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2009 DIGILAW 241 (KAR)

Rukmini v. Indirammal

2009-03-26

K.N.KESHAVANARAYANA

body2009
Judgment :- K.N. Keshavanarayan, J The unsuccessful plaintiff in O.S.209 of 1991 on the file of the then Munsiff is before this Court in this second appeal questioning the legality and correctness of the concurrent judgment of the Courts below, dismissing his suit filed for redemption of the mortgage an re-delivery of the mortgaged property to him. 2) The appellant was the sole plaintiff and the 1st respondent was the sole defendant in the Trial Court. The plaintiff filed the suit for judgment and decree directing the defendant to redeem the mortgaged property by receiving the mortgaged amount and to deliver the original Mortgaged Deed with discharge share thereon and also to deliver vacant possession of the schedule property to him and for an enquiry under Order 20 Rule 12 CPC regarding future mesne profits from the date of suit till the date of delivery of possession. The subject matter of suit is an out house situated at Jains Colony, Mandya City bearing Municipal Khatha No.4719/1428 site measuring East- West: 28-1/4 feet and North-South: 40ft 2”with Mangalore tiled roof. 3) The case of the plaintiff in briefs is as under: The schedule property originally belonged to one Sri. M.A. Bahubali Raju. He mortgaged the said property in favour of Defendant vide Mortgaged Deed dated 06.02.1983 for a sum of Rs.20,000/- and delivered possession of the mortgaged property to the Mortgaged (Defendant) and he was permitted to enjoy the mortgaged property in lieu of the interest payable on the principle amount. The time for re- payment of the mortgaged amount fixed as eight years came to an end on 06.02.1991. The said Bahbali Raju sold the schedule property in favour of the plaintiff under the Registered Sale Deed dated 19.11.1984 subject to the mortgaged created in favour of the defendant. Thus, the plaintiff became the absolute owner of the property and also acquired the right of equity of redemption and was entitled to redeem the mortgaged after expiry of period fixed under the Mortgaged Deed. After the expiry of the time fixed under Mortgaged Deed, the plaintiff issued a noticed to the defendant on 24.01.1991 calling upon him to receive the Mortgaged amount and to redeem the mortgaged and also redeliver possession of the mortgaged property. After the expiry of the time fixed under Mortgaged Deed, the plaintiff issued a noticed to the defendant on 24.01.1991 calling upon him to receive the Mortgaged amount and to redeem the mortgaged and also redeliver possession of the mortgaged property. Though the said notice was served on the defendant, the defendant instead of complying with the said notice, gave and untenable reply contending that he has spent huge money for repairs and that he should be paid the said amount along with mortgaged money. In the reply notice, the mortgaged alleged that the sons of said Bahubali Raju have filed a suit in O.S. 239/89 for declaration of their title and therefore the mortgaged cannot be redeemed. With these allegations, the plaintiff sought for the aforesaid reliefs. 4) Upon service of suit summons, the sole defendant appeared and filed his written statement reiterating his stand taken i8n his reply notice. However, the defendant made a statement in his written statement that he is prepared to redeem the mortgaged at any time if the Court decides the right of the plaintiff and orders for such redemption and the plaintiffs pays into the Court all the money spent by him towards repairs and other expenses. 5) In the light of the pleadings of the parties, the Trial Court framed the following issues: i) Whether the plaintiff proves that he has purchased the suit schedule property, if so, has he acquired the right for redemption of the mortgaged property? ii) Whether the defendants proves that he has repaired the house by spending amount of Rs.5.000/- to make the house fit for residence or living with the consent of the mortgaged? iii) Whether the plaintiff is liable to pay the repair charges to the defendant as content in Para-6 of the written statement? iv) Whether the case pending in O.S. 231/89 on the file of Additional Civil Judge, Mandya, bars the plaintiff to get the property redeemed? v) Whether the plaintiff is entitled to decree? vi) What decree or order? 6) The parties led evidence. The plaintiff examined herself as P.W.1 and one Krishnaswamy was examined as PW. Exs.p1 to p4 were marked. The defendant neither did not oral evidence nor produced any documentary evidence. v) Whether the plaintiff is entitled to decree? vi) What decree or order? 6) The parties led evidence. The plaintiff examined herself as P.W.1 and one Krishnaswamy was examined as PW. Exs.p1 to p4 were marked. The defendant neither did not oral evidence nor produced any documentary evidence. 7) After the evidence of the parties were closed, a memo dated 21.06.1993 signed by GPA holder of defendant was filed before the Trial Court to the effect that the defendant as mortgaged has received the full amount of mortgaged namely, Rs.20, 000/- along with repair charges of Rs.5,000/- and Rs.2,000/- towards Municipal taxes paid during the period of mortgaged from the sons of deceased mortgagor namely, Sri. Adesh and other on 27.03.1992 and has redeemed the mortgaged and has delivered possession of the out house by making endorsement of discharge on the original Mortgaged Deed and that the discharged Mortgaged Deed was also delivered to them on the same day. Therefore, the defendant in the said memo contended that since the Mortgaged is already redeemed and the mortgaged property has been re-delivered, the suit is liable to be dismissed. 