Trilochan Jena vs Bhagabat Jena

P.K. Mohanti, J.—This civil revision arises under the following circumstances:

The Petitioner Trilochan Jena had executed on 2.04-1969 a deed or mortgage by conditional sale in favour of the opposite party Bhagabat Jena. The mortgage stood discharged on 2-4-1976 after the expiration of a period of seven years from the date of the mortgage On 3-11-1976 the mortgagee filed a petition before the learned Munsif stating therein that although he had delivered possession of the property to the mortgagor on 14-4-1976, the latter did not turn up to get the property retransferred at his cost. He prayed for issue of a direction to the mortgagor to get the deed of retransfer executed and registered at his cost.

The mortgagor denied the allegation about delivery of possession and contended that the cost of retransfer should be borne by the mortgagee.

The learned Munsif on a consideration of the evidence led by both the parties came to the finding that the mortgagee had delivered possession of the land to the mortgagor on 14-4-1976. He, however, held that the cost of execution of the deed of retransfer should be borne by the mortgagee. Aggrieved by this order the mortgagee went up In appeal. The learned Subordinate Judge held, in disagreement with the learned Munsif, that the deed of retransfer is to be executed and registered at" the cost of the mortgagor. It is against this order of the appellate Court that the present Civil revision has been preferred.

The sole point for consideration is whether the cost of reconveyance of the property is to be borne by the mortgagor or the mortgagee.

Section 17(2) of the Orissa Money-Lenders Act, 1939 as substituted by Act 54 of 1975 reads as follows:

On the discharge of the mortgage as aforesaid, the mortgagee shall deliver to the mortgagor all documents in his possession or power relating to the mortgaged property and shall retransfer the property to the mortgagor and put him in possession thereof at his cost free from the mortgage and from all encumbrances created by him and those claiming under him within three months from the date of expiry of the aforesaid period of seven years:

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Under the ordinary rules of grammar, a pronoun must refer to the noun mentioned before it. If a pronoun has two antecedents, it agrees with the antecedent nearest to it. The personal pronoun "his" occurring in the expression at his cost" follows the personal pronoun ''.him". The noun mortgagor" has been mentioned before both the pronouns. The context definitely suggests that both the pronouns "him" and "his" refer to the preceding noun "mortgagor" and not "mortgagee." This interpretation is in consonance with justice, equity and good conscience. By a mortgage an interest in land is transferred to the mortgagee and it is the right of the mortgagor on redemption to have a retransfer of the mortgaged property. The retransfer is to the advantage of the mortgagor because the cloud upon his title created by the mortgage is removed and satisfactory evidence of the removal is provided. The retransfer and delivery of possession being for the benefit of the mortgagor he should bear the costs. The finding of the learned Subordinate Judge is, therefore, justified.

There is no merit in this civil revision and it is accordingly dismissed. As there was no appearance on behalf of the opposite party, I make no order as to costs.

Revision dismissed.