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Khedu Rai Vs. Sheoparsan Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in40Ind.Cas.121
AppellantKhedu Rai
RespondentSheoparsan Rai and ors.
Excerpt:
mortgage - redemption suit--compromise, non-registration of, effect of--registration act (viii of 1871), section 49--mortgagee, possession of, under compromise--adverse possession. - .....in the year 1869, zalim rai mortgaged the property in suit to the predecessors-in-title of the present defendants first party. in the year 1876 a dispute arose between the mortgagor and the mortgagees and a case arose in the revenue courts in respect to the entry of names in the record of rights. we are informed that a grove had actually been sold by the mortgagees to the predecessors-in-title of the defendants second party. the dispute in the revenue court resulted in a compromise in which zalim rai gave up all his equity of redemption in the property. the mortgagees agreed to certain property being held by zalim rai and his wife as long as either of them should live, it, on their death, reverting to the mortgagees. the compromise was not registered. entries were made in the.....
Judgment:

1. This is a second appeal preferred by the plaintiff in a suit brought for redemption of certain property. The plaintiff Khedu Rai is the heir of one Zalim Rai. In the year 1869, Zalim Rai mortgaged the property in suit to the predecessors-in-title of the present defendants first party. In the year 1876 a dispute arose between the mortgagor and the mortgagees and a case arose in the Revenue Courts in respect to the entry of names in the Record of Rights. We are informed that a grove had actually been sold by the mortgagees to the predecessors-in-title of the defendants second party. The dispute in the Revenue Court resulted in a compromise in which Zalim Rai gave up all his equity of redemption in the property. The mortgagees agreed to certain property being held by Zalim Rai and his wife as long as either of them should live, it, on their death, reverting to the mortgagees. The compromise was not registered. Entries were made in the Government record accordingly and from that date the mortgagees were, recorded as the full owners of the property. The mortgage was one by conditional sale. From that time onwards the mortgagees have always been recorded as owners of the property and they dealt with it as such. In the year 1900 and again in 1904 the defendants first party transferred various portions of the property to the defendants second party. In the year 1908, a co-sharer in the village named Mahabir Rai applied for partition of his own share in the mahal. The defendants first party, on the 26th of January 1909, applied for partition of part of the property which is now in dispute, and the defendants second party applied for partition of the rest of the property which is now in dispute. On the 19th of August 1S09, the present plaintiff Khedu Rai, who is the heir of Zalim Rai, applied for partition of his own share in the village and in his application laid no claim whatsoever to the property now in dispute, as a mortgagor. The partition was completed on the 20th of October 1910, and came into force on the 1st of July 1911. In 1912, the plaintiff brought the present suit for redemption of the mortgage. The Courts below have dismissed the suit. The plaintiff appeals.

2. The first point urged on his behalf before us was that the compromise of 1876, being unregistered, conveyed no title, and under Section 49 of the Registration Act, VIII of 1871, it could not be taken as evidence of any transfer of property. It is urged that there was no transfer of the equity of redemption; that the mortgagees cannot, by asserting adverse possession, change the nature of their possession, and, therefore, the plaintiff is entitled to redeem. On behalf of the respondents, however, it is pointed out that though the document was not registered, the parties had acted upon the transaction from the year 1876 up to the date of the present suit; that the nature of the mortgagees' possession has been changed with effect from the date of the compromise; that the defendants first party have transferred portions of the property, and that the defendants' possession has really been adverse to that of the plaintiff or his predecessor-in-title. Reliance is placed upon the decision of their Lordships of the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 42 C. 801 : 17 Bom. L.R. 420 : 21 C.L.J. 231 : 28 M.L.J. 548 : 19 C.W.N. 250 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 : 42 I.A. 1 (P.C.) and our attention has also been called to the decision in Usuman Khan v. Nagalla Dasanna 16 Ind. Cas. 694 : 12 M.L.T. 330 : 23 M.L.J. 360 : (1912) M.W.N. 995 : 37 M. 545. It will be noted that the transaction of 1876 took place at a period prior to the coming into force of the Transfer of Property Act of 1882. It is true that the Registration Act was then in force, but it seems to us that this was not a case of the mortgagee merely setting up adverse possession without any act on the part of the mortgagor in the matter. In other words, the present case is not of mere unilateral action by the mortgagee. Both parties consented to the complete transfer of the equity of redemption to the mortgagees and both parties have acted upon it for very nearly forty years. The case is very similar indeed to the case reported as Usuman Khan v. Dasanna 16 Ind. Cas. 694 : 12 M.L.T. 330 : 23 M.L.J. 360 : (1912) M.W.N. 995 : 37 M. 545. We think the principle of that decision and also of the decision in Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 42 C. 801 : 17 Bom. L.R. 420 : 21 C.L.J. 231 : 28 M.L.J. 548 : 19 C.W.N. 250 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 : 42 I.A. 1 (P.C.) is applicable to the present case, and we hold that the defendants have held possession of this property since the year 1876 as owners adversely to the mortgagor and his heirs, We do not think it necessary to go into the other point which has been raised in the appeal. The appeal fails and is, therefore, dismissed with costs, including, in this Court fees on the higher scale.


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