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Bishun Singh And Others v. Sheodhari Das And Others
Factual and Procedural Background
Khata No. 61 belonged to Jeolal Gir, ancestor of defendants 2nd party. He gave the land in oral mortgage to Bundi Singh, ancestor of defendants 1st party. Plaintiffs alleged that defendants 2nd party had settled the land with them for Rs. 1,000 of which Rs. 600 was left with them to redeem the oral mortgage of defendants 1st party. Plaintiffs deposited the mortgage money under Section 83 of the Transfer of Property Act but, having failed to obtain possession from the defendants, instituted the present suit for possession. The Courts below granted the plaintiffs a decree. Defendants 1st party appealed, contending the case was governed by [Bhukhan Mian v. ???, Debi] 19 P.L.T 489.1.
Legal Issues Presented
- Whether the plaintiffs have established that they are mortgagors entitled to redeem an alleged oral mortgage.
- Whether an admission by the defendants and an entry in the record of rights can create or establish a mortgage in the absence of a registered instrument.
- Whether the doctrine of part performance can be invoked to evade statutory registration requirements for mortgages where the consideration is Rs. 100 or more.
Arguments of the Parties
Plaintiffs' Arguments
- They had deposited the mortgage money under Section 83 of the Transfer of Property Act and sought possession (i.e., to redeem the mortgage).
- They relied on the defendants' admission and an entry in the record of rights indicating the defendants were in possession as mortgagees.
Defendants 1st Party's Arguments
- On appeal they contended the case was governed by the decision in [Bhukhan Mian v. ???, Debi] 19 P.L.T 489.1 and relied on the inadmissibility of unregistered documents (as applicable).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| [Bhukhan Mian v. ???, Debi] 19 P.L.T 489.1 | Where a plaintiff cannot prove he is a mortgagor because the relevant documents are inadmissible for want of registration, the suit must fail. | The Court held the present case was governed by that decision, found it even stronger (no document at all), and followed it to dismiss the plaintiffs' suit. |
| Ariff's case . ’81 18 A.I.R 1931 P.C 79 82 | The requirements of a statute cannot be got over by application of the doctrine of part performance. | The Court relied on this to reject the contention that the statutory requirement of registration (Section 59) could be evaded by admissions or part performance; admission was insufficient to create a mortgage. |
| [Rajpati Rai v. Mt. Sukwaro Kuer] 63 I.C 4003 | The cited passage states that where a mortgagee took possession under invalid deeds it was for him to have proper deeds executed, and the principle "once a mortgage always a mortgage" prevents him resisting redemption. | The Court said this principle "begs the whole question" where statute requires a registered instrument; it distinguished/limited the principle, noting that without a registered instrument there is no mortgage and the principle does not apply. |
Court's Reasoning and Analysis
The Court characterized the suit as one to redeem an oral mortgage and held the plaintiffs needed to prove they were mortgagors entitled to redeem. The only evidence was (a) an entry in the record of rights indicating the defendants were mortgagees and (b) a defendants' admission that they had been put in possession as mortgagees for Rs. 600. The Court found the record entry only reflected the survey authorities' view and could not confer legal status if the facts did not support it. It treated the admission as showing mere possession as mortgagees but held that, in light of Ariff's case, the doctrine of part performance cannot override statutory requirements. The Court noted Section 59 requires a registered instrument where the consideration is Rs. 100 or more and observed there was no registered or other instrument here, so no mortgage could be created. It rejected reliance on the maxim "once a mortgage always a mortgage" where the statute mandates registration. Applying the principle in 19 P.L.T 489 (that unregistered documents cannot establish mortgagor status and thus the suit fails), and finding the present case even weaker for the plaintiffs (no documents at all), the Court allowed the appeal and set aside the decrees below.
