RAGHUNATH Vs. KEDAR NATH

JUDGEMENT

(1.) In the suit which is the subject-matter of these appeals the plaintiff alleged that one Dwarka Prasad took a loan of Rs. 1,700 from Madho Ram father of the defendants, and that on 27th July, 1922, Dwarka Prasad along with one Mst. Kunta, his material grandmother, executed a possessor mortgage deed of the disputed house for Rs. 1,700 in favour of Madho Ram. The terms of the mortgage deed were that the mortgagor was to pay interest of Rs. 12-12-0 per month out of which the rent amounting to Rs. 6 which was the agreed usufruct of the house in suit was to be adjusted and the mortgagor was to pay Rs. 6-12-0 per month in cash towards the balance of the interest. The parties agreed that the mortgage would be redeemable within twenty years after paying the principal amount and that portion of interest which was not discharged by the usufruct and other amount. When Dwarka Prasad was unable to pay amount of Rs. 6-12-0 per month, he delivered possession of the house to, Madho Ram who let out the house. on a monthly rent of Rs. 25. The mortgagors Dwarka Prasad and Mst. Kunta died leaving Mst. Radha Bai as Dwarka Prasad's heir. Radha Bai sold the house in dispute to the plaintiff on 2nd February, 1953 and executed a sale deed. The plaintiff, therefore, became entitled to redeem the mortgage and asked the defendants to render accounts. The defendants contested the suit on the ground that Madho Ram was not the mortgagor nor were the defendants mortgagees. It was alleged that in the locality where the house was situated there was a custom of paying Haqe-chaharum and to avoid that payment, the original deed dated 27th July, 1922 was drafted and executed in the form of a mortgage though it was actually an outright sale. According to the defendants, the house was actually sold to Madho Ram and was not mortgaged. The defendants also pleaded that if the deed dated 27th July, 1922 was held to be a mortgage, the mortgagees were entitled to get the payment of Rs. 6,442-8-0 as interest, Rs. 2,315 as costs of repairs, etc. The trial Court held that the deed dated 27th July, 1922 was a mortgage deed, that Dwarka Prasad did not sell the house to Madho Ram and that the plaintiff was entitled to redeem the mortgage on payment of Rupees 1,709-14-0. The trial Court accordingly decreed the plaintiff's suit for redemption on payment of Rs. 1,709-14-0. Against the judgment of the trial Court the defendants preferred an appeal before the District Judge, Varanasi, who allowed the appeal and dismissed the plaintiff's suit. The plaintiff took the matter in second appeal to the High Court which framed an issue and remanded the case back to the lower appellate court for a fresh decisian. The issue framed by the High Court was "Have the defendants become the owners of the property in dispute by adverse possession - The High Court also directed the lower appellate court to decide the question of admissibility of Exts. A-25 and A-26. After remand the lower appellate court held that the deed dated 27th July, 1922 was a mortgage deed and not a sale-deed, and, therefore, the plaintiff was entitled to redeem the mortgage. The lower appellate court further held that the defendants had failed to prove that they had acquired title by adverse possession. The lower appellate court made the following order:-

(2.) In support of these appeals it was contended by Mr. Sinha that the deed Ex. 4 dated 27th July, 1922 was a sale deed and not a mortgage deed. It was pointed out that there was a subsequent deed of sale dated 8th October. 1922 Ex. A-26 which is named Titimma Bainama'. The contention was that the document Ex. 4 dated 27th July, 1922 must be construed along with Ex. A-26 which forms part of the same transaction and so construed the transaction was not a usufructuary mortgage but was an outright sale. We are unable to accept the argument put forward on behalf of the appellant. Exhibit A-26. dated 8th October, 1922 is not a registered document, and is hence not admissible in evidence to prove the nature of the transaction covered by the registered mortgage deed Ex. 4 dated 27th July, 1922. if Ex. 4 is taken by itself there is no doubt that the transaction is one of mortgage. The document Ex. 4 recites that in consideration of money advanced the executants "mortgage the said house 'Bhog Bhandak' bearing No. 64/71 situate Mohalla Gola Dina Nath". Clause 2 provides period of twenty years for redemption of the mortgage. Clause 6 of the document stipulates that the cost of repairs will be borne by the mortgagors. Clause 1 states:

(3.) Section 4 of the Transfer of Property. Act states: