AHAMED KHAN B. v. PYARIJAN — 1980 DIGILAW 241 (KAR)

N. R. KUDOOR, J. ( 1 ) THIS second appeal is by the plaintiff in O. S. No. 254 of 1970 on the file of the Addl. Munsiff, Bhadravathi. ( 2 ) PLAINTIFF Ahmed Khan brought the suit O. S. No. 254/1970 on the file of the Munsiff at Bhadravati for recovery of Rs. 1360 in all from the defendants. Pyarijan and Shafi rahman consisting of a sum of Rs. 1000 said to have been advanced to the defendants under a mortgage dated 2-11-68, Rs. 225 towards interest by way of damages, Rs. 110 the value of the general stamp paper used for the mortgage deed and Rs. 25 being the charge of the registered notice. ( 3 ) THE material averments on the basis of which the suit was brought were as follows: the 1st defendant is the aunt of the 2nd defendant. On 2-11-68 both the defendants executed a mortgage deed in favour of the plaintiff for a sum of Rs. 2,000 and received an advance of Rs. 1000 on the date of the execution of the document which was ex. P-1. It was agreed between the parties that the balance of the mortgage amount of Rs. 1,000 should be paid by the plaintiff at the time of registration of the document before the Sub-Registrar. The plaintiff paid rs. 110 for the purcaase of the stamp paper. After the execution of the document, the plaintiff requested the defendants several times to go over to the Sub-Registrar's office and get the document registered after receiving the balance of the mortgage amount of Rs. 1000 from him but the defendants with ulterior motive, did not evince any interest in getting the document registered. The plaintiff ultimately caused a lawyer's notice to be issued to the defendants on 13-2-69, which was duly served upon the defendants but of no avail. Finally, he filed the suit against the defendants for the recovery of a sum of Rs. 1360 in all as stated above. ( 4 ) THE 2nd defendant appeared before the trial court and consented to the suit being decreed as prayed for. The 1st defendant alone contested the suit. Finally, he filed the suit against the defendants for the recovery of a sum of Rs. 1360 in all as stated above. ( 4 ) THE 2nd defendant appeared before the trial court and consented to the suit being decreed as prayed for. The 1st defendant alone contested the suit. ( 5 ) ADMITTING her relationship with the 2nd defendant as stated in the plaint the case put-forward by the 1st defendant in resisting the suit was that when she was in need of money, the 2nd defendant told her that he would arrange for a loan with the plaintiff on the security of the suit property which is a house belonging to her, that she being a purdanashin lady, just took the assistance of the 2nd defendant to bring about the transaction, that the 2nd defendant has no right, title or interest in the suit property, that she was to execute a usufructuary mortgage in respect of the suit property in favour of the plaintiff, that she paid the amount for purchasing the general stamp paper for writing the deed, that the plaintiff insisted that the 2nd defendant also should join in the execution of the deed as a surety, that she did not receive any amount under the mortgage. That the 2nd defendant was telling her that the mortgage amount would be paid before the Sub-Registrar at the time of registration of the document, that she waited for some time for the transaction to be completed that neither the transaction was completed nor did she receive any amount under the mortgage, that she gave petition to the Sub-Registrar not to register the document in case the document was presented before him for registration as she felt suspicion that the mortgage deed might be presented before the Sub-Registrar for registration by bringing someone else as the executant in her place by the 2nd defendant in collusion with the plaintiff, since of late she learnt that the 2nd defendant was colluding with the plaintiff, that the 2nd defendant was under the influence of the plaintiff as the 2nd defendant had disposed of the property in favour of the plaintiff and that it was so, was manifest since the 2nd defendant has consented for a decree being passed against them as prayed for by the plaintiff, knowing full well that no amount was paid by the plaintiff to her and that the 2nd defendant was not competent to deal with the suit property as he was not the owner thereof. ( 6 ) THE trial court framed as many as 8 issues. On the scrutiny of the evidence adduced in the case, the trial court answered all the issues against the plaintiff. It held that no amount was paid by the plaintiff to the defendants and as such the plaintiff was not entitled to recover the sum of rs. 1000 said to have been advanced by him under the document Ex. P. 1. It has also held that the plaintiff did not purchase the stamp paper of the value of Rs. 110/- Regarding the notice charges of Rs. 25, the trial court concluded that since the plaintiff has failed to prove the payment of Rs. 1000 to the defendants, he was not entitled to recover the notice charges. On these findings the trial court dismissed the suit with costs against the 1st defendant. 