ALI MOHAMMAD Vs. RAMNIWAS

JUDGEMENT

(1.) THESE are two connected appeals which arise out of the judgment and decree of the learned District Judge, Jhunjhunu dated the 18th of October, I960 in a suit for redemption of a mortgage. Appeal No. 125 of 1961 has been filed by the mortgagor Ali Mohammad while appeal No. 134 of 1961 by the mortgagees. I propose to dispose of both these appeals by a single judgment.

(2.) IT is common ground between the parties that the plaintiff Ali Mohammad along with his mother Mst. Laxmi made a mortgage of the two shops in suit in favour of the defendants to secure a loan of Rs. 1565 by a registered mortgage deed dated 22nd August, 1927 vide Ex. A3. The mortgage was of a usufructuary character. The plaintiff, therefore, claimed to redeem the shops in suit on payment of the mortgage money amounting to Rs. 1565. The defendants resisted the suit. In addition to the mortgage deed Ext. A-3 they urged that by another document ext. A-1 dated Kati Sudi 9 S. 1987 corresponding to sometime in November, 1931, the mortgagor and his mother Laxmi had sold the roof (or as if is stated in the document 'dagla') on his shops to them. It appears from the document that there was a 'medi' on the top of the shops which had fallen down owing to rains whereupon the mortgagees asked the mortgagor to repair the roof of the shops or to redeem them by paying off the mortgage money. To this the reply of the mortgagor was that he was in no financial position to either redeem the shops or to invest any money on the repairs thereof and, therefore, he was willing to sell and actually sold the roof to them so that they were free to raise, any kind of construction thereon and it was made perfectly clear in this document that thereafter, the mortgagor would lay no claim whatever to the roof or to the construction which they would raise on it. As it transpired this document was not registered. It may also be pointed out at this stage that the mortgagor Ali Mohammad was a minor at the time of the execution of the document. Be that as it may, the case of the defendants was that by this document they had become owners of the roof and the construction viz. , chobara which they had built on it at cost of some two thousand rupees. Apart from this the defendants also claimed a sum of Rs. 886/ 12/6 which it is alleged, they had advanced to the mortgagor as a further loan, and another sum of Rs. 425 which was spent by thorn by way of repairs to the suit shops. The claim for both these amounts is sought to be supported by two writings Exs. A5 and A2 respectively dated 24-10-1938 and 14-1-1942 (Katik Sudi 1 S. 1995 and Mah Sudi 3 S. 1998), but admittedly both these documents are also unregistered. The trial court awarded a preliminary decree for redemption in favour of the plaintiff on payment of the following amounts

(3.) I shall take up the defendants appeal first. The sole point raised for determination in this appeal is about the alleged sale of the roof of the shops by the plaintiff to the defendants by the writing Ex. A1 dated Kati Sudi 9 S. 1987 (sometime in November, 1931 ). Admittedly, this writing is not registered. Admittedly again it was executed by Ali Mohamad who was a minor at that time and by her mother Laxmi who was his de facto guardian. On both these grounds i. e. want of registration and want of competence on the part of the minor and his de facto guardian to enter into any such transaction, the courts below came to the conclusion that no title could or did pass from the plaintiff mortgagor to the defendants mortgagees and consequently, the latter did not become owners thereof and the mortgage subsisted. This finding has been hotly assailed before me on behalf of the defendants. It is contended that even if the document was compulsorily registrable, but was not registered, it could lawfully be looked at in order to determine the character or the nature of the defendants' possession with respect to the roof or 'dagla' of the defendants and reliance has been placed in support of this proposition on N. Varada Pillai v. Jeevarathnam-mal, AIR 1919 PC 44 and Lachhmi Narain v. Kalyan, air 1960 Raj 1 (SB ). On the other hand it is equally strenuously argued on behalf of the plaintiff mortgagor that even if objection as to registration of the document Ex. A1 is ignored, the transaction embodied therein was and is void ab initio inasmuch as the document was executed by a minor and that such a document could not be pressed into use at all for converting what was initially permissive possession into an adverse one and consequently, the said document was altogether useless to serve as a foundation for the contention that the defendants had thereby become owners of the roof in any manner whatsoever. Reliance is placed in support of this submission on Khiarajmal v. Daim, (1905) ILR 32 Cal 296 and Padma Vithoba v. Mohd. Multani AIR 1963 SC 70. The question, therefore, is which of these two submissions is correct. Now, I may state at once that it was conceded before me by learned counsel for the defendants appellants that mortgages and sales were compulsorily registrable in the former State of Jaipur from which part of Rajasthan the present case arises, and they were registrable irrespective of the value of the property which was the subject matter of mortgage sale. It was however, contended on their behalf that the transaction embodied in this document did not amount to a sale, a contention which was raised here for the first time and the chief reason which was adduced in support of this submission was that there was no price fixed for the so-called sale which was a sine qua non of a transaction of sale according to law and, therefore, it was contended that the document was not compulsorily registrable. On the other hand it was contended by the learned counsel for the plaintiff that the case put forward on behalf of the defendants throughout the course of this litigation was that the transaction embodied in Ex. A1 was one of sale and that being so, if was compulsorily registrable, and so far as the question of the consideration or the price for which the sale of the roof was sought to be made, was concerned, it was urged that the sale had been made for the amount of money which should be spent by the defendants and which they were authorised to do in executing the repairs thereto. It may also be stated that learned counsel for both parties were unable to place before me the relevant law of registration of the then State of Jaipur as it existed at the relevant time, in spite of the fact that all possible opportunities were given to them to do so, Be that as it may, I do not consider it necessary to make any definite pronouncement on the question whether the document Ex. A1 was or was not compulsorily registrable because in my opinion, the question of its proper effect can be determined affirmatively from another angle.