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TMI Blog1969 (2) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... at portion of interest which was not discharged by the usufruct and other amounts. When Dwarka Prasad was unable to pay the amount of ₹ 6/12/- per month, he delivered possession of the house to Madho Ram who let out the house on a monthly rent of ₹ 25. The mortgagors Dwarka Prasad and Mst. Kunta died leaving Mst. Radha Bai as Dwarka Prasad's heir. Radha Bai sold the house in dispute to the plaintiff on 2nd February, 1953 and executed a sale deed. The plaintiff, therefore, became entitled to redeem the mortgage and asked the defendants to render accounts. The defendants contested the suit on the ground that Madho Ram was not the mortgagor nor were the defendants mortgagees. It was alleged that in the locality where the house was situated, there was a custom of paying Haqe-chaharum and to avoid that payment, the original deed dated 27th July, 1922 was drafted and executed in the form of a mortgage though it was actually an out-right sale. According to the defendants, the house was actually sold to Madho Ram and was not mortgaged. The defendants also pleaded that if the deed dated 27th July, 1922 was held to be a mortgage, the mortgagees were entitled to get the paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff's suit should be dismissed with costs. By its judgment dated 27th April, 1964 the High Court dismissed the second appeal preferred by the defendants but allowed the plaintiff's appeal and set aside the judgment of the lower appellate court and restored the C judgment of the trial court. The High Court further remanded the case to the lower appellate court with the direction that "the defendants be asked to render accounts before they claim any payment from the plaintiff at the time of redemption of the mortgage". The present appeals are brought by special leave against the judgment of the Allahabad High Court dated 27th April, 1964 in second Appeals Nos. 4940 and 3660 of 1961. 2. In support of these appeals it was contended by Mr. Sinha that the deed Ex. 4 dated 27th July, 1922 was a sale deed and not a mortgage deed. It was pointed out that there was a subsequent deed of sale dated 8th October, 1922 Ex. A-26 which is named 'Titimma Bainama'. The contention was that the document Ex. 4 dated 27th July, 1922 must be construed along with Ex. A.26 which forms part of the same transaction and so construed the transaction was not a usufructuary mortgag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of Section 4 of the Transfer of Property Act was not to make Section 49 of the Registration Act applicable to documents which are compulsory registrable by the provisions of Section 54, paragraph 2 of the Transfer of Property Act. In support of this contention reliance was placed on the decision of the full bench of the Allahabad High Court in Sohan Lal and Ors. v. Mohan Lal and Ors. I.L.R. All 986 Section 4 of the Transfer of Property Act states : The chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Registration Act, 1872. And Sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908. Section 54 of the Transfer of Property Act reads : Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer, in the case of tangible Immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible Immovable property, of a value less than one hundred rupees, such transfer may be made eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be affected by registered instrument. The inclusion of the words "by any provision of the Transfer of Property Act, 1882" by the Amending Act, 1929 settled the doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but not Under Section 17 of the Registration Act were affected by Section 49 of the Registration Act. Section 4 of the Transfer of Property Act enacts that "sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908". It was previously supposed that the effect of this section was merely to add to the list of documents of which the registration was compulsory and not to include them in Section 17 so as to bring them within the scope of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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