8) The Trial Court after hearing the parties and on assessment of the oral and documentary evidence, answered Issue No.1 in the affirmative holding that the plaintiff has proved that the has purchased the suit schedule property and thereby he has acquired the right of redemption. The Trial Court held the Issue – 2 to 4 do not survive for consideration in the light of the memo filed by the defendant as the mortgaged has been redeemed and possession of the mortgaged property has been re-delivered to the sons of the original mortgagor. The Trial Court also held that as the defendant has delivered the possession of the mortgaged property to the sons of Bahubali Raju by redeeming the mortgaged and the sons of Bahubali Raju are not impleaded to the suit as parties, no relief can be granted to the plaintiff. In that view of the matter, the Trial Court held that the plaintiff is not entitled for the reliefs sought in the suit, therefore, the Trial Courts dismissed the suit. Aggrieved by the said judgment and Decree, the plaintiff filed appeal in R.A. No.58 of 1994 on the file of the Additional Civil Judge (sr. Dn.) at Mandya. In that view of the matter, the Trial Court held that the plaintiff is not entitled for the reliefs sought in the suit, therefore, the Trial Courts dismissed the suit. Aggrieved by the said judgment and Decree, the plaintiff filed appeal in R.A. No.58 of 1994 on the file of the Additional Civil Judge (sr. Dn.) at Mandya. 9) The First Appellate Court after hearing the parties, disposed of the said appeal by Judgment dated 27.03.2002. During the course of the judgment, the Lower Appellate Court framed the following points for consideration. i) Whether the observation made and the conclusion arrived t by the Trial Court that on account of filing of the suit by the sons of Bahubali Raju, the appellant was not entitled for decree of the suit is opposed to law and facts of the case? ii) Whether the judgment and decree of the lower Court is liable to be interfered with? iii) What order? 10) The First Appellate Court on re-assessment of the evidence on record, concurred with the findings of the Trial Court and held that the judgment of the Trial Court does not call for interference. Accordingly the appeal came to be dismissed. Being aggrieved by the concurrent judgment of the Courts below, the plaintiff/appellant has filed this appeal. 11) On 07.10.2004, this appeal was admitted for consideration of the following Substantial Questions of law. i) Whether the Courts below are justified in dismissing the suit on the ground that the sons of the vendor of the appellant-plaintiff have not been made parties to the suit and whether non-imp leading of the sons of the vendor would be fatal to the suit? ii) Whether the Courts below could have dismissed the suit for redemption, solely on the ground that after filing of the suit, the sons of the vendor have allegedly redeemed the mortgaged of the property, which was sold under the sale deed obtained by the appellant? 12) Upon service of notice of this appeal, Respondent No.1 who was the sole defendant in the Trial Court appeared through her Learned Counsel. During the pendency of this appeal, Application–I.A.No.1/2004 under order I Rule 10 CPC came to be filed by the appellant/plaintiff to impaled Sri. Bahubali Raju and his sons as Additional Respondents-2 to 5. 12) Upon service of notice of this appeal, Respondent No.1 who was the sole defendant in the Trial Court appeared through her Learned Counsel. During the pendency of this appeal, Application–I.A.No.1/2004 under order I Rule 10 CPC came to be filed by the appellant/plaintiff to impaled Sri. Bahubali Raju and his sons as Additional Respondents-2 to 5. Upon service of notice of the application on the proposed respondent, they did not choose to file objections to the application. While admitting the appeal on 07.10.2004, I.A. No.1 of 2004 was directed to be considered at the time of final hearing of the appeal. 13) I have heard Sri. M. Shivappa, Learned Senior Counsel appearing for the appellant/plaintiff; Sri. D.R.Sundaresh, Learned Counsel appearing for the 1st defendant/Respondent No.1 and Sri. Gourishankar, Learned Counsel for proposed Respondents-2 to 4. 14) Sri M.Shivappa, Learned Senior Counsel would Submits as under: i) The judgments of the Courts below are highly erroneous and opposed to law. The mortgagor Bahubali Raju was the Manager and kartha of the joint family and therefore, he had implied authority to alienate the joint family property for legal necessities and in the capacity he sold the schedule property in favour of the plaintiff under a Registered Sale Deed and thus the plaintiff acquired the right to redeem the mortgaged and get redelivery of the mortgaged property. Therefore, the Courts below are not justified in accepting the mere statement of the defendant that he has redelivered the mortgaged property to the sons of Bahubali Raju upon redemption of the mortgaged and in that regard, the Court below have failed to see that the sons of Bahubali Raju had no right to redeem the mortgaged. ii) Though the sons of Bahubali Raju acquired the right by birth over the co-parcenary properties, he being the manager of the join family, had implied authority to alienate the property for the legal necessities. Upon such alienation, the right of the other coparceners got extinguished subject to they getting the alienation set aside on any one of the ground available to them under law, as such, the moment the property was sold in favour of the plaintiff by Bahubali Raju, his sons had lost the right of redemption. Upon such alienation, the right of the other coparceners got extinguished subject to they getting the alienation set aside on any one of the ground available to them under law, as such, the moment the property was sold in favour of the plaintiff by Bahubali Raju, his sons had lost the right of redemption. iii) In the suit filed by the sons of Bahubali Rajuy in O.S.239/89 they had in fact sought for declaration that he sale deed executed by their father in favour of the present plaintiff is not binding on them and the said suit ultimately came to be dismissed in respect of this schedule property holding that the alienation in favour of the plaintiff was for legal necessities and it is binding on the plaintiffs therein and the appeal filed against the said judgment to the Trial Court, before this Court also came to be dismissed affirming the findings of the Trial Court, as such, the sons of Bahubali Raju had absolutely no right to redeem the mortgage and the defendant as a mortgaged could not have accepted the money from them towards the discharge of the Mortgage Debt. iv) Assuming for the purpose of argument that the defendant be accepting money from the sons of Bahubali Raju