Applicability of the provisions of Section 54(9) of Transfer of Property Act, 1882.

The relevant facts in this miscellaneous appeal against an order of remand lie within a narrow compass. One Subramania was the original owner of the property in dispute for the recovery of which the suit out of which this appeal arises has been filed. He had usufructuarily mortgaged the property to one Marudamuthu Padayachi on 4th December, 1893, for Rs. 40. The plaintiff claims title from the heirs of Subramania, he having purchased the suit property from them by a registered sale-deed, dated 25th February, 1948. These heirs claimed that the usufructuary mortgage had become extinguished by reason of the provisions of Madras Act (IV of 1938) and that consequently they were entitled to recover possession of the property and they transferred their title in the property to the plaintiff. On the other hand the case of the contesting defendants who claim under the usufructuary mortgagee Marudamuthu was twofold. First they pleaded that the property sold to the plaintiff under the deed of sale, dated 25th February, 1948, was not the property mortgaged to them and of which they were in possession, secondly they contended that Subramania had by an unregistered deed, dated 18th August, 1900, sold the property to Marudamuthu, the consideration being discharge of the usufructuary mortgage, viz., Rs. 40 and an extra sum of Rs. 10 paid at the time of the sale. On this ground they pleaded that the title of Subramania got extinguished both by reason of the sale as well as by Marudamuthu and those claiming under him having adversely enjoyed the property from 1900 the date of the sale upto the date of the suit.

The learned District Munsif who tried the suit held that the property purchased by the plaintiff under the deed of 1948 under which he claimed, did not comprise the property mortgaged which was set out in the schedule to the plaint. He also held that the unregistered deed, dated 18th August, 1900, was inadmissible in evidence under sections 17 and 49 of the Indian Registration Act and refused to admit the document in evidence for proving either the sale, or the discharge of the mortgage or the change in the character of Marudamuthu’s possession by reason of that transaction. He accordingly dismissed the suit.

The plaintiff took the matter in appeal and this came on for hearing before the learned Subordinate Judge of Tiruchirapalli. The appellate Judge held that the property purchased by the plaintiff was identical with that which was covered by the usufructuary mortgage by Subramania. He, however, held that the unregistered deed of sale of 1900 was admissible in evidence to prove the discharge of the mortgage on the particular date. The learned Subordinate Judge went on to add:

“ . . . . After that date (the date of the sale) if the defendants prove that they have been in possession they will perfect their title by adverse possession. They get title to the property not under this document nor on the date of the discharge of the mortgage. Even assuming that they get title to the property by reason of adverse enjoyment for 12 years they get title only 12 years after the date of this discharge......I, therefore, hold that this document is admissible in evidence for the purpose mentioned above.”

Having admitted this document he remanded the suit to the lower Court for a fresh trial, and it is this order whose correctness is challenged in this appeal.

In the view which I take of the principle of law applicable to this case, I do not consider it necessary to express any opinion on the reasoning of the learned Subordinate Judge which has been attacked by Mr. Ramachandra Ayyar, learned counsel for the appellant. In the present case, as would be seen from the above narration, the value of the property involved in the sale transaction is less than Rs. 100. The relevant portion of section 17 of the Indian Registration Act enacts:

“Section 17(1):-The following documents shall be registered.

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(b) other non-testamentary instruments which purport