110/- Regarding the notice charges of Rs. 25, the trial court concluded that since the plaintiff has failed to prove the payment of Rs. 1000 to the defendants, he was not entitled to recover the notice charges. On these findings the trial court dismissed the suit with costs against the 1st defendant. However, it decreed the suit as prayed for against the 2nd defendant since he consented to the suit being decreed against him as per its judgment and decree dated 29-8-72, ( 7 ) THE plaintiff took up the matter in appeal in R. A. No. 169/72 to the court of the Civil Judge at Shimoga, challenging the validity of the dismissal of the suit against the 1st defendant. The Civil Judge formulated three points for his consideration: 1. Whether the unregistered mortgage deed can be admitted in evidence to prove the consideration: 2. Whether the plaintiff proved the payment of Rs. 1,000. 3. Whether the suit is maintainable for the recovery of the amount paid under the mortgage deed. ( 8 ) ALL the three points were answered against the plaintiff. It was held that the unregistered mortgage deed cannot be admitted in evidence to prove the consideration, that the plaintiff has failed to prove the payment of Rs. 1,000 towards part payment of the mortgage amount, that the suit was not maintainable for the recovery of the amount paid under the unregistered mortgage deed and finally the appeal was dismissed with coats as per the judgment and decree of the lower-appellate court dated 5-12-73. Hence this second appeal by the plaintiff. ( 9 ) THE only point canvassed by shri R. N. Byra Reddy, learned counsel for the appellant in this second appeal was that the courts below should have noticed that the suit was purely for the recovery of the money which the plaintiff had paid to the defendants under the mortgage deed and that it did not relate to any interest in immovable property and as such to meet the ends of justice, the unregistered mortgage deed ought to have been received in evidence to prove the payment of the money sought to be recovered. ( 10 ) SHRI Krishnamurthy Hasyagar, learned counsel appearing for the 1st respondent, per contra, contended that since the plaintiff had brought the suit for the recovery of a portion of the mortgage money said to have been paid by him under the unregistered mortgage deed, the suit brought by the plaintiff cannot be said to be one not relating to any interest in the immoveable property. He further contended that the unregistered mortgage deed creating any right, title or interest of the value of Rs. 100 and upwards to or in immoveable property cannot be admitted in evidence for the purpose of proving the receipt or payment of any consideration under the said deed as that transaction would amount to acknowledging the receipt or payment of consideration on account of the creation, declaration or assignment of right, title and interest in the immoveable property required to be effected by a registered instrument under Section 17 (1) (c) of the Indian Registration Act, 1908 (for short the 'act') in view of the prohibition under sub-section (c) of S. 49 of the Act. ( 11 ) THE only point, therefore, that arises for my consideration in this appeal is whether an unregistered mortgage deed can be received in evidence for the purpose of proving the passing of money from the mortgagee to the mortgagor under the document. ( 12 ) THE effect of non-registration of documents required to be registered by Section 17 of the Act or by any provision of the Transfer of Property act, 1882, is laid down in Section 49 of the Act. The material portion of section 49 relevant for our purpose is as follows:"no document required by Section 17 or by any provision of the transfer of Property Act, 1882, to be registered shall, (a) x x x x (b) x x x x (c) be received as evidence of any transaction affecting such property unless it has been registered: provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received. . . . as evidence of any collateral transaction not required to be effected by registered instrument. . . . as evidence of any collateral transaction not required to be effected by registered instrument. " ( 13 ) PLACING reliance on the proviso to S. 49, Shri Byra Reddy, learned counsel for the appellant, argued that since the plaintiff did not bring the suit in enforcement of the unregistered mortgage deed, but only for the recovery of the amount paid by him to the defendants by way of part payment of the mortgage amount, the unregistered mortgage deed can be received in evidence under the proviso to Section 49, since the action brought by the plaintiff relates to a collateral transaction not required to be effected by a registered instrument. In support of this contention, Sri