discharged the mortgage, as the discharge was not valid even if the sons of Bahubali Raju are in possession of the property, it has to be deemed that the said possession was for and on behalf of the mortgagee and therefore, the Court has jurisdiction to direct mortgagee/defendant to re-deliver the possession of the property, by accepting the mortgaged amount from the plaintiff. v) Before the Trial Court, the defendant did not place any acceptable evidence to show that the mortgage was in fact discharge and redeemed and the Trial Court proceeded to hold that the mortgage has been discharged and redeemed only on the basis of a memo filed by the PA holder of the defendant during the pendency of the suit and in the absence of any evidence to establish the redemption of the mortgaged in accordance with law, the court below are not justified in holding that the plaintiffs is not entitled to redeem the mortgaged and for re-delivery of possession of the property. vi) Redemption of a mortgage and re-delivery of possession of the mortgaged property can be effected only by a registered instrument as required by Section 17 of the Indian Registered At and since admittedly no such registered instrument has come into existence regarding the alleged discharge of the mortgage debt and re-delivery of the possession of the mortgaged property, the Court below are not justified in accepting the say of the defendant that mortgaged has been redeemed and possession has been delivered. vii) The sons of Bahubali Raju are not necessary parties to the suit for the simple reason that the alleged discharge has occurred during the pendency of the suit filed by the plaintiff for redemption, as such, the alleged transaction is hit by principles of lis pendence and whatever right drived is subject to the result of the suit. Therefore, the Court below are not justified in denying the reliefs sought in the plaint to the plaintiffs. With these submissions, he contended that the judgments of the Courts below are erroneous and they are liable to be set aside and the suit deserves to be decreed against the defendant s directing hhim to redeem the mortgage by executing the discharge endorsement, getting it registered and also to redeliver the possession of the property. 15) On the other hand, Sri. D.R. Sundaresh, Learned Counsel for the defendant would submit as under:- i) The sons of Bahubali Raju being the co-parceners of the joint family, had right by birth over the suit schedule property and therefore, they had every right to redeem the mortgage in the light of the provision of Section 91 of the Transfer of Property Act and in exercise of that right, they have redeemed the mortgage and the defendant was well within her right in accepting the mortgaged amount from the sons of Bahuabali Raju and redelivering the possession of the mortgaged property to them. ii) As the mortgaged had already been redeemed by the sons of Bahubali Raju and possession of the mortgaged property had been redelivered to them, the Courts below have rightly held that the plaintiff is not entitled for any of the reliefs sought in the suit and his remedy is only to seek possession of the property from the sons of Bahubali Raju. iii) The discharge endorsement does not registration and mere delivery of the Mortgage Deed to the mortgagor or the person who is entitled to redeem the mortgaged itself is sufficient to indicate the redemption of the mortgage and since in the case on hand, the very mortgage has accepted that he has received the mortgage amount and has redelivered the possession of the mortgaged property, there was nothing for the Court to do but to dismiss the suit, which the Court below have rightly done, as such, the judgment of the Court below are in accordance with law and they do not call for interference by this Court. 16) Sri. Gousrishankar, Learned Advocate for proposes Respondent -2 to 4 would submit that since the proposed Respondent 2-4to were not parties to the suit before the Trial Court or before the First Appellate Court and since they are now sought to be imp leaded as parties before this Court for the first time, they area required to be afforded with an opportunity to put-forth their stand and for that purpose, the matter require to be remanded to the Trial Court for fresh disposal in accordance with law. It is also his submission that Proposed Responden-2to 4 being sons of mortgagor had every right to redeem the mortgaged, and in exercise of the said right, they have discharged the mortgaged and got possession of the property from the mortgagee, as such, they are in possession of the property in their independent right and therefore, they are entitled to protect their possession. Therefore, without giving them an opportunity to put-forth their defence to protect their possession, no order can be passed against them by this Court. Therefore, he sought for remand of the matter to the Trial Court. 17) Certain undisputed facts are the suit schedule property was joint family property of Bahubali Raju and his sons. The said Bahubali Raju was the Manager and Kartha of the joint family. He borrowed a sum of Rs.20,000-00 from the defendant and executed a Mortgaged Deed Ex.P.1. in favour of the defendant on 06.02.1983, put the mortgagee defendant in possession of the mortgaged property. The duration of the mortgage as per the terms of the mortgage deed was 8 years as such it expired on 06.02.1991. He borrowed a sum of Rs.20,000-00 from the defendant and executed a Mortgaged Deed Ex.P.1. in favour of the defendant on 06.02.1983, put the mortgagee defendant in possession of the mortgaged property. The duration of the mortgage as per the terms of the mortgage deed was 8 years as such it expired on 06.02.1991. However, in the mean while the said Bahubali Raju in the capacity of the Manager and Kartha of the joint family sold the suit schedule property in favour of the plaintiff under a registered sale deed the dated 19-11-1948 marked as EX.P.4 subject to the mortgage in favour of defendant. The sons of Bahubali Raju being minors represented by their mother and natural guardian filed suit in O.S. NO.239/1991 for the relief of partition and separate possession of their 3/5th share in the joint family properties including the suit schedule property and also for declaration that the sale effect in favour of the plaintiff herein as per Ex.P.4 dated 19.11.1984 does not blind their interest, inter alia contending that, the said sale was not for legal necessities. To the said suit both the plaintiff and defendant were imp leaded as defendants. Both of them appeared in the said suit, filed respective written statements inter alia contending that the mortgage created by the Bahubali Raju was for legal necessities and the sale made by Bahubabli Raju in favour of the plaintiff was also foe regal necessities. Upon the expiry of the time fixed under he mortgage deed the plaintiff as the purchaser of the property from the original mortgage amount and to re-deliver possession of the mortgaged property to him. As his demand was not complied with the filed the present suit on 02.03.1991 seeking decree for redemption and for other reliefs as noted earlier. 