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1950 Supreme(All) 65
IN THE HIGH COURT OF ALLAHABAD
Mustaq Ahmad and Desai, JJ.
PRITHI SINGH - Appellant
Versus
GANESH PD.SINGH - Respondents
Civil Revn. 69 Of 1947
Decided On : 03/14/1950
BALRAM UPADHYAY, K.B.ASTHANA, S.N.Singh
Headnote:
MORTGAGE - SUIT FOR REDEMPTION - PART OF THE MORTGAGED PROPERTY SITUATED OUTSIDE BRITISH INDIA - JURISDICTION OF THE COURT - LEX LOCI CONTRACTUS - APPLICABILITY OF THE U. P. AGRICULTURISTS RELIEF ACT, 1934 - HELD, THE COURT HAD JURISDICTION TO PASS A DECREE FOR REDEMPTION OF THE MORTGAGED PROPERTY SITUATED WITHIN ITS JURISDICTION, NOTWITHSTANDING THAT A PART OF THE PROPERTY WAS SITUATED OUTSIDE BRITISH INDIA - THE SUIT WAS GOVERNED BY THE LEX LOCI CONTRACTUS, I.E., THE LAW OF THE PLACE WHERE THE MORTGAGE CONTRACT WAS ENTERED INTO, AND NOT BY THE LEX SITUS, I.E., THE LAW OF THE PLACE WHERE THE PROPERTY WAS SITUATED - THE U. P. AGRICULTURISTS RELIEF ACT, 1934, WAS APPLICABLE TO THE ENTIRE MORTGAGE CONTRACT, INCLUDING THE PROPERTY SITUATED OUTSIDE BRITISH INDIA.
Fact of the Case:
The plaintiff, an agriculturist, filed a suit for redemption of a usufructuary mortgage executed by him in favor of the defendant. The mortgage covered properties situated both in the Banaras district (British India) and in the Banaras State (outside British India). The defendant raised a plea that the suit, insofar as it related to the lands within the Banaras State, was not maintainable. The trial court dismissed the suit on the ground that it had no jurisdiction to entertain the suit in respect of the lands situated outside British India. The lower appellate court affirmed the decree of the trial court.
Finding of the Court:
The High Court held that the trial court had jurisdiction to pass a decree for redemption of the mortgaged property situated within its jurisdiction, notwithstanding that a part of the property was situated outside British India. The court held that the suit was governed by the lex loci contractus, i.e., the law of the place where the mortgage contract was entered into, and not by the lex situs, i.e., the law of the place where the property was situated. The court further held that the U. P. Agriculturists Relief Act, 1934, was applicable to the entire mortgage contract, including the property situated outside British India.
Issues: 1. Whether the trial court had jurisdiction to entertain the suit in respect of the lands situated outside British India? 2. Whether the suit was governed by the lex loci contractus or the lex situs? 3. Whether the U. P. Agriculturists Relief Act, 1934, was applicable to the entire mortgage contract, including the property situated outside British India?
Ratio Decidendi: 1. The court held that the trial court had jurisdiction to pass a decree for redemption of the mortgaged property situated within its jurisdiction, notwithstanding that a part of the property was situated outside British India. The court relied on the provisions of Section 12 of the U. P. Agriculturists Relief Act, 1934, which provides that a suit for redemption of a mortgage may be instituted in the court within whose jurisdiction the mortgaged property or any part of it is situate. 2. The court held that the suit was governed by the lex loci contractus, i.e., the law of the place where the mortgage contract was entered into. The court relied on the principle that a contract is governed by the law of the place where it is made, unless the parties have expressed a different intention. 3. The court held that the U. P. Agriculturists Relief Act, 1934, was applicable to the entire mortgage contract, including the property situated outside British India. The court held that the Act was intended to apply to all agriculturists in the United Provinces, irrespective of the location of their property.
Final Decision: The appeal was allowed and the case was remanded to the trial court for re-hearing. The trial court was directed to take accounts of the entire mortgaged property, calculate interest at 41/2 per cent. per annum, ascertain what sum, if any, was still due from the mortgagor to the mortgagee, and pass a decree for possession over only the property situated in Banaras district on condition of the mortgagors paying that sum within a time to be fixed by it.
( 1 ) THIS, a plaintiffs application in revision under Section 115, Civil P. C. , against a decree of the learned Civil Judge, Banaras, affirming a decree of the Additional Munsif, Banaras, in proceedings under Section 12, U. P. Agriculturists Relief Act.
( 2 ) THE mortgage in question was a usufructuary mortgage dated 23-5-1902, executed by the plaintiffs father, Payag Singh, in favour of the defendants ancestor in respect of twelve bighas of land, a part of which lay in the Banaras district and the balance within the Banaras State territory. The mortgagee lived within the said district and the mortgage deed also was executed there.
( 3 ) IN defence, the mortgagee had raised a number of pleas, one of which was that the suit, in so far as it related to lands within the Banaras State, was not maintainable. In this revision we are concerned only with this plea, although a number of subsidiary points were also raised with which I shall have to deal to restrict the duration of the suit.
( 4 ) THE trial Court dismissed the suit on the ground that it was not maintainable for the reason just mentioned, relying on a Bench, decision of this Court in Wahid-Uddin v. Makhan Lal, 1938 A. L. J. 872: (A. I. R. (25) 1938 ALL. 564 ). The lower appellate Court affirmed this decree, pointing out that the suit for redemption in regard to the lands within the Banaras State could not be maintained, inasmuch as, if it was decreed, the Court could not enforce the decree by putting the mortgagor in possession, as required by Section 18, Agriculturists Relief Act. The learned judge mentioned that the mortgagor had withdrawn his claim in the present suit in respect of the lands within the said State and had even offered to pay the entire mortgage money for the plots within that State. He did not think it possible to allow this amendment and agreed with the learned. Additional Munsif in dismissing the suit.
( 5 ) THERE can be no doubt that the mortgage deed, as executed, was perfectly valid, and no illegality attached to it on the mere score that a part of the property was outside British India. Section 5, Transfer of Property Act, defines transfer of property as "an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons"; and "to transfer property is to perform suck act". There is no reference in this definition to the locus to which the property belongs, so that, if the other conditions mentioned in this section are present, there is a complete transfer of property by one person to another, and nothing else remains to make it effective. Section 28, Registration Act, permits the registration of a deed required to be registered under Section 17 thereof by the Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. This also does not make any reference to the place or the locality in which the property covered by the document lies. The point arose in a Bombay case Central Bank of India Ltd. v. Nusserwanji H. Bharucha, A. I. R. (19) 1932 Bom. 642 : (57 Bom. 234) where Kania J. (now the Chief Justice of the Supreme Court of India) remarked :
"i find that Section 5, T. P. Act, which defines transfer of property, does no in terms exclude properties outside British India. . . . . . . The definition has nothing to do with the question whether the property is inside or outside British India. . . . . . . . . The construction which I think should be put on the section is that the Transfer of Property Act which is to be enforced by the Court is to be construed irrespective of the fact whether the property is inside or outside British India, or whether the property is situate in a province to which the Act applies or not. "
I, therefore, think that the mortgage deed dated 23-5-1902, could not be challenged on the ground that the entire property embraced by it did no
