Back
2009 Supreme(Kar) 213
High Court of Karnataka
THE HONOURABLE MR. JUSTICE K.N. KESHAVANARAYANA
Rukmini
Versus
Indirammal & Others
R.S.A. No.715 of 2002
Decided on : 26-03-2009
For the Petitioner:M. Sivappa, Advocate.
For the Respondents:D.R. Sundaresha, Advocate.
Headnote:INDIAN REGISTRATION ACT, 1908 - Section 17 (1) (b): [K.N. Keshavanarayana, J] Compulsory Registration of all non-testamentary instruments - whether the redemption of the mortgage requires registration - Held, It is well recognized position in law that mortgage creates an interest in the immoveable in favour of the mortgagee. Therefore, mortgage deed is compulsorily required to be registered. When a mortgage effected by a registered instrument is redeemed, the mortgagee is under an obligation to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished and to redeliver possession of the mortgaged property. Thus, the redemption of the mortgage involves retransfer of the interest in the mortgaged property in favour of the person who redeems the mortgage. If one reads Clause-(b) of sub-Section (1) along with Clause (xi) of sub-Section (2) of Section 17, it is clear that the redemption of the mortgage which extinguishes the interest of the mortgage in the mortgaged property and re-creates the interest in favour of the mortgagor or the person who redeems the mortgage, requires to be registered compulsorily. The redemption of the mortgage extinguishes the interest of the mortgagee in the mortgaged property and creates interest in the mortgagor or the person who redeems the mortgage. Clause (b) of sub-Section (2) of Section 17 sets out the documents which are not compulsorily registrable. According to Clause (xi) of sub-Section (2) of Section 17, any endorsement on a mortgage deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of the money due under mortgage when receipt does not purport to extinguish the mortgage, does not require registration (emphasis supplied).In other words, according to Clause (xi) a mere endorsement on the mortgage deed acknowledging the receipt of the whole or any part of the mortgaged money is not compulsorily registrable. However, if such endorsement purports to extinguish the mortgage, such endorsement is required to be compulsorily registered. In the case on hand, the defendant did not enter the witness box nor produced any documentary evidence to show that, mortgage has been discharged. No steps were taken by him to get the original mortgage deed produced before the Court from the person who alleged to have discharged the mortgage. Therefore there was no evidence in the case on hand to prove that, the mortgagee has delivered the original mortgage deed to the sons of Mortgagor. The endorsement discharging the mortgage in the mortgaged property in favour of the mortgagor or the person who redeems the mortgage, require to be compulsorily registered. As admittedly in the case on hand the alleged discharge of mortgage is not evidenced by registered instrument, the Courts below were not justified in accepting the mere say of the defendant that the mortgage has already been redeemed by the sons of Mortgagor. Even if it is assumed that the sons of Mortgagor have discharged the mortgage, since they had no right to redeem the mortgage, they have not derived any right or interest in the mortgage property
TRANSFER OF PROPERTY ACT, 1882 - Section 91: [K.N. Keshavanarayana,J] Redemption of mortgage - Right of equity of redemption - Held, According to Section 91 of the Transfer of Property Act besides the mortgagor and mortgagee, any person who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem or even any surety for the payment of the mortgage debt or any creditor of the mortgagor who has obtained a decreed for sale of the mortgaged property in any suit for administration of the estate of the mortgagor, is entitled to redeem the mortgage. On facts held, the plaintiff being the purchaser of the property stepped into the shoes of the mortgagor and had acquired the right of equity of redemption. According to Section 59-A of T.P. Act, the term ’mortgagor’ and ’mortgagee’ deemed to include persons deriving title from them respectively. Therefore, he was entitled to redeem mortgage upon expiry of the period fixed in the mortgage deed. Further, In view of the sale in favour of the plaintiff subject to the mortgage and since the said alienation was for legal necessity, the sons of mortgagor had no subsisting right of redemption. Even if the alleged discharge is accepted since such discharge stated to have occurred during the pendency of the suit, they are not necessary a parties to the suit. The Courts below could not have rejected the prayer sought for by the plaintiff in the suit only on the ground that the sons of mortgagor are not impleaded as party defendants to the suit.
K.N. Keshavanarayan, J
The unsuccessful plaintiff in O.S.209 of 1991 on the file of the then Munsiff is before this Court in this second appeal questioning the legality and correctness of the concurrent judgment of the Courts below, dismissing his suit filed for redemption of the mortgage an re-delivery of the mortgaged property to him.
2) The appellant was the sole plaintiff and the 1st respondent was the sole defendant in the Trial Court. The plaintiff filed the suit for judgment and decree directing the defendant to redeem the mortgaged property by receiving the mortgaged amount and to deliver the original Mortgaged Deed with discharge share thereon and also to deliver vacant possession of the schedule property to him and for an enquiry under Order 20 Rule 12 CPC regarding future mesne profits from the date of suit till the date of delivery of possession. The subject matter of suit is an out house situated at Jains Colony, Mandya City bearing Municipal Khatha No.4719/1428 site measuring East- West: 28-1/4 feet and North-South: 40ft 2”with Mangalore tiled roof.
3) The case of the plaintiff in briefs is as under:
The schedule property originally belonged to one Sri. M.A. Bahubali Raju. He mortgaged the said property in favour of Defendant vide Mortgaged Deed dated 06.02.1983 for a sum of Rs.20,000/- and delivered possession of the mortgaged property to the Mortgaged (Defendant) and he was permitted to enjoy the mortgaged property in lieu of the interest payable on the principle amount. The time for re- payment of the mortgaged amount fixed as eight years came to an end on 06.02.1991. The said Bahbali Raju sold the schedule property in favour of the plaintiff under the Registered Sale Deed dated 19.11.1984 subject to the mortgaged created in favour of the defendant. Thus, the plaintiff became the absolute owner of the property and also acquired the right of equity of redemption and was entitled to redeem the mortgaged after expiry of period fixed under the Mortgaged Deed. After the expiry of the time fixed under Mortgaged Deed, the plaintiff issued a noticed to the defendant on 24.01.1991 calling upon him to receive the Mortgaged amount and to redeem the mortgaged and also redeliver possession of the mortgaged property. Though the said notice was served on the defendant, the defendant instead of complying with the said notice, gave and untenable reply contending that he has spent huge money for repairs and that he should be paid the said amount along with mortgaged money. In the reply notice, the mortgaged alleged that the sons of said Bahubali Raju have filed a suit in O.S. 239/89 for declaration of their title and therefore the mortgaged cannot be redeemed. With these allegations, the plaintiff sought for the aforesaid reliefs.
4) Upon service of suit summons, the sole defendant appeared and filed his written statement reiterating his stand taken i8n his reply notice. However, the defendant made a statement in his written statement that he is prepared to redeem the mortgaged at any time if the Court decides the right of the plaintiff and orders for such redemption and the plaintiffs pays into the Court all the money spent by him towards repairs and other expenses.
5) In the light of the pleadings of the parties, the Trial Court framed the following issues:
i) Whether the plaintiff proves that he has purchased the suit schedule property, if so, has he acquired the right for redemption of the mortgaged property?
ii) Whether the defendants proves that he has repaired the house by spending amount of Rs.5.000/- to make the house fit for residence or living with the consent of the mortgaged?
iii) Whether the plaintiff is liable to pay the repair charges to the defendant as content in Para-6 of the written statement?
iv) Whether the case pending in O.S. 231/89 on the file of Additional Civil Judge, Mandya, bars the plaintiff to get the property redeemed?
v) Whether the plaintiff is entitled to decree?
vi) What decree or
