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1921 Supreme(SC) 61
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, LORD PHILLIMORE, SIR JOHN EDGE, AND SIR ROBERT STOUT.
EHTISHAM ALI - Appellant
Versus
JAMNA PRASAD - Respondents
On Appeal from the Court of the Judicial Commissioner of Oudh.
Decided On : July. 12. 1921.
Solicitors for appellant :Watkins & Hunter. Solicitors for respondents: T. L. Wilson & Co.
A registered sale deed for immovable property is strong evidence of execution and consideration; it can only be cancelled by another registered instrument. Furthermore, a mortgagor cannot claim adverse possession of the equity of redemption if the mortgagee remains in possession of the property.
Headnote:(A) Transfer of Property Act, 1882 - Section 54; Indian Evidence Act, 1872 - Section 91 - Admissibility of secondary evidence - Certified copy of registered sale deed - Where the original deed is lost and the witness testifying to such loss is not cross-examined, a certified copy from the register is admissible as secondary evidence - Registration of a deed implies the grantor's participation and execution - Admission of receipt of consideration in a registered deed is strong evidence of payment.
(B) Transfer of Property Act, 1882 - Cancellation of registered sale - Immovable property of significant value can only be transferred by a registered deed - A registered sale deed can only be avoided by a subsequent registered transfer.
(C) Equity of Redemption - Adverse possession - Subsequent dealings by a mortgagor do not constitute adverse possession if the mortgagee remains in possession of the property.
(D) Redemption of Mortgage - Right to redeem a specific property among several mortgaged properties upon payment of the charge upon the whole.
Facts of the case:
Plaintiffs sought to redeem a usufructuary mortgage, claiming they had purchased the equity of redemption via a registered sale deed. The original deed was lost, and a certified copy was produced. Defendants argued the sale was abortive, the deed was returned to the mortgagor, and the mortgagor subsequently exercised adverse possession through other dealings and attempted sales.
Findings of Court:
The court held that the certified copy was admissible as secondary evidence. The registration of the deed provided a strong presumption of its execution and the payment of consideration. The defendants failed to prove the return of the deed or its cancellation via a registered instrument. The mortgagor's subsequent dealings did not amount to adverse possession because the mortgagee remained in possession of the property.
Issues: Whether a certified copy of a registered sale deed is admissible as secondary evidence when the original is lost; whether a registered sale of immovable property can be cancelled by an unregistered transaction; whether a mortgagor can acquire adverse possession of the equity of redemption while the mortgagee is in possession.
Ratio Decidendi: A registered deed is prima facie evidence of execution and consideration. Under the law, a registered transfer of immovable property can only be revoked or transferred by another registered instrument. Adverse possession of an equity of redemption cannot be established by the mortgagor's dealings if the actual possession of the property remains with the mortgagee.
Result: Appeal allowed and the case remitted to the Court of the Judicial Commissioner.
Legal Category Hierarchy
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property law
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mortgages
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redemption
- equity of redemption
- usufructuary mortgage
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redemption
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transfer of property
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sale
- registered instruments
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sale
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mortgages
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practice and procedure
-
evidence
- secondary evidence
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limitation
- adverse possession
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civil procedure
- joinder of parties
-
evidence
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.)
