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Andhra High Court · body

2005 DIGILAW 652 (AP)

Yadava Kamalabai v. Bijjam Venkata Subbamma

2005-07-20

L.NARASIMHA REDDY

body2005
( 1 ) THE plaintiff in O. S. 350 of 2002, on the file of the Principaljunior Civil Judge, Prodduturu is the petitioner. She filed the suit against the respondent for recovery of a sum of rs. 70,000/- with interest, from the respondent. The trial of the suit commenced. She sought to rely upon a document dated 4-5-2001 in her evidence. The respondent raised an objection as to its admissibility, on the ground that it evidences an usufructuary mortgage. Through its order dated 29-12-2003 the trial court sustained the objection and refused to receive the document in evidence. Hence, this revision. ( 2 ) SRI A. V. S. Ramakrishna, learned counsel for the petitioner, submits that the document in question, had only enabled the petitioner to remain in the said premises, in lieu of payment of interest, on the amount of rs. 70,000/- advanced by her and as such it cannot be treated as a transaction of usufructuary mortgage. He further submits that even otherwise, the document could have been received in evidence for collateral purposes. ( 3 ) SRI K. V. Subrahmanya Narusu, learned counsel for the respondent, on the other hand, submits that the document in question not only provided for adjustment of rent of the building towards the interest payable on the amount, but also directed that the possession of the premises shall be retained, till the amount is repaid, and in that view of the matter, it answers the description of a deed of usufructuary mortgage. ( 4 ) A perusal of the document dated 4-5-2001, discloses that the respondent borrowed a sum of Rs. 70,000/- from the petitioner and handed over the possession of the premises bearing No. 4/737 to the petitioner so that she can enjoy it, free of rent. It was indicated that the rent that is payable to the premises shall be adjusted towards the monthly interest on Rs. 70,000/ -. There is a recital to the effect that the possession of the premises shall be redelivered to the respondent, after the amount of Rs. 70,000/- is repaid. Petitioner contends that possession of the premises was taken by the respondent forcibly, even without repaying the amount of rs. 70,000/ -. That however is a different aspect. ( 5 ) SECTION 58 (d) of the Transfer of Property act enlists the ingredients of an usufructuary mortgage. 70,000/- is repaid. Petitioner contends that possession of the premises was taken by the respondent forcibly, even without repaying the amount of rs. 70,000/ -. That however is a different aspect. ( 5 ) SECTION 58 (d) of the Transfer of Property act enlists the ingredients of an usufructuary mortgage. The distinguishing feature of this mortgage is that in lieu of payment of interest or adjustment of the whole or part of the borrowed amount, the mortgagor permits the mortgagee to enjoy the rents of a specified immovable property and delivers the possession thereof, to the mortgagee. This would serve two purposes viz. , providing security for repayment of the borrowed amount and adjustment of rent accrued thereon, towards the interest or principal, or both, as the case may be. The document in question clearly evidences such a transaction. It provided for adjustment of the entire rent towards the interest payable on Rs. 70,000/ -. Further, redelivery of possession of the premises is to take place only after the repayment of the entire amount. Therefore, no exception can be taken to the order under revision. ( 6 ) LEARNED counsel for the petitioner submits that in view of the document referred to above, the parties did not execute any pronote or other document, for the amount advanced by the petitioner, and in that view of the matter, that document can be received for collateral purpose of evidencing the transaction of borrowing of money. Proviso to Section 49 of the Registration Act directs that even when a document, which is registrable under that Act or the Transfer of property Act, is not registered, it can be received in evidence for proving any collateral transaction, which is not required to be effected by registered instrument. A simple transaction of lending of money is not required to be registered. Apart from evidencing the transaction of mortgage, the document in question refers to the factum of lending of money by the petitioner to the respondent. The same deserves to be treated as collateral purpose. Therefore, the document in question can be received in evidence for that collateral purpose. Apart from evidencing the transaction of mortgage, the document in question refers to the factum of lending of money by the petitioner to the respondent. The same deserves to be treated as collateral purpose. Therefore, the document in question can be received in evidence for that collateral purpose. ( 7 ) FOR the foregoing reasons, the CRP is partly allowed directing that the trial court shall receive the document in question for collateral purpose of proving the transaction of lending the amount and that it shall not be relied upon to prove the transaction of the usufructuary mortgage. There shall be no order as to costs.