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Second Appeal No. 44 of 1969, decided on 30th October 1979.

Ss. 54',& 58 read with Registration Act (XVI of 1908), Ss. 17 & 49 Property; worth Rs. 500 mortgaged through unregistered deed and possession also delivered to mortgage---Suit for redemption, in such case, no competent---Mortgagor can however, claim possession of property by treating mortgagee as trespasser.--[Mortgage].

Ningttrppa Atrwappa v. Danappo Sharn Apps A I R 1947 Born. 206 ref.

Appellant in person.

Date of hearing:30th(.ktobcr1979:

The brief facts giving rise to this second appeal are that two shops bearing No. 1I-2 and 11-3, situated in the town of Garhi Khario, District Jacobabad, were purchased by the appellant in an auction held by the Deputy Settlement Commissioner, Jacobabad and a P. T. O. dated 13-3-1961. was issued to him. It is the case of the appellant that being in need of money he burrowed Rs. 500 from the respondents and agreed to mortgage his shop bearing No. II-3, with possession to them as a security for re-payment and an agreement on plain paper was accordingly executed by the appellant in favour of the respondents on 13-3-1962 in the presence of witnesses. In terms of this agreement the appellant handed over the possession of the aforesaid shop to the respondents. Subsequently, the respondents asked the permission of the appellant to demolish the shop and raise a new construction but he refused to agree. However, on assurance of the respondents that they would raise the construction from their own funds and adjust the same out of the rents of the new construction, the appellant agreed that the existing structure be demolished and new building constructed. Thus the old structure was demolished and two new shops were constructed on the plot of land on which the original shop was situated. The respondents rented out one of the shops to one Hussain Bux at a monthly rent of Rs. 20 and the ether to Muhammad Saffar at the rent of Rs. 30 per month. By February 1966, according to the appellant the entire amount spent on raising the construction of the shops was adjusted from the rents collected by the respondents and he, therefore, offered mortgage money of Rs. 500 to the respondents and demanded the delivery of the property. He also served a notice upon theft but they made no reply thereto. Upon their failure to accept the mortgage money and deliver the possession of the property on 31-10-1966 the appellant filed Suit No. 29 of 1966 in the Sub-Civil Court, Garhi Kharo, Jacobabad, against the respondents for redemption of mortgage and possession of the property.

2. The defendants resisted the suit and contended that the property in dispute was transferred to them by an . outright sale for Rs. 500. According to them the transaction was not a mortgage and the instrument was prepared ostensibly in the form of a mortgage at the instance of the scribe who advised that since the appellant had only received a P. T. O. he could not execute a sale deed but he could execute a mortgage deed.

3. In the trial the appellant produced the instrument of mortgage (Exh. 39) and examined the scribe who supported him that the .property was mortgaged through the aforesaid instrument to secure the loan of Rs. 500. The respondents on the other hand examined Hakim Allah Warrayo, the attesting witness of the instrument who supported their case that the transaction was in reality a sale but owing to legal complications it was written in the form of mortgage deed. The trial Court after considering the evidence of the parties came to the conclusion that the transaction was a sale and dismissed the suit by judgment dated 24-4-1968. The appellant challenged the aforesaid judgment in appeal which was disposed of by the learned District Judge, Jacobabad, by judgment dates 14-9-1968. The learned District Judge, .affirmed the finding of the trial Court and observed as under

"On the evidence arid the circumstances the learned Judge was justified in holding that the appellant had sold the shop and that it was the avarice to grab the property that he had filed a false suit.

In law, however, the respondents cannot be the owners of the shops. Oral sale of immovable property of the value of over Rs. 100 cannot be recognized. Such a sale has to be executed in writing and registered. Besides the appellant could not. sell the shop because he was only a P. T. O. holder and had not yet acquired right of ownership of the shops. Until and unless he got a P. T. O. he could not sell the shop. Since, however, he has duped and deceived the respondents, he cannot take advantage of the fraud played by him on the respondents and take the shops from them. He As honour bound to take the P. T. O. and execute a regular sale deed in favour of the respondents."

In this view of the matter the appeal was dismissed. The appellant has now come up in second appeal before this Court.

4. The appellant is appearing in person and is not represented by counsel. The respondents have remained absent. The following grounds have been inter alia, raised in the memo. of appeal

(i) That oral evidence was not admissible to prove terms of the contract which were reduced into writing.