18) As noticed earlier, the defendant appeared in the Trial Court, filed his written statement on 14-11-1991 inter alia contending that she has spent Rs.50,000 in addition to the mortgage amount. He made it clear that he is prepared to redeem the mortgage it the Court decides the right of the plaintiff to redeem the mortgage. As on the date of the defendant filing his written statement, admittedly the alleged discharge of mortgaged had not taken place. He made it clear that he is prepared to redeem the mortgage it the Court decides the right of the plaintiff to redeem the mortgage. As on the date of the defendant filing his written statement, admittedly the alleged discharge of mortgaged had not taken place. It is only by a Memo filed on 21-06-1993 signed by GPA Holder of defendant, it was reported to the Trial Court that the sons of Bahubali Raju have repaid the entire mortgage amount along with the repair charges and other expenses on 27-03-1992 itself and on receipt of the said amount he had discharged the mortgaged by redelivering the mortgage deed and possession of mortgaged property. It is based on this Memo, as noticed earlier; the Trial Court dismissed the suit of the plaintiff holding that the plaintiff is not entitled for the relief. 19) It is also necessary to note that the suit filled by the sons of Bahubali Raju in 0.S.No.239/1991 in respect of the suit schedule property came to be dismissed by the Trial Court on @6.02.1994 holding that the alienation of the suit schedule property in favour of the plaintiff was for legal necessities and it is blinding on them. The correctness of the said judgment of the Trial Court was questioned by the sons of Bahubali Raju in appeal before this Court in RFA NO.403/1994. The said appeal came to be dismissed by a Division Bench of this court on 17-12-2004 affirming the findings of the Trial Court. Thus, the attempt of the sons of Bahubali Raju to get the alienation in favour of the plaintiff, set aside failed. It is in the light of these undisputed facts this Court should consider the substantial questions of law raised at the time of admission of the appeal. Question No.1 20) As noticed earlier, the alleged discharge of the mortgage by the sons of Bahubli Raju was during the pendency of the present suit filed by the plaintiff for redemption. Therefore, sons of Bahubali Raju could not have been imp leaded as party defendants to the suit when the suit came to the filed. As the alleged transaction of discharge of mortgaged by the sons of Bahubali Raju has taken place during the pendency of the suit, Section 52 of T.P. Act gets attracted to the said transaction. Therefore, sons of Bahubali Raju could not have been imp leaded as party defendants to the suit when the suit came to the filed. As the alleged transaction of discharge of mortgaged by the sons of Bahubali Raju has taken place during the pendency of the suit, Section 52 of T.P. Act gets attracted to the said transaction. Accordingly to Section 52, during the pendency of any suit pr proceeding in any Court not being collusive and in which any right to immovable property is directly and specifically in question, such property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. In the present suit the question involved was as to the right of the plaintiff to redeem the mortgage created in respect of an immoveable property. The defendant mortgagee having made it clear in his written statement that he is prepared to redeem the mortgage at any time if the Court decides the right of the plaintiff, alleged to have redeemed the mortgage in favour of the sons of Bahubali Raju without seeking permission of the Court or without informing the Court . It is no body’s case that the present suit is a collusive one. Therefore, whatever right if any sons of Bahubali Raju hav acquired under the alleged redemption is subject to the result of the suit. That being the position, it was not open to the mortgagee to have discharged the mortgaged the mortgage by accepting the money from the sons of Bahubali Raju. In any case since sons of Bahubali Raju to have discharged the mortgage and got redelivery of possession of the property from the mortgagee defendant during the pendency of the suit, they were neither necessary nor proper parties to the suit. They were bound by the decree that may be passed against the mortgagee defendant in the suit. In addition to this, it is also necessary to note as to whether the sons of Bahubali Raju had right of redemption so that they could redeem the mortgage and get redelivery of the possession. Section 91 of the T.P. Act sets out the persons who may sue for redemption. In addition to this, it is also necessary to note as to whether the sons of Bahubali Raju had right of redemption so that they could redeem the mortgage and get redelivery of the possession. Section 91 of the T.P. Act sets out the persons who may sue for redemption. According to this section besides he mortgagor and mortgagee, any person who has any interest in, or charge upon, the property mortgaged, any person who has any interest in, or charge upon, the property mortgaged or in or upon the right t0 redeem or even any surety for the payment of the mortgage debt or any creditor of the mortgagor who has obtained a decree for sale of the mortgaged property in any suit for administration