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Anweerappa v/s Shetty Thammanna

    Civil Revn. Petn. No. 4088 of 1977

    Decided On, 26 September 1978

    At, High Court of Andhra Pradesh


    For the Petitioner: Y. Sivarama Sastry, Advocate. For the Respondent: Shaik Sardar, Advocate.

Judgment Text

Narasinga Rao, J.

1. This revision petition by the plaintiff-petitioner is directed against the order of the District Munsif, Tandur whereby under Issue No. 8 he held that the agreement dated 21-12-1960 is valid and admissible in evidence, in spite of non-registration and though not duly stamped.

2. The plaintiff laid a suit alleging that the suit shops bearing Nos. 3-5-50 to 52 situate in Nayapet, Gandhi Chowk, Tandur, were mortgaged by his father for the repayment of the loan of O.S. Rs. 8,000/- under a document dated 9th Bahman 1358 Fasli. The income from this property is said to be Rs. 2000/- a year and therefore the mortgagee has realised nearly Rs. 50,000/- and as such the defendant-mortgagee is liable to render an account and in that manner the mortgage debt stood discharged. He thus laid the suit for redemption of mortgage and for vacant possession of the properties and for mesne profits.

3. The defendant-mortgagee resisted the suit inter alia on the ground that the mortgage amount was not paid as stipulated after three years and before five years as per the said document and that the mortgagor obtained a further loan of O.S.R. 2

