Patna High Court
Raghunath Bhagat And Ors. vs Amir Bakhsh And Sheikh Muhammad Latif ... on 11 January, 1922
Equivalent citations: 65IND. CAS.329, AIR 1922 PATNA 299(2)
JUDGMENT Das, J.
1. This appeal arises out of a suit instituted by the plaintiff-respondent to enforce a mortgage-bond executed by the defendants first party in his favour. The material facts are these.
2. On the 3rd of May 1913, the defendants first party executed a bond for Rs. 13,000 in favour of the plaintiff. This document was registered on the 5th May 1913. On the 7th May 1913 some of the properties which had been mortgaged by the defendant first party to the plaintiff were sold by the defendant first party to the defendants second party who are the appellants before as. The deed of sale was presented for registration on the 9th May 1913, but it appears that it was not in fact registered on that date and was compulsorily registered in August 1913; The defendants second party contest the claim of the plaintiff and rely upon their document which admittedly was executed subsequent to the mortgage upon which the plaintiff relies. Their case is that, although the document was executed on the 3rd of May 1913, the mortgage was not effective until the full consideration money had been paid to the defendant first party, and as the fall consideration money or any portion thereof was not paid by the plaintiff till after the execution of the deed of sale in their favour, their deed of sale is entitled to priority over the mortgage-bond upon which the plaintiff relies.
3. On the question of fast, the learned Subordinate Judge has some to the conclusion that a portion of the consideration money was undoubtedly paid on the 6th of May by the plaintiff to the defendant first party and the balance which was payable under the terms of the mortgage by the plaintiff to the defendant first party was deposited in Court by the plaintiff on the 10th of May.
4. Now, Mr. Sultan Ahmad, on behalf of the appellants, concedes that if the payment was in fact made by the plaintiff to the defendant first party on the 6th of May as alleged by the plaintiff, then he must fail. But he argues before us that the evidence on the point is so unsatisfactory that the learned Judge in the Court below should not have accepted it.
5. Dealing, then, with the question of fact, I find very great difficulty in accepting the finding of the learned Subordinate Judge. The document states that Rs. 9,600 was due to the defendants second party and Rs. 1,201 was due to a judgment-creditor of the mortgagors, namely one Budhan Sahu and the document provides that these two sums of moneys should be paid to the creditors and then the balance should be paid to the mortgagor, and that upon such payment the mortgagor should make over the mortgage deed to the plaintiff. That is the document.
6. Now, admittedly, Budhan Shau has never been paid by the plaintiff; admittedly, Rs. 9,600 due to the defendants second party was not deposited in Court until the 10th of May, but it is urged by the plaintiff that he had tendered that amount to the defendants second party on the 6th of May and that they refused to accept the money. The learned Subordinate Judge has not expressed any opinion on the evidence of the plaintiff that Rs. 9,600 was in fact tendered by the plaintiff to the defendants second party on the 6th of May. The evidence is conflicting on this point and it is difficult to say whether or not the tender was in fast made on the 6th of May. It seems to me that the point should have been established by the plaintiff beyond any doubt by the production of his account books. The plaintiff is a moneylender and is, presumably, in possession of account-books. If, as a matter of fact, the plaintiff paid to the defendant first party the money which he says he paid to him on the (5th of May, then the production of the account-books would have settled the question; but the account-books have not been produced in the case and in their absence it is difficult to accept the finding of the learned Subordinate Judge that the money was in fast paid by the plaintiff to the defendant first party on the 6th of May.
7. I will, then, assume that this money was not paid to the defendant first party by the plaintiff till after the actual conveyance in favour of the defendants second party, that is to say, it was not paid till the 10th of May. The question which I have now to consider is, whether it makes any difference to the rights of the parties that the money was in fact not paid to the mortgagor till after the conveyance of the property by the mortgagor to the defendants second party. In my opinion, it does not. The mortgage was executed on the 3rd of May 1913 and though it may be that the consideration money was not paid to the mortgagor till the 10th May, still upon payment to the mortgagor, whenever it may have taken place, the mortgage must have become effective on and from the 3rd of May 1913. The very definition of mortgage in the Transfer of Property Act supports the contention of the learned Vakil who has argued this appeal on behalf of the plaintiff. The definition of a mortgage is the transfer of an interest in specific immoveable properties 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 performance of an engagement which may give rise to a pecuniary liability. The document itself shows that the money was to be paid on a future date. The parties contrasted on the basis that the money was to be paid at a future date. The argument that the mortgage does not become effective until the money is actually paid, loses eight of the fact that mortgage is a conveyance and not a contrast. That distinction was pointed out by Farran, C.J., in Tatia v. Babai 22 B. 176 : 11nd. Dec. (N.S.) 699. That learned Judge said as follows in the course of his judgment in that case: "I am not, however, as at present advised, prepared to assent to the train of thought which puts conveyances of lands in the Mofussil perfected by possession or registration, where the consideration expressed in the conveyance to have been paid has not in fact been paid, in the same category as contracts void for want of consideration. The radical distinction between a perfected conveyance and a contract does not seem to me to have been sufficiently borne in mind throughout the judgment." In this case there is no doubt that the mortgage became perfected by registration and the only question between the parties is, whether the consideration money was paid on the 6th of May as is alleged by the plaintiff, or on the 10th of May as is alleged by the defendants second party. I am of opinion that if there ii nothing in the mortgage-deed to suggest that the mortgage was not to become effective until the consideration money was paid, the mortgage-deed became operative as from the date of the execution of the mortgage.
8. This brings me to the argument of Mr. Sultan Ahmad that the document in fact shows that the mortgage was not to become effective until the payment of the consideration money. He draws my attention to a passage in the mortgage which provides that the mortgagor undertook to make over the mortgage deed to the mortgagee upon the payment of the full consideration money. In my opinion, this provision does not amount to a contract between the parties that the mortgage is not to take effect until the payment of the consideration money, and my ground is that the document itself says as follows: "In security and satisfaction of the said loan, principal with interest, I have mortgaged and hypothecated the entire and whole 8-annas pokhta, etc." In other words, the mortgage and hypothecation was complete as and from the date of the execution of the mortgage-bond, but for his own protection the mortgagor provided that the mortgage-bond was not to be made over to the mortgagee until the payment of the full consideration money. In my opinion, then, there is nothing in the contrast which establishes that the title was not to pass to the mortgagee as and from the date of the execution of the mortgage-bond; that being so, the mortgage was clearly prior in date to the deed of sale.
9. I must, therefore, affirm the decree passed by the learned Subordinate Judge though not on the grounds stated by him. So far as the cross-appeal is concerned, I am of opinion that the view of the learned Subordinate Judge in correct and must be affirmed. It may be that a tender was made by the plaintiff to the defendants Second party on the 6th of May but if the plaintiff's case is to be believed the defendants second party unequivocally refused to accept the money; if that be so, then there was no obligation on the part of the plaintiff to deposit the money in Court. He should have offered to pay the money to the mortgagor if be wanted it. There was absolutely nothing in the contract to compel the plaintiff to pay the money into Court if the person in whose favour the deposit was to be made unequivocally refused to take the money.
10. Both the appeals must be dismissed and dismissed with costs.
Adami, J.
11. I agree.