Jagpal Singh and others vs Jaggan and others

S.C. Mittal, J.—Kishana defendant and his brother Jugla had taken certain amounts on loan from Jitan, predecessor-in-interest of Jagpal Singh and others (Plaintiffs), Jugla the other debtor is dead and he is represented by his widow and sister, who are also defendants. Since the debtors failed to discharge their liability it is said they agreed to sell the suit property in lieu of the debts to Jitan. The successors-in-interest of Jitan have filed the present suit for specific performance. In the course of the trial, one of the plaintiffs was examined. The two Bahi entries Exhibits P.W. 8/O and P.W 7/O relied on by him were exhibited. Shortly thereafter, the trial Court formed the view that these documents had created mortgage in favour of Jitan. As they did not bear the requisite stamp, they were impounded by the impugned order.

In support of his argument that the impugned order is revisable, learned counsel for the plaintiffs-petitioner has placed reliance on In Re: Dr. P.M. Kamath, and AIR 1942 265 (Lahore) accordingly, I entertain this petition.

For finding the crucial fact whether the documents abovesaid created mortgages in favour of Jitan, their translation may be reproduced here for facility:--

Exhibit P. W. 8/O

Today on 4th July, 1968 (Wednesday) Kishna s/o Tulla and Jugla s/o Tulla have jointly received Rs. 7928,- (Seven thousand nine hundred and twenty eight) half of which comes to Rs. 3964/-, as mortgage money on the land measuring 13 Bighas, from Jitan s/o Ganga Sahay.

Out of this a sum of Rs. 1700/- is towards 10 Bighas of land of which mutation has been effected. Received Rs. 6228/- (Six thousand two hundred and twenty eight) subsequently. Both Jugla and Kishna have promised that they will firstly refund Rs. 6228/- to Jittan and later on Rs. 1700/- will be refunded. Receipt has been written so that it may be utilized at proper time in case of necessity.

Exhibit P. W. 7/O

Today on June 16, 1967 (Friday) Kishna son of Tulla received Rs. 2008/- (Two thousand) half of which comes to Rs. 1000/- from Jitan s/o Ganga Sahay towards mortgage money on 5 Bighas of land and Mustatil No. 88 Killa No. 14 have been written. Kishna received the money in cash. Receipt has been written so that it may be utilized at proper time in case of necessity.

Now section 58(1) of the Transfer of Property Act, lays down that "a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan......." It need hardly be said that in Exhibit P. W. 8/6, one of the essential ingredients of section 58(a) is missing. The land measuring 30 Bighas said to have been mortgaged has not been specified, inasmuch as neither its Killa Number nor Rectangle Number has been given nor is it mentioned as to where it is situate and to whom it belongs. As regards document: Exhibit P.W. 7/0, doubtless Killa Number, Rectangle Number and the area of the land are mentioned, but the revenue estate in which the same is situate and the particulars of its owner or owners are missing. With these serious infirmities in these documents, I am unable to agree with the contention of the learned counsel for the defendants-respondents that these documents did create mortgage. Learned counsel for the defendants was also at pains to point out that this was the practice prevailing in the locality by which mortgages are created. Be that as it may, the fact remains that the bare reading of the documents betrays the intention of the parties to create a mortgage as envisaged by section 58(a) of the Transfer of Property Act.

For the foregoing reasons, I set aside the impugned order. The revision petition is allowed that the parties are left to bear their own costs of this Court. The parties to appear before the trial Court on 7th December, 1977, the date already fixed.