LAWS(J&K)-1969-12-9

TARA CHAND Vs. COURT OF WARDS, JAMMU

Decided On December 04, 1969
TARA CHAND Appellant
V/S
Court Of Wards, Jammu Respondents

JUDGEMENT

(1.) THIS is a defendants appeal in a suit filed by the Court of Wards for redemption of a house mortgaged by Bhagat Ram in favour of Tara Chand. According to the plaintiff Bhagat Ram the Original mortgagor executed a usufructuary mortgage in respect of the property in dispute which is situate in Kucha Guaranditta Kachi Chowni Jammu for Rs. 1500/ - in favour of the defendant Tarachand on 28th Chet 1995. The subject -matter of the mortgage was a residential house. After the death of Bhagat Ram, his property was taken over by the Court of Wards for the purpose of management and superintendence. The Court of Wards through the Dy. Commr. filed a suit for possession and redemption of the mortgage.

(2.) THE suit was resisted by the defendant on the ground that no valid mortgage was executed in his favour and that at any rate the possession of the mortgagee having become adverse, the mortgagee acquired title by adverse possession. Both the courts below negatived the plea taken by the defendant and decreed the suit for possession.

(3.) TWO points were urged before us by the counsel for the appellant. In the first place it was submitted that as the suit was filed under the provisions of the Restitution of Mortgaged properties Act the suit was not maintainable because it did not apply to oral mortgages of the type we have in the present case. Secondly it was submitted that the mortgagee had acquired title by prescription. In our opinion the decision on the first question would be sufficient to dispose of this appeal. It is true that there is no mortgage deed and admittedly the transaction is not registered, in accordance with the provisions of S. 59 of the Act Learned counsel for the appellant cited a Division Bench authority of this court in Sansar Singh V. Thootha, AIR 1959 T&K 107 insupport of his proposition that Restitution of Mortgaged properties Act, does no tapply to oral mortgages, mortgages that have not been executed in accordance with S. 59. This authority to which I was a party clearly lays down that an oral mortgage or a mortgage which does not fulfil the requirements of S. 59 of the T. P. Act falls beyond the ambit of the Act cannot be restituted. But a perusal of this decision does not disclose the date of the mortgage in that case. It seems to me that this decision was naturally dealing with the case of a mortgage executed after 1996. The reason is very simple. Under the saving clause to S. 1391 of the T.P. Act all mortgages, oral or written executed before the Transfer of Property Amendment Act of 1996 Act VI of 1996 have been clearly protected from the mischief of S. 59 and other relevant sections of the T.P. Act. In this connection the having clause runs thus: - "Nothing in any of the following provisions of this Act, namely Ss. 3. 4. 9, 10, 15, 18, 19, 27, 30 cl c of S. 31 Ss. 32,33, 34, 35, 46, 52, 55. 57, 59, 61 and 62 shall be deemed in any way to effect." a The terms or incidents of any transfer of property made or affected before the date of enforcement of the Transfer of property Amendment Act, 1986. b The validity, invalidity effect or consequences of anything already done or suffered before the aforesaid date. c Any right, title, obligation or liability acquired, accrued, or incurred before such date or d Any remedy or proceeding in respect of such right, title, obligation or liability.