RAGHUNATH SINGH v. KISHANLAL — 1985 DIGILAW 433 (MP)

RAM PAL SINGH, J. ( 1 ) AGGRIEVED by the judgment and decree passed by the Additional Judge to the Court of District Judge, Vidisha, in Civil Appeal No. 141-A of 1971 dated 6th March 1972, the appellant-defendants vhave preferred this appeal ( 2 ) THE respondent-plaintiff filed a suit in-the Court of Additional Civil Judge Class II, Basoda, for possession and mesne profits, against the appellant-defendants with the averment that he was the Bhumiswami of survey Nos. 7 and 59 measuring 8 bighas and 2 biswas of village Banwa, which he mortgaged with the defendants for Rs. 600/- only for a period of five years. After the stipulated period of five years, the plaintiff wanted to redeem the mortgage to which the defendants refused. ( 3 ) THE appellants/defendants repelled the case of the plaintiff, contested the suit and pleaded that in Samvat 2020, the plaintiff executed a 'patta' (Ext D-1) for a period of five years. The defendants further pleaded that they have acquired the rights of Bhumiswami by operation of law and cannot be ejected from their lawful possession. ( 4 ) THE trial Court after framing the issues and recording the evidence of the parties, dismissed the suit of the plaintiff and answered the issues thus: 1. The plaintiff did not mortgage the suit land with the defendants for Rs. 600/- on 15-3-1964. On the contrary, it was given to defendants on a lease of five years on 22-2-1964; 2. The defendants, thus, have acquired the rights of an occupancy tenant of the suit land ( 5 ) THE plaintiff challenged these findings in the first appeal in the first appellate Court, and that Court reversed these findings. It is the defendants who now challenge the judgment and decree of the first appellate Court under S. 100, Civil P. C. The first appellate Court in the impugned judgment held that exhibit D-1, filed and relied upon by the defendants, was not admissible in evidence, because it was a lease for a period of five years and cannot be read in evidence even for collateral purposes. The first appellate Court thus, decreed the suit for redemption and upheld the plea of mortgage. ( 6 ) SHRI K. N. Gupta, learned counsel for the appellants, contended that (i) Ext. D-1 is not a lease because it is not signed by both the parties; (ii) even if Ext. The first appellate Court thus, decreed the suit for redemption and upheld the plea of mortgage. ( 6 ) SHRI K. N. Gupta, learned counsel for the appellants, contended that (i) Ext. D-1 is not a lease because it is not signed by both the parties; (ii) even if Ext. D-1 is considered to be a lease, then by virtue of S. 117, T. P. Act, it is not required to be registered; (iii) even if it is required to be registered, it can be read in evidence for ascertaining the nature of possession, that is, for collateral purposes, and (iv) an oral mortgage is not permissible in law, when the valuation of the mortgage is Rs. 600/- by virtue of the provisions of S. 59, T. P. Act. ( 7 ) SHRI Arun Mishra, learned counsel for the respondent, fairly conceded that S. 17, Registration Act, excluded the operation of S. 117, T. P. Act. He has further repelled the contentions of Shri Gupta and added that the finding that it is a mortgage is a finding of fact, by the first appellate Court, because this finding is solidly based upon the fact that the nature of possession of the defendants recorded in the annual village papers is that they are in possession as mortgagees. ( 8 ) THE first appellate Court has reversed the judgment and decree passed by the trial Court on the ground that Ext. D-1, on the basis of which the defendants claim to be the tenants of the suit land for five years, in view of the law laid down in the case of Smt. Dhana Bai, 1972 MPLJ 227 , a Division Bench judgment of this Court, is not admissible in evidence. The first appellate Court has further held, unlike the trial Court, that Ext. D-1 cannot be read in evidence even for collateral purposes, i. e. , for looking to the nature of possession. In Smt. Dhana Bai's case (supra), it was held that rent note from year to year or for a term exceeding one year requires registration under S. 17 (1) (d), Registration Act, as it is a lease within the meaning of S. 107, T. P. Act. It was further held that a document compulsorily registrable, if unregistered, is inadmissible in evidence of a transaction affecting immoveable property. It was further held that a document compulsorily registrable, if unregistered, is inadmissible in evidence of