(ii) That the Courts below have failed to consider the implications of the written document which was neither registered nor properly stamped. The said document could convey no title in the property to the respondents.

(iii) That the Courts below have failed to consider that the sale of the property namely the shop was prohibited by law and therefore. even if there was any evidence of the transaction being a sale it was illegal and the sale was null and void leaving the respondents to a claim of Rs. 500 only against the appellant.

(iv) That the learned District Judge erred in remarking that the appellant committed fraud on the respondents when it was no body's case that any fraud was committed in the transaction."

5. 1 have examined the judgment of the two Courts below and the record of the case. I find considerable force to the above contentions raised in this appeal. It is common ground that the document Exh. 39 purported to be a mortgage deed and was not registered. The learned District Judge, was right in holding that as the document affected immovable property of the value of more than Rs. 100 a sale of such property could only be effected through registered document ant therefore, no title is conveyed to the respondents in absence of registration. I agree with the contention that the learned District Judge was not justified to hold that the appellant was guilty of fraud. In reaching this conclusion the learned District Judge, totally lost sight of the pleadings of the respondents in which no allegation of fraud was made against the appellant at the time of transaction. The respondent's case was that the scribe of the document told them that the plaintiff being only a provisional transferee under the P. T. O. and not having obtained final transfer order, could not execute either an - agreement to sell or a sale deed and suggested that a mortgage deed be prepared. 1t is, therefore, clear that even if the case of the respondents is believed to be rue, it was the scribe and not the appellant who was responsible for the document being written in the form in which it was actually written.

6. The necessary consequence of there being no registered document evidencing sale of the property nor there being any agreement to sell was that the respondent. could not claim any title to the property. As is clear from the observations of the learned District Judge, cited above, in view of the terms of the P. T. O. the appellant could not sell or enter into an agreement to sell the property as such agreement would be void under section. 23 of the Contract Act. Be that as it may, the courts below could not consider the oral evidence contrary 1o the written terms of the contract in view of the bar contained on the admissibility of such evidence under sections 91 and 92 of the Evidence Act. A sale of immovable property of the value of Rs. 100 or more is required by section 54 of the 'Transfer of Property Act to be made only by a registered instrument, Thus, clearly the disposition of the property in suit was required by law to be reduced in the form of a document. Under: section 17 of the Registration Act such a document is compulsorily registrable and no effect could b2 given to it unless it was registered as provided by section 49. If the oral evidence is excluded from consideration there will be no other evidence of sale of the property, in dispute in favour of the respondents.

The result is that the title continued to vest in the appellant.

7. But the question still remains whether the aforesaid instrument relied upon as a mortgage deed could be made the foundation in a suit for redemption. According to section 59 of the Transfer of Property Act, when the principal money secured is Rs. 100 or more, a mortgage other than mortgage by deposit of title deeds can be effected only by a registered instrument. Therefore, the appellant could also not rely upon this document without registration as a mortgage deed or obtain a decree for redemption of the mortgage. In Ningappa Awwappu v. Danappa Sharp Appeal it was held that where a usufructuary mortgage for more than Rs. 100 is not registered the owners of the land cannot file suit for redemption but are entitled to treat the mortgagee as trespasser and evict him without repaying the loan advanced by him. In the present case the appellant has claimed that he had mortgaged the property with possession as usufructuary mortgage and therefore, his suit for redemption was not competent. But in the prayer clause of the plaint apart from a decree for redemption, the appellant had also claimed a decree for possession of the property. Consequently, as held in the cited Bombay case, he could claim possession of the property treating the respondents as trespassers. It is well established that a Court can grant alternate relief as the justice of the case demands. Although, therefore, the respondents were sued as mortgagees, the prayer for possession can be allowed treating them as trespassers in view of the fact that the instrument was not registered. No prejudice will he caused to them as the prescribed period of 12 years for acquiring title by adverse possession had not expired on the date of the suit. If the decree is maintained the respondents would virtually be the owners of the property in spite of the fact that there was a prohibition against the sale of the property and there was no registered instrument conveying title to them.

8. In the result 1 set aside the decree of the lower Courts and allow the appeal. The suit of the appellant shall be decreed so far as the relief of possession is concerned Since this appeal was not contested there will be no order as to costs.

S. Q. Appeal allowed.

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