Patna High Court
Sita Ram Prasad vs Mahadeo Rai And Ors. on 27 February, 1980
Equivalent citations: AIR1980PAT254, 1981(29)BLJR134, AIR 1980 PATNA 254
JUDGMENT Hari Lal Agrawal, J.
1. This second appeal is by the defendant No. 1 (defendant first party). The plaintiffs-respondents first party instituted a suit for redemption of a mortgage bond dated the 6th May, 1927, executed by four persons, namely, Lakshmi Narain Sukul, Brijnandan Sukul, Pradip Sukul and Chaturbhuj Sukul who were admittedly members of the same family in favour of defendants second party. The plaintiffs are the purchasers of the property under the mortgage from the widow of Brijnandan Sukul under a registered sale deed 3-4-1961 (Ext. 8) for Rs. 1300/-, measuring 3.35 acres, situate in village Musakchak, in the district of Sitamarhi.
2. The plaintiffs' case in this regard is that by a private family arrangement between the members of the family of the mortgagors, the land in question was allotted to the share of Brijnandan Sukul who accordingly got himself recorded in Register D and after his death, his widow Ramjoti Kuer inherited his estate. Ramjoti Kuer was also mutated in place of her husband in Register D. She executed the sale deed in favour of the defendant first party on 3-4-1961, as stated earlier, leaving the mortgage debt in deposit for payment to the mortgagees and in this way they acquired a valid title to the properties and became entitled to redeem the mortgage bond.
3. The suit was contested only by the defendant first party who is a competing purchaser of the same property under a registered deed of sale dated 17-4-1961 (3-4-1961?) from the members of the second party. The plea set up by the contesting defendant, in essence, was that on a private partition the bharna land had fallen to the share of the heirs of Pradip Sukul and others and not to Brijnandan Sukul alone. It is mentioned that in the mutation proceedings just mentioned above, an application Ext. 2 (a) was filed on behalf of the defendant second party on 18-12-1937, wherein they supported the case of Brijnandan Sukul for mutation of his name, admitting therein that there had been a private portion in the family of the mortgagors. With respect to this document, which was described as an 'Ejabnama' (a document akin to a deed of disclaimer) it was alleged that it was a fabricated and fraudulent document. It was further pleaded that in any view of the matter, as it was not a registered document, no title could be claimed on its basis by the husband of Ramjoti Kuer. On these allegations, the right of redemption was contested by the defendant No. 1.
4. The trial court dismissed the suit on the ground that the plaintiffs failed to prove that the suit land had fallen to the share of Brijnandan Sukul in the partition and, therefore, the sale deed executed by his widow did not confer any marketable title on the plaintiffs. An appeal was taken to the lower appellate court by the plaintiffs and the learned Additional Subordinate Judge in disagreement with the trial court, decreed the plaintiffs' suit. The lower appellate Court has recorded the following findings :--
(i) Ext. 2 (a) even in absence of the registration cannot be brushed aside in as much as it stated to the effect that the bharna land actually fell in the share of Brijnandan Sukul, husband of the plaintiffs' vendor (Ramjoti Kuer);
(ii) The defendant first party completely failed to prove his case that the land in question had fallen to the share of his vendors under the private partition in question.
There is yet another finding recorded by the lower appellate court to the effect that the plaintiffs were bona fide purchasers. On these findings, the lower appellate court held that the plaintiffs were entitled to redeem the mortgage.
5. From the findings as recorded by the ultimate court of fact, as mentioned above, it is apparent that it has recorded a clear finding that the bharna land had fallen to the share of Brijnandan Sukul. The facts that there had been a private partition between the co-sharers of the mortgagors' family is not disput-ted. As already stated earlier, the defendant based his claim on the basis of the bharna land being allotted to the share of his vendors under the aforesaid private partition. In this regard the trial court has recorded a clear finding of facts which is binding on this court sitting in second appeal. And once this finding is held to be conclusive, then certainly Brijnandan Sukul became entitled to redeem the mortgage bond on account of the allotment of the properties in question to his share and he having failed to redeem, on his death this right devolved upon his widow Ramjoti Kuer, which was then sold in favour of the plaintiffs by the registered sale deed (Ext. 8).
6. Mr. Balabhadra Prasad Singh, learned counsel appearing on behalf of the appellant, wanted us to examine Ext. 2 (a) and contended that the said document did not state any description of the properties of the family, Mr. Kai-lash Roy, appearing for the respondents first party, on the other hand, contended that in as much as the application for mutation was made by Brijnandan Sukul with respect to the properties in suit. Ext. 2 (a) which has been described as deed of Ejabnama stated that the co-sharers had no objection to the mutation of the name of Brijnandan Sukul inasmuch as there had already been a partition in the family. As Ext. 2 (a) is not a document of title nor the other preliminary steps, such as filing of the copies of the document etc. for the Bench, were taken by the appellant, it was not possible to accede to this prayer, and we accordingly refused to examine the document ourselves.
7. Mr. Singh then contended that the right to redeem was an intangible property and, therefore, no right could be acquired by Brijnandan Sukul on the basis of this document (Ext. 4?) (Ext. 2 (a)) in absence of its registration under Section 17 of the Registration Act. It may be mentioned here that the court of appeal below has placed implicit reliance on this Ext. 2 (a) besides other materials on the record to hold that the bharna properties were allotted to the share of Brijnandan Sukul.