Holding and Implications
DISPOSED OF
The appeal was allowed; the decisions of the Courts below were set aside and the plaintiffs' suit was dismissed with costs throughout. The direct consequence is that the plaintiffs were not permitted to redeem or obtain possession on the basis of the evidence adduced. The opinion does not purport to create a new precedent beyond applying and distinguishing existing authorities cited above.
1. This appeal is by defendants 1st party. The facts are that Khata No. 61 belonged to Jeolal Gir, the ancestor of defendants 2nd party. He gave the land in oral mortgage to Bundi Singh, the ancestor of defendants 1st party. The plaintiffs alleged that defendants 2nd party had settled the land with them for Rs. 1000 of which ss. 600, was left with them to redeem the oral mortgage of defendants 1st party. The plaintiffs deposited the mortgage money under Section 83 of the Transfer of Property Act, but having failed to obtain possession from the defendants, instituted the present suit for possession. The Courts below have granted the plaintiffs a decree, but in appeal it is contended on behalf of defendants 1st party that the case is governed by the ??? Court in [Bhukhan Mian v. ???, Debi] 19 P.L.T 489.1
2. The suit is in effect one to ??? oral mortgage. It is necessary, ??? the plaintiffs to establish that they ??? gagors and that they are entitled to ???. The only proof that the plaintiffs are mortgagors is the defendants' admission and an entry in the record of rights that the defendants were in possession as mortgagees.
3. As to the entry in the record of rights, that is merely an entry of what the survey authorities regarded as the legal status of the defendants. If the facts show that they do not possess that legal status, the entry in the record of rights will not confer it. So far as the admission relied upon by the plaintiffs is concerned, it amounts only to this that the defendants were put in possession as mortgagees under an oral mortgage for a consideration of Rs. 600. If an admission is sufficient to create a mortgage, then this admission must have that result. But since the decision of the Privy Council in Ariff's case . ’81 18 A.I.R 1931 P.C 79 82 that the requirements of a statute cannot be got over by application of the doctrine of part performance, it is idle to contend that the requirements of Section 69 of the Transfer of Property Act, can be evaded in this way. Section 59 declares that a mortgage for a consideration of Rs. 100 or more must be by a registered instrument. Admittedly, in this case, there was no instrument either registered or otherwise. There could, therefore, be no mortgage and the defendants' admission is insufficient to create what the statute prevents. The Court below was referred to an earlier decision of this Court in [Rajpati Rai v. Mt. Sukwaro Kuer] 63 I.C 4003 where it was observed that:
“the mortgagee took possession of the property under invalid deeds and it was for him to have proper and valid deeds executed in his favour. The principle once a mortgage always a mortgage must apply and the mortgagee cannot be in any other position but that of a mortgages and cannot be permitted to resist the redemption by the mortgagor.”
4. If I may respectfully say so, the reference to the principle once a mortgage always a mortgage begs the whole question. The statute requires a registered instrument for the creation of a mortgage when the amount of the consideration it Rs. 100/- or more. Where there is no registered instrument, there is no mortgage, and therefore the principle once a mortgage always a mortgage has no application.
5. But, as I have observed above, this case is governed by the decision in 19 P.L.T 489. The facts were that an ejectment suit was instituted upon the allegation that the plaintiff had redeemed certain mortgages of 1921 by depositing the mortgage money in 1932. The defendant denied that be was a mortgagee and contended that he was a lessee. The documents evidencing the transaction between the parties were admittedly inadmissible for want of registration. It was held that the question to be decided was not the nature and character of the possession of the defendant but the terms on which the defendant held the land and that the plaintiff being unable to prove that he was a mortgagor as the unregistered instruments were inadmissible for that purpose, the suit must fail and he was not entitled to take advantage of the fact that the defendant had sought to use the documents for the purpose of proving his contention that he was a lessee. The present case is very much stronger, there being no document of any kind at all. The appeal must, therefore, be allowed, the decisions of the Courts below set aside and the plaintiff's suit dismissed with costs throughout.
G.N
6. Appeal allowed.
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