N.N. Sharma, J.
1. This is an appeal preferred by defendant No. 1 against judgment and decree of Sri Brahma Singh, learned Civil Judge, Ballia dated 12-8-1974 by which he decreed the suit of plaintiff-respondent with costs and reversed the judgment of Sri Hira Das, learned Munsif, Ballia dated 4-10-1972 in original suit no. 27 of 1969.
2. The dispute relates to a shop situated in house No. 53/1 Ballia City which was the joint property of Mohd. Hanif and his brother Mohd. Daniyal. The boundaries of the shop in dispute have been laid at the foot of the plaint. Mohd. Maqsood (plaintiff) and defendants 2 and 3 are the sons of Mohd. Daniyal while Mohd. Zafrulla, defendant No. 4: Smt. Maqtoolan Bibi, defendant No. 5; Nurun Nissa Bibi, defendanl No. 6 and Kaniz Fatima Bibi, defendant No. 7 (defendants III set) are the heirs of Mohd. Hanif.
3. It was averred that Mohd. Hanif and Mohd Daniyal, who were own brothers, were dead.
4. On 16-8-1955, Mohd. Hanif executed a mortgage deed in favour of appellant Nabi Rasool defendant No. 1. The terms of mortgage are detailed in para 2 of the plaint. The mortgaged amount was Rs. 600/-. It was to be redeemed on payment of Rs. 600/- by Mohd. Hanif.
5. Mohd. Hanif and Mohd. Daniyal separated after execution of the mortgage deed and the disputed shop fell in the share of Mohd. Daniyal. Plaintiff being one of the heirs of Mohd. Daniyal was entitled to redeem the mortgage. A sum of Rs. 200/- has already been paid to-wards the mortgage amount and an endorsement was made on the back of the mortgage deed.
6. Mortgagee was not willing for redemption despite the offer of paymentof Rs. 400/- which was the balance of themortgaged amount due on him. Hencethe suit was filed for recovery of possession of the shop in dispute after redemption.
7. The suit was contested by defendant No. 2 alone on the ground that plaintiff had no concern with the disputed shop: Mohd. Hanif had executed the mortgage deed and the plaintiff was not entitled to bring the suit as he was not the heir of mortgagor. The suit was bad for non-joinder of necessary parties. Mohd. Hanif alone was in exclusive possession of the shop in dispute when he executed this mortgage deed.
8. No partition took place between Mohd. Daniyal and Mohd. Hanif wherein shop in dispute might have fallen in the share of Mohd. Daniyal. In the alternative it was pleaded that such partition, if any, was never acted upon and was not binding upon the mortgagee. A sum of Rs. 200/- was never paid towards the mortgage consideration.
9. Defendant No. 1 was the tenant of Mohd. Hanif in the shop in dispute prior to the mortgage and that tenancy remained in abeyance during the continuation of mortgage. So the plaintiff was not entitled to actual possession over the disputed shop.
10. Learned Munsif found that plaintiff had no right to sue as he was not the legal representative of original mortgagor Mohd. Hanif. Learned Munsif further found that no payment of Rs. 200/-was made to the defendant No. 1. He further found that at the time of execution of mortgage deed, the tenancy was not kept in abeyance. He further found that defendant No. 1 could not be evicted from the disputed shop except under due process of law.
11-12. Aggrieved by that decision, plaintiff preferred Civil Appeal No. 6/18 of 1973 which was allowed by the impugned judgment and decree.
13. I have heard learned counsel for the parties and perused the record.
14. The first point pressed before me on behalf of appellant was that plaintiff had no right to sue. In this connection, it was pointed out that there was no averment in the plaint about plaintiff's (Mohd. Daniyal) being the co-sharer in the disputed property nor this fact was mentioned in the mortgage deed.
15. This contention is not borne out by record. It was alleged in the plaint that Mohd. Hanif and Mohd. Daniyal were own brothers who lived jointly. A partition took place amongst the brothers after the execution of the mortgage deed.
