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Jagan Nath Vs. Har Pal Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2616 of 1970
Judge
Reported inAIR1980All139
ActsTransfer of Property Act, 1882 - Sections 58
AppellantJagan Nath
RespondentHar Pal Singh
Advocates:G.N. Verma, Adv.
DispositionAppeal dismissed
Excerpt:
property - recovery of bond money - section 58 of transfer of property act, 1882 - loan document contains personal covenant to pay - money is intended to be secured by simple mortgage - mortgage deed not yet registered - terms of document are clearly severable between bond and mortgage - suit for recovery can be filed on the basis of bond. - - even if those words are scored out the remaining deed is clearly a bond whereby the defendant after acknowledging the receipt of rs. the terms of the document are clearly severable and although a mortgage did not come into being because the document was not registered before a completed bond and the plaintiff did nothing more than to sue on the bond......transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. the transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage deed. (b) where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his con-tract, the mortgagee shall have a right to.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for recovery of a loan of Rs. 10,000/- with interest in the sum of Rs. 1,500/- up to the date of the suit.

2. The plaint allegations were that the loan was advanced on 1st June. 1963 and was re-payable in ten annual instalment of Rs. 1000/- with interest at the rate of 75 paise percent per month. It was pleaded that the defendant did not pay anyinstalment, hence the suit, which was filed on 5th March, 1965. A document Ext. 3, purporting to witness the loan was filed with the plaint. A reference to the document was incorporated by an amendment of the plaint which was made later on, The defendant denied the loan and the document. Experts were examined from both the sides. It was also contended by the defendant that the document was otherwise too inadmissible in evidence for it purported to be a mortgage-deed but had not been registered.

3. The trial court overruled the defendant's objection as to the admissibility of the document by an order dated 7th December, 1968.

4. On an appraisal of the evidence on the record, the trial court found that the defence was false and decreed the suit for recovery of the amount claimed, viz., Rs. 11,500/- with pendente lite and future interest at 6% per annum. The lower appellate court confirmed the trial court's decree. Hence the second appeal.

5. One question which has been raised before me in the second appeal is about the admissibility of the document, Ext. 3. It has been urged that it purported to be a deed of mortgage and being unregistered, it was inadmissible in evidence for any purpose whatsoever. It could not be received as evidence even of the loan, as it formed an inseparable part of the mortgage.

6. It is true that a mortgage is in separable from the pecuniary liability for securing the repayment of which the mortgage is created. A simple mortgage is defined by the Transfer of Property Act thus :

'58 (a) : A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage deed.

(b) Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his con-tract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.'

7. The above definition shows that the mortgage money is the money advanced or to be advanced by way of loan or an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The debt may be an existing or a future debt. The existence of mortgage money is a condition precedent for the existence of a mortgage. The existence of a mortgage is thus dependent on mortgage money. But there can be a debt which may not be secured by a mortgage. The existence of a debt is not dependent on the existence, of a mortgage. The personal covenant to pay the mortgage money is implicit in a simple mortgage. In the present case the document, Ext. 3, expressly contained a personal covenant to pay. Learned counsel for the appellant, however, emphasised the following words in the deed :

'Aaj tartkh 1-6-1963 Isvi ......... mublig10,000 ............... Shri Harpal Singh......se nagad vasool pakar makan hasb jailchauhaddi dista bandhuk gahan rakhdiya.'

and again at the end of the deed ;

'Isliye chand alfaj batarik rehan-nama likh diya ki sanad rahe va waqt per kam aave.'

which do undoubtedly show that the defendant, the executant of the deed intended to create a mortgage for securing a loan of Rs. 10,000/- taken by him from the plaintiff. The express covenant to pay the mortgage money, however, is in these words;

'Aur ikrar karta hu ki mustari Harpal Singh uprokt ko ek hajar rupya salana bataur kist ada karta jaunga va das haiar ka soo dauran va ainda pratyek mah ki angreji tarikh ko pachhattar N. P. prati saikara mahwari ke hisab se mus-tari majkoor ke pas ada kiya kanmga.' As observed above the existence of the lean or the personal covenant to pay is not dependent on the existence of the mortgage. The deed being unregistered these portions thereof which purported to create a mortgage cannot be read. Even if those words are scored out the remaining deed is clearly a bond whereby the defendant after acknowledging the receipt of Rs. 10,000/- as a loan on 1st June, 1963 from the plaintiff, promised to repay it in ten annual to statements of Rupees1000/- each with interest at the rate of 95 p. per cent per month.

8. It is not necessary in this case to refer to the cases cited before me by the learned counsel for the parties. The terms of the document are clearly severable and although a mortgage did not come into being because the document was not registered before a completed bond and the plaintiff did nothing more than to sue on the bond. He did not sue on the mortgage. The appeal fails and is dismissed with costs.


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