Madhya Pradesh High Court
Mannulal vs Ramdayal & Anr. on 5 October, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 FA No.22/2003
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
First Appeal No.22/2003
Mannulal
-Vs-
Ramdayal & Anr.
________________________________________________
Shri C.R. Roman, Counsel for the appellant.
None for the respondent No.1.
Shri Prakhar Dhengula, Public Prosecutor for the
respondent No.2/State.
_______________________________________________
JUDGMENT
(05/10/2017) This first appeal under Section 96 of CPC has been filed against the judgment and decree dated 23.10.2002 passed by 2nd Additional District Judge, Guna in Civil Suit No.27-A/1999.
The necessary facts for the disposal of the present appeal in short are that the appellant had filed a civil suit against the respondent for specific performance of contract on the ground that the respondent No.1 was in need of money for his domestic purposes, therefore, on 7.8.1998 he had taken a loan of Rs.54,000/- from the appellant and had executed a loan agreement in which it was observed that he would repay the loan amount without any interest by ^^oSlk[k lqnh iwue laor 2056^^ and would obtain the receipt and in case if he fails to repay the amount, then the appellant shall be free to get a sale deed executed in respect of agricultural land situated in village Kaboolpura, Tahsil Raghogarh, District Guna bearing 2 FA No.22/2003 Survey No.624 area 0.418 hectares out of 3.762 hectares.
It was pleaded by the appellant that as the respondent No.1 failed to repay the amount and thus he is entitled to get a sale deed executed in respect of the suit land and, therefore, a suit for specific performance of contract was filed.
The respondent No.1 filed his written statement and denied the plaint averments. The respondent No.1 specifically denied that he had ever taken Rs. 54,000/- from the appellant. He further denied that any loan agreement was executed.
Challenging the judgment and decree passed by the Trial Court, it is submitted by the counsel for the appellant that the appellant was ready and willing to perform his part of contract. The respondent No.1 has not denied his signatures on the loan agreement Ex.P/1. The respondent No.1 had taken an amount of Rs.54,000/- and since he had failed to repay the said amount, therefore, he is entitled to get a sale deed executed in his favour in respect of the disputed land.
None appears for the respondent No.1. The primary question would be that whether the loan agreement was a agreement to sale or was a "simple mortgage". Loan agreement Ex.P/1 is reproduced as under:-
^^_.k gsrq vuqca/k&i= vuqca/k drkZ%& jken;ky iq= dk'khjke tkfr csfM;k vk;q 35 lky /kU/kk[ksrh fuoklh xzke dcwyiqjk rglhy jk?kkSx< ftyk xquk e0iz0 ¼o g d½ vuqca/k xzghrk%&eUuwyky iq= Ådkj tkfr fdjkj vk;q 42 lky /kU/kk [ksrh fuoklh xzke Hkqyk; rglhy jk?kkSx< ftyk xquk e0iz0 tks fd eq> vuqca/k drkZ dks viuh ?k: t:jr ls :i;ksa dh vko';drk gS bl dkj.k ls eSa] vuqca/k xzghrk eUuwyky iq= Ådkjyky fdjkj fu0 Hkqyk; ls vkt uxnh :i;k 54000@& pÅvu gtkj :i;k izkIr dj jgk gwa vkSj ;g ys[k djrk gwa fd eSa mDr :i;k 54000@& pÅvu gtkj :i;k dks vuqca/k xzghrk dks fcuk C;kt ds oS'kk[k lqnh iwue la0 2056 rd vnk dj viuh fy[kk i<h okfil izkIr 3 FA No.22/2003 dj ywaxk rFkk eSa vuqca/k xzghrk ds chp esa tks Hkh /ku vnk d:axk mldh fof/kor jlhn izkIr d:axk fcuk jlhn ds /ku dh vnk;xh ekU; ugha gksxhA ;fn eSa mDr vof/k ds vUnj ;g /ku fcuk C;kt ds vnk ugh d:a ;k fdlh izdkj dk ghyk gokyk d:a rks eSa vuqca/k drkZ ds LokfeRo o vkf/kiR; dh Hkwfe xzke dcwyiqjk rglhy jk?kkSx< esa losZ dz0 624 jdok 3-762 gS0 esa ls jdok 0-418 gS vFkkZr~ nks ch?kk Hkwfe dk fodz;
