Back
1972 Supreme(Ori) 264
IN THE HIGH COURT OF ORISSA
B.K. Patra, J.
KASINATH SAHU - APPELLANT
Versus
POTHANI NAIK AND OTHERS - RESPONDENT
Second Appeal No. 379 of 1967
Decided On : 25-01-1972
A.K. Padhi, for K. Misra and R.C. Patnaik, for the Appellant; R.N. Sinha, for the Respondent
An oral agreement to convert a simple mortgage into a usufructuary mortgage is valid and does not offend Section 92 of the Evidence Act if it merely seeks to lay down the means by which the original contract was to be implemented, or the means of satisfaction of the mortgage debt.
Headnote:
MORTGAGE - SIMPLE MORTGAGE - ORAL AGREEMENT TO CONVERT INTO USUFRUCTUARY MORTGAGE - VALIDITY - SECTION 92 OF THE EVIDENCE ACT - ADVERSE POSSESSION - PERMISSIVE POSSESSION.
Fact of the Case:
Plaintiff No. 1 executed a simple mortgage bond in favor of Defendant No. 1 in 1939. In 1950, Plaintiff No. 1 delivered possession of the mortgaged properties to Defendant No. 1 under an oral agreement that the latter would remain in possession and pay himself off out of the usufruct of the lands in discharge of the original simple mortgage deed. Defendant No. 3, who purchased a portion of the disputed properties from Defendant No. 2, claimed that Defendant No. 1 had acquired an absolute title to the properties by adverse possession.
Finding of the Court:
The court held that the oral agreement of 1950 was not hit by the provisions of Section 92 of the Evidence Act as it merely sought to lay down the means by which the original contract was to be implemented, or the means of satisfaction of the mortgage debt. The court also held that Defendant No. 1's possession of the properties was permissive and not adverse, as he had taken possession under the understanding that he would remain in possession and pay himself off out of the usufruct of the lands in discharge of the original simple mortgage deed.
Issues: 1. Whether the oral agreement of 1950 was hit by the provisions of Section 92 of the Evidence Act? 2. Whether Defendant No. 1 had acquired an absolute title to the properties by adverse possession?
Ratio Decidendi: 1. The oral agreement of 1950 did not contradict, vary, add to or subtract from the terms of the original mortgage but merely sought to lay down the means by which the original contract was to be implemented, or the means of satisfaction of the mortgage debt. Therefore, it was not hit by the provisions of Section 92 of the Evidence Act. 2. Defendant No. 1's possession of the properties was permissive and not adverse, as he had taken possession under the understanding that he would remain in possession and pay himself off out of the usufruct of the lands in discharge of the original simple mortgage deed.
Final Decision: The court dismissed the appeal and upheld the judgment and decree passed by the lower Appellate Court.
JUDGMENT :
B.K. Patra, J. - This is an appeal against a confirming judgment of the Subordinate Judge, Aska upholding the decision of the Munsif, Aska decreeing the Plaintiff's suit for redemption. On 12-6-1939, the Plaintiff No. 1 who is admittedly the owner of the disputed properties measuring 21.83 acres executed a simple mortgage (Ext. 1) in respect of the same in favour of Defendant No. 1 for Rs. 100/-. The loan amount was to bear interest at twenty-five percent per annum and the Plaintiff No. 1 had agreed to redeem the same by the Dol Purnima on the following year. But he could not redeem the mortgage. The Plaintiff's case is that in 1950 the Defendant No. 1 told Plaintiff No. 1 that a sum of Rs. 700/- was due to him under the mortgage and demanded the same. As the Plaintiff could not pay the dues, he delivered possession of the lands to Defendant No. 1 asking him to treat the transaction as a usufructuary mortgage and to remain in possession of the land till the full mortgage amount was discharged. It is his case that by remaining in possession of the lands, the Defendant No. 1 has realised by way of usufruct more than the amount due to him under the mortgage. As in spite of repeated demands by the Plaintiff, Defendant No. 1 did not deliver possession of the lands to him, he filed the suit for redemption and recovery of possession of the lands and for determination of mesne profits due to him from the Defendants.
Defendant No. 2 is the son of Defendant No. 1 and Defendant No. 3 is alleged to have purchased a portion of the disputed properties from Defendant No. 2 Plaintiffs 2 to 5 are the sons of the mortgagor Plaintiff No. 1.
2. Defendant No. 1 in his written statement admitted the execution of the simple mortgage bond in his favour by the Plaintiff No. 1. He stated that in 1941, the first Plaintiff paid up the mortgage dues to him and redeemed the properties. Subsequently, the mortgage lands were put to auction sale for arrear dues to the Zamindar and the latter purchased the same. In 1950 the Zamindar settled the lands with Defendant No. 1. He disputed the genuiness and validity of the alleged sale of a portion of the disputed lands by Defendant No. 2 in favour of Defendant No. 3.
3. Defendant No. 2 did not contest the suit. Defendant No. 3 in his written statement admitted about the execution of the mortgage bond Ext. 1 by Plaintiff No. 1 in favour of Defendant No. 1. According to him, however, as Plaintiff No. 1 could not discharge the loan, he surrendered the disputed lands to Defendant No. 1 in 1942 who thereafter became the full owner of the properties. There was a subsequent partition between Defendant No. 1 and his son Defendant No. 2 in which the disputed properties fell to the share of Defendant No. 2, who in 1963 sold the same to Defendant No. 3 under a registered deed of sale for a consideration of Rs. 5000/- and since then he (Defendant No. 3) is in possession of the lands in his own right. In the circumstance stated by him, be pleaded that the Plaintiff was not entitled to any relief.
4. The title Court disbelieved the case of Defendant No. 1 that the Plaintiff No. 1 redeemed the mortgaged properties in 1941, that subsequently they were put to auction sale for arrears of rent and purchased by the ex-Proprietor of Khallikote and that the latter thereafter settled the lands with Defendant No. 1. He also disbelieved the case of Defendant No. 3 that the Plaintiff surrendered the lands in 1942 to Defendant No. 1 and that in a subsequent partition between Defendant No. 1 and his son Defendant t No. 2 the disputed properties fell to the share of the latter. He also disbelieved the alleged subsequent sale of the properties by Defendant No. 2 to Defendant No. 3 as no sale deed was produced in proof of the transaction. He believed the Plaintiffs' case that in the year 1950, the Plaintiff No. 1 delivered possession of the lands to Defendant No. 1 under usufructuary mortgage which however was an oral transaction not evide
