BHIKHABHAI NANABHAI PATEL Vs. CHIMANLAL MAGANLAL SHAH

JUDGEMENT

(1.) THIS is a second appeal referred to this Full Bench. The facts briefly are that land in question belonged to one Venidas and in 1880 he mortgaged this land for a sum of Rs. 400 to one Kishor-das Jethabhai. Kishordas Jethabhai sub-mortgaged the land to one Shah Chhagan-lal Mulji for Rs. 261, and there was a further sub mortgage on 13-5-188g, for a sum of Rs. 560. The plaintiff in the suit from which this appeal a vises acquired the right of Venidas in this property by a registered document on 8-2-19-15, and he filed the suit for re-demption under the Dakkhan Agriculturists' Relief Act. Defendants 1 to 6 are the representatives of the sub-mortgagee and defendants 7 and 8 are the representatives of Venidas. Both the trial Court and the lower appellate Court concurred in dismissing the suit.

(2.) NOW, in the written statement the contesting defendants alleged that there was a sale-deed executed by defendants 7 and 8 in respect of the equity of redemption of this property and this sale-deed was executed on 2-1-1908. They further contended that the sale-deed was lost. There was no allegation in the written statement that delivery was given of the property and therefore the sale could be effected without a registered document. It is clear that if the sale of the equity of redemption relied upon by defendants 1 to 7 could only be effected by a registered document, then the defendants must fail as no registered document has bean proved before the Court below. In the trial Court no attempt was even made either to give secondary evidence of the document on which reliance was placed, nor was any attempt made to suggest that delivery of the property was given and therefore no registration was necessary. The learned District Judge, however, took the view that reading between the lines of the written statement it may be said that the defendants relied upon delivery of the property. With respect to the learned District Judge, one should first look at the lines of the written statement themselves and not try and read1 between the lines, and when we look at the actual lines we find that there is no plea whatever of delivery of possession as now contended before us. Therefore, it would be possible to dispose of this appeal on the ground that as delivery of the property has not been alleged by the defendants and there is no registered document conveying the interest of the mortgagor to the sub-mortgagee, the plaintiff is entitled to succeed. But we arc prepared to take the same lenient view that the learned District Judge took of the pleadings and consider the matter on merits. The value of the property admittedly is less fhan Rs. 100, and the sale of an immoveable property can only be effected in the manner laid down in Section 54. Section 54 in the first place defines what a sale is, and that is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Then the section goes on to lay down the mode in which a transfer can be effected. If the property is tangible immoveable property of the value of Rs. 100 and upwards, or an intangible thing, then the sale can only be effected by a registered instrument. When property is tangible irnmove-able property of a value less than Rs. 100, the transfer can be effected in one of two modes; it may be either by a registered instrument or by delivery of the property.

(3.) THE first question that arises in this case is whether the sale by the mortgagor of the equity of redemption in favour of the sub-mortgagee was the sate of tangible immoveable property, because if the sale was not of tangible immoveable property, then it is not disputed that it could only be effected by a registered instrument. The contention of Mr. Shah before us is that what the mortgagor transferred to the sub-mortgagee was tangible immoveable property and not intangible im-movfable property, and therefore it was open to him to bring about a fransfer of ownership not merely by a registered instrument but also by delivery of the property. One possible view seems to be that when a mortgagor sells the equity of redemption, he does not sell the property, but he sells his right in that property which remains after the mortgage has been executed. It may be said that ownership is constituted by the totality of attributes attaching to a property. It is only when all these attributes are vrsted in one person that he can be called the owner of the property. When a mortgage is executed, an interest in property is transferred to the mortgagee, and therefore after the mortgage what is left in the mortgagor is not the totality of rights, but the totality of rights less the interest that is transferred to the mortgagee. Therefore, when a mortgager sells the equity of redemption, he sells not the property, but a right in that prooerty. and the right in that property is the right given to the mortgagor under Section 60 which is the right to redeem, and it is difficult to understand, if that be the correct position, how a right to redeem can be tangible immoveable property. On the other hand, Mr. Shah has relied on some eminent autnors on jurisprudence for the contention that the owner of a property continues to remain the owner although be creates various interests in favour of third parties and even' though his ownership is denuded of many of its valuable attributes, and Mr. Shah's contention is that when a mortgagor sells a property which is already mortgaged, he does not sell merely a right in property, but he sells the property itself as the owner and therefore what is transferred is tangible immoveable property. Mr. Shah points out that the rights of a mortgagor, after he has executed the mortgage, are not necessarily those confined to Section 60. He gives the instance of a simple mortgage. He says that in the case of a simple mortgage the mortgagor continues in possession and he would be entitled to sell the property subject to the mortgage and give possession to the vendee. That is a right not contemplated by Section 60, but that would be a right which would go with the ownership of the property of the mortgagor. Mr. Shah also points out that a distinction must be made between the position in law in England and the position here. In England a mortgage is brought about by the conveyance of the property by the mortgagor to the mortgagee. The mortgagee becomes the legal owner, and at its inception the doctrine of equity of redemption was evolved by the Courts of Chancery which came to the rescue of the mortgagor, and notwithstanding the legal title being in the mortgagee it gave a relief to the mortgagor who was prepared to pav the debt and redeem the property. But Mr. Shah is right that as far as our Indian law is concerned, a mortgage does not mean the conveyance of the property in favour of the mortgagee. As the very definition of a "mortgage" shows, a mortgage is nothing more than a transfer of an interest in im-moveable property, and all that the mortgagee gets is not the legal ownership of the property, but merely an interest in immoveable property. Therefore, there is force in Mr, Shah's contention that when a mortgagor sells the interest left in him after he has executed a mortgage, he is transferring his ownership and that he continues to be the owner of the property and what he is selling is not merely an interest in the property but the property itself, although in selling that property the property may be encumbered by the mortgage which the mortgagor has created.