The circumstances that give rise to this second appeal may briefly be stated thus. Sarvashri Pratap and Mohanlal plaintiffs brought a suit against Sarvashri Lalu and Phookhand defendants for redemption of a mortgage over agricultural land with the allegations that Shri Lalu defendant had mortgaged the disputed land in favour of Shri Phoolchand defendant, that Shri Lalu defendant subsequently sold the equity of redemption for Rs. 99/- in favour of the plaintiffs, that the sale deed was reduced to writing but was not registered, that subsequently Sri Lalu defendant refused to have the sale deed registered, that the plaintiffs offered to redeem the mortgage, and that the mortgagee Shri Phool Chand refused to accept the mortgage money. It was therefore prayed that a decree for redemption be passed and that possession of the mortgage property be transferred in favour of the plaintiffs. The defendants contested the suit on the ground that the sale deed was unregistered, that no possession was transferred along with the sale deed and hence the plaintiffs had no cause of action. The trial court upheld this plea and rejected the suit. The learned Additional Commissioner relying on A.I.R. 1928 Allahabad 726 held that as possession was transferred in favour of the plaintiffs and as the consideration was less than Rs. 100 registration of the sale deed of the equity of redemption was not necessary. He, therefore, remanded the case to the trial court for a further trial and decision on merits. Hence this second appeal.

We have heard the learned counsel for the parties and have examined the record as well. The only question involved for determination in the case is as to whether the sale deed re- • lied on by the plaintiffs passed any interest or charge in their favour or not. It has not been disputed before us that this sale deed is unregistered. Sec. 54 of the Transfer of Property Act lays down that a sale in the case of tangible immovable property of the value of Rs. 100/-and upwards, or in the case of a reversion of other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than Rs. 100/-, such transfer may be made by a registered instrument or by delivery of the property. The question naturally arises therefore as to whether the equity of redemption should be held to be tangible or intangible immovable property. Land and things attached to the earth are things which can be touched and are therefore tangible immovable property. Thus a field or a house is tangible immovable property. A benefit to arise out of land is immovable property and is an interest in land. But such interests may or may not be tangible. The equity of redemption in a simple mortgage is tangible because the mortgagor is in possession. But in a usufructuary mortgage it is intangible because he is not in physical possession. Conversely the interest of the mortgagee is intangible if the mortgage is a simple mortgage, but tangible if the mortgage is a usufructuary mortgage. But the judicial decisions on the point disclose a deep rooted conflict. In 1928 Allahabad 726, case cited by the learned appellate court, Sulaiman C.J. said "a mortgaged property is undoubtedly tangible, but the interest of the mortgagor in the property, when the mortgage is usufructuary is not identical with the property itself, as some interest has already passed to the mortgagee including the right to remain in possession and appropriate the profits. To interest which the mortgagor possesses is not itself capable of being touched, nor is it such that an actual delivery of its possession can be effected by the mortgagor to the mortgage. It seems difficult to conceive of a thing being tangible when it is not capable of actual delivery of possession." This is a dissentient judgment. But the judgment of the majority of the Judges was that the interest of a mortgagor in a usufructuary mortgage is tangible. The majority view of the Alla

Click Here to Read the rest of this document