SHEIKH HUSHMAT Vs. SHEIKH JAMIR

JUDGEMENT

(1.) In this case the plaintiffs seek to recover from the defendant possession of a plot of land measuring 10 cottas under the following circumstances. In 1304 Jaru, the predecessor-in- interest of the plaintiffs, borrowed Rs. 100 from the defendant and by way of security mortgaged two plots of land measuring 6 cottas and 10 cottas respectively. The arrangement was that the defendant should hold possession of both plots for 8 years, i.e., until 1313 in full satisfaction of the debt and interest. The defendant s case was that in 1306 the parties came to an arrangement, whereby Jaru sold to the defendant the 10 cotta plot for Rs. 98 and took back the 6 cotta plot, the mortgage being thus paid off. The conveyance of the 10 cotta plot to the defendant was by an unregistered kobala. The Munsif declined to regard this document as evidence and decreed the plaintiffs suit, which was filed on the 8th January 1914 (1320) within 12 years from 1312, the original date fixed for the termination of the mortgage. This decision has been reversed by the Subordinate Judge who finds the kobala to be a genuine document, and while holding it to be inadmissible to prove the sale, has accepted it as evidence of the satisfaction of the mortgage debt. He accordingly held that the mortgage came to an end in 1306 by the sale and dismissed the plaintiffs suit. The plaintiffs have appealed. In my opinion the judgment of the lower Appellate Court cannot stand. The alleged sale in 1306 was of the equity of redemption in the 10 cotta plot, the consideration being the balance of the mortgage-money then due plus Rs. 35-8-0 in cash. The thing sold was merely a right in immoveable property, the property being in the actual possession of the mortgagee. The sale, thus being of an intangible thing, could be made only by a registered instrument [see Section 54 of the Transfer of Property Act and Ramasami Pattar v. Chinnan Asari 24 M. 449 at p. 463] and as the document was unregistered, no sale was effected. I agree with the learned Subordinate Judge when he held the document to be inadmissible to prove the sale. He was, however, in my opinion, in error in holding that it was admissible to show when and how the mortgage was satisfied by Jaru. This would be to make it evidence of a transaction affecting the property, an use expressly for-bidden by Section 49 of the Registration Act.

(2.) If there was no sale or no such sale as could be proved, the mortgage must be deemed to have continued until 1312 when, by the agreement of the parties, it was satisfied automatically.

(3.) The plaintiffs are, therefore, entitled to recover back so much of the mortgaged property as has not been returned to them, that is to say, the 10 cotta plot now in suit.