Judgement

Appeal (No. 70 of 1919) from a judgment and decree of the Court of the Judicial Commissioner (May 3, 1915) reversing decrees of the Additional Subordinate Judge of Hardoi.

The suit was brought by the appellant and his brother, since deceased (both being represented by the appellant), against the respondents claiming to redeem a usufructuary mortgage made in 1873 and 1875. The plaintiffs alleged that they had purchased the equity of redemption for Rs. 200 by a registered sale deed executed by the mortgagor in 1882. The defence set up by the defendants and the facts of the case appear from the judgment of the Judicial Committee.

The Subordinate Judge found that the sale deed of 1882 had been lost, but that that circumstance was not material, as a registration copy was produced. He found against the case alleged by the defendants that the sale had been cancelled. After taking the accounts he made a decree in favour of the plaintiffs.

On appeal to the Court of the Judicial Commissioner the decision of the trial judge was reversed. The learned judges regarded the non-production of the original sale deed as a serious feature of the case. They referred to the fact that no evidence had been called from the mortgagors family, and deemed it probable that the vendees had withdrawn from their bargain in View of the large sums due on the mortgages. They said "A surrender of rights by the return of a sale deed is not uncommon in this country (cf. Herambdev v. Kashinath (( 1890) I. L. R. 14 B. 472.)), and though a mere non-payment of consideration cannot vitiate a sale, a sale may become inoperative by surrender or the failure of the parties to enforce it or by the exercise of an adverse right by one party against another for a period of more than 12 years. An equity of redemption may, as between a mortgagor and a person claiming adversely to him, be as much the subject of adverse possession as any other interest or right." They were further of opinion that all the necessary parties were not before the Court.

1921. June 15. De Gruyther K.C. and Dube for the appellant. The registration copy of the sale deed was clearly admissible in evidence, and conclusive that the consideration was paid. There could be no effectual cancellation of the conveyance without another registered instrument having regard to s. 54 of the Transfer of Property Act, 1882. The decision in Herambdev v. Kashinath(( 1890) I. L. R. 14 B. 472.) is not good law where the property is over Rs. 100 in value Umedmal Motiram v. Davu. (( 1878) I. L. R. 2 B. 547.) Further, there was no evidence that it was intended to cancel the deed. Having regard to the terms of the registered deed the property passed whether or not the consideration was paid. [Reference was made to the Indian Evidence Act (I. of 1872), s. 91.]

Kenworthy Brown and Palat for the respondents. The Court was amply justified in attaching great importance to the non-production of the deed. Had it been produced it might have been found to bear an indorsement that it was only to take effect subject to a condition—e.g., on payment of money. The intention of the parties, as manifested in their transactions, is to be regarded apart from the formalities Mahomed Musa v. Aghore Kumar Ganguli. (( 1914) L. R. 42 I. A. 1.) The subsequent sales by the mortgagor brings the present case within that decision of the Board. Further, for twelve years after the alleged sale the vendor was in possession of the mortgagors right, and exercised that right adversely by the sales in question. The law of limitation applies to an equity of redemption Khiarajmal v. Daim. (( 1904) L. R. 32 I. A. 23.) Lastly, the alleged sale did not comprise the whole of the property mortgaged ; under Order xxxiv., r. 1, the suit was not competent without the holders of the equity of redemption in the rest of the property being joined.

Dube in reply referred to Bombay Cotton Manufacturing Co. v. Motilal Shivlal (( 1915) L. R. 42 I. A. 110, 113.), as to th