of the estate of the mortgagor, is entitled to redeem the mortgage. In the light of this Section it is necessary to now find out as to whether the sons of Bahubali Raju had right to redeem the mortgage. As noticed earlier, there is no dispute that he schedule property was a joint family property of Bahubali Raju and his sons. Bahubali Raju was the Manager and Kartha of the joint family. It is a well settled law that the Manager or the Kartha of the joint family has implied authority to encumber or alienate joint family properties for legal necessities. Such alienation by the Kartha or the manager of the joint family binds not only himself but also the other co-pacenars. If any one of the co-pacenars of the joint family feels that such alienation was not for legal necessity and was for immoral purposes, it is for him to question the legality of such alienation in the manner purposes, it is for him to question the legality of such alienation in the manner known to law. Moment the manager or Kartha of the joint family in exercise of his implied authority executes the sale deed in respect of joint property, since it binds the other co-pacenars as long as it is not annulled in the manner known to law, the rights of other co-pacenar gets extinguished. Moment the manager or Kartha of the joint family in exercise of his implied authority executes the sale deed in respect of joint property, since it binds the other co-pacenars as long as it is not annulled in the manner known to law, the rights of other co-pacenar gets extinguished. In the view of the matter, upon Bahubali Raju executing the sale deed on 19-11-1994 in favour of the plaintiff in the capacity as kartha of the joint family, the right of his sons over the suit schedule property which they had acquired by birth got extinguished. Therefore, they had no right of redemptions sine the right of equity of redemption had been transferredd in favour of the plaintiff by virtue of he sale. The plaintiff being the purchaser of he property stepped into the shoes of the mortgagor namely Bahubali Raju and he had acquired the right of equity the right of equity of redemption. According to Section 59-q of T.P. Act, the term mortgagor and mortgagee deemed to include person deriving title from them respectively. Therefore, he was entitled to redeem mortgage upon expiry of the period fixed in the mortgaged deed. In the fact the sons of Bahunali Raju did question the legality of the alienation made by their father in favour of the plaintiff by filing a suit. The said suit was filed much before the expiry of the period fixed under the mortgage deed. To the said suit the plaintiff who is the purchaser of the property and the defendant who is the purchaser of the property and the defendant who is the mortgage under the mortgage deed were made parties and they contested the suit contending that the mortgage as well as sale was for legal necessity. In the light of this definite stand of the mortgage in the suit filed by the sons of Bahubalil Raju, there is no substance in the contention of Sri. D.R. Sundaresha that the mortgagee was not notified by the mortgagor about sale of property in favour of the plaintiff in the present suit. The suit filed by the sons of Bahuabli Raju was in respect of alienation made by their father in favour of the plaintiff in this suit. The defendant mortgage was very much party to the said suit and he had filed written statement. The suit filed by the sons of Bahuabli Raju was in respect of alienation made by their father in favour of the plaintiff in this suit. The defendant mortgage was very much party to the said suit and he had filed written statement. Therefore, the defendant was very much in the knowledge of the sale of the suit schedule property by Bahybali Raju in favour of the plaintiff admittedly had issued notice to the defendant, which had been replied by the defendant wherein he had specifically mentioned about sons of Bahubali Raju having filed suit O.S.No.239/1989. Therefore, it is not open him to contend that he was not aware of the sale. IN fact, the alleged discharge by the sons of Bahubali Raju was after the filing of the suit wherein the plaintiff had specifically pleaded that Bahubali Raju has sold the property under registered Sale Deed and he had produced the copy of the sale deed. Knowing fully well that, Bahubali Raju has sold the schedule property in favour of the plaintiff under registered sale deed and subject to mortgage in his favour and thereby the plaintiff had acquired the right of equity of redemption and having made a statement in the present suit that he is ready to redeem the mortgage if the Court decide the right of the Plaintiff, it was not open to the defendant to contend that he has received money from the sons of Bahubali Raju and redeemed the mortgage. In the view of the sale by Bahubali Raju in favour of the plaintiff subject to the mortgage and since the said alienation was for legal necessity, the sons of Bahubali Raju had no subsisting right of redemption. Even if the alleged discharge stated to have occurred during the penduncy of the suit, they are not necessary parties to the suit. The Courts below could not have rejecters the prayer sought for by the plaintiff the suit only on the ground that the sons of Bahubali Raju are not imp leaded as party defendants to the suit. 21) As noticed earlier, the Courts below have dismissed the suit only on the ground that during the pendency of the suit the sons of Bahubali Raju have discharged the mortgage. 