reddy cited three rulings, two of the Supreme Court and one of this court in Rama Vidya Bushan Singh v. Shri Rati Ram, (1969) 1 SCWR 341. M. Chelamayya v. M. Venkataramana, AIR 1972 SC 1121 . and Doddappa v. Basavanneppa, 1978 (1) Kar. L. J. 414. In Rama Vidya Bushan Singh's case, (1) a suit was brought against the defendant on the footing that he was a trespasser. The defendant contended that he was a tenant and that the jurisdiction of the civil court was ousted to entertain the suit because of Section 111 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. The defendant relied upon an unregistered agreement of lease dated 21-8-51. That was for a period of 15 years and since it was not registered, the courts did not admit the same into evidence to look into the terms of the lease. But the courts, all the same, relying on the deed, held that the defendant was not a, trespasser. In other words, the document was used to know the character of the possession of defendant. The matter ultimately was taken up to the Supreme Court and the supreme Court on that aspect observed thus:"the agreement was unregistered, it could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in evidence to support that claim. The matter ultimately was taken up to the Supreme Court and the supreme Court on that aspect observed thus:"the agreement was unregistered, it could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in evidence to support that claim. But in support of the plea that his possession was that of a tenant the defendant was entitled to rely upon the recitals contained in that agreement of lease, a document required by law to be registered if unregistered, is inadmissible as evidence of a transaction affecting immoveable property, but it may be admitted as evidence of collateral facts or for any collateral purpose, that is for any purpose, other than that of creating, declaring, assigning, limiting or extinguishing a right to immoveable property. "in Doddappa's case (3), a contention was canvassed before this Court placing reiiance on Rama Vidya Bushan singh's case (1) that a lease deed required to be registered under S. 17 of the Act being not registered could be looked into to hold that such a lease was created or at any rate to hold that it created a tenancy as contemplated under Section 106 of the Transfer of property Act, 1882 from month to month. Rejecting the said contention sabhahit, J. observed as follows:"the Supreme Court in that case quoted and relied upon an earlier decision of the Supreme Court in the case of Padma Vitoba Chakkavva v. Mohd. Multani (1963) 3 SCR 229 ) wherein it was specifically ruled that such an unregistered deed was admissible in evidence to show the character of possession of the occupant. Thus, the ruling relied upon by the learned counsel would not help him to establish that the unregistered lease deed could be looked into to hold that the Revision petitioners were tenants. At best, it can be looked into to find out that they are in permissive possession. The Supreme Court has clearly observed that it cannot be used for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immoveable property. It is obvious that a lease creates an interest in immoveable property. Therefore, the deed cannot be looked into to hold that the Revision Petitioners are tenants. It can certainly be looked into to hold that they are in permissive possession. It is obvious that a lease creates an interest in immoveable property. Therefore, the deed cannot be looked into to hold that the Revision Petitioners are tenants. It can certainly be looked into to hold that they are in permissive possession. "in Chelmayya's case (2), the question of admissibility of an unregistered award referring to partition of immoveable properties and making liable some of the parties to pay certain amounts personally to the other parties to the award along with interest and also creating a charge for that amount on the immoveable property in the possession of the former, came up for consideration before the supreme Court. Dealing with that question, after referring to the material portion of Section 49 of the Act. Palekar, J. , who spoke for the Bench observed thus:"since the charge was not registered, it will be correct to say that the document will not affect the immoveable properties of the appellants sought to be charged. It will not also be received as evidence of any transaction affecting such property that is to say, in this case, as evidence of the charge. It should be noted that the section does not say that the document cannot be received in evidence at all. All that it says is that the document cannot be received as evidence of any transaction affecting such property. If under the Evidence Act, the document is receivable in evidence for a collateral purpose, Section 49 is no bar. This construction of the provision which was accepted for a long time by