a transaction affecting immoveable property. It was further observed that collateral purpose is that which is by the side of or distinct from the main purpose. A term of a deed of lease being one of its main purposes, it could not be termed a collateral purpose within the meaning of proviso to S. 49, Registration Act. ( 9 ) DAMMULAL (AIR 1955 Nag 306) was in direct conflict with Smt. Dhana Bai, 1972 MPLJ 227 . Hence a reference was made by a single Bench, and a Full Bench considered the ratio of Smt. Dhana Bai and the ratio of Dammulal (supra) in Sardar Amar Singh, 1975 MPLJ 633 . The case of Smt. Dhana Bai was elaborated in Sardar Amar Singh's case (supra) and it was held that the unregistered lease deed was admissible to show the nature and character of defendant's possession as a lessee, and from the nature of possession and other circumstances, the status of defendant as tenant could be established. In this Full Bench decision it was further held :"the expression 'collateral purpose' is very vague one and the Court must decide in each case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly the, title to immoveable property sought to be conveyed by the document Collateral purpose is that which is by the side of or distinct from the main purpose. In the case of an unregistered lease the nature and character of the possession of a party, or the relationship of landlord and tenant are purposes which are by the side of or distinct from the main purpose of the lease. " ( 10 ) IT thus becomes apparent that Ext. D1, though not admissible in evidence due to its inherent infirmities, though the terms of the alleged lease contained therein cannot be seen, yet for ascertaining the nature of possession of the defendant, it can be looked into. The first appellate Court, therefore, due to misconception refrained from examining the nature of possession of the defendants over the suit land. It will have to be remembered that the Registration Act strikes at documents and not at transactions. The first appellate Court, therefore, due to misconception refrained from examining the nature of possession of the defendants over the suit land. It will have to be remembered that the Registration Act strikes at documents and not at transactions. The Registration Act does not direct as to what transactions should be reduced to writing. The Transfer of Property Act, on the other hand, enacts as to what transactions have to be reduced to writing and registered. The alleged lease (Ext. D-1), in (he present case, is said to be for five years. The provisions of S. 117, T. P. Act, regarding leases of immoveable property do not apply to lease for agricultural purposes. A valid lease for agricultural purposes for a period of five years could be created even orally. The contract of lease (Ext. D-1), according to the finding of fact arrived at by the first appellate Court, has not been relied upon not only on legal grounds but also on the ground that the entries in the annual village papers from the years 1963-64 to 1967-68 (Ex. P-1) show that the defendants are in possession of the suit land as mortgagees and not as tenants. This finding of fact is not only based on Ext. P-1 but also on the evidence of Banshilal (PW. 2) and Munshilal (PW. 3 ). According to the finding of fact recorded by the first appellate Court, the suit land was mortgaged by the plaintiff with the defendants for five years, and the defendants were in possession of the suit land as mortgagees. ( 11 ) BUT was it a valid mortgage? The plaintiff pleaded in paras 2 and 3 of the plaint that the suit land was mortgaged with the defendants with possession and he obtained Rs. 600/- which was needed for a marriage in the family. No document of mortgage has been produced by the plaintiff, but, according to his pleading, a document of mortgage was written. The finding of the first appellate Court with regard to the factum of mortgage is not only based upon the entries in the annual village papers made by the Patwari (Ext. P-1) but also on the oral evidence of the plaintiff and his witnesses. The finding of the first appellate Court with regard to the factum of mortgage is not only based upon the entries in the annual village papers made by the Patwari (Ext. P-1) but also on the oral evidence of the plaintiff and his witnesses. This finding is vitiated by the fact that if a mortgage deed was written and not produced, the terms of the contract, which were reduced to writing, cannot be said to be proved due to the specific bar created