Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
RAGHUNATH & ORS.
Vs.
RESPONDENT:
KEDAR NATH
DATE OF JUDGMENT:
03/02/1969
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
GROVER, A.N.
CITATION:
1969 AIR 1316 1969 SCR (3) 497
1969 SCC (1) 497
ACT:
Transfer of Property Act, 1882, ss. 4 and 54-Indian
Registration Act, 1908, s. 49 as amended by Transfer of
Property (Amendment) Supplementary Act, 1929, s. 10-Section
4 of T.P. Act whether makes s. 49 of Registration Act
applicable to documents compulsorily registrable under s. 54
of T.P. Act-Unregistered sale-deed whether admissible in
evidence.
Construction of documents-Mortgage or sale.
Practice-High Court in appeal whether can give further
relief than given to plaintiff by trial court when plaintiff
did not file appeal against decree of trial court.
HEADNOTE:
D took a loan of Rs. 1700/- from M, father of the
defendants. On 27th July 1922, D along with his grandmother
executed a possessory mortgage deed (Ex.4) in respect of a
house for the amount of the aforesaid loan in favour of M.
On 23rd February 1953, D’s heir sold the said house to the
plaintiffs who filed a suit for redemption of the house and
for accounts. The defendants who were sons of M resisted
the suit on the ground that Ex. 4 was not a deed of mortgage
though- apparently so. According to them when read with Ex.
26 which was executed in October 1922 it was an outright
sale. The trial court decreed the plaintiffs suit for
redemption on payment of an amount fixed by it. The first
Appellate Court allowed the defendants’ appeal. The High
Court when finally disposing of the second appeal set aside
the judgment of the lower appellate court and restored the
judgment of the trial court. The High Court further
remanded the case to the lower appellate court with the
direction that "the defendants be asked to render accounts
before they claim any payment from the plaintiff at the time
of the redemption of the mortgage". In appeals before this
Court the contentions on behalf of the defendants appellants
were : (i) That Ex. 4 was really a sale deed and not a
mortgage deed and it should be read with Ex. 26; (ii) That
s. 4 of the Transfer of Property Act did not make s. 49 of
the Registration Act applicable to documents compulsorily
registrable by the provisions of s. 54 paragraph 2 of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
Transfer of Property Act, and therefore Ex. 26 though
unregistered was not inadmissible in evidence; (iii) That in
any case since the respondents (plaintiffs) had not filed
any appeal against the decree of the trial court, the High
Court should not have granted them further relief as it did
by giving a direction that the defendants should be asked to
render accounts before they claimed payment from the
plaintiff at the time of the redemption. of the mortgage.
HELD : (i) The terms of Ex. 4 clearly showed that it was a
mortgage deed and not a sale deed.
(ii)Ex. 4 could not be read with Ex. 26 because the latter
was required to be registered under s. 54 of the Transfer of
Property Act. In the absence of such registration this
document could not be received in evidence of any
transaction affecting the property in view of s. 29 of the
Registration Act. [500 B-501 E]
The contention that s. 4 of the Transfer of Property Act did
not make s. 49 of the Registration Act applicable to
transactions under s. 54 para-
498
graph 2 of the Transfer’ of Property Act could not be
accepted. Any doubt in this respect was removed by s. 10 of
the Transfer of Property (Amendment) Supplementary Art, 1929
which-introduced the words "by any provision of the Transfer
of Property Act, 1882" in s. 49 of the Registration Act.
This amendment made it clear that the documents in the
supplemental list i.e. the documents of which registration
is necessary under the Transfer of Property Act but not
under the Registration Act fall within the scope of section
49 of the Registration Act, and if not are registered are
not admissible in evidence of a transaction affecting any
immovable property comprised therein and do not affect any
such immovable property. [503 F-504 B]
Sohan Lal & Ors. v. Mohan Lal & Ors., I.L.R. 50 All. 986 and
Rama Sahu v. Gowro Ratho, I.L.R. [1921] 44 Mad. 55, referred
to.
(iii)The appellants were right in contending that when
the plaintiff had not filed an appeal against the decree of-
the trial court the High Court was not legally justified in
giving further relief to the plaintiff than that granted by
the trial court. Accordingly the portion of the decree of
the High Court remanding the case to the lower appellate
court with a direction that the defendants should be asked
to render accounts, was liable to be set aside. [504 D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 457 and
458 of 1966.
Appeals, by special leave from the judgment and order dated
April 27, 1964 of the Allahabad High Court in Second Appeals
Nos. 4940 and 3660 of 1961.