In that partition, disputed shop fell in share of Mohd. Daniyal. Mohd. Hanif and Mohd. Daniyal were sons of Qudrat Miyan. There is on record the mortgage deed dated 3-8-1960 relied upon by plaintiff. Mohd. Maqsood (P. W. 1) and Madho Prasad (P. W. 2) were the attesting witnesses of this document. Krishna Gopal (P. W. 3) one of the vendee who purchased the property from the heirs of Mohd. Hanif, testified about Mohd. Daniyal being a co-sharer in the mortgaged property.
16. There are statements of mortgagor Mohd. Hanif and his legal heirs that the shop in dispute fell in share of Mohd. Daniyal. All these statements, oral and documentary have been discussed by the learned lower appellate court in his judgment.
17. Nabi Rasool (D. W. 1) in his cross examination conceded about Hanif and Mohd. Dadiyal being own brothers and co-sharers although he alleged that partition between the brothers did not take place in his presence. Thus, learned lower appellate court rightly found that Mohd. Daniyal was a co-sharer in the disputed shop also and plaintiff No. 1 being one of the sons of Mohd. Daniyal was a co-sharer in the disputed property and so by virtue of Section 91(a) of the Transfer of Property Act was entitled to redeem and mortgage as he is a person interested in the property mortgaged. So this contention is repelled.
18. Learned counsel for the appellant attacked the memorandum of partition deed on the ground that being unregistered, it cannot be looked into and was rightly ruled out by learned Musif vide Section 17(1)(b) of the Ragistration Act. Learned Munsif did not give any reasoning for holding that the document was partition deed.
19. This document is Ex. 2. The parties to this document were Mohd. Hanif and Mohd. Daniyal. Both of them are dead now. The stamp of this document was purchased on 3-6-1960. Madho Prasad (P. W. 2) who is attesting witness testified that this document was simply a memorandum. Partition had taken place in 1959. Plaintiff Mohd. Maqsood also testified that it took place earlier and it was only a memorandum which had been drawn subsequently on 3-8-1960.
20. Learned counsel for the appellant pointed out that despite the aforesaid document, the partitioned house was entered jointly in the names of both the brothers vide Ex. 4 extract of register of Municipal Board, Ballia in 1965.
21. In Ext. A-3 both the brothers disclosed the shops in the disputed house as joint property even in 1963. Similarly, in his affidavit Ext. A-3, Mohd. Hanif mentioned these shops as joint to both the brothers. Thus, this memorandum was a bogus document.
22. Learned counsel for appellant rightly pointed out that all these incorrect allegations were made with a design to sue the tenant in ejectment. Plaintiff-appellant filed sale deeds Exs. 3 and 5 to 8 executed by heirs of Mohd. Hanif who transferred their shares in favour of Krishna Gopal (P. W. 3) etc. who also supported the plaintiff's case on this point. These documents were of 1968-1969 and corroborated plaintiff's case about partition which was subsequently evidenced by Ext. 2.
23. Learned counsel for appellant relied upon Nani Bai v. Gita Bai Kom Rama Gunge reported in AIR 1958 SC 706 in support of his contention that although partition in Hindu Law may be effected orally but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has to be registered vide Section 17(1)(b) of the Registration Act.
24. The aforesaid authority is not in point for the simple reason that this document does not purport to evidence partition wherein it might have declared the rights of the parties.
25. Ex. 2 shows that partition had taken place long before the execution of this document and this document was executed to avoid future disputes and record faclum of earlier division of the property between the co-sharers. It is correct that P. Ws. 1 and 2 made slightly discrepant statements about the date and time of partition, the fact remains that as they were not tutored for the purpose, so such inconsistencies are naturally to be expected in their depositions. I have carefully perused the aforesaid document and found that it is simply a memorandum of the shares between the two brothers. Such memorandum did not require registration as pointed Out in Kale v. Deputy Director of Consolidation, reported in AIR 1976 SC 807. It was laid in that case that family arrangement may be even oral in which case no registration is necessary but if it is writing then a distinction has to be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable.
