Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 258 (HP)

RAM KRISHAN v. HALKU

2003-09-02

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This second appeal arises out of the judgment and decree of the learned Additional District Judge, Shimla dated 14th of November, 2002 in Civil Appeal No. 72-S/13 of 2001. To appreciate the questions raised in this appeal, few facts may be noticed: 2. Haiku plaintiff, respondent No. 1, in this appeal, mortgaged with possession the suit land for Rs. 6,000 with the defendants-appellants Ram Krishan and Rakesh. The mortgage deed, an unregistered document, stipulated that if mortgagor does not redeem the land within three years of the execution of the document, then the land, subject of mortgage, would be considered to have been sold to the mortgagee and plaintiff would not be entitled to redeem it. It was further stipulated that the usufruct of the land would be considered adjusted towards interest on the mortgage amount. This document was executed on 27th of November, 1984. 3. Admittedly, the land was not redeemed within three years of the execution of the document. Plaintiff Haiku laid a suit on 6th of March, 1999 claiming redemption of land on payment of Rs. 6,000. 4. Defendants took a plea that the plaintiff had lost his right, title and interest in the suit land, as he did not redeem the property within stipulated period of three years. It was also pleaded that plaintiff mortgaged the entire property with defendants and not his share alone. 5. Be it noticed at this stage that the plaintiff had only half share in the suit land. 6. Learned trial Court concluded that the mortgage though is proved but the document mark X having not been proved in accordance with law and being unregistered document is inadmissible in evidence. The plaintiff held learned trial Court was entitled to redeem half share of the suit land on the payment of Rs. 6,000. The plea of the defendants that they have made developments in the land having spent more than Rs. 8,000 and, therefore, entitled to such development charges, was rejected. The suit was decreed partly. A preliminary decree for possession of half share in the suit property on payment of Rs. 6,000 by the plaintiff, was passed against the defendants. 7. Dis-satisfied, defendants carried an appeal before the learned District Judge. This appeal was dismissed by the Additional District Judge by the impugned judgment. The suit was decreed partly. A preliminary decree for possession of half share in the suit property on payment of Rs. 6,000 by the plaintiff, was passed against the defendants. 7. Dis-satisfied, defendants carried an appeal before the learned District Judge. This appeal was dismissed by the Additional District Judge by the impugned judgment. Learned Additional District Judge found as fact that factum of mortgage is not denied by defendants No. 1 and 2 in the written statement nor in their evidence. The plea of the defendants that plaintiff has lost the right to redeem the land, was negatived. Learned first appellate court referred to the mutation Ex. PW-l/C and Ex. PW-1/A and held that the suit land was mortgaged in favour of defendants for consideration of Rs. 6,000. This was held without reading document mark X. Learned Judge took a view that at the time when mortgage was created, it was permissible to mortgage the land without the registration of mortgage document. 8. Still aggrieved, the defendants are in this second appeal. 9. I have heard Mr. G.D. Verma, Senior Advocate for the appellants. 10. The first contention of Mr. Verma is that the document mark X has not been read in evidence, which should be read in evidence. He submits that defendants moved an application before the first appellate Court for additional evidence, under Order 41 Rule 27 of the Code of Civil Procedure, to prove document mark X, which was not considered. 11. The second contention is that the appellants are entitled to the amount which they spent for the development of land in dispute. In any event argues Mr. Verma, defendants having been put in possession pursuant to the agreement to sell are entitled to protection of Section 53-A of the Transfer of Property Act. 12. So far as the first contention is concerned, I have read the document mark X as a whole. The document clearly and unambiguously provides that the land in dispute, was mortgaged with possession by the plaintiff with the defendants Nos. 1 and 2 for consideration of Rs. 6,000. It was clearly stipulated that in case plaintiff fails to pay Rs. 6,000 within three years, then the transaction would be considered to be absolute sale. The document clearly and unambiguously provides that the land in dispute, was mortgaged with possession by the plaintiff with the defendants Nos. 1 and 2 for consideration of Rs. 6,000. It was clearly stipulated that in case plaintiff fails to pay Rs. 6,000 within three years, then the transaction would be considered to be absolute sale. The relevant part in English translation reads : "The mortgage with possession shall be subject to the condition that I will pay the amount of consideration within three years and get back the possession of my land. If I do not pay the aforesaid amount within three years, then the land would be considered to have been sold and I will not have any right to get it back." 13. As the entire document has been read, therefore, the defendants cannot have any grievance that this document was not read in evidence. The grievance of defendants that their application for additional evidence, to prove this document, was not considered does not survive. 14. The reading of document mark X does not take the case of the appellants any further. The stipulation in this document that after the expiry of period of three years, the mortgaged property would be considered to have been sold is void. It is well settled that there cannot be any clog on the equity of redemption. The right to redeem mortgaged property under Transfer of Property Act, as observed by the Apex Court in Ganga Dhar v. Shankar Lai and others, AIR 1958 SC 770, is unfettered till expiration of the specified period or the period provided under the Limitation Act. 15. The Courts while considering such document would ignore such stipulation which deprives a mortgagor of his right to redeem the mortgaged. 16. So far as the question of the payment for improvement made by the mortgagee is concerned, as noticed by the trial Court and the first appellate Court, defendants are not entitled to such charges in the absence of any plea that the improvements were made for the preservation of the property in dispute or under the orders of any lawful authority. 17. The contention that possession of the defendants is protected by the provisions of Section 53-A of the Transfer of Property Act is noticed to be rejected. By no stretch document mark X can be said to be an agreement to sell. 18. 17. The contention that possession of the defendants is protected by the provisions of Section 53-A of the Transfer of Property Act is noticed to be rejected. By no stretch document mark X can be said to be an agreement to sell. 18. No substantial question of law arises in this appeal. Dismissed. CMP No. 96/2003 In view of the dismissal of the appeal, this application does not survive. Interim orders dated 5th of March, 2003 shall stand vacated.