of the decree passed by the learned Civil Judge in appeal, that is challenged by the plaintiff in this second appeal under section 100 of the Civil Procedure Code. ( 5 ) SHRI N. A. Mandgi, learned Counsel appearing for the appellant, contended that the finding recorded by the learned Civil Judge that defendents 1 to 6 have perfected their title by adverse possession is not in accordance with law. Shri Mandgi's principal compaint is about making use of the recitals in Ext. 69, the unregistered sale deed dated 2. 6th May, 1890. Shri Mandgi contended that, as the consideration for the sale was more than Rs. 100 the sale deed was compulsorily registrable. As the document is unregistered, Shri Mandgi contended that the same is inadmissible in evidence. The Courts below, having held that the document ext. 69 is inadmissible in evidence for want of registration, have all the same relied upon the said document, for ascertaining the character of possession of nabisaheb from the date of the said transaction. Relying upon a decision of this Court in K. Thimmiah v. B. H. Nanjanpa, (1965) 1 Mys. L. J. 44. Shri mandagi contended that the unregistered document Ext. 69 cannot be used to prove the character of possession. Shri Mandagi read to me the first portion of the head note, which reads as follows:"the fact that under Section 54 Transfer of Property Act, a sale of property of the value of less than Rs. 100 could be effected by mere delivery of possession does not mean that when parties choose to write out an instrument of sale, such an instrument need not be registered. The unregistered document cannot be used to make out the character of the possession. Such use is prohibited by s. 49 Registration Act and S. 54 Transfer of Property Act. "shri Mandgi particularly relied upon the last two sentences of the head note extracted above. Prima facie, the head note does, support Shri mandgi's contention. The unregistered document cannot be used to make out the character of the possession. Such use is prohibited by s. 49 Registration Act and S. 54 Transfer of Property Act. "shri Mandgi particularly relied upon the last two sentences of the head note extracted above. Prima facie, the head note does, support Shri mandgi's contention. But, on going through the judgment of Justice narayana Pai, as he then was, I do not find any statement made by his lordship to the effect that an unregistered document cannot be used to make out the character of possession. There is no statement by his Lordship that the making use of an unregistered document for proving the character of possession is prohibited by S. 49 of the Registration Act. The head note on which Shri Mandgi relied upon is not an accurate or correct summary of the statement of law made in the said decision. There was no occasion also for the Court to go into the question as to whether an unregistered document can be made use of for ascertaining the character of possession. In the case dealt with by his Lordship Justice Narayana pai, there was a sale deed Ext. P-2, executed in respect of an immovable property worth less than Rs. 100. S. 54 of the Transfer of Property Act requires that in order to complete a sale of an immoveable property of the value of less than Rs. 100 it is enough if there is delivery of possession. If the parties, however, choose to reduce such a transaction into writing, then the document becomes compulsoriiy registrable. The document has to be registered in order to evidence the sale transaction, even if the value of the subject matter is less than Rs. 100. What was sought to be done in that case was to prove delivery of possession by making use of the recitals in the unregistered sale deed Ext. P-2. That was, therefore, not at all a case where the Court was required to consider as to whether the recitals in the unregistered document can be made use of for a collateral purpose, viz. , proving the character of possession. P-2. That was, therefore, not at all a case where the Court was required to consider as to whether the recitals in the unregistered document can be made use of for a collateral purpose, viz. , proving the character of possession. That is clear from what his Lordship observed, after, considering the contentions of the parties, as follows:"if, therefore, an unregistered document of sale can be looked into for the purpose of showing that the property has been delivered and the fact of that delivery is going to be depended upon by the party to show that there has been such delivery as is required under s. 54 of the Transfer of Property Act to complete the sale, the receiving of the document into evidence will be receiving it as evidence of the transaction of delivery of the property which is one of the elements for transfering title therein. "it is clear from this observation of his Lordship that his Lordship laid down that in respect of sale of immoveable property worth less than rs. 100, the delivery of possession cannot be proved by making use of the recitals in an unregistered sale deed. It is nowhere laid down in the said decision that an unregistered sale deed in respect of immoveable property of the value of more than Rs. 100 cannot be made use of for a collateral purpose of proving the character of possession. The Supreme court had occasion to consider this question in the decision in Padma vithoba Chakkayya v. Mohd. Multani, AIR. 1963 SC. 70. their Lordships laid down that:"when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor. But if the mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties thereafter not as a mortgagee but as owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any reason inoperative under the law. "their Lordships further held that a document which is Inadmissible for want of registration, is admissible in evidence to show the character of possession, relying on the earlier decision of the Privy Council in N. Varada Pillai v. Jeevarathnamma, AIR. 1919 PC. "their Lordships further held that a document which is Inadmissible for want of registration, is admissible in evidence to show the character of possession, relying on the earlier decision of the Privy Council in N. Varada Pillai v. Jeevarathnamma, AIR. 1919 PC. 44 Their Lordships approved the decision of the Madras High Court in Karnam Kandaswamy Pillai v. Chinnabha, AIR. 1921 Mad. 82. In the said decision of the Madras High Court, approved by their Lordships of the Supreme Court, it has been laid down as follows:"an unregistered sale cannot be set up as a transaction having effect of itself to transfer any interest in the property; but it is permissible to consider it. as showing the nature of transferee's subsequent possession, e. g. , when the sale is of mortgaged property to the mortgagee that it was not as a mortgagee, but as full owner, that being established it would after the expiry of 12 years ripen into a full title and bar mortgagor's right of redemption. "in view of the authoritative pronouncement of the Supreme Court, it cannot be contended with any justification that Ext. 69, the unregistered sale deed dated 26th May, 1890, cannot be used for the collateral purpose of proving the nature or character of possession. The possession of the mortgagee from the date of the sale deed Ext. 69 was in his own right as owner and not as a mortgagee. The said document can, undoubtedy, be made use of to prove that there was change in the character of possession with effect from the date of the sale deed Ext. 69. There is no dispute that the mortgagee, in whose favour the sale deed was executed, remained in possession for well over the statutory period of 12 years in order to acquire title by adverse possession I have, therefore, no hesitation in agreeing with the conclusion of the Court below that defendants 1 to 6 have perfected their title by adverse possession and that the equity of redemption of the plaintiff has been extinguished long back. ( 6 ) FOR the reasons stated above, this appeal fails and the same is dismissed. In the circumstances, the parties shall bear their respective costs. --- *** --- .