8. Mr. Roy, on the other hand, con-tended that the right to redeem was a tangible property and, therefore, like any other joint family property, the parties could have allotted this property also to any of the members of the copar-cenery. He contended that notwithstanding the mortgage, the title to the properties in question remained with the mortgagors, of course, subject to the encumbrance. He further contended that it well might be that the immediate right of possession of bharna bond was with the mortgagees, the possession of the mortgagees must be deemed to be for and on behalf of the mortgagors. In other words, the argument was that the mortgagors must be deemed to be in constructive possession of the properties in question and the moment the mortgage was redeemed, it would be restored to its original status.
9. According to Section 58 of the Transfer of Property Act, a mortgage is only the transfer of an interest in specific immovable property for the purpose of securing a loan etc. A mortgage, therefore, does not amount to transfer of the property itself as in the case of a sale, and title in the mortgaged property certainly, remains with the mortgagors.
10. A Full Bench of this Court in Suraj Prasad v. Mst. Aguta Devi, (AIR 1959 Pat 153), had the occasion to consider the expression 'equity of redemption, in the background of whether it was tangible or intangible immoveable property. On reference to the Dictionary meaning of the word 'tangible' according to which it was something that can be touched like a material object, it was observed that when an owner sells his immoveable property which is subject to a simple or usufructuary mortgage, it is the sale of a tangible immovable property and not that of merely any intangible right. This Court further held that the expression 'equity of redemption' which is an expression borrowed from English law, although which has not been used in the Indian Law, means a right which the mortgagor has been given under Section 60 of tha Transfer of Property Act, namely, the right to redeem. This 'right to redeem' cannot be said to be a substitute for 'equity of redemption' because the latter expression imports that the ownership, in law, is vested in someone other than the holder of the 'equity of redemption' and that a mortgage, according to Section 58 of the Transfer of Property Act, was simply a tranfer of interest in the immovable property while the ownership still remained with the mortgagors unlike a sale, as defined in Section 54 of the Transfer of Property Act. In view of this authoritative decision, Mr. Singh did not press his contention very seriously. In any view of the matter, it cannot be disputed as a proposition of law that the mortgagors were still owners of the bharna land and they were entitled to allot the same in the partition which admittedly took place amongst them orally. The Court of appeal below has recorded a clear finding that the appellant-defendant No. 1 failed to prove his case that the bharna land was allotted to the share of his vendors. On the other hand, a clear (finding) has been recorded, as already noticed, that it was allotted to the share of Brijnandan Sukul. It is also well established that under the Hindu law, there can be an oral partition and once a partition is alleged, then the law will presume, unless something is proved to the contrary, that there was a complete partition between the members of the family. The legal position of the mortgaged properties thus having been clearly understood, as above, I have got no manner of doubt that the parties were competent in law to deal with the bharna lands at the time of oral partition like any other joint family property and the allotment of the said land to the share of any of the coparceners lawfully made the allottee entitled to redeem the mortgage as a whole and thereafter to become absolute owner of the said property. The equity of redemption or for that matter the right to redeem, is capable of being assigned or transferred, cannot be disputed in law. Rather, the defendant himself is the purchaser of the same right. Ramjoti Kuer was, therefore, duly competent in law to confer upon her transferees, namely, the plaintiffs, all the right, title and interest of the mortgagors with respect to the bharna land, which was subject to the encumbrance. The plaintiffs, therefore, having acquired the said right under the deed of sale (Ext. 8) have been rightly held to be entitled to the decree for redemption as held by the court of appeal below,
11. For the reasons discussed above, I do not find any merit in this appeal and would dismiss the same with costs.
Chaudhaby Sia Saran Sinha, J.
12. I agree to the order proposed by my learned brother. I would, however, like to make some observations of my own.
13. Mr. Balabhadra Prasad Singh did not dispute the position that the right to redeem or what is generally called equity of redemption can form the subject-matter of 'sale' as defined and in the manner laid down in Section 54 of the Transfer of Property Act. Mr. Singh did not also dispute the position that such a right can form the subject-matter of partition as well. His simple contention was that the division or partition of such a right can be made only by a registered instrument. It is difficult to accept the distinction sought to be made by Mr. Singh. The sale is a transfer of ownership but a mortgage is the transfer of an interest in specific immoveable property. Certainly, title is something more than the interest as envisaged in Section 58 of the Transfer of Property Act. It cannot, therefore, be said that nothing remains with the mortgagor after he mortgages the property. If transfer of the right to redeem can be made by a registered document, as conceded by Mr. Singh, I see no conceivable reasons why such a right cannot form the subject-matter of oral partition, particularly when such partition is not going to interfere with the scheme of mortgage, as envisaged in the Transfer of Property Act, I say so because of the last paragraph of Section 60 of the Transfer of Property Act, which provides a safety valve to guard the genuine interest of a mortgagee and states that nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage except only where a mortgagee, or if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part the share of a mortgagor. The contention of Mr. Singh has, therefore, to be negatived.