S. P. Sinha and Shaukat Hussain, for the appellants (in both
the appeals) .
J. P. Goyal and G. Nabi Untoo, for the respondent (in both
the appeals).
The Judgment of the Court was delivered by
Ramaswami, J. In the suit which is the subject matter of
these appeals the plaintiff alleged that one Dwarka Prasad
took a loan of Rs. 1700 from Madho Ram, father of the
defendants, and that on 27th July, 1922, Dwarka Prasad along
with one Mst. Kunta, his maternal grand mother, executed a
possessory mortgage deed of the disputed house for Rs. 1700
in favour of Madho Ram. The terms of the mortgage deed were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
that the mortgagor was to pay interest of Rs. 12/’12/- per
month out of which the rent amounting to Rs. 6/- which was
the agreed usufruct of the house in suit was to be adjusted
and the mortgagor was to pay Rs. 6/12/- per month in cash
towards the balance of the interest. The parties agreed
that the mortgage would be redeemable within twenty years
after paying the principal, amount and that portion of
interest which was not discharged-by the usufruct and other
amounts. When Dwarka Prasad was unable to PAY the amount of
Rs. 6/12/- per month, he delivered possession of the house
to Madho Ram who let out the house on a monthly
499
rent of Rs. 25. The mortgagors Dwarka Prasad and Mst.
Kunta died leaving Mst. Radha Bai as Dwarka Prasad’s heir.
Radha Bai sold the house in dispute to the plaintiff on 2nd
February, 1953 and executed a sale deed. The plaintiff,
therefore, became entitled to redeem the mortgage and asked
the defendants to render accounts. The defendants contested
the suit on the ground that Madho Ram was not the mortgagor
nor were the defendants mortgagees. It was alleged that in
the locality where the house was situated, there was a
custom of paying Haqe-chaharum and to avoid that payment,
the original deed dated 27th July, 1922 was drafted and
executed in the form of a mortgage though it was actually an
out-right sale. According to the defendants, the house was
actually sold to Madho Ram and was not mortgaged. The
defendants also pleaded that if the deed dated 27th July,
1922 was. held to be a mortgage, the mortgagees were
entitled to get the payment of Rs. 6442/8/- as interest, Rs.
2315 as costs of repairs etc. The trial court held that the
deed dated 27th July, 1922 was a Mortgage deed, that Dwarka
Prasad did not sell the house to Madho Ram and that the
plaintiff was entitled to redeem the mortgage on payment of
Rs. 1709/14/-. The trial,court accordingly decreed the
plaintiffs suit for redemption on payment of Rs. 1709/14/-.
Against the judgment of the trial court the defendants
preferred an appeal before the District Judge, Varanasi, who
allowed the appeal and dismissed the plaintiff’s suit. The
plaintiff took the matter in second appeal to the High Court
which framed an issue and remanded the case back to the
lower appellate court for a fresh decision. The issue
framed by the High Court was "’Have the defendants become
the owners of the property in dispute by adverse possession
?" The High Court directed the lower appellate court to
decide the question of admissibility of Exts. A-25 and A-
26. After remand the lower appellate court held that the
deed dated 27th July, 1922 was a mortgage deed and not a
sale-deed, and, therefore, the plaintiff was entitled to re-
deem the mortgage. The lower appellate court further held
that the defendants had failed to prove that they had
acquired title by adverse possession. The lower appellate
court made the following order
" The appeal is allowed with half costs in
this way that the suit is decreed for the
redemption of the mortgage in question if the
plaintiff pays within six months Rs. 1700 as
principal, Rs. 9.87 N.P. Prajawat paid before
this suit and any Prajawat paid by the defen-
dants during the pendency of this suit till
the plaintiff deposits the entire sum due
under this decree and the interest at the rate
of Rs. 6/12/- per month from 27-7-1922 till
the plaintiff deposits the entire sum due
500
under this decree. The costs of the trial
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
court are made easy. Let the preliminary
decree under Order 34, R.7, C.P.C. be modified
accordingly".
Against the judgment and decree of the lower appellate court
both the plaintiff and the defendants filed appeals before
the’ High Court. The plaintiff prayed that the decree of
the lower appellate court should be set aside and the decree
of the trial court should be restored.’ The defendants, on
the other hand, prayed that the decree of the lower courts
should be set aside and the plaintiffs suit should be
dismissed with costs. By its judgment dated 27th April,
1964 the High Court dismissed the second appeal preferred by
the defendants but allowed the plaintiffs appeal and set
aside that judgment of the lower appellate court and
restored the Judgment of the trial Court. The High Court
further remanded that case of lower appellate court with the
direction that "the defendants be asked to render accounts
before they claim any payment from the plaintiff at the time
of redemption of the mortgage". The present appeals are
brought by special leave against the judgment of the
Allahabad High Court dated 27th April, 1964 in second
Appeals Nos. 4940 and 3660 of 1961.
