PHEKU MIAN Vs. SYED ALI

JUDGEMENT

(1.) This appeal arises out of a suit to redeem two usufructuary mortgages, one dated 29 September 1893 for 1 bigha 10 kathas 16 dhurs for Rs. 30 and another dated 6 December 1897, for 10 kathas 15 dhurs for Rs. 15. The mortgage was created by the plaintiff's father Nabi Mian in favour of the ancestor of the defendants. The suit was resisted on the ground that in 1898 Nabi Mian, during the course of the settlement operations, the record of which was finally published on 25 May 1899, orally sold his rights in the lands for Rs. 90 and got the names of the defendants recorded as full owners thereof in the record. The learned Munsif decreed redemption, but on appeal the learned Subordinate Judge has dismissed the suit holding that the case of the defendants about the oral sale was true. The plaintiff has preferred this second appeal. Three points have been urged before us: (1) that after the two usufructuary mortgages the right which was left in Nabi Mian, the mortgagor, (which is commonly called the equity of redemption) could not be orally transferred as it was an intangible property for which a registered deed was necessary under Section 54, T.P. Act; (2) that even if this right of the mortgagor be held to be a tangible immoveable property the oral sale was ineffective inasmuch as such a sale for a property of the value of less than Rs. 100 could only be made by delivery of possession, but as the properties were already in possession of the mortgagee, it was impossible for the mortgagor to put the vendees in possession of them; and (3) that the finding of the learned Subordinate Judge was based on no evidence.

(2.) Taking up the first point, namely, whether the right left in a mortgagor after, he-gives his property in usufructuary mortgage, is an intangible or a tangible property, the learned advocate has referred us to a decision of the Calcutta High Court in Sheikh Hushmat V/s. Sheikh Jamir AIR 1919 Cal 325, where it was held that the sale of the equity of redemption which was an intangible thing could under Section 54, T.P. Act, be affected only by a registered document. The conveyance was therefore inadmissible to prove the sale, and to show when and how the mortgage was satisfied. On the other hand, there is a decision of a Full Bench of the Allahabad High Court in Sohan Lal V/s. Mohan Lal where Mukerji and Kendall, JJ. (Sulaiman, Ag. C.J. dissenting) held that the sale by a mortgagor of his interest in the property which he has given in usufructuary mortgage is the sale of a tangible immoveable property. Now the term "equity of redemption" is a remnant of the old doctrine of English law where the mortgagor after having mortgaged his property lost all legal rights therein and the only right which was left to him was the equitable right of redemption which he could enforce only in equity Courts. This distinction of legal and equitable rights was never recognized by the Indian Legislature where the right of both the mortgagor and the mortgagee in a mortgaged property is a legal right determined by the statute. Strictly speaking in India the term "equity of redemption" is misapplied to the right of the mortgagor. Under the Indian law mortgage is a transfer of an interest in an immoveable property and not a transfer of the property itself. There is some interest still left in the mortgagor and that interest is in the tangible property. Mukerji, J. in the Full Bench decision of the Allahabad High Court has referred to a passage in Salmond (Edn. 13, 1924, p. 209) which is this: It (ownership) may ... continue to subsist although stripped of almost every attribute which makes it valuable....

(3.) The learned Judge, while discussing how the term "equity of redemption" came to be used in England and what is the position in this country, says: In the case of a mortgage in England, as pointed out by that erudite jurist, Holland, the mortgagee, from the date of the mortgage, becomes the legal owner of the property and nothing is left in the mortgagor except what has been called a bare equity of redemption. The Indian Legislature has intentionally refused to import the expression equity of redemption, and for ample good reasons. It had, however, to use the expression right to redeem : see Section 60, T.P. Act. But the expression has been used in an entirely different sense. A right to redeem is not the same thing as an equity of redemption in England. In India a host of people, besides the mortgagor himself, are allowed to exercise the right of redemption: see Section 91, T.P. Act. One of these persons is a judgment-creditor of the mortgagor. Certainly, the interest of a judgment-creditor of the mortgagor and the interest of the mortgagor himself in the property mortgaged are not identical. It would, therefore, be very wrong to substitute the expression right to redeem for the English expression equity of redemption, and then to say that the right to redeem possession by a mortgagor is an intangible property.