26. As Ex. 2 appears to be a simple memorandum and not a partition deed, it needs no registration.
27. Learned lower appellate court rightly found that such document could not have been prepared for the purpose of this suit arid both the executants of the document were dead long before the arising of this controversy: none of them assailed its genuineness during their lives, this document did not declare the respective shares of the parties nor it evidenced a partition so as to attract Section 17(1)(b) of the Registration Act. So this contention also is repelled.
28. The next contention put forward on behalf of appellant is about the payment of Rs. 200/- to defendant No. 1 by Mohd. Daniyal in 1956. That payment was alleged to have been endorsed on the back of the mortgage deed. That mortgage deed was not filed by Mohd, Baniyal who alleged that the said mortgage deed has been lost He was asked about the loss of the original document but could not (answer) satisfactorily. It was pointed our that as the document was withheld deliberately by Mohd. Daniyal so this payment was proved.
29. Learned counsel for the respondents also pointed out that it was a finding of fact recorded by the first appellate court which is binding on me.
30. It is correct that a finding of fact cannot be disturbed in second appeal unless it is unsustainable on evidence on record.
31. In this case I find that the aforesaid payment is not sustainable by the evidence on record. There is total absence of evidence on this point. It is significant to note that this payment is not acknowledged by receipt. In para 8 of the plaint, date, time of payment wag not mentioned nor the name of the person who made this payment was disclosed. Mohd. Maqsood (P. W. 1) testified that a sum of Rs. 200/-, was paid in 1956 towards the mortgage amount in his presence by Mohd. Daniyal who made an endorsement on the back of the mortgage deed. It was for that reason that mortgages had withheld document.
32. He faltered in cross-examination and conceded that such payment would have been made in winter season in between the months of October to December. None was present at the time of this payment. He simply learnt about this payment from his father Mohd. Daniyal. Obviously, such hearsay testimony which came in direct conflict with his earlier deposition about direct payment cannot be accepted in any court of law. The mere fact that mortgagee did not produce the original document is not sufficient to justify the payment under Section 114 illustration (g) of the Evidence Act. In Ramrati Kuer v. Dwarika Prasad Singh,. AIR 1967 SC 1134 it was observed :--
'(B) Evidence Act (1872), Section 114-Nei-ther party producing any evidence even though any of them can produce it, if available -- Absence of evidence is inconclusive and does not help either party.'
33. Learned counsel for the respondents relied on Gopal Krishnaji Ketkar v. Mohammed Haji Latif AIR 1968 SC 1413 where it was observed:
'(A) Evidence Act (1872), Sections. 114(g) and 103-A party in possession of bestevidence which would throw light onthe issue in controversy withholding it--Court ought to draw an adverse inference against him notwithstanding thatonus of proof does not lie on him --Party cannot rely on abstract doctrine ofonus of proof or on the fact that he wasnot called upon to produce it.'
34. In the instant case, it could not be shown that the sworn testimony of mortgagee about the loss of mortgage deed was false. He emphatically denied this payment of Rs. 200/- to him. Learned Munsif who had an occasion to watch the demeanour of this witness disbelived the payment of Rs. 200/-. The observation of the learned Munsif on this point cannot be lightly discarded. Under these circumstances, it is not possible to hold that mortgagee deliberately refrained from producing this document as the onus of payment lay upon the plaintiff.
35. It is correct that burden of proof about the payment lay on plaintiff and a finding of fact recorded by lower appellate court cannot be disturbed by me merely on his erroneous view in total absence of evidence to prove this payment as has been shown above, Daniyal could not have made payment in 1956 when he had no authority to do so and this shop had not fallen in Ms share till then. Under such circumstances, plaintiff could not prove it by presumption under Section 114(g) of the Evidence Act only. This finding of learned first appellate court is simply perverse and unsustainable on the evidence on record and has to be set aside.
36. The last contention put forward on behalf of appellant was that he was a tenant in the shop in dispute prior to the execution of the mortgage deed. In his own statement, he testified about the commencement of tenancy one and half year prior to the execution of the mortgage deed. Learned first appellate court discussed testimony of P. Ws. 1 and 2 and of plaintiff and rightly found that defendant No. 1 was never a tenant in the disputed shop.