In support of these appeals it was contended by Mr. Sinha
that the deed Ex. 4 dated, 27th July, 1922 was a sale deed
and not a mortgage deed. It was pointed out that there was
a subsequent deed of sale dated 8th October, 1922 Ex. A-26
which is named ’Titimma Bainama’. The contention was that
the document Ex. 4 dated 27th July, 1922 must be construed
along with Ex. A. 26 which forms part of the same
transaction and so construed the transaction was not a
usufructary mortgage but was an outright sale. We are
unable to accept the argument put forward on behalf of the appel
lant. Ex. A.26 dated 8th October, 1922 is not a
registered document, and is hence not admissible in evidence
to prove the nature of the transaction covered by the
registered mortgage deed Ex. 4 dated 27th July, 1922. If
Ex. 4 is taken by itself, there is no doubt that the
transaction is one of mortgage. The document Ex. 4 recites
that in consideration of money advanced the executants
"mortgage the said house ’Bhog Bhandak’ bearing No. 64/71
situate Mohalla Gola Dina Nath." Clause 2 provides a period
of twenty years for redemption of the mortgage. Clause 6 of
the document stipulates that the cost of repairs, will be
borne by the mortgagors. Clause I states
"That the said sum of Rupees Seventeen hundred
half of which is Rupees Eight hundred and
fifty will carry interest at the rate of
twelve annas per cent monthly. The sum of
Rupees six will be deducted towards rent
monthly from the interest which will accrue.
’The possession of the house has been
delivered to the
501
said mortgage Mahajan (money lender). The
mortgagors will pay the balance of Rupees six
annas twelve month by month to the said
mortgagee after deducting the rent of Rupees
six after giving the possession of the said
house and shop".
Clause 4 provides:
"That we will go on paying the said Mahajan
the sum of Rupees six twelve annas the balance
of the interest monthly. If the whole or part
of the interest remains unpaid we will pay at
the time of redemption. if this amount of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
interest is not paid the said house shall not
be redeemed".
The reading of these terms clearly shows that Ex. 4 was a
mortgage deed and not a sale deed. It was contended on
behalf of the appellants that in order to avoid the payment
of Haqe-chaharum, the original deed dated 27th July, 1922
was drafted and executed in the form of a mortgage but it
was actually meant to be an outright sale. In support of
this argument reference was made to Ex. A.26 dated 8th
October 1922. As we have already said Ex. A.26 was
required to be registered under section 54 of the Transfer
of Property Act. In the absence of such registration this
document cannot be received in evidence of any transaction
affecting the property in view of s. 49 of the Registration
Act. It was, however, urged on behalf of the appellants
that the effect of section 4 of the Transfer of Property Act
was not to make section 49 of the Registration Act
applicable to documents which are compulsorily registrable
by the provisions of s. 54, paragraph 2 of the Transfer of
Property Act. In support of this contention reliance was
placed on the decision of the full bench of the Allahabad
High Court in Sohan Lal & Ors. v. Mohan Lal & Ors. (1)
Section 4 of the Transfer of Property Act states
"The chapters and sections of this Act which
relate to contracts shall be taken as part of
the Indian Registration Act, 1872.
And sections 54, paragraphs 2 and 3, 59, 107
and 123 shall be read as supplemental to the
Indian Registration Act, 1908".
Section 54 of the Transfer of Property Act
reads
" "Sale" is a transfer of ownership in
exchange for a price paid or promised or part-
paid and part-promised.
(1)I.L.R. 50 All. 986.
502
such transfer, in the case of tangible
immovable of the value of one hundred rupees
and upwards, or in the case of a reversion or
other intangible thing, can be made only by a
registered instrument.
In the case of tangible immovable property, of
a value less than one hundred rupees,
such_transfer may be made either by a
registered instrument or by delivery of the
property".
