1981 Supreme(MP) 455

B. C. Varma. J.
Chandra Prakash v. Badrilal
S. A. No. 348 of 1970 (G); Decided on 20-8-1981.

Headnote:(1) Transfer of Property Act, 1882 -- S. 60 -- redemption of usufructuary mortgage -- manner of endorsement regarding payment of mortgage money on mortgage deed itself is sufficient -- registration is not necessary -- Registration Act, 1908 -- S. 17 (i) (b).

        (2) Registration Act, 1908 -- S. 17 (i) (b) -- redemption of usufractuary mortgage --endorsement on the mortgage deed to that effect is sufficient -- registration not necessary ... transfer of property Act, 1882 - S.60.

        Both the Courts below have dismissed the suit. In so doing, it has been held that the endorsement (Ex. P-3) on the back of the mortgage deed (Ex. P-l) is inadmissible in evidence for want of registration, as the endorsement tantamounts to the release of the mortgaged house and is hit by section 17 (1) (b) of the Registration Act. It has also been found that there was a partition between Jadolal and Nathulal and again between Kalyanchand and Badrilal It has further been found that the suit house fell to He share of Nathulal, and Jadolal had no interest left in that house after the said partition. In para 6 of the impugned judgment, it has been further found that the mortgage money was advanced

       by Jadolal from the joint family funds. The further observation is that this finding was not disputed by the parties. an inference has, therefore, been drawn that Jadolal could not release the property from the mortgage and, as such, the plaintiff appellants could not maintain the suit for possession.

        Held : The learned counsel for the appellants first argued, and in my opinion rightly that in view of section 60 of the Transfer of Property Act the endorsement (Ex. P-3) on the back of the mortgage deed (Ex. P-1), whereby Jadolal had admitted receipt of the mortgage money and had also stated to have deLi"Vered possession to the appellants, is admissible in evidence, and the findings of the Courts below in that behalf are incorrect. Section 60 of the Transfer of Property Act provides the manner in which mortgage can be redeemed. In Parithi Nath v. Suraj Ahir (AIR 1963 SC 1041), it has been laid down that in case of usufructuary mortgage, a mortgagee is entitled to retain possession only upto the time the mortgage money is not paid. It bas been laid down that when the mortgage money bas been paid up, no question of appropriating the rents and profits occurring from the property towards interest or mortgage money can arises It has further been laid down that under section 60 of the Transfer of Property Act, the mortgagor can enforce his right to get back the mortgage document. the possession of the mortgaged property and the reconveyance of that property through Court. This decision is thus an authority for the proposition that upon payment of the mortgage money, the mortgage in case of usufructuary mortgage has a right to demand possession, Ex. P-3 shows that the mortgage money has been paid and the possession was deLi"Vered, That being so, for this purpose Ex. P-3 can well be used.

        Inspite of the fact that Ex. P.3 shows that the mortgage debt was paid to Jadolal and that possession of the disputed property was deLi"Vered to the plaintiff appellants, in my opinion, the appellants cannot succeed in the suit. The reason is that the Courts below have found that the mortgage money was paid out of joint Hindu family and that in subsequent partition, the property in question with all its burden and rights had fallen first to the share of Nathulal and on subsequent partition to the share of respondent Badrilal. AIR 1963 SC 10.