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High Court Of Rajasthan
Judgename : J.P.Jain
RAMPRASAD - Appellant
Versus
KALYANI - Respondent
Second Appeal 289 Of 1964
Decided On : 08/18/1972
MORTGAGE - VALIDITY - REQUIREMENTS - TRANSFER OF PROPERTY ACT, 1882, SECTION 59 - ADMISSIBILITY OF EVIDENCE - INDIAN EVIDENCE ACT, 1872, SECTION 91 - MORTGAGE BY OPERATION OF LAW - ADVERSE POSSESSION - LIMITATION.
Fact of the Case:
Plaintiff Rameshwarlal claimed ownership of a shop in Pisangan, Ajmer, alleging that it was mortgaged to Harkaran by Murlidhar, and later sold to him by Murlidhar's son Shrikishan. Defendant Ramprasad, Harkaran's legal representative, contested the claim, denying the mortgage and asserting ownership of the shop.
Finding of the Court:
The court found that the mortgage was not valid as it did not comply with the requirements of Section 59 of the Transfer of Property Act, which mandates a registered instrument signed by the mortgagor and attested by two witnesses. The court also held that the evidence presented, including an entry in the register of mortgages and a statement by Ramprasad, was inadmissible under Section 91 of the Indian Evidence Act, which prohibits oral or documentary evidence to prove the terms of a contract required to be in writing.
Issues: 1. Whether the mortgage was validly created. 2. Whether the evidence presented was admissible to prove the mortgage. 3. Whether Ramprasad acquired any rights in the shop by operation of law.
Ratio Decidendi: 1. Section 59 of the Transfer of Property Act requires a mortgage of Rs. 100 or more to be effected by a registered instrument signed by the mortgagor and attested by two witnesses. 2. Section 91 of the Indian Evidence Act prohibits oral or documentary evidence to prove the terms of a contract required to be in writing. 3. Adverse possession requires the possession to be open, notorious, hostile, and continuous for the statutory period.
Final Decision: The court dismissed the plaintiff's suit for redemption, holding that the mortgage was invalid and that Ramprasad did not acquire any rights in the shop by operation of law.
J. P. JAIN, J.
( 1 ) THIS is a second appeal by defendant Ramprasad against whom a decree for redemption on payment of Rs. 450/-has been passed by the Munsif Aimer District. Aimer and which has been upheld by the Civil Judge. Aimer
( 2 ) THERE is a pucka Patti Posh shop facing north situate at village Pisangan in the district of Aimer. Deceased Rameshwarlal alleged that the said shop belonged to one Murlidhar son of Shri Hanotram Banear of pisangan and it was martgaged by him with possession with Shri harkaran on Bhadwa Sudi 5. Samwat year 1958 for securing a loan of rs. 450/-% As disclosed by the deceased Rameshwarlal in the plaint, the mortgage amount was not to bear any interest and the mortgage was a usufructuary mortgage. It wag further alleged that Murlidhar died and his son Shrikishan by a registered sale deed dated 28-9-1953 transferred his rights to the plaintiff (deceased Remeshwarlal ). According to the allegation in the plaint, Harkaran mortgagee died and Ramprasad appellant was his legal representative and he had been realising the rent from Heeralal who had been in occupation of the mortgaged shop as a tenant. It was also stated by the plaintiff that defendant Ramprasad delivered possession of the said shop on Bhadwa Sud 11 Samwat 2015 corresponding to 23-9-1958 to the plaintiff but the defendant No. 2 heeralal continued to remain in possession as tenant But, defendant ramprasad filed a suit for ejectment against defendant No. 2 Heeralal and obtained a decree against him and he thus came in actual physical possession of the suit shop. The plaintiff, therefore, prayed for a declaration that he is the owner of the suit shop and for delivery of possession. In the alternative, he claimed that a decree for redemption be passed and he be restored possession on payment of the mortgage amount of Rs. 450/- to defendant Ramprasad. This suit was instituted by the deceased Rameshwarlal in the court of Munsif. Ajmer District. Ajmer on 8th December, 1959. It may be mentioned here that the original suit was amended and the reliefs claimed finally were those as mentioned above.
( 3 ) DEFENDANT Ramprasad contested the suit He controverted all the allegations made by the plaintiff. He denied that Murlidhar was ever the owner of the suit shop. He also denied that the suit shop was mortgaged with Harkaran. He did not admit that he recovered rent from Heeralal as the legal representative of harkaran. His contention was that he was the owner of the shop and he realised rent from Heeralal in his own right. He admitted to have obtained an order of eviction against his tenant Heeralal by filing the civil suit No. 655/1958 and he obtained possession from him and has been in actual physical possession of the shop since then
( 4 ) HEERALAL did not put in appearance and the case was heard ex parte against him.
( 5 ) THE learned trial Judge framed the following nine issues:--1. Did the suit shop belong to Murlidhar? 2. Did Murlidhars son Shri Kishen sell the said shop to plaintiff as alleged in para. 2 of the plaint. 3. Was the said shop mortgaged with possession by Murlidhar with harkaran as alleged in para 3 of the plaint? 4. Did defendant No, 1 come in possession of the suit shop as the legal rer presentative of Harkaran? 5. Did defendant No. 1 deliver possession of the said shop to the plaintiff? 6. Is the defendant No. 1 estopped from denying the mortgage in view of his statement in Civil suit No. 555 of 19582 7. Is the suit barred by time? 8. Is defendant No. 1 entitled to spe-cial costs? 9. To what relief, is the plaintiff entitled?
( 6 ) ISSUE No. 5 was not pressed by the plaintiff during the trial. The learned Judge after trial held that the suit shop belonged to Murlidhar and after his death, his son shrikishan sold his rights in the shop to the deceased plaintiff Ram-eshwarlal. He further held that the said shop was mortgaged with possession by Murlidhar with harkaran as alleged by the plaintiff and the defendant Rampras
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