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TMI Blog1962 (10) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... llant delivered the possession of the shop but the plaintiff was dispossessed therefrom on the 20th of May 1953 and refused to pay the money borrowed by her. It was further stated that as the khata (Ex. P/1) was also executed in favour of Bhura Mal (Defendant No. 2), he was also made a defendant in the case. The plaintiff prayed for a mosey decree for the amount of ₹ 1,180/- with interest. The defendant-appellant denied the execution of the khata as well as taking any loan from the plaintiff Badri Narain. She also pleaded that the document was unregistered, and, as such, it could not form the basis of the suit. The trial court decreed the suit holding that Ex. P/1 was executed by the defendant-appellant and that ₹ 901/- were paid to her at the time of the execution of the khata, by Badri Narain plaintiff. The defendant-appellant filed an appeal before the District Judge, Jaipur District. The learned District Judge agreed with the findings of the trial court and held that although the document was not admissible for creating any charge on the property, yet it was admissible for proving the loan. Hence this Second Appeal on behalf of the defendant-appellant. 3. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of proving that ₹ 901/-were paid to the defendant-appellant by the plaintiff. On the question of consideration, it is urged that both the lower courts have given a concurrent finding on this point against the defendant-appellant and she should not be permitted to agitate it in the Second Appeal. 6. There is no serious controversy that Ex. P/1 is a mortgage deed which should have been registered. The controversy is on the point whether the transaction embodied in Ex. P/1 is an usufructuary mortgage or an anomalous mortgage containing a personal undertaking by the defendant-appellant to pay the amount of ₹ 901/- which it is said she borrowed from the plaintiff. Section 58(d) of the Transfer of Property Act defines 'usufructuary mortgage', as follows:- Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that- ...... an unregistered document affecting immovable property could be taken as evidence of part performance of a contract as contemplated by Section 53A of the Transfer of Property Act. 9. The first two rulings of the Rajasthan High Court lay down the law where there is a personal undertaking which is separable from the contract of mortgage to pay the mortgage amount, a suit based on that undertaking may be filed. The third case is governed by the proviso to Section 49 of the Registration Act. These cases, therefore, are not helpful for the purpose of determining whether the terms of the document (Ex. P/1) under consideration are such as import a personal undertaking on the part of the defendant-appellant to pay the mortgage amount to the plaintiff. 10. I shall deal with the Full Bench case of : (AIR 1960 Raj 1) : ILR (1959) 9 Raj 1121 at a later stage. 11. In ILR 27 Mad 526 the relevant condition in the document was as follows: - Thereafter, on (naming a date) on paying (the amount advanced), we shall redeem our land. If on the date so fixed the amount be not paid and the land recovered back, in whatever year we may pay (the amount advanced) on (nami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it can be inferred that the mortgagor had taken upon himself to do anything else than leave the property untouched by him till the amount with or without interest is paid off. If it can be spelt out from the document that the mortgagor had undertaken any personal obligation in the matter of payment of the mortgage money, the document would be an anomalous mortgage and will not remain merely an usufructuary mortgage. There is a lot of difference in saying that 'I shall pay the amount and redeem the property' and I shall not redeem the property till I pay the amount'. In my humble opinion, the document in the present case is of the latter class and it cannot be inferred from Ex. P/1 that there was any personal undertaking by the defendant-appellant to pay the amount of ₹ 901/-. 15. But the matter does not end here. The question whether the mortgage instrument contains a stipulation for payment of the mortgage-money by the mortgagor personally has its importance for various purposes. Without such a stipulation the mortgagee is not entitled to bring a suit for the sale of the property. Without such a stipulation the mortgagee may not be entitled to a personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the character or nature of the possession, if possession is transferred under the document as also the quantum of interest claimed by the party in possession. This case is, however, distinguishable in one respect. The purpose for which Ex. P/1 is sought to be admitted in evidence, in the present case is that the defendant-appellant had received the consideration from the plaintiff and there was an acknowledgment of the receipt of payment of the consideration. In the Full Bench case, such a receipt was held admissible as there was no law in force when the document in that case was executed requiring the instrument acknowledging the receipt of consideration to be registered. Under Section 17(1)(c) of the Indian Registration Act, non-testamentary instrument which acknowledges the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest in the immovable property is to be registered. In this view of the matter, it is not possible to admit in evidence that portion of Ex. P/1 which relates to the receipt of the consideration. 16. In spite of this, as observed by their Lordships of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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