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00/- with interest at 9 per cent per annum in Khurdad 1358 Fasli and that amount also was not paid. In 1960, at the instance of the mortgagor, the accounts were settled. The defendant is said to have paid the municipal taxes and incurred other expenses for the maintenance and repairs of the premises. Thus, on a settlement of the accounts, it was found that in all a sum of Rs. 15,600-28 I.G. was due by December, 1960. As the mortgagor was said to be not in a position to pay the amount, he requested the mortgagee to put an end to the mortgage transaction and to close the same by accepting the mortgaged property itself. Thus, it is alleged in the written statement that the mortgagor relinquished the equitable right of redemption in favour of the defendant by executing the agreement in the year 1960 and in this manner the defendant is in possession of the suit premises not as a mortgagee, but as owner since 1960. It is thus contended that the mortgage transaction had come to an end in the year 1960 only and the mortgagor had relinquished his right of redemption by his acts. He relied upon the document dated 21-12-1960.4. Issue No. 8 had come to be framed to the following effect :-"Whether the agreement dated 21-12-1960 filed by the defendant is invalid and inadmissible in evidence for want of stamp duty and registration ?"5. It is seen that the document relied upon by the defendant is executed on a stamp of Rs. 5/- and is not a registered one. The contention of the learned counsel for the revision petitioner was that though under Section 60 of the Transfer of Property Act, the right of redemption can be extinguished by the act of the parties, such an extinguishment must be effected by a registered document, the document in question is therefore inadmissible for want of registration. The further contention is that the plea of Section 53-A of the T.P. Act is not available to the mortgagee and for that reason also the document is inadmissible. The other contention is that even under the Proviso to Section 49 of the Registration Act, the document is inadmissible even in regard to possession or in support of any collateral matter. It was also the contention of the learned counsel that the plea of Section 53-A was not specifically set up in the written statement. It was, on the other hand, contended that even in the absence of a registered document extinguishing the right of redemption, a contract of sale in writing reciting the purchase of the right of redemption would enable the mortgagee to set up his title by way of defence and that the provisions of Section 53-A of the T.P. Act can be involved by him and the facts constituting such a plea have been stated in the written statement. The further contention is that even under Section 49 of the Registration Act, the said document, though unregistered, can be admitted to prove the collateral matter of possession. It was also contended that when the admissibility of the document can be questioned by way of an appeal, no interference by way of revision is called for.6. Undoubtedly, a right of redemption of the suit property which is the immovable property can only be extinguished in the instant case by a registered document, inasmuch as the extinguishment of the right of redemption by the mortgagor creates a corresponding right in immovable property in the mortgagee. The ruling reported in Kashinath Bhaskar v. Bhakar Vishweshwar, AIR 1952 Supreme Court 153 reiterates this aspect.7. The other ruling reported in Narandas v. S.A. Kamtam, AIR 1977 Supreme Court 774 lays down that a conferment of power on mortgagee to sell the property covered by the mortgage deed itself, without the intervention of the Court, would not take away the right of the mortgagor to redeem the property. What this ruling contemplates is that the right of redemption is not extinguished automatically on the expiry of the period specified in the mortgage even though there is such a recital in the mortgage deed. It is further held (at p. 780) :-"The equity of redemption is not extinguished by mere contract for sale. Therefore, until the sale is complete by registration, the mortgagor does not lose right of redemption."The question whether the plea of Section 53-A of the T.P. Act would be available to the mortgagee who sets up the purchase of the equity of redemption under an unregistered document did not arise for consideration in this ruling. The case of the defendant is that in addition to the mortgage loan already out standing there was another loan transaction which also formed part of the consideration for the relinquishment and the sale of equity of redemption. That is also borne out by the document in question and that the mortgagee thereafter continued in possession in part performance of the contract of sale of the right of redemption. The contention is that the document in question fulfils all the requirements of Section 53-A of the Transfer of Property Act. The consideration is paid and the contract is evidenced by a written document and thatthe transferee continued in possession in part performance of the contract and thus he has in furtherance of the contract wiped out the debt and thus he has performed his part of the contract. In these circumstances, the contention is that the mortgagee is entitled to invoke the benefit of Section 53-A of the T.P. Act. He relied upon a ruling of the Madhya Pradesh High Court reported in Devisahai Premraj v. Govindarao, AIR 1965 Madhya Pradesh 275. It is laid down therein (at pp. 279, 280) :"According to Section 53-A for the purpose of attracting the doctrine of part performance the only defect permissible is one of registration. An unregistered sale deed, which has otherwise been completed, or any agreement of sale in writing would be the requisite material...An Unregistered sale deed can be used for the purpose permissible under the Proviso to Section 49 of the Registration Act, so as to establish part performance under Section 53-A of the T.P. Act."The facts of the case further are :"G who had mortgaged a house with possession to D executed an unregistered sale deed of the house in favour of D. G subsequently changed his mind and sold the house to E who had notice of the prior agreement of sale between G and D, G and E brought a suit for redemption against D.Held that D could rely on the doctrine of part performance as against G and his transferee E and was entitled to retain the property in the exercise of his right of part performance on condition that he fulfilled the remaining part of the contract."That the mortgagee in possession who has purchased the right of redemption under an unregistered sale deed can rely upon the written contract in defence stands supported by the above ruling.8. In B. Murlidhar v. Soudagar, AIR 1970 Mysore 203, it is held that the doctrine of part performance can be invoked by a mortgagee in possession, if there is a recital of the passing of the ownership in the mortgaged property from the date of the agreement and some act is done in furtherance of the contract. In these circumstances, the right of redemption is held lost and that Section 53-A of the T.P. Act applies.9. Similarly in Ayyankunhi v. Krishnan, AIR 1950 Trav Co. 81, it is observed that the right to redeem mortgaged property also stands barred by the doctrine of part performance. It is held therein:-See AIR Head Note-Ed."Where there was an agreement embodied in a deed between the parties to a mortgage transaction, to extinguish the mortgage by the mortgagor transferring part of the mortgaged property to the mortgagee and the mortgagor getting back the remaining portion of the mortgage security, and the mortgagees surrendered the portion of the mortgage security in pursuance of the contract and retained possession of the rest, and since then the parties had been in possession and enjoyment of the same there has been a part performance of the contract entered into by them. The mere fact that the contract was not registered does not entitle the mortgagor to go back upon that contract and seek to enforce the mortgage which was extinguished by the subsequent agreement. The non-registration of the deed embodying such a contract does not affect the rights of the parties under it".10. The above ruling also lays down that the right of redemption need not be extinguished by a registered document alone and when such a right is purchased by the mortgagee in possession already, he can rely upon the contract of sale in his favour and thus invoke the aid of Section 53-A of the T.P. Act. The contention of the learned counsel for the petitioner was that no such specific plea of Section 53-A of the T.P. Act was raised in the written statement. Though the Section itself is not referred as such, it is clearly mentioned that on account of accepting the further consideration towards the right of redemption the mortgage transaction was put to an end and the defendant continued as owner from that date. The facts are sufficient to constitute the plea of Section 53-A of the Act. Though it was the contention of the learned counsel for the respondent that in his petition he also referred to Section 53-A, I am afraid that petition or counter would not constitute pleadings. Short of mentioning the Section, the facts necessary to constitute the plea, however, stand pleaded in the written statement. In this view of the matter, it cannot be said that the plea has not been specifically raised in the written statement. Having regard to these pleas, it can be said that the defendant is entitled to raise the plea of Section 53-A of the T.P. Act and that the document in spite of its non-registration is admissible in evidence.11. From a perusal of the order of the lower Court, it does not appear that the payment of the requisite stamp duty minus the amount of Rs. 5/- already paid towards stamp, together with 10 times penalty necessary for the reception of the document by the Court at that stage is ordered before the document is admitted. The necessary deficit stamp duty and penalty as aforesaid have to be collected.12. Though it was the contention of the learned counsel for the respondent that the question of admissibility of the document can as well be challenged by way of appeal, since the admissibility of the document has been decided, that question does no more arise.13. In the result, the revision petition fails and accordingly dismissed with costs.Revision dismissed.

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