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Rajaram Jayaram Joshi Vs. Tanubai Dhondiba Pujari - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 127 of 1937
Judge
Reported inAIR1940Bom63; (1939)41BOMLR1251
AppellantRajaram Jayaram Joshi
RespondentTanubai Dhondiba Pujari
DispositionAppeal dismissed
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), section 63a - document-registration-agriculturist as executant.;section 63a of. the dekkhan agriculturists' relief act, 1879, does not apply where there is nothing on the face of the document to establish the fact that the executant is an agriculturist. - - the redemption clause which i have read clearly brings the case within section 58(c) of the transfer of property act. it is suggested that the right of redemption is limited strictly to the mortgagor, and that shows that the transaction was a sale ;but, in my opinion, the clause, would clearly extend to the successors in interest both of the mortgagor and the mortgagee......the creditor has paid to the debtor rs. 100, which does not suggest that the transaction was a sale. the redemption clause which i have read clearly brings the case within section 58(c) of the transfer of property act. it is suggested that the right of redemption is limited strictly to the mortgagor, and that shows that the transaction was a sale ; but, in my opinion, the clause, would clearly extend to the successors in interest both of the mortgagor and the mortgagee. the words used are the personal pronouns 'i' and 'you' ; but it cannot be that if the mortgagee dies before the twelve years expire, thereby the mortgagor would lose the right of redemption. i think it is clear that both the personal pronouns used include the successor in interest. therefore, i have no hesitation in.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal against a judgment of the Assistant Judge of Sholapur. The plaintiff is suing to redeem what is alleged to be a mortgage made in 1897, the suit having been filed in 1932.

2. The document in question is in the form of a sale deed for Rs. 100, with the provision that in case 'I pay you back the aforesaid sum of Rs. 100 before the completion of twelve years from this day, then you should re-convey to me the aforesaid land.' The learned Judge held that that was a mortgage by way of conditional sale, and I quite agree with him. He has held as a fact that the consideration, viz. Rs. 100 received, was less than the value of the property ; the parties are referred to in the document as creditor and debtor, and the document states that the creditor has paid to the debtor Rs. 100, which does not suggest that the transaction was a sale. The redemption clause which I have read clearly brings the case within Section 58(c) of the Transfer of Property Act. It is suggested that the right of redemption is limited strictly to the mortgagor, and that shows that the transaction was a sale ; but, in my opinion, the clause, would clearly extend to the successors in interest both of the mortgagor and the mortgagee. The words used are the personal pronouns 'I' and 'you' ; but it cannot be that if the mortgagee dies before the twelve years expire, thereby the mortgagor would lose the right of redemption. I think it is clear that both the personal pronouns used include the successor in interest. Therefore, I have no hesitation in holding that the lower Court was right in regarding this document as a mortgage.

3. The principal point argued in this appeal is a point which was not taken in either of the lower Courts, namely that by reason of the provisions of Section 63A of the Dekkhan Agriculturists' Relief Act, this mortgage deed cannot be given in evidence, and therefore the plaintiff cannot establish his right of redemption. I think the first answer to that point is that it is not the sort of point which we ought to allow to be taken for the first time in second appeal, because, if the point had been taken at the trial, the necessary issues could have been raised. However, as the point has been argued, I will deal with it on the merits. Section 63A(2) provides in effect that 'When an agriculturist intends to execute any instrument required by Section 17 of the Indian Registration Act, 1877, to be registered under that Act, he shall appear before the Sub-registrar within whose sub-district the whole or some portion of the property to which the instrument is to relate is situate, and the Sub-registrar shall write the instrument, or cause it to be written, and require it to be executed, and attest it and, if the executant is unable to read the instrument, cause it to be further attested', and in Sub-section (2) it is provided that an instrument to which Sub-section (1) applies shall not be effectual for any purpose referred to in Section 49 of the Act last-mentioned, i.e. the Indian Registration Act, unless it has been duly registered in the manner provided in that Sub-section ; so that if a document requires to be registered in the manner provided in Section 63A, and it is not so registered, it cannot be used in evidence. The contention is that the original mortgagor was an agriculturist, and no doubt that is so found by the trial Court. The signature of the Sub-registrar appears on the document in various places, but there is no attestation clause signed by him, and I will assume that the document was not executed in accordance! with the section. Even so, in my opinion, the section does not apply, since there is nothing on the face of the document in question to establish the fact that the executant is an agriculturist. An agriculturist, as denned by the Act, is a person having certain specific qualifications. A Sub-registrar cannot tell by looking at a man whether he is an agriculturist within the meaning of the Act or not, and it seems to me that it would be wrong to hold that where a man, not purporting to be an agriculturist, brings a document for registration, and asks the Sub-registrar to register it in the ordinary course, and this is done, nevertheless years afterwards,-in this case, thirty-five years afterwards,-the document can be challenged because the executant was in fact an agriculturist. In my opinion, Section 63A only applies where there is something on the face of the document to show that it is a document to which the section relates. If this is not so, then I think that it must be deemed that the agriculturist has not claimed the privileges conferred upon him by Sub-section (1) of Section 63A, and that the prohibitory provisions in Sub-section (2) do not therefore apply to the document.

4. In my opinion, therefore, the point taken in this Court is not tenable. The appeal must be dismissed with costs in this Court and in the lower Court.


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