the High Courts has been duly recognised by the Amending act 21 of 1929 which added a proviso to the section. The proviso clearly empowers the court to admit any unregistered document as evidence of a collateral transaction not required to be registered. "the direction to pay a sum of money which has been held due and payable by the appellants to the respondents is a direction giving effect to a liability which already existed. It does not create the liability for the first time but merely works out the liability. But the same thing cannot be said about the charge. The charge is created for the first time. It does not create the liability for the first time but merely works out the liability. But the same thing cannot be said about the charge. The charge is created for the first time. The case, therefore, involves two distinct matters, one is a personal liability to pay a certain amount and the second is an additional relief to recover that amount from the immoveable property of the appellants, should they fail to pay as ordered. It is, therefore, clear that the two do not form one transaction but two severable transactions. . . . . One transaction creates an independent personal obligation to pay a certain sum of money and the other transaction namely the charge merely strengthens the first transaction by adding a right to proceed against the charged property. In our opinion the High Court was right in directing that the second transaction with regard to the charge being a severable transaction can be validly ignored and to the extent that it declares the personal obligation to pay, the transaction not. being required to be compulsorily registered, the award was admissible in evidence. " 13. There is no dispute in this case that the suit document Ex. P. 1 was a usufructuary mortgage. The defendants were the executants of the document. The property subjected to mortgage wasa residential house belonging to the 1st defendant. The house in question was mortgaged to the plaintiff for a sum of Rs. 2,000. It is also recited in the document that the plaintiff was put in possession of the house. The period of redemption fixed under the document was five years. It is also stipulated that the mortgage amount does not carry any interest nor the plaintiff was required to pay any rent for the house. In other words, the rental of the house was to be appropriated towards the interest. Rs. 1000 out of the mortgage consideration of Rs. 2000 was said to have been paid to the defendants in the presence of the attestors at the time of execution of the document and the balance amount of Rs. 1000 was to be paid at the time of registration of the document. Thus, the terms of the document would clearly go to show that the document in question was a usufructuary mortgage. 1000 was to be paid at the time of registration of the document. Thus, the terms of the document would clearly go to show that the document in question was a usufructuary mortgage. There is also no dispute that the document in question was compulsorily registerable under Section 17 of the Act as well as Section 59 of the Transfer of Property Act. ( 14 ) IT is the contention of Shri byra Reddy that since the plaintiff has brought the suit, not for enforcing the mortgage, but for the recovery of the amount paid by the plaintiff to the defendants towards the portion of the mortgage amount by way of advance, the suit document can be admitted though not registered since the suit relates to a collateral transaction not required to be effected by a registered instrument as provided under the proviso to Section 49 of the act. ( 15 ) I am unable to persuade myself to accept the above contention. The payment of the portion of the mortgage amount under a mortgage deed cannot be said to be a distinct and different transaction than that of the mortgage itself. The payment in question was on account of the creation of an interest in the immoveable property viz. , the residential house and since the interest created under the suit document exceeds Rs. 100 in value, the claim for the refund of the amount cannot be treated as a collateral transaction within the meaning of the proviso to s. 49 and as such the suit document being one not registered, is inadmissible in evidence. If, however, the document embodies the terms of a mortgage transaction and if the transaction implies a personal liability of the mortgagor to repay the amount as in the case of a simple or English mortgage, then the document, though not registered, would be admissible to support a claim for the refund of the amount advanced. But in the case of a usufructuary mortgage, the mortgagor is under no personal liability to pay the amount and hence an unregistered usufructuary mortgage deed is inadmissible in evidence for any purpose. But in the case of a usufructuary mortgage, the mortgagor is under no personal liability to pay the amount and hence an