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Judgment
A.K. Parichha, J.—This Second Appeal is directed against the Judgment passed by Learned District Judge, Ganjam-Boudh in Title Appeal No. 23 of 1980 confirming the Judgment and decree of Learned Sub-ordinate Judge, Aska passed in T.M.S. No. 43 of 1978.
The original Respondent, Ganta Swain, as Plaintiff filed the above noted TMS asking for a decree directing the defendant to deliver possession of the suit land to the Plaintiff-Respondent on the latter''s depositing Rs. 1350/- and to render account of profit derived from the suit land and return the document dated 4.4.1967 to the Plaintiff after endorsing full satisfaction thereon. The case of the Plaintiff was that he borrowed Rs. 1350/- from defendant and executed a mortgage deed dated 4.4.1967 in respect of the suit land and delivered possession of the same with the condition that on repayment of the loan amount on completion of one year the defendant would re-convey the suit land to the Plaintiff. It was alleged that on completion of one year the Plaintiff offered Rs. 1350/ - and requested the defendant to deliver possession of the suit land, but the defendant paid no heed for which he filed the suit seeking the aforesaid reliefs. The original defendant - Arakhit Behera in his written statement while traversing the plaint allegation pleaded inter alia that the Plaintiff actually sold the suit land to him for a consideration of Rs. 1350/ - and delivered possession of the property with an understanding that he would repurchase the said property one year after and executed a registered deed incorporating those terms. He further pleaded that after completion of one year the Plaintiff did not repay the amount and accordingly he (defendant) continued in possession over the suit land, but suddenly, in the year 1969 the Plaintiff attempted to trespass upon the suit land and take away the standing crops for which he had to initiate a proceeding u/s 145, Cr.P.C., but in that proceeding a compromise was effected between the parties on 2.12.1969. Wherein the Plaintiff surrendered all his rights over the suit property in favour of the defendant. Defendant further claimed that the suit land was thus recorded in the name of the defendant during the Survey and Settlement. The defendant pleaded that the profit from that suit land was negligible. He also challenged the maintainability of the suit on the ground of non-joinder of necessary parties and over valuation.
Learned Trial Court framed as many as five issues and accepted evidence of the parties. After considering the evidence of the parties he came to hold that Ext. 1, the suit document, was not a sale deed, but a document of mortgage by conditional sale, the compromise effected by the parties in the proceeding of 145, Cr.P.C. does not take away the right of the Plaintiff to redeem the suit land on payment of the principal amount. Consequently, he decreed the suit in favour of the Plaintiff and directed the defendant to deliver possession of the suit land to the Plaintiff on the latter''s depositing of Rs. 1,350/ -in the Court within six months. He also directed the defendant to render account of profit derived from the suit land. The defendant preferred the above noted appeal against the said Judgment and decree. Learned first Appellate Court after considering the evidence and submission of the parties confirmed the Judgment and decree of the Trial Court. Hence this second appeal.
During the pendency of this appeal both the Appellant and Respondent died and their legal heirs, who are the present Appellants and Respondents were substituted.
The following substantial question of law were formulated for consideration in this appeal:
(A) Whether the Court below, was correct in ignoring Ext. B as it was not registered; and whether the Ext. B was compulsorily registrable u/s 17 of the Indian Registration Act.
(B) Whether Plaintiff alone could maintain the suit for redemption, when the Ext. 1 was executed by his sons also.
(C) Whether, the real crux of the question about the nature of the Ext. 1, i.e. whether same is a mortgage deed or a sale out and out, has been properly appreciated by the Courts below by correct interpretation of the document.
Learned Counsel for the Appellant submits that Ext. 1 was purely a document of sale with a condition and because the Plaintiff-Respondent did not comply that condition relating to redemption, the sale became absolute in favour of the defendant-Appellant. According to him, Learned Courts below under a misconception held that the document is a mortgage by conditional sale/English mortgage. He also argues that when Ext. 1 was executed by the Ganta Swain and his sons the suit was not maintainable by Ganta Swain alone as the other executants were also necessary parties. His further submission is that Ext-B being a genuine compromise created by the parties was admissible and it takes away the right of the Plaintiff to redeem the suit land. As against this, Learned Counsel for Respondent states that on a plain reading of the terms of Ext. 1 it can be seen that it was not a document of sale but was a document of mortgage wherein the right of redemption was available to the Plaintiff-mortgager and so Learned Courts below did not commit any legal error in directing redemption of the suit land on payment of the principal amount noted in the document. Regarding the non-joinder of necessary parties, he submits that the Plaintiff filed the suit as the Karta of the family and the decree sought for being beneficial to the Plaintiff and his family members, the suit was not bad for non-joinder of necessary parties. He further contends that the Courts below rightly ignored Ext. B as it was an unregistered document and was hit u/s 17 of the Registration Act.
The Plaintiff-Respondent''s case was that Ext. 1 is a deed of usufructuary mortgage, whereas the plea of the defendant was that it is a document for outright sale of the suit property. To resolve the controversy it would be profitable at the out set to recount the salient contents of Ext. 1. In Ext. 1 it has been clearly noted that the Plaintiff and his sons borrowed Rs. 1,350/- from the defendant and delivered possession of the suit land to the defendant with an understanding that on completion of one year if they would repay the loan amount then the defendant would re-convey the suit land to them by means of another document. It is also stipulated that if on completion of one year they would not be able to repay the amount, then the suit land would become the absolute property of the defendant and he would become owner thereof. Section 58 of the Transfer of Property Act defines the "mortgage by conditional sale" "usufructuary mortgage" and "English mortgage" as follows:
Mortgage by conditional Sale-Where, the mortgagor ostensibly sells the mortgaged property-
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or
on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
Usufructuary mortgage-Where the mortgagor delivers possession or [expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
English mortgage-Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
A close reading of the above noted definitions leaves no room for any doubt that the terms and conditions noted in Ext. 1 bring it within the definition of "mortgage by conditional sale/English mortgage". The terms and conditions noted in the document cannot amount to usufructuary mortgage or an out right sale as defined in Section 54 of the Transfer of Property Act. So, Learned Courts below did not go wrong in their conclusion that Ext. 1 is a document relating to mortgage by conditional sale.
Admittedly, Ext. 1 was executed by Ganta Swain on his own behalf and on behalf of his minor sons. The suit was for redemption of the suit property. The decree in such a suit not only ensures to the benefit of the Plaintiff, but also his sons. Therefore, the Courts below rightly held that the suit was not bad for non-joinder of necessary party.
Ext. B is a document relating to alleged compromise between the parties. In this document the Plaintiff is alleged to have relinquished his right over the suit land. The document is unregistered. Section 17(1)(b) of the Registration Act clearly postulates that any non-testamentary instrument, which operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upward, to or in immovable property requires compulsory registration. Ext. B is a document wherein the Plaintiff allegedly relinquished his right over the suit land whose value is admittedly more than one hundred rupees. Once the document relates to relinquishment of any right present or future in immovable property worth more than one hundred rupees it becomes compulsorily registerable and such a document if unregistered cannot be accepted in evidence to establish relinquishment. This view finds support from the observation of the Apex Court in the case of Bhoop Singh Vs. Ram Singh Major and others, . So the document Ext. B was not acceptable to establish the relinquishment of right of the Plaintiff over the suit land and such a document cannot estop the Plaintiff from asserting his legal right which flows from the mortgage document Ext. 1.
For the foregoing reasons all the substantial questions of law are answered against the Appellant. Consequently, the appeal is found to be without any merit and is dismissed on contest, but in the peculiar circumstances without any cost.