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MADHYA BHARAT HIGH COURT, INDORE BENCH
SHINDE, DIXIT, JJ.
Pannalal - Appellant
VS.
Labhchand - Respondent
Second Appeals Nos.145 and 146 of 1951
Decided On : 21-09-1954
TRANSFER OF PROPERTY - Mortgage - Redemption - Part-performance - Unregistered deeds of contract - Admissibility - Gwalior Transfer of Property Act, 1945, S. 54 - Registration Act, 1908, S. 41.
Fact of the Case:
The plaintiff mortgaged his house to the defendant in 1923. The mortgage deed provided that the plaintiff could redeem the property after seven years on payment of Rs.500/- and such amount as the mortgagee might spend on the reconstruction of a 'Padal' and on repairs. In 1924, the plaintiff borrowed Rs.175/- from the defendant and executed a deed placing a further burden of Rs.600/- on the property. In 1924, the plaintiff again borrowed Rs.300/- from the defendant and executed a deed for the repayment of Rs.300/- together with interest. The plaintiff filed a suit for redemption of the property on payment of Rs.500/-. The defendant claimed to be entitled to the benefit of the provisions of S. 54 of the Gwalior Transfer of Property Act, 1945, and claimed Rs.7879/14/9 as the redemption price.
Finding of the Court:
The court held that the deeds of 1924 were not compulsorily registrable under the Gwalior Registration Act, 1908, and were admissible in evidence for the purpose of establishing the defence of part-performance. The court further held that the defendant was not entitled to the benefit of S. 54 of the Gwalior Transfer of Property Act, 1945, as the deeds of 1924 did not authorize him to continue in possession of the property till the further advances had been paid up. The court also held that the plaintiff was liable to pay the costs of repairs and improvements as a condition of redemption.
Issues: 1. Whether the deeds of 1924 were compulsorily registrable under the Gwalior Registration Act, 1908? 2. Whether the defendant was entitled to the benefit of the provisions of S. 54 of the Gwalior Transfer of Property Act, 1945? 3. Whether the plaintiff was liable to pay the costs of repairs and improvements as a condition of redemption?
Ratio Decidendi: 1. The court held that the deeds of 1924 were not compulsorily registrable under the Gwalior Registration Act, 1908, as S. 54 of the Gwalior Transfer of Property Act, 1945, expressly superseded the provisions of S. 41 of the Registration Act, 1908, so as to admit in evidence unregistered agreements or deeds for the purpose of establishing the defence of part performance. 2. The court held that the defendant was not entitled to the benefit of S. 54 of the Gwalior Transfer of Property Act, 1945, as the deeds of 1924 did not authorize him to continue in possession of the property till the further advances had been paid up. The court held that the deeds of 1924 were not possessory or usufructuary mortgages, and that the defendant's continuance in possession of the property after the execution of the deeds of 1924 remained one qua the deed dated 31-12-1923, and was not converted into one under the deeds of 1924. 3. The court held that the plaintiff was liable to pay the costs of repairs and improvements as a condition of redemption, as the expenditure had been incurred with the plaintiff's consent and was not unreasonable.
Final Decision: The court accepted the appeals in part and modified the decree of the lower Court by directing that if the plaintiff pays Rs.5059/14/9 on or before 31-1-1955, the mortgagee shall put the plaintiff in possession of the property and deliver up to him the mortgage deed dated 31-12-1923.
DIXIT, J.
These two second appeals are against one judgment and decree of the District Judge Mandsaur, modifying the decree of the Court of Civil Judge First Class Mandsaur granting the plaintiff-respondent relief in the form of redemption of a mortgaged house.
2. The material facts are that on 31-12-1923 the plaintiff Labhchand executed a mortgage with possession of the suit house together with its appurtenant structures and land for Rs.500/-. The mortgage deed was registered and it provided inter alia that the debt would carry no interest and the mortgagee would take the whole of the rents and profits; that on the expiry of seven years the mortgagor would be entitled to redeem. the property at any time after repayment of Rs.500/- the amount of the mortgage debt and such amount as the mortgagee might spend to the extent of Rs.200/- on the reconstruction of an appurtenant structure namely a 'Padal' and further such amount exceeding Rs.3/- per year which the mortgagee might spend for keeping the property in good and substantial repair. The plaintiff alleged that on several occasions he asked the mortgagee to allow him to redeem the property and also gave a notice to that effect to the defendant on 18-1-1945 but that the defendant ignored the plaintiff's demand for redemption. The plaintiff claimed to redeem the property on payment of Rs.500/- to the defendant.
3. The defendant-appellant Pannalal admitted the mortgage of 31-12-1923. He met the plaintiff's suit with the plea that from the date of the mortgage till 20-6-1924 he had with the consent of the mortgagor spent Rs.425/- on the repairs of the mortgaged property; that on 20-6-1924 the plaintiff borrowed Rs.175/- from him and executed a deed placing on the property already mortgaged, a further burden of the repayment of Rs.600/-(the total of Rs.425/- for repairs and Rs.175/-borrowed) together with interest thereon at the rate of Rs.12/- per cent per annum and further agreeing that the plaintiff would be entitled to redeem the property only on payment in a lump sum of the previous mortgage debt and the money secured by the deed of 20-6-1924. The defendant further stated that under the deed of 20-6-1924 he was given the right to spend Rs.100/- each year on the repairs of the property and that accordingly he had with the plaintiff's consent expended Rs.4134/14/9 on the repairs.
The defendant's further plea was that on 30-8-1924 the plaintiff again borrowed Rs.300/- on the security of the property in suit and executed on that date a deed for the repayment of Rs.300/-together with interest at Rs.12/- per cent per annum and stipulating that he would be entitled to redeem the property on repayment of the total amount of Rs.1400/- and interest due on the deed of 30-8-1924 and the previous two deeds. It was said that the plaintiff could not recover the property claimed without payment of the money borrowed by and due on the foot of these deeds of further charge in addition to the amount of Rs.500/- borrowed on 31-12-1923. According to the defendant the total amount due on these three deeds and payable by the plaintiff for redemption is Rs.7879/14/9 consisting of (i) Rs.500/- borrowed on 31-12-1923; (ii) Rs.600/-secured by the deed of 20-6-1924; (iii) Rs.1568/-interest on Rs.600/- from 20-6-1924 to 1-4-1946 the date of the filing of the written statement; (iv) Rs.4134/14/9 amount spent on repairs; (v) Rs.300/- borrowed on 30-8-1924; (vi) and Rs.777/-interest of Rs.300/- from 30-8-1924 to 1-4-1946.
4. On 7-6-1946 the plaintiff admitted that the documents Ex. D.1 dated 20-6-1924 and Ex. D.3 dated 30-8-1924 bore his signatures. But on 1-8-1946 he filed a rejoinder denying the receipt of consideration namely Rs.600/- and Rs.300/-mentioned in these two deeds and saying that no repairs were done by the defendant in his "presence".
5. The trial Judge in a most perfunctory judgment, which only stated his conclusions without any reasons to support them, held that the deeds Ex. D.2 and Ex
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