unregistered usufructuary mortgage deed is inadmissible in evidence for any purpose. The argument advanced by Sri reddy that the suit document can be used as evidence for the purpose of proving the payment of the money by the plaintiff to the defendants would amount to use the document to acknowledge the receipt or payment of portion of the consideration due under the mortgage which was on account of the creation, declaration and assignment of a right, title or interest in the immoveable property of the value of more than Rs. 100 required to be effected by a registered instrument under Section 17 (1) (c) of the Act and as such, the suit document cannot be admitted in evidence, even to the limited extent suggested by Sri Reddy. ( 16 ) THE view that I take on the question of admissibility of the suit document is supported by A decision of the Lahore High Court in Wadhawa singh v. Kunj Lal, AIR 1938 Lahore 497. and also of the rajasthan High Court in Sanjya v. Chauthmal, AIR 1963 Rajasthan 129. ( 17 ) IN Wadhwa Singh's case (4), the question that came up for consideration before the High Court was the admissibility of an unregistered receipt Ex. P. 1, the sole purpose for which it was executed, was to furnish evidence in writing of the payment of the consideration on account of the creation of an interest in the immoveable property exceeding Rs. 100 in value, held to be partaking the character of an usufructuary mortgage in a claim for refund of the amount. Tek Chand J. dealing with the question of admissibility of such a receipt in a suit for the refund of the amount, held that where the sole purpose for which an unregistered receipt is executed is to furnish evidence in writing of the payment of the consideration on account of the creation of an interest in immoveable property exceeding Rs. 100 in value, the claim for the refund of the amount cannot be treated as a collateral purpose within the meaning of Section 49 and as such the receipt is inadmissible in evidence. 100 in value, the claim for the refund of the amount cannot be treated as a collateral purpose within the meaning of Section 49 and as such the receipt is inadmissible in evidence. He further held that if the document embodies the terms of a mortgage transaction, it would be admissible to support a claim for the refund of the amount advanced if the mortgage transaction implies a personal liability of the mortgagor to repay the amount and in the case of a usufructuary mortgage since there is no personal liability on the mortgagor to pay the mortgage amount, the receipt was inadmissible in evidence for a collateral purpose in a suit for refund of the consideration as it was compulsorily registerable under S. 17 (1) (c) of the Act. ( 18 ) IN Sanjya's case (5), the rajasthan High Court also took the same view that an unregistered document marked as Ex. P. 1 in the case which was held to be a usufructuary mortgage cannot be admitted in evidence for the purpose of proving payment of the money under the document in a suit for refund of the amount. D. M. Bhandari J. who decided the said case, observed on this question as follows:"the creditor may prove that he had advanced a sum of money to his creditor which he was entitled to recover back. For that purpose, he may lead such evidence as is available to him. If the unregistered instrument contains two stipulations which may be treated as independent of each other, one creating a charge on the property and other undertaking a personal liability to pay the amount advanced, the latter may be enforced and the document may be put in evidence in proof of such undertaking but if there is no such undertaking and the only purpose for which the amount was advanced was for creating the charge on the property, in that case, under S. 17 (1) (c) of the indian Registration Act, if there is anything in the document purporting to be an acknowledgement of the receipt of payment of any consideration on account of the creation of a charge, such writing is inadmissible. " ( 19 ) THE rulings cited by Shri Byra reddy, both of the Supreme Court as well as this Court, if properly read and understood, also would support the view that I take on the question of admissibility of the suit document. ( 20 ) NO doubt it was open to the plaintiff in this case to prove that he had advanced the amount claimed in the suit to the defendants by such other evidence available to him other than the suit document. Both the courts below have considered such other evidence produced by the plaintiff and recorded a concurrent finding, which is a finding of fact, that the plaintiff had failed to prove the payment of the amount to the defendants claimed by him in the suit. This court would not interfere with the concurrent findings of fact of courts below in the second appeal. ( 21 ) IN the result, for the reasons stated above, the appeal fails and the same is dismissed with costs. --- *** --- .