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2011 DIGILAW 881 (PNJ)

Khuda Bux v. Sukhan Ram

2011-03-22

RAKESH KUMAR JAIN

body2011
Judgment Rakesh Kumar Jain, J. 1. The sole substantial question of law involved in this appeal is as to "whether oral mortgage is permissible in the State, of Haryana since the provisions of Section 59 of the Transfer of Property Act, 1882 [for short "the Act"] are extended vide notification No.S.0.75/C.A.4/1882/S.l/67 dated 05.08.1967?" 2. The defendant is in second appeal against judgment and decree of the learned First Appellate Court by which judgment and decree of the learned Trial Court has been reversed and the suit filed by the plaintiff has been decreed. 3. In brief, the plaintiff filed a suit for permanent injunction alleging therein that he is in possession of the suit land as Gair Mourusi Bawajah Rehan Jabani for a sum of Rs. 11,500/- and is in its cultivating possession since 1981. He sought permanent injunction on the ground that the defendant is threatening to take forcible possession. In the written statement, the allegation of the plaintiff of advancing Rs.l 1,500/- as mortgage money to the defendant was denied. It was also denied that the plaintiff is in possession, rather it was alleged that he had got recorded an illegal entry in the Khasra Girdawari in collusion with the revenue authorities on the basis of which the present suit has been filed. The plaintiff filed replication. On the pleadings of the parties, the following issues were framed:- "1. Whether the plaintiff is in permissive possession of the suit land? OPP 2. Whether the suit land has been mortgaged with the plaintiff by the defendant orally for consideration of Rs.l 1,500/- if so to what effect? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Relief." 4. The learned Trial Court, vide its judgment and decree dated 29.08.1983, dismissed the suit of the plaintiff on the ground that he has failed to prove his possession over the land in dispute. The learned First Appellate Court, however, allowed the appeal vide its judgment and decree dated 10.08.1985 and granted injunction restraining the defendant from interfering in possession of the plaintiff except in due course of law. 5. Aggrieved against the judgment and decree of the learned First Appellate Court, the present appeal has been filed in which notice of motion was issued on 28.08.1985 and status quo regarding possession was ordered to be maintained. 5. Aggrieved against the judgment and decree of the learned First Appellate Court, the present appeal has been filed in which notice of motion was issued on 28.08.1985 and status quo regarding possession was ordered to be maintained. On 19.11.1985, the appeal was admitted, however, the status quo order was vacated. The defendant/appellant then filed CM No.l353-C of 1986, in which the following order was passed on 24.09.1986:- "The learned counsel for the appellant states that it is agreed that the appellant shall deposit an amount of Rs.l,500/-, the alleged mortgage money, in the trial Court within two weeks and the respondent shall be entitled to withdraw the amount on furnishing security to the satisfaction of the Executing Court for restitution of the amount in case the appeal is accepted. It is also agreed that the respondent, in case the amount is deposited by the appellant, shall not be entitled to possession of the property till the decision of the appeal. In view of the agreed order the appellant does not press the petition." 6. However, the defendant/appellant did not receive the intimation about the order dated 24.09.1986 and could not deposit the amount of Rs.l 1,500/- and hence, he filed another CM No.3405-C of 1986, in which the following order was passed on 21.01.1987:- "After hearing the learned counsel I condone the delay in depositing the amount. Now the applicant may deposit the amount in the trial Court within three weeks. Sukhan Ram respondent will be entitled to withdraw the amount in terms of the order dated 24th September, 1986. Civil Misc. is disposed of accordingly." 7. Learned counsel for the appellant has argued that the entire case of the plaintiff is that he is in permissive possession of the disputed property on the basis of an oral mortgage against a sum of Rs.l 1,500/- and the learned First Appellate Court had also observed that "such oral mortgages are not uncommon in India". It is submitted by learned counsel for the appellant that oral mortgage in Haryana is not permissible after 05.08.1967. He submits that if the principal money secured involved in a mortgage is Rs.100/- or upwards, the mortgage can be. effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses and where principal money secured is less than Rs.100/-, the mortgage can be by way of delivery of the property. He submits that if the principal money secured involved in a mortgage is Rs.100/- or upwards, the mortgage can be. effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses and where principal money secured is less than Rs.100/-, the mortgage can be by way of delivery of the property. In this regard, he has referred to the provisions of Section 59 of the Act, which reads as under:- "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 effected 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." 8. He has further submitted that before 05.08.1967, oral mortgage was in vogue in the State of Haryana as the provisions of Section 59 were not applicable but after the issuance of notification No.S.0.75/C.A.4/1882/S.l/67 dated 05.08.1967, the oral mortgage in the State of Haryana is not permissible because Section 59 of the Act has been extended to the State of Haryana. The aforesaid notification, reads as under:- "PART III REVENUE DEPARTMENT Notification The 5th August, 1967 No.S.0.75/C.A.4/1882/S.l/67.- In exercise of the powers conferred by section 1 of the Transfer of Property Act 1882 [Central Act No.4 of 1882), the Governor of Haryana is pleased to extend the provisions of Section 59 of the said act to the State of Haryana with effect from the date of publication of this notification in the Official Gazette. B.S.GREWAL, Financial Commissioner, Revenue and Secretary to Government, Haryana, Revenue Department." 9. Learned counsel for the appellant has also relied upon a decision of this Court in the case of Amar Singh and another v. Dalip Singh, (1991-2)100 P.L.R. 199:1991 P.L.J. 469, in which it has-been held that after the extension of Section 59 of the Act to the State of Haryana, no oral mortgage could be created. 10. Learned counsel for the appellant has also relied upon a decision of this Court in the case of Amar Singh and another v. Dalip Singh, (1991-2)100 P.L.R. 199:1991 P.L.J. 469, in which it has-been held that after the extension of Section 59 of the Act to the State of Haryana, no oral mortgage could be created. 10. No-one has appeared on behalf of the respondent to contest the appeal, but despite that I am fully satisfied with the argument raised by learned counsel for the appellant that after the extension of Section 59 of the Act to the State of Haryana in terms of the aforesaid notification and in view of the decision of this Court in the case of Amar Singh and another (supra), the oral mortgage in the State of Haryana is not permissible after 05.08.1967 and since in the present case, the plea of oral mortgage is being taken after 05.08.1967 in respect of the secured amount of more than Rs.100/-, the plaintiff cannot claim permissive possession. As a matter of fact, whole case of the plaintiff that he has been given possession by the defendant by way of oral mortgage collapses like a pack of cards. 11. Thus, the sole substantial question of law, framed in the beginning of the judgment, is answered in favour of the defendant/appellant and in view thereof, the present appeal is hereby allowed and the impugned judgment and decree of the learned First Appellate Court is set aside and that of the learned Trial Court is hereby restored. 12. In the given facts and circumstances, the parties to the suit are directed to bear their own costs.