i= bUgh :i;ksa esa vuqca/k xzghrk ds i{k esa fof/kor laikfnr djk dj iathd`r djk nwaxkA rFkk jftLVªh dk [kpkZ vuqca/k xzghrk Lo;a ogu djsxkA eSaus 54000@& :i;k izkIr dj fy;k gS Hkfo"; esa :i;k u ikus ;k de ikus dh dksbZ vkifRr mBk;sxs rks og vkifRr vekU; gksxhA rFkk Hkwfe dk dCtk vuqca/kxzghrk dks lkSai nwaxkA ;fn eSa mDr fodz; i= dk iathdj.k ugha djkÅ ;k fdlh izdkj dk ghyk gokyk d: ;k Hkwfe dk dCtk vuqca/k xzghrk ugha nwa rks vuqca/k xzghrk dks vf/kdkj gksxk fd og mDr Hkwfe dk fodz; i= eq>ls U;k;ky;hu dk;Zokgh dj djkus dk vf/kdkjh gksxk rFkk og dCtk Hkh izkIr djus dk vf/kdkjh gksxk vkSj U;k;ky;hu dk;Zokgh dk gtkZ&[kpkZ eSa Lo;a Hkqxrus dk vf/kdkjh jgwaxkA Hkfo"; esa eSa ;k esjs okfjlku fdlh izdkj dh dksbZ vkifRr mB;sxs rks og vkifRr vekU; gksxhA vr% ;g vuqca/k i= eSaus viuh LosPNk ls fcuk fdlh ncko o izHkko ds lgh ekufld fLFkfr esa laikfnr dj fn;k fd izek.k jgs o le; ij dke vkosA fn0 7-8-98 vuqca/k drkZ izk:i& th0ds0 lDlsuk ,M0 eq>s Lohdkj gS & lk{khx.k 1& ykykjke iq= jk/ks';ke fdjkj 2& yVwjflag iq= e/kksyky fdjkj fu0 Hkqyk; fu0 Hkqyk;^^ From the plain reading of the loan agreement, it is clear that the appellant claims to have given a loan of Rs.54,000/- without any interest to the respondent and the respondent has agreed to repay the said loan by ^^oSlk[k lqnh iwue laor 2056^^ and it was further stated that in case of his failure to repay the amount then the appellant shall be entitled to get the sale deed executed in respect of the disputed land.
Section 58 of the Transfer of Property Act reads as under:-
"58. "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed" defined.-- (a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the 4 FA No.22/2003 performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.
(b) Simple mortgage.--Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(c) 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.]
(d) Usufructuary mortgage.--Where the mortgagor delivers possession 1[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to 5 FA No.22/2003 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.
(e) 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.
[(f) Mortgage by deposit of title-deeds.
--Where a person in any of the following towns, namely, the towns of Calcutta, Madras, [and Bombay], [* * *] and in any other town which the [State Government concerned] may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
(g) Anomalous mortgage.--A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title- deeds within the meaning of this section is called an anomalous mortgage.]"
From the plain reading of Section 58 of Transfer of Property Act, it would be clear that the document executed as loan agreement Ex.P/1 would be a "simple mortgage" and it cannot be said to be an agreement to sale. The loan agreement was executed on a stamp paper of Rs.100/-, however, it was not registered.
Section 59 of Transfer of Property Act reads as under:-
"59. Mortgage when to be by assurance.- Where the principal money 6 FA No.22/2003 secured is one hundred rupees or upwards, a mortgage [other than a mortgage by deposit of title deeds] can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by [a registered instrument] signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property.
[***] [59A. References to mortgagors and mortgagees to include persons deriving title from them.--Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.]"
From the plain reading of Section 59 of Transfer of Property Act, it is clear that where the principal money secured is one hundred rupees or more, then the mortgage deed is required to be registered as well as attested by atleast two witnesses.
In the present case, it is clear that the loan agreement Ex.P/1 was not a registered document. As the loan agreement Ex.P/1 is an unregistered document then it is inadmissible as envisaged under Section 49 of Registration Act.
As the loan agreement Ex.P/1 is an unregistered document, therefore, it cannot be led in evidence as the same is inadmissible in the light of Section 49 of the Registration Act and since the entire case of the appellant is based on loan agreement Ex.P/1 which in fact is a "simple mortgage" deed, therefore, this Court is of the considered opinion that the appellant has failed to prove that an amount of Rs. 54,000/- was paid to the respondent No.1 and accordingly the judgment and decree passed by the Trial Court is affirmed although on 7 FA No.22/2003 the different ground.
This appeal fails and is hereby dismissed. Decree be drawn accordingly.
(G.S. AHLUWALIA)
(alok) Judge
05/10/2017