CHANDRAN Vs. RADHAKRISHNAN

JUDGEMENT

(1.) Plaintiff is the appellant. He filed the suit for recovery of possession of the plaint schedule property on the strength of title. The case set up by the plaintiff is that under Ext. A1 dated 27-4-1978 the plaint schedule building belonging to him was mortgaged to the defendant for Rs. 2,000/- with a further stipulation that Rs. 1.50 would be paid per day as surplus profit, the period being limited to three years. The suit was filed for redemption of the mortgage. As Ext. A1 was an unregistered document, the suit was later converted as one for recovery of possession. Defendant admitted plaintiffs title, but contended that he is in possession of property as a lessee. Trial Court held that the entrustment was for a lease even though the agreement would show that the intention was to create a mortgage. The Trial Court further held that the only course open to the plaintiff is to have recourse to the provisions of the Kerala Buildings (Lease & Rent Control) Act, 1965. The appeal filed by the plaintiff ended in its dismissal. The first appellate court held that Ext. A1 being an unregistered document cannot at all be construed as evidencing a. mortgage as it can be effected only as per a registered document under the provisions of the Transfer of Property Act.

(2.) As admittedly Ext. A1 is an unregistered document, contention of the plaintiff that the defendant is a mortgagee under him cannot be sustained. By gathering the intention of the parties in a document we cannot confer the status of a mortgagee on the defendant so long as there is no registered mortgage deed. In the absence of a registered document, there cannot be any mortgage. On the strength of Ext. A1, it is not possible to hold that the defendant is a mortgagee of the property. It is true that in Ext. A1 it is mentioned that the shop room has been mortgaged to the defendant for a sum of Rs. 2,000/- and that it has validity only upon the date of execution of a proper mortgage deed. So long as no registered mortgage has since been executed, plaintiff cannot on the basis of Ext. A1 contend that the defendant's status is only as a mortgagee. The learned Sub Judge was justified in dismissing the appeal.

(3.) We make it clear that it is open to the plaintiff to take necessary proceedings against the defendant under the Kerala Buildings (Lease & Rent Control) Act, if so advised.