21) As noticed earlier, the Courts below have dismissed the suit only on the ground that during the pendency of the suit the sons of Bahubali Raju have discharged the mortgage. The Courts below have not endeavored to find out as to whether such discharge of mortgage is proved and if proved whither it was a valid discharge, and whether the sons of Bahubali Raju have acquired any right pursuant to such redemption of the mortgage. As could be seen from the judgment of the Trial Court defendant did not lead and evidence to prove that the sons of Bahubali Raju have repaid mortgage deed and redelivered the possession of the mortgaged property. He has not entered the witness box to assert the said fact. His power of attorney holder appears to have filed a Memo in this regard. It is based on the Memo the Trial Court proceed to hold that the defendant has redeemed the mortgage by receiving the mortgage amount from the sons of Bahubali Raju of Bahubali Raju. The Trial Court has also not bestowed its attention as to whether, such redemption was valid or not and whether any right had been acquired by the sons of Bahubli Raju pursuant to such discharge. The Lower Appellate Court has merely concurred with the finding of the Trial Court. Thus both the Courts below have not bestowed their attention to this question of law which goes to the very root of the right of the plaintiff to seek redemption of the mortgaged and redelivery of the possession of the mortgaged property. 22) As discussed above, the sons of Bahubali Raju had no right to redeem the mortgage in the light of the alienation made by their father in favour of the plaintiff in year 1994 and the plaintiff having acquired the right of equity of redemption to redeem the mortgage in question. The defendant has not placed even an iota of evidence before the Court to show that he mortgage was discharged by the sons of Bahubali Raju. The alleged redemption of the mortgage is not evidenced by a registered instrument. According of defendant, he has merely returned the mortgaged deed with an endorsement. The question is whether the redemption of the mortgage requires registration. Section 17 of Indian Registration Act sets out the nature of the document which require compulsory registration. The alleged redemption of the mortgage is not evidenced by a registered instrument. According of defendant, he has merely returned the mortgaged deed with an endorsement. The question is whether the redemption of the mortgage requires registration. Section 17 of Indian Registration Act sets out the nature of the document which require compulsory registration. According to Clause (b) of sub-section (1) of Section 17, all non-testamentary instrument which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested to contingent of the value of Rs.100-00 and upwards, in respect of an immoveable property requires to be registered compulsorily. It is well recognized position in law that mortgage creates an interest in the immovable in favour of the mortgagee. Therefore, mortgage deed is compulsorily required to be registered. When a mortgage effected by a registered instrument is redeemed, the mortgagee is under an obligation to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgaged has extinguished and to redeliver position of the mortgaged property. Thus, the redemption of the mortgage involves retransfer of the interest in the mortgaged property in favour of the person who redeems the mortgage. In other words, the redemption of the mortgage extinguishes the interest of the mortgagee in the mortgaged property and creates interest in the mortgagor or the person who redeems the mortgage. Clause (b) of sub-Section (2) of Section 17 sets out the documents which are not compulsorily registrable. According to the Clause-(xi) of sub-Section (2)of Section17 endorsement on a mortgaged deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of the money due under mortgage when receipt does not purport to extinguish the mortgage, does not require registration (emphasis supplied). In other words, according to Clause-(xi) a mere endorsement on the mortgage deed acknowledging the receipt of the whole or any part of the mortgaged money is not compulsorily registrable. However, if such endorsement purports to extinguish the mortgage, such endorsement is required to be compulsorily registered. In other words, according to Clause-(xi) a mere endorsement on the mortgage deed acknowledging the receipt of the whole or any part of the mortgaged money is not compulsorily registrable. However, if such endorsement purports to extinguish the mortgage, such endorsement is required to be compulsorily registered. If one reads Clause –(b) of sub-Section(1) along with Clause-(xi) of sub-Section (2) of Section (2) of Section 17, it is clear that the redemption of the mortgage which extinguishes the interest of the mortgagee in the mortgagor or the person who redeems the mortgage, requires to be registered compulsorily. For this view of mine, I draw support from the decision of the Punjab and Haryana Court in the case of KUNDAN SINGH AND OTHERS vs. FAUJA SINGH AND OTHERS1. A Learned single judge of the Punjab & Haryana High Court in the said decisions, after referring to Sections 17(1) & (2) more particularly referring to Clause-(xi) of sub-Section(2) has held thus in para-7: “From a reading of the Clause it is apparent that it relates to two types of writings first endorsement on a mortgage deed acknowledging the payment of whole or any part of the mortgage-money and secondly any other receipt for payment of money due under a mortgage. The present case is not covered by the first part as the endorsement regarding payment is not on the back of the mortgage deed. The receipt for payment of mortgage money would be exempt from registration when it does not purport to extinguish the mortgage. In the present case, there are clear indications that the receipt does nto merely acknowledge the payment but purport to redeem the property as well. It is settled so far this Court is concerned by a large number of authorities that if the receipt relates to payment of whole of the mortgage money and purports to extinguish the mortgage, it is compulsorily registrable. In BHAN SINGH vs. NARINJAN SINGH AIR 1940 Lal 68,, it was held that the essence of redemption consists in either the cancellation and return of the mortgage deed or where the mortgage is with possession, in the restoration of possession of the mortgaged property to the mortgagor after the mortgage money has been paid. In BHAN SINGH vs. NARINJAN SINGH AIR 1940 Lal 68,, it was held that the essence of redemption consists in either the cancellation and return of the mortgage deed or where the mortgage is with possession, in the restoration of possession of the mortgaged property to the mortgagor after the mortgage money has been paid. It was further held that where receipt recited that the balance of the mortgage and possession had given back, the receipts