ABDUL HASHIM SAHIB Vs. KADER BATCHA SAHIB (DIED)

JUDGEMENT

(1.) In this case the plaintiffs sued for a declaration that the suit mortgage-deed is not supported by consideration and void, and for its cancellation. The plaint properties were mortgaged by the plaintiffs, to the 1st defendant and it has been found that the consideration money was not paid. The 1st defendant however leased one of the items to the 2nd defendant who is now in possession and it has been decided in another suit that the 2nd defendant is entitled to retain possession and that his lease is valid. The 2nd defendant s lease is based on the plaint mortagage-deed inasmuch as he is a lessee of the mortgagee and to the extent of the possession of the 2nd defendant, the mortgage-deed must be held to be valid.

(2.) The plaintiffs suit has been dismissed on the ground that it will not lie under Section 39 of the Specific Relief Act because the document is neither void nor voidable and there is no apprehension of any injury to the plaintiffs right. It has been contended before us that the mortgage-deed is a void document inasmuch as no consideration has passed. It has no doubt been held that a suit will not lie to compel a person either to lend or to borrow money, that is to say, the Court will not decree specific performance in a suit to enforce the execution of such a contract and it is contended that if plaintiff cannot sue for specific performance he must be entitled to have the contract cancelled. In this case however, there is something more than a contract to mortgage because the mortgage-deed has been executed and registered, and possession has been given under it. It is therefore a complete conveyance of a mortgage right to the 1st defendant.

(3.) This case is on all fours with the case reported in Baslingappa v. Virupakshappa (1903) 5 Bom. L.R. 392. There it was held that in a case where the mortgagee had failed to pay consideration for the mortgage-deed, plaintiff was not entitled to bring a suit under Section 39 of the Specific Relief Act. The other side relied on Ramaswami Chettiar v. Sundara Reddiar (1911) 23 I.C. 805, and Kumarappan Chetiiar v. Narayanan Chettiar (1915) 35 I.C. 455. In the first case, the suit was brought by the mortgagee to enforce his mortgage when he had not paid any consideration for it and it was held that inasmuch as there was no debt due, there was nothing to be charged on the land before he had paid the mortgage money. In Kumarappan Ghettiar v. Narayanan Ghettiar (1915) 35 I.C. 455 also, the plaintiff was mortgagee without possession and sued to enforce the mortgage for which no consideration had been paid. In those two cases, Spencer, J., held that the mortgage was a nullity and was inoperative. I think the present case can be distinguished from, those cases on the ground that possession has been given under the mortgage, even if it can be held that a mortgage is void when it has merely been executed without consideration and nothing further has taken place. In Raja Tirumal Raja v. Pandla Muthial Naidu (1914) I.LR. 35 Mad. 114, where only part consideration was paid, the mortgage was held to be valid, as also in Rashik Lal v. Ram Narain (1912) I.L.R. 34 All. 273, where reference is made to Tatia v. Babaji (1896) I.L.R. 25 Pom. 176, where Farran, C.J., pointed out the distinction between a perfect conveyance and a mere contract. In Govindammal v. Gopalachariar (1905) 16 M.L.J. 524, it was held that the execution of a sale-deed completed the contract and the fact that there was no consideration for it did not make it void. Under Section 58 of the Transfer of Property Act "A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced," so that on execution of a registered deed in accordance with Section 59, the mortgage would be complete although the mortgage money had not actually been paid to the mortgagor. It is difficult to draw a distinction between a transfer of immoveable property by way of sale and a transfer by way of mortgage. If a sale is complete by the execution of the registered instrument, it appears to me that a mortgage is also complete and can be enforced. The mortgagor would not then be entitled to sue for cancellation of the instrument, but, if the consideration was not paid to him, he would have his remedy in damages for breach of the contract. This view does not, I think, conflict with the principle that a suit will not lie to enforce a contract to lend or to borrow, for in this case, the contract has been completed by the conveyance and it is not a case of suing to enforce the contract. Under Section 39 of the Specific Belief Act, plaintiff cannot bring a suit because the document is not void nor is it voidable.