KAILASH RAM Vs. NIL KANTH

JUDGEMENT

(1.) THIS is a defendants second appeal in a suit for the re ­demption of a usufructuary mortgage executed by one Sarwanand in respect of 11 kanals and 9 marlas of land in survey No. 410 situate in village Pohura District Anantnag. The mortgage was executed on 26th Katik 1996 (Samvat) in favour of the de ­fendant Kailash Ram for a period of 20 years. On 16th Katik 2011 (Samvat) a suit was brought by the heirs of Sarwanand for redemption of the mortgage, but it was dismissed on the ground that as the period mentioned in the mortgage had not expired, the suit was premature. After the expiry of the period of the mortgage the present suit was brought on 23 -11 -1961 A.D. alleging that since the period mentioned in the mortgage had expired, the heirs of Sarwanand were entitled to redeem the mortgage.

(2.) THE only defence worth mentioning taken by the defen ­dant was that the period of the mortgage was verbally extended from 20 years to 99 years by virtue of a mutation No. 159 attested on 29th Maghar 2001 (Samvat) and, therefore the mort ­gage would in the eye of law be considered to be 99 years and hence the present suit was also premature. Both the courts below held that the defendants plea was not sustainable because no oral document would have the effect of changing the terms of a written or registered document.

(3.) MR . Bhan appearing for the appellant has raised a short point. He has submitted that in view of the provisions of the Transfer of Land Validation Act 1946 mutation No. 159 dated 29th Maghar 2001 has been validated and as a legal corollary thereof, even though the extension of the period of the mort ­gage was oral, it has been validated by the Act irrespective of the provisions of S. 138 of the Transfer of Property Act. I am. however, unable to agree with the contention raised by the learned counsel for the appellant. S. 3 of the Land Validation Act runs thus: - "Notwithstanding anything contained in sub -S. (1) of S. 133 of the Transfer of Property Act 1977, all transfers of land made before this Act comes into force, by oral agreements or, if in writing by unregistered deeds, mutation whereof have been duly sanctioned and not subsequently set -aside by any competent authority shall be deemed to have the same effect as if they were in writing and registered in accordance with the provisions of the Regis ­tration Act, 1977."