is inadmissible in evidence if it was not registered. A similar question arose before a Division Bench of Lahore High Court in NAMAN vs. HARI SINGH AIR 1941 Lah 246,. Tek Chand, J. speaking for the Bench held that the exemption in Section 17 (2)(xi)covers any endorsement on a mortgage deed acknowledging payment of the whole or part of the mortgage money, irrespective of whether it contains words which expressly or by necessary implication, purport to extinguish or by necessary implication, purport to extinguish the mortgage. But as regards other receipts (i.e., receipts other than endorsements) for payment of money due under a mortgage, the exemption can be claimed only if they do not purport to existinguish the mortgage. Later, an identical question arose in this High Court and the matter was reterred by a Learned Single judge to a Division Bench. The case is GURDIAL SINGH vs. KARTAR SINGH AIR 1964 punj. 141. After taking into consideration various cases including those on which the Learned Counsel for the appellants relied, the Bench held that in view of the plain language of sub-secs. (1)(c) and (2)(xi) of Section 17 of the Indian Registration Act and the rule of law as laid down in the authorities cited by the Learned Counsel for the appellants, a receipt for payment of money under mortgage (other than an endorsement on a mortgage deed) issued by a mortgagee mentioning not only the payment of the full mortgaged amount but also the extinction of the law mortgage required registration. The same view was taken by Narula, J.(as he then was) in HAZURA SINGH vs. JAGGAR SINGH AIR 1965 Punj 479,. I am in respectful agreement with the aforesaid view. It may be mentioned that in the present case there is a recital in the receipt by the mortgagee, than he had given up the mortgaged property and given its possession to the purchaser. I am in respectful agreement with the aforesaid view. It may be mentioned that in the present case there is a recital in the receipt by the mortgagee, than he had given up the mortgaged property and given its possession to the purchaser. The aforesaid words amount to extinguishment of the mortgaged. These are not surplus age as contended by Mr. Bahal. After considering all the aforesaid circumstances, I am of the view that the receipt required registration.” 23) The Learned Counsel for the defendant respondent No.1 sought to place reliance on a decision of a Learned Single Judgment of this Court in SHIVALINGAMMA vs. T. RAMAIAH AND OTHERS2 to contend that the registration of discharge endorsement is not necessary and mere delivery of mortgage deed to the mortgagor or the person who redeems the mortgage is sufficient to evidence the discharge of mortgage. The facts of this reported decision are that the mortgagee filed a suit for recovery of the mortgage amount against the mortgagor upon the expiry of the period fixed under the mortgage deed. The mortgagor defendant contended that he has already discharge the mortgage debt and the mortgagee has redelivered the original mortgage deed without any endorsement. In the light of the said defence the mortgagee plaintiff contended that the mortgage deed was lost while shifting his house and that the mortgage deed has been stolen. The Trial Court did not accept the contention of the defendant mortgagor and decreed the suit. However, the Lower Appellate Court reversed the said finding of the Trial Court and on the basis of the presumption available under Section 114(i) of the Indian Evidence Act dismissed the suit of the plaintiff on the ground that delivery of the mortgage. The said finding of Lower Appellate Court in the said decision, by observing that, the material whatsoever placed by the plaintiff to rebut the presumption raised in favour of the defendant under Section 114(i) is not satisfactory in the eye of law, therefore the finding of the Lower Appellate Court was sound and proper. In the said decision the Learned Appellate Court was sound and proper. In the said decision the Learned judge has not considered the purport of Section 17(1)(b) and Clause-(xi) of sub-;Section (2). In the said decision it is not decided as to whether an endorsement which purports to extinguish the mortgage require to be registered or not. In the said decision the Learned Appellate Court was sound and proper. In the said decision the Learned judge has not considered the purport of Section 17(1)(b) and Clause-(xi) of sub-;Section (2). In the said decision it is not decided as to whether an endorsement which purports to extinguish the mortgage require to be registered or not. Admittedly in that case there was no endorsement on the original mortgage deed as even according to the defendant in the case the mortgagee merely delivered the original mortgage deed without any endorsement thereon. Therefore, in that view of the matter there was not need to find out as to whether the endorsement required to be registered. However, in the case on hand, the defendant as indicated above did not enter the witness box nor produced and documentary evidence to show that, mortgage has been discharge. No steps were taken by him to get the original mortgage deed produced before the Court from the person who alleged to have discharged the mortgage. Therefore, there was no evidence in the case on hand to prove that, the mortgagee has delivered the original mortgage deed to the sons of Bahuabli Raju. Therefore, the decision of the Learned Single judge of this Court in Shivalingamma case is not applicable to the facts of this case. Purport of Section 17 of the Indian Registration Act having not been considered, the said decision cannot be a blinding precedent. Therefore, no sustenance can be drawn from the said decision. Having regard to the provisions of Clause-(b) of sub-Section (1) and Clause-(xi) of section (2) of Section 17 of Registration Act, I am of the opinion that the endorsement discharging the mortgage thereby extinguishing the interest of the mortgagee in the mortgaged property in favour of the mortgagor or the person who redeems the mortgage, require to be compulsorily registered. As admittedly in the case on hand the alleged discharge of mortgage is not evidenced by registered instrument, the Courts below were not justified I accepting the mere say of the defendant that the mortgage has already been redeemed by the sons of Bahubali Raju. Even if it is assumed that the sons of Bahubali Raju have discharged the mortgage, since they had no right to redeem the mortgage, they have not derived any right or interest in the mortgage property. Even if it is assumed that the sons of Bahubali Raju have discharged the mortgage, since they had no right to redeem the mortgage, they have not derived any right or interest in the mortgage property. 24) Under these circumstances, the Courts below in my opinion ought to have held that he plaintiff being purchaser of the property and the right of equity of redemption, is entitled to redeem the mortgage and get possession of the mortgaged property from the mortgagor. However, the Courts below have completely over looked these legal aspects of the matter and have been merely carried away by the statement made by the power of attorney holder of the defendant regarding the alleged discharge of the mortgage. Therefore, the judgments of the Court below are erroneous, perverse, illegal and contrary to the well settled principles of law. 25) The subsequent events which have come into existence during the pendency of this appeal before this Court which have a greater bearing on the rights of the parties have to be taken note of. The suit filed by the sons of Bahubali Raju for partition and separate possession of their shares in the suit schedule property on the ground that the alienation made by their right, admittedly came to be dismissed by the Trial Court holding that the sale in favour of the plaintiff was for legal necessity and it binds the sons of Bahubali Raju. The appeal filed by the sons of Bahubali Raju before this Court came to be dismissed by a Divisional Bench of this Court affirming the findings of the Trial Court. Thus, so called right of the sons of Bahubali Raju who are sought to be imp leaded before this Court affirming the findings of the Trial Court. Thus, so called right of the sons of Bahubali Raju who are sought to be imp leaded before this Court as respondents NO.2 to 4 has been completely negative by the civil Court and they have no right over the suit schedule property. In spite of the fact that they were agitating their right before the competent Civil Court and had questioned the alienation made by their father, in a dubious method, seems to have get into possessions of the property by alleged discharge of the mortgage. In spite of the fact that they were agitating their right before the competent Civil Court and had questioned the alienation made by their father, in a dubious method, seems to have get into possessions of the property by alleged discharge of the mortgage. What they could not achieve in the civil suit filed by them was sought to be achieved by them was sought to be achieved by them in an indirect method. This attempt on the part of the sons of Bahubali Raju requires to be deprecated. Even if it is assumed that the sons of Bahubali Raju viz., Proposed Respondents No.2 to 4 herein have got into possession of the property on the strength of the alleged redemption of the mortgage, since they had no right of redemption and since the alleged redemption has not been proved in accordance with law, their possession is illegal and their possession is deemed to be for an on behalf of the mortgagee defendant. More so having regard to the fact that the alleged discharge has taken place during the pendency of the present suit filed for redemption of the mortgage they are bound by the decree in the suit for redemption. Therefore, the sons of Bahubali Raju are not necessary parties to the suit, as such, there is no need to imp lead them as parties to this appeal. Hence, I.A.I of 2004 is liable to be dismissed. In view of this, Trial Court had ample power to direct the mortgaged to redeliver possession of the mortgaged property since such decree binds any person who claims to have acquired any interest from the defendant during the pendency of the suit even without such person being a party to the suisin in the light of the provisions of Section 52 of the TP Act. In utter ignorance of the provisions of 52 of the T.P. Act the Courts below have proceeded to hold that the plaintiff is not entitled for the reliefs. Therefore, the judgment of the Courts below holding that the plaintiff is not entitled for redemption of the mortgage and redelivery of the possession of the property is erroneous and illegal. In utter ignorance of the provisions of 52 of the T.P. Act the Courts below have proceeded to hold that the plaintiff is not entitled for the reliefs. Therefore, the judgment of the Courts below holding that the plaintiff is not entitled for redemption of the mortgage and redelivery of the possession of the property is erroneous and illegal. Therefore, the judgments of the Courts below are liable to be set aside and the suit of the plaintiff deserves to be decreed against the defendant mortgagee directing him to redeliver the possession of the property by accepting the mortgage amount from the plaintiff. In this view of the matter, I answer both the question of law framed in this case in the Negative and proceed to pass the following: Order The appeal is allowed with cost throughout. The Judgment and decree of the Courts below dismissing the suit of the plaintiff is hereby set aside. The suit of the plaintiff is decreed. It is ordered that the plaintiff is entitled to redeem the mortgage. The plaintiff shall deposit the mortgage amount of Rs.20,000-00 in the Trial Court within three months from today with notice to defendant. Thereafter the defendant mortgagee shall execute redemption deed within one month and get it registered at the cost of plaintiff and redeliver possession of the mortgaged property to the plaintiff. If the defendant mortgage fails to execute the redemption deed and re-deliver possession of the property, the plaintiff is at liberty to get the same through the process of Court. There shall be an enquiry under Order 20 Rule 12 of C.P.C. into mesne profit from the date of suit till re-delivery of schedule property to the plaintiff. I.A.I of 2004 filed for impleading Bahubali Raju and his sons as Respondents – 2 to 5 to this appeal is rejected.