Patna High Court
Gulab Chand Ram And Ors. vs Pancham Ram on 6 August, 1920
Equivalent citations: 59IND. CAS.338, AIR 1920 PATNA 787
JUDGMENT Jwala Prasad, J.
1. This appeal arises cut of a suit for redemption. The plaintiff deposited Rs. 37 in Court under Section 83 of the Transfer of Property Act and thereafter brought the suit for redemption.
2. The defendant denied the right of redemption on the ground that, under the terms of the mortgage, he became the absolute owner of the property after the expiry of the due date of payment (written statement paragraph 4). He also denied the right of the plaintiff to redeem on payment of the principal sum of Rs. 37 and stated that he had re built the house, which wan in a dilapidated condition at the time of the mortgage, at a cost of Rs. 124-4-0 and that he had added a second storey to it at a further cost of Rs. 120-12-0 and that the total cost with principal and interest came to Rs. 1,841-2-6.
3. The Munsif decreed the suit holding that the defendant was not entitled to the additional sum claimed by him over and above the principal sum of Rs. 37 and that the right of redemption was not lost to the plaintiff.
4. The District Judge reversed the Munsif's decision. The plaintiff has, therefore, come to this Court in second appeal.
5. The plaintiff alleged that the terms of the mortgage between the parties were reduced to writing, a chithi, bearing one anna stamp and that it was with the defendant mortgagee. The defendant denied this and produced an unregistered bond, dated the 1st of Asin 1308 (1901). The document was put to the plaintiff in the witness-box and he denied it. The execution of the document was proved by the defendant and the marginal witness. The terms of the document were also proved by the witnesses on behalf of the defendant. The document was filed in time bat was rejected and returned by the Munsif on the 9th May 1918, without any reason having been given. The defendant refiled the document in appeal before the Judge. The plaintiff objected to the acceptance of it and the point was ordered to be decided at the time of the hearing, but nothing was done and ultimately the document was again returned to the defendant. The learned Judge very rightly observes that the document, being of a date prior to the Transfer of Property Act (VI of 1904), which for the first time required a mortgage-bond below Rs. 100 to be effected by a registered document or by delivery of, the property, did not require any registration, I agree with the learned Judge that it is not known why the document was not admitted by the Munsif. I called for the document and the defendant has produced it in this Court, but I cannot take it into evidence as none of the parties want it. The result is that the term of the mortgage is to be found upon the pleadings and the evidence in the case. It is admitted that the defendant entered into possession of the property as an usufructuary mortgagee as security for the loan of Rs. 31 advanced by him to the plaintiff. His status is also recorded as such in the Survey Record of Rights finally published on the 2nd September 1914. In that record the position of the defendant is stated to be that of a mortgagee for the principal sum of Rs. 37 on the basis of a bond, dated the 1st of Asin 1308. The document was produced before the Settlement Officer and the defendant claimed to be in possession as a mortgagee under it. This position is admitted in paragraph 4 of the written statement, and the account given at the foot of the written statement shows Rs. 37 as the mortgage-money advanced on the 1st Asin 1338. The Court below has dismissed the plaintiff's case on the ground that it must fail for want of evidence. In this the learned Judge is clearly wrong. The admission of the defendant that lieu of Rs. 37 relieves the plaintiff from giving any further proof. It was for the defendant to prove that the plaintiff lost his right of redemption. The ground for the extinction of the plaintiff's right is stated by the defendant in paragraph 4 of his written statement, that upon the terms of the mortgage he was to become the absolute proprietor after the due date of payment. No such clog upon redemption could be placed by the terms of the mortgage at its inception. The mortgagee's right as an absolute owner accrues only in the case of a mortgage by conditional sale, Such a mortgage is an ostensible sale and becomes absolute on failure to pay the mortgage-money on a certain date and becomes void on such payment, vide Section 58(c) of the Transfer of Property Act. In other words, in a mortgage by conditional sale the ownership of the mortgagee in the property is created from the very beginning. There may also be a condition for the re-conveyance of the property to the mortgagor on paying up the money on certain date. But it is not contended and upon the authorities and the terms set forth in the pleadings of the parties it is possible to hold that the mortgage in question between the parties was a mortgage by conditional sale. It was an usufructuary mortgage pure and simple, and the contention, if any, that the mortgagor would lose his right to redeem on default of payment of the mortgage money on a certain date was invalid and inoperative The law views with jealousy the right of redemption vested in the mortgagor and repudiates all attempts to do away with that right, The authorities cited to me have confirmed me in this view Perayya v. Venkata 11 M. 403 : 4 Ind. Dec. (N.S.) 281; Srinivasa Aiymqar v. Radhakrishna Pillai 22 Ind Cas. 54 : 38 M. 637 : 14 M.L.T. 517 : (1914) M.W.N. 81 : 26 M.L.J. 47; Kanarau v. Kuttooly 21 M. 110 : 8 M.L.J. 62 : 7 Ind. Deo. (N.S.) 434; Sarabdawan Singh v. Bijai Singh 24 Ind. Cas. 705: 36 A. 651 : 12 A.L.J. 927 and Sayad Abdul Hale Sardar Diler Jung Bahadur v. Gulam Jilani 20 B. 677 : 10 Ind, Dec. (N.S.) 1021.
6. I therefore, hold that the right of the mortgagor to redeem in this case remained intact,
7. The question is, on what terms he can redeem. The Court below is evidently of opinion that the evidence in this sage established the fast that the defendant re-built the dilapidated house and added the Second storey to it and that he is entitled to the expenses incurred by him in so repairing and improving the house. This certainly he is entitled to under the authorities on the subject, provided the improvements were lasting and reasonable and that it was not prohibitive so as to work as a clog upon the right of redemption. The fast that the parties had contemplated the reimbursement to the mortgagee of such costs is evident from the proceedings in this case. On the 19th February 1918 both the parties filed a joint petition agreeing that the property should be redeemed on payment to the defendant of all costs incurred in the improvement effected by the defendant and the amount of costs should be settled by arbitration. The arbitration was, however, superseded. But the point has not been decided by the Court below on account of the view taken by it that the plaintiff's suit must fail for want of evidence.
8. The decree passed by the District Judge must, therefore, be reversed and the case remanded to him to determine the amount payable by the plaintiff to the defendant for redemption. The District Judge will be at liberty to accept the mortgage-bond, dated the 1st Asin 1308, if he thinks, upon the evidence in the case, that it has been legally proved. As the plaintiff has mainly succeeded, I think he is entitled to the costs of this Court as well as of the lower Appellate Court.