VISWANATHA Vs. FATIMA BI

JUDGEMENT

(1.) THIS is a second appeal by the defendant in a mortgage suit which was decreed. by the Original Court and affirmed in appeal by the lower Appellate Court. The defendant had not denied the contract of mortgage and the fact that the period of the mortgage had terminated. But he contended that after the mortgage, some amount fell due towards the mortgagor in connection with, the expense of litigation following the mortgage, and the mortgagor orally promised to allow the mortgagee to keep the mortgage property in his possession for five years more in lieu of the interest of the new debt. This the plaintiff denied, in view of the fact that the subsequent contract was an oral one, the Original Court did not permit the defendant to prove the subsequent contract.

(2.) THE Lower Appellate Court also agreed with the Original Court and decided that under Sections 58 and 59 of the Hyderabad Transfer of Property Act, an oral contract cannot be recognised, and as such, the plaintiff was not entitled to claim possession for five years more.

(3.) I do not agree with this contention. In the first place the subsequent contract does not amount to mere charge, but is in fact, an additional mortgage, for, according to the plaintiff it was stipulated between the parties that besides the mortgage amount originally drawn by the plaintiff, he owed Rs. 500/ - more which had to be paid at the time of the redemption and in lieu of the interest of this additional sum, the mortgagee was entitled to remain in possession for five years more. Therefore by nature this contract was a usufructuary mortgage, and as such under section 59 of the Hyderabad Transfer of Property Act, it could only be effected by a registered document. Even if it were a charge I do not agree that it could be an oral one. There is a subtle distinction between a mortgage and a charge; and in the former a transfer of interest is contemplated, while in the latter a mere Hen or security for debt is obtained.