37. Had defendant No. 1 been a tenant in the disputed shop at the time of commencement of mortgage, it must have been noted in the mortgage deed dated 16-8-1965 Ext. 1. It was a usufructuary mortgage and the question of possession was important. A look at the mortgage deed shows that the possession over the disputed shop was with the mortgagor and mortgagee was entitled to keep the same as mortgage and in no other capacity and there was no mention of any rent note Or rent etc. It appears that this false plea was put forward by mortgagee simply to avoid eviction.
38. Learned counsel for the appellant relied on Lachman Das v. Heera Lal, AIR 1966 All 323 where doctrine of merger as enunciated in Section 111(d) of the Transfer of Property Act was explained and distinguished in following terms:--
'The doctrine of merger enunciated in Section 111(d) of the Transfer of Property Act (1882) is not applicable where the lessee becomes the usufructuary mortgagee of the demised property, as tender the Indian Law, the lessor remains the legal owner of the properly.
Under the English Law, the mortgagee becomes the absolute holder of the estate and the mortgagor retains no legal interest but only an equity of redemption.
The lessee-mortgagee, in India, has the right to possess and enjoy the usufruct of the property until the mortgage is redeemed whereas the lessor, as the legal owner, can assign his right of redemption or create a second mortgage.
One person can be a lessee and mortgagee of the same properly at the same time, as his obligations as a lessee remain, suspended during the subsistence of the mortgage.'
39. It was a case in which mortgagee was a tenant of the mortgaged shop prior to the commencement of the mortgage. In the Instant case, it has been shown by cogent evidence that defendant No. 1 was not in occupation over the disputed shop prior to the commencement of the mortgage in any capacity. Under the mortgage deed, he was required to quit on redemption. He did not induct any one else in possession over the disputed shop pending the mortgage. So he had to deliver vacant possession over the shoo in dispute on. redemption of mortgage as was held in Tajammul Husain v. Mir Khan, AIR 1974 All 234 (FB) which posited (at p. 236):--
'(A). The general rule that a lease executed by a mortgagee in possession would come to an end and the rights of the person holding under the same would get extinguished on the redemption of the mortgage is however, subject to one exception contained in Section 76(a) of the Transfer of Property Act which applies not only to agricultural land but also to urban immovable property. Hence, if during the subsistence of the mortgage, the mortgagee, like an ordinary prurient man, lets out the mortgaged premises and enters into a bona fide transaction in connection therewith, in that event the rights of such a person admitted to tenancy would not get automatically extinguished on redemption of the mortgage. The person so let in would be entitled to continue in occupation of the premises as a tenant of the mortgagor after redemption. The principle, behind Section 76(a) appears be be based on the hypothesis that in case a mortgage had not been executed and the mortgagor as owner had remained in possession, he would have also similarly let out the premises and, therefore, if instead of the mortgagor, the mortgagee, who came in his place, did the same it would be considered as binding on the mortgagor' as well'
40. In the instant case, the mortgagee himself claimed to be a tenant of the shop in dispute and did not induct any one also and so his possession over the disputed shop was in no other capacity except as mortgagee. He did not possess any rent note nor paid any rent nor such rent was to be deducted from the amount of interest. So he was liable to ejectment vide Section 60 of the Transfer of Property Act. Clog on redemption has to be viewed with jealousy. This is also implied in the maxim 'once a mortgage always a mortgage'. So U. P. Act III of 1947 (U. P. (Temporary) Control of Rent and Eviction Act, 1947) does not come in the way of mortgagor.
41. No other point, was argued before me.
42. In the result, the appeal is partly allowed. Plaintiff's suit is decreed subject to deposit of Rs. 600/- for payment to the appellant on the mortgage in question. Appellant is hereby directed to deliver possession to the plaintiff-respondent or to such person he appoints, all documents in his possession or power relating to the mortgaged property and shall, if so required, retransfer the properly to the plaintiff-respondent at his costs free from all incumbrances created by him or by any person claiming under him within one month from today. It is further directed that the mortgagee-appellant shall put the plaintiff-respondent in actual possession over the disputed shop within the same period. Parties shall bear their own costs throughout. The impugned judgment and decree are modified accordingly.