Section 17 of the Registration Act states:
"17. (1) The following documents shall be
registered if the property to which they
relate is situate in a district in which,
and,if they have been executed on or after the
date on which, Act No. XVI of 1864 or the
Indian Registration Act, 1866 or the Indian
Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or
comes into force, namely:
(a) instrument of gift of immoveable
property;
(b) other non-testainentary instruments
which purport or operate 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 a one hundred rupees and upwards, to or
in immoveable property;
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
(c)non-testamentary instruments which
acknowledge the receipt or payment of any
consideration on accountof the creation,
declaration, assignment, limitation orextinction
of any such right, title or interest; and
(d) leases of immoveable property from year
to year, or for any term exceeding one year,
or reserving a yearly rent;.
(e) non-testamentary instruments
transferring or assigning any decree or order
of a Court or any award when such decree or
order or award purports or 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 upwards-, to
or in immoveable property".
Section 49 of the Registration Act prior to
its amendment in 1929 read :
"No document required by section 17 to be
registered shall-
503
(a)affect any immoveable Property comprised
therein, or
(b) confer any power to adopt, or
(c)be received as evidence of any
transaction affecting such Property or
conferring such power, unless it has been
registered".
By section 10 of the Transfer. of Property
(Amendment) Supplementary Act, 1929, section
49 was amended as follows.-
"No document required by section 17 or by any
provision of the Transfer of Property Act,
1882 to be registered shall-
(a)affect any immoveable property comprised
therein, or
(b) confer Any power to adopt, or
(c) be received as evidence of any
transaction affecting such property or
conferring such power unless it has been
registered.
Provided that an unregistered document
affecting immoveable property and required by
this Act or the Transfer of Property Act,
1882, to be registered may be received as
evidence of a contract in a suit for specific
performance under Chapter 11 of the Specific
Relief Act, 1877, or as evidence of part
performance of a contract for the purposes of
section 53A of the Transfer of Property Act,
1882, or as evidence of any collateral
transaction not required to be affected by re-
gistered instrument".
The inclusion of the words "by any provision of the
Transfer of Property Act, 1882" by the Amending Act, 1929
settled the doubt entertained as to whether the documents of
which the registration was compulsory under the Transfer of
Property Act, but not under section 17 of the Registration
Act were affected by section 49 of the Registration Act.
Section 4 of the Transfer of Property Act enacts that
"sections 54, paragraphs, 2 and 3, 59 107 and 123 shall be
read as supplemental to the Indian Registration Act, 1908".
It was previously supposed that the effect of this section
was merely to add to the list ’of documents of which the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
registration was compulsory and not to include them in
section 17 so as to bring them within the scope of section
49. This was the view taken by the Full Bench of the
Allahabad High Court in Sohan Lal’s case(1). The same view
was expressed in a Madras Case Rama Sahu v. Gowro Ratho(2)
and by MacLeod C.J. in a Bombay case Dawal v. Dharma(3). We
are however absolved
(1) I.L.R. 50 All. 986. (2) I.L.R. [1921] 44 mad. 55.
(3) I.L.R. [1918] 41 Bom. 550.
504
in the present case, from examining the correctness of these
decisions. For these decisions have been superseded by
subsequent legislation i.e. by the enactment of Act 21 of
1922 which by inserting in section 49 of the Registration
Act the words "or by any provision of the Transfer of
Property Act, 1882" has made it clear that the documents in
the supplemental list i.e. the documents of which
registration is necessary under the Transfer of Property Act
but not under the Registration Act fall within the scope of
section 49 of the Registration Act and if not registered
are not admissible as evidence of any transaction affecting
any immoveable property comprised therein, and do not affect
any such inmmovable property. We are accordingly of the
opinion that Ex. A-26 being unregistered is not admissible
in evidence. In ,our opinion, Mr. Sinha is unable to make
good his argument on this aspect of the case.
Mr. Sinha contended that in any event the High Court should
not have remanded the case to the lower appellate court with
a direction that the defendants should be asked to render
accounts ,before they claim any payment from the plaintiff
at the time of redemption of the mortgage. It was pointed
out that the plaintiff did not file an appeal against the
decree of the trial court and in the absence of such an
appeal the High Court was not legally justified in ,,giving
further relief to the plaintiff the an that granted by the
trial court. In our opinion, there is justification for
this argument. We accordingly set aside that portion of the
decree of the High Court remanding the case to the lower
appellate court with a direction that the defendants
should, be asked to render accounts. otherwise we ’affirm
the decree of the High Court allowing the plaintiff’s appeal
with costs and setting aside the judgment and decree of the
lower appellate court and restoring judgment and decree of
the trial court dated 31st October, 1956.
Subject to this modification we dismiss these appeals.
There Will be no order as to costs in this Court.
G.C. Appeals dismissed.
505