SETHUMADHAVAN Vs. APPUTTY

JUDGEMENT

(1.) The plaintiff allowed his building to be occupied by the defendant, as per written agreement dated 17-4-79. The transaction was referred to in the agreement itself as 'usufructuary mortgage', and the amount of Rs.5000/- advanced to the plaintiff was termed 'mortgage amount' (]Wb{Zhyw). The handing over of possession was stated to be as security for the said advance. The defendant was to occupy the building for one year, with liability to pay to the plaintiff, after adjustment of interest on the mortgage money, Rs.200/- every month as surplus profits (A[nImZmbw). And if the plaintiff committed default in the matter of repaying the mortgage money at the end of one year, the defendant was entitled to recover the same (and all other dues) by bringing the building to sale, through court. The other terms and details of the agreement are not relevant for the present; but it is necessary to notice that the document itself contained a recital that owing to certain "technical difficulties" in registering a mortgage deed, the parties were making an agreement only, which was to remain valid till a mortgage deed was duly registered.

(2.) In the year 1981 the plaintiff instituted OS 354/81 for a decree "directing the defendant to surrender the plaint schedule property to the plaintiff with past and future mesne profits" etc. Evidently, the suit was one for recovery of the property on the strength of title. The agreement dated 17-4-79 was referred to in the plaint, but was not included among the documents listed in it. It was however sought to be produced and marked in evidence when the plaintiff was being examined, and the other side objected to the course, on the ground that the document was not properly stamped. By its order dated 22-8-83 the Trial Court upheld the objection and directed payment of stamp duty and penalty on the footing that the agreement was a "mortgage deed" as defined in the Stamp Act and the present revision by the defendant is directed against the above order.

(3.) Counsel for the petitioner defendant contends that the document in question ii only a simple agreement involving no valid transfer of property by way of security so as to create a mortgage, that the parties have only agreed to create a mortgage and have not actually created one by executing a proper deed and getting it registered, and that apart from the clear intention of the parties in this regard as expressed in the document itself, the circumstance that it is signed by both the patties is also one militating against the conclusion reached by the court below.