by the provisions of S. 91, Evidence Act. ( 12 ) FURTHERMORE, S. 59 of T. P. Act, which is being reproduced below, creates a mandate that mortgage of Rs. 100 or upwards of valuation is compulsorily registrable :"59, Mortgage when to be by assurance. Where the principal money secured is one hundred rupees or upwards, a mortgage, other than a mortgage by deposit of title-deeds, can be effectd only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property. "thus, the requirement of this provision cannot be got over by applying the doctrine of part performance. Consequently, an admission by the mortgagor that the mortgagee was in possession of the property as a mortgagee under an oral mortgage for a consideration of more than one hundred rupees cannot create a mortgage, nor an entry in the revenue record to that effect is sufficient. The principle that 'once a mortgage always a mortgage' will not be applicable, as there is no mortgage at all. Even where the mortgage is not a valid transaction because of non-compliance with S. 59, T. P. Act, the mortgagee may acquire the status of a mortgagee by prescription. It is for the mortgagee to have a proper and valid mortgage deed executed in his favour. If the mortgage deed is defective due to nonregistration and the mortgagee takes possession of the mortgaged property, the principle 'once a mortgage always a mortgage' applies, and the mortgagee cannot be permitted to resist the redemption by the mortgagor. It is for the mortgagee to have a proper and valid mortgage deed executed in his favour. If the mortgage deed is defective due to nonregistration and the mortgagee takes possession of the mortgaged property, the principle 'once a mortgage always a mortgage' applies, and the mortgagee cannot be permitted to resist the redemption by the mortgagor. But; in this case, as no mortgage deed has been produced, and no oral or other evidence in proof of the mortgage deed can be accepted and the defendants have also not taken the plea of mortgage, the first appellate Court has committed an error in law in passing a decree for redemption in favour of the plaintiff. ( 13 ) THUS, according to the findings of the first appellate Court, the possession of the appellants over the suit land was not as sub-tenants and hence there was no lease in their favour. Consequently, they do not acquire any right of an occupancy tenant over the suit land. The finding of the first appellate Court that the possession of the appellant-defendants was that of a mortgagee is erroneous. There was no valid mortgage and, hence, this finding of the first appellate Court has to be set aside, as no decree for redemption could be passed in favour of the plaintiff. ( 14 ) THE relief prayed for a decree of redemption includes a prayer for a decree of possession, but as the factum and finding of mortgage has been set aside, a decree in favour of the plaintiff for possession over the suit land solely on the strength of his title can be passed. The possession of the appellants-defendants over the suit land was not as a lessee, but only as a licensee. The cardinal distinction between a lease and a licence is that in a lease there is a transfer of interest in the land, whereas in the case of a licence there is no transfer of interest, although the licensee acquires a right to occupy the land. Therefore, a decree for possession in favour of the respondent-plaintiff can be passed. ( 15 ) THE plaintiff has admitted that he obtained an amount of Rs. 600/- from the appellants-defendants. This admission binds him in law and it is equitable that he should pay back this amount to the appellants. Therefore, a decree for possession in favour of the respondent-plaintiff can be passed. ( 15 ) THE plaintiff has admitted that he obtained an amount of Rs. 600/- from the appellants-defendants. This admission binds him in law and it is equitable that he should pay back this amount to the appellants. ( 16 ) THE upshot of the above discussion is that this appeal, with the modifications stated herein above, is dismissed. The judgment and decree passed by the first appellate Court stand modified to the extent that the respondent-plaintiff shall get back in his favour possession simpliciter of the suit land and shall be entitled to get vacant possession after the ejectment of the appellant-defendants. But before that he shall deposit an amount of Rs. 600/- to be disbursed to the appellant-defendants. Parties are directed to bear their own costs as incurred throughout. Appeal dismissed. .