MAJJI GURUNAIDU Vs. GOTTEMUKKALA VENKATRAJU

JUDGEMENT

(1.) The plaintiffs in these two suits mortgaged a certain property to defendants 1 and 2; and there is evidence that the latter subsequently leased the property to defendants 4 and 5. The Appellate Court seems to have accepted this evidence; and it must therefore be assumed for the purpose of this appeal that the lease by the mortgagees to defendants 4 and 5 has been proved. While defendants 4 and 5 were in possession, there was a re-survey of the Vizianagaram estate in which these properties are situated; and defendants 4 and 5 were then registered as pattadars. The plaintiffs now bring these suits for the recovery of this property after redemption. The trial Court dismissed the suits; but the Appellate Court held that they were entitled to redeem. Defendants 4 and 5 have therefore filed these second appeals.

(2.) It has first been argued that there was no valid mortgage at all, because although the amount of the mortgage under these documents was leas than Rs. 100, no immadiate delivery took place. Reliance is placed on the fact that the deed is described as a mortgage deed and on the recital that by this document the land has been usufructuarily mortgaged to defendants 1 and 2. It has however to be remembered that although it is true that Ex. A does contain this expression, yet when the document is read as a whole it seems clear that the parties did not intend that the mortgage should operate at once; for example, after the preamble and the recital of the necessity for borrowing money, the document begins "was have mortgaged to you with possession from the ensuing year Durmukhi there under". Whatever value for the appellants the use of the past tense in we have mortgaged might have, it is neutralized by the use of the words from the ensuing year. "We have mortgaged to you with possession from the ensuing year" has no grammatical meaning. The nature of the transaction therefore seems to have been that on the date of Ex. A money was needed by the executants of Ex. A, that money was paid, and that the actual mortgage of the property was to take place the following year. Before the date on which the mortgage was to operate, Ex. A would presumably amount to an agreement to mortgage. Many cases have been quoted in which delivery was not given in pursuance of an agreement; and the Court was asked to consider the documents as agreements to sell or mortgage, as the case may be, the actual sale or mortgage being deferred until the time of delivery; and in which it was held that the documents could not be so construed. But in none of these oases did the documents themselves show that it was not the intention of the parties that possession should be given at once.

(3.) The only case that bears any resemblance to the present one is Suraj Baran Singh v. Pratab Bali Singh (1917) 4 A.I.R. Oudh 203 where the transaction was apparently a simple mortgage with a stipulation that if the money was not repaid within a certain time, possession was to be given. It is therefore possible to distinguish that case; but if it were there intended to lay down any general principle that delivery must take place at the time the document is drawn up, I would respectfully differ. Reliance has already been placed on the much discussed case, Kuppuswami V/s. Chinnaswami in which the question of the proof of a mortgage for an amount less than Rs. 100 came up for consideration. As the mortgage was for less than Rs. 100, the parties were not bound to draw up any document at all; and the learned Judges in that case, as will be seen from the head-note, were of opinion that: The moment the parties for some reason consider that it is not sufficient to effect the transaction of sale by mere delivery of property, but require that as evidence of such transaction there should be a deed or document, the transaction and scarcely be correctly described as one effected by mere delivery of property, and again, but the moment the parties reduce the terms to writing, it is the writing that thereafter must be regarded as containing and setting out the terms of the contract and it would not be an apt or correct description of the transaction to call it a sale by delivery of property.