IMPORTANT POINT
Redemption of mortgage – Unregistered mortgage deed – Undertaking to create a charge, in absence of a registered mortgage deed does not vest any legal interest in immovable properties.

JUDGMENT (ORAL)

The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter, referred to as “the Code”) by appellants-original defendants, challenging the judgment and decree dated 28.02.1996 passed by the City Civil Court, Court No.20, Ahmedabad in Civil Suit No. 1102 of 1984.

2. Heard learned advocate, Mr. Vishal Mehta for the appellants and learned advocate, Mr. Darshit Thakkar for learned advocate, Mr. Ashish Shah for the respondent. For the sake of convenience, parties are referred to as per their original status in the suit. Appellants are original defendants. Respondents are original plaintiffs.

3. The brief facts of the case are as under:

3.1 The plaintiff had filed a suit for recovery of possession of the suit property bearing tenement No. 2 situated in Panghat Co-operative Housing Society Limited, Shahibaug, Ahmedabad. The parties are cousin brothers. Plaintiff was in need of money as he had incurred debts of the society, borrowed an amount of Rs.6,400/- from the defendant. An unregistered writing in the nature of mortgage was executed between plaintiff and defendant on 05.07.1970, with a condition that from 01.07.1970, within a period of six years, i.e. 30.06.1976, plaintiff shall repay the said amount, failing which, after the expiry of six years, the suit property shall be mutated and transferred in the name of defendant in the society records. In case the amount borrowed is returned back to defendant within a period of six years, the defendant shall hand over possession back to plaintiff and the defendant shall not have any right, title or interest over the suit property. As plaintiff was in need of more money, as a security deposit, an unregistered agreement to sell dated 05.12.1972 was executed between the parties. Sale price was agreed at Rs.14,000/- and, the amount of Rs.6,400/-, which was received by plaintiff pursuant to the unregistered mortgage agreement was to be adjusted and the remaining amount was paid by defendant against the loan and the expenses towards the construction of the property. An amount of Rs.1,350/- which remained due, was agreed to be paid by defendant to the plaintiff on 20.02.1973. It was agreed that on paying the remaining amount of Rs.1,350/-, the suit property shall be transferred in the name of defendant in the society records. As the disputes cropped up between the parties, members of the society intervened as arbitrators and resolved the dispute by getting an agreement in the year 1978 and it was agreed between the parties that plaintiff shall pay Rs.15,000/- to defendant and on payment of Rs.15,000/-, the defendant shall hand over possession of the suit property back to the plaintiff. The plaintiff received a notice on 18.02.1984 from the defendant which was replied to. Thereafter, the plaintiff filed the suit for redemption of mortgage and seeking possession of the suit property. The defendant resisted the suit by filing written statement at Exhibit-15 and denied the contentions of the plaintiff. The defendant raised an issue of limitation, and contended that the plaintiff has resigned as a member of the society, and thereby has lost title to the property. The plaintiff also executed an agreement to sell dated 04.12.1972 and accepted consideration of Rs.13,650/-. On the basis of pleadings following issues were framed by the learned Trial Court at Exhibit-58:

1. Whether the plaintiff proves that the writing executed by the plaintiff in favour of the defendant in the year 1972 was only for the safety of the amount to money of the defendant advanced as loan to the plaintiff and that writing was not to be acted upon as agreement to sell?

2. Whether the plaintiff is entitled to recover the vacant possession of the suit premises which is tenement no. 2 in Panghat Co-op. Housing Society Limited situated at Shahibaug, Ahmedabad from the defendant?

3. Whether this suit is time barred?

4. Whether this suit is bad for non-joinder of necessary p