Mortgage rights cannot be extinguished by an unregistered document; valid legal processes are required to affect mortgage rights.

JUDGMENT :

J. C. DOSHI, J.

Concurrent findings rendered by the courts below is sought to be assailed in this Second Appeal under Section 100 of the Code of Civil Procedure whereby the suit of the plaintiff was allowed and preliminary decree passed for redemption of the property mortgaged to the appellant.

2. On 20/02/2001, this Court admitted the captioned appeal by framing following substantial question of law:

“Whether right to redeem the mortgaged property in question came to be extinguished immediately on execution of Sale deed dated. 20th May, 1970 (Ex.103)?”

3. The appellant is the defendant and respondent is the plaintiff and they are addressed as per their original status before the courts below.

4. In essence the dispute between the parties in regards to the issue that whether a mortgage by the conditional sale (Exh.45) has been perfected into the absolute sale by executing the document dated 20/05/1970 (Exh.103).

5. The factual matrix of the case is as under:

5.1 The plaintiffs filed suit for redemption of mortgage by conditional sale in respect of the agriculture lands which is the suit lands. The plaintiffs sold the said suit land to defendant executing registered Mortgage Deed by conditional sale for Rs.7.000/-. It was not the deed of conditional sale, simplicitor but it was the deed of conditional sale as conditions of mortgage with the terms that after the expiry of five years from the date of the deed i.e. from 12/3/1968, if the mortgagors repay the of Rs.7,000/- to the defendant, the defendant shall hand over the actual possession of the lands to the plaintiffs. It is contended by the plaintiffs that as the deed of conditional incorporate the terms and conditions, it is not conditional sale simplicitor, but, it is in fact the deed of conditional sale as Ghelabhai died, and the plaintiffs happen to be the legal heirs of Bai Diwali. The plaintiffs handed over the actual possession to the defendant. Thereafter the plaintiffs decided to repay the amount, and therefore, the plaintiff issued registered notice dated 14/2/1984 to the defendant offering the amount of deed of Rs.7.000/- calling upon to redeem the mortgage. But the defendant was not prepared to accept the amount of Rs.7.000/-and not willing to redeem the mortgage and refused to hand over the possession of the lands. Therefore, the plaintiffs are constrained to file the suit for redemption of mortgage.

5.2 The trial court framed the following issues :-

1. Whether the plaintiffs prove that suit field was mortgaged to the defendant ?

2. Whether the defendant proves that the plaintiff has sold this suit field to him for Rs.10,800/- on 20/5/1970 ?

3. Whether the plaintiff is entitled for redemption ?

4. To what other reliefs, the plaintiffs entitled to ?

5. What order and decree ?

5.3 The trial court answered the issue Nos.1 and 3 in affirmative while answering issue no.2 in negative and issue no.4 is answered in paragraph 28 of the impugned judgment and decree.

5.4 Both the parties have led their evidence and learned trial court after examining the evidence on record and submissions dismissed the suit with costs. Unsuccessfully challenge before the first appellate court the findings of the trial court is confirmed and thus present Second Appeal is filed.

6. Heard learned advocates appearing for the respective parties.

7. Learned Advocate Mr.B C Dave for the appellant after taking this court through the R & P of the suit as well as the evidence led therein submits that the courts below have committed serous; but the gross error in not believing that on execution of the document at Exh.103, the mortgage with conditional sale is cry