B.K. Patra, J.
1. Defendants Nos. 8 and 9 in the, suit are the appellants against a reversing judgment of the Subordinate Judge, Dhenkanal. The suit was filed for a declaration of the plaintiffs title to plot No. 192 measuring 1.97 acres comprised in holding No. 68 in mouza Baligerang, and for recovery of possession of the same after a further declaration that the registered sale deed Ex. A dated 13-1-64 executed in respect of the land by defendants Nos. 1 to 4 in favour of defendants Nos. 8 and 9 are null and void. There was also a claim for recovery of mesne profits amounting to Rs. 50/-.
2. The disputed land admittedly belonged to defendant No. 1 and Kesab, father of defendants Nos. 2 to 7 who acquired the same on Nayabadi basis in the year 1933. The case of the plaintiff Rama-dev Pradhan who is respondent No. 1 in this appeal is that in the year 1947 defendant No. 1 borrowed a sum of Rs. 26/-from him and gave the land on usufrauc-tury mortgage to him and that in the year 1951 defendant No. 1 sold the land to him for Rs. 98/- and executed a sale deed in his favour which however was not registered. Out of the consideration amount of Rs. 98/- Rs. 72/- was paid in cash at the time of sale and the balance was adjusted towards the mortgage dues. Plaintiff's further case is that in the settlement proceedings that took place some time later defendant No. 1 admitted having sold the land to him and therefore a note was made in the record of rights that the plaintiff was in possession of the land as a purchaser. The plaintiff then applied for mutation of his name in respect of the disputed land.
But the mutation officer rejected his prayer on the ground that the sale was not evidenced by a registered instrument. The plaintiff therefore requested defendant No. 1 to get the sale deed registered and handed over to him the unregistered deed but defendant No. 1 failed to turn up forregistration and on the other hand defendants Nos. 1 to 4 executed and registered a sale deed in respect of the disputed land in favour of defendants Nos. 8 and 9. Being armed with the registered sale deed defendants Nos. 8 and 9 trespassed into the land on 25-1-64 and dispossessed the plaintiff therefrom and this gave the cause of action to the plaintiff to institute the suit.
3. Excepting defendant No. 6, the other defendants contested the suit. Defendants Nos. 1 to 5 and 7 in the written statement denied the plaintiffs' case that the land was mortgaged to him for Rupees 26/- and was subsequently sold to him for Rs. 98/-. Their case is that being in need of funds to go to Assam defendant No. 1 took Rs. 16/- from the plaintiff and let out the disputed land to him on bhag. After defendant No. 1 returned from Assam he got back possession of the land from the plaintiff and was cultivating the same and that in the year 1964 the defendants Nos. 1 to 7 sold the land to defendants Nos. 8 and 9 for Rs. 400/- under a registered deed of sale. Practically to the same effect it is also the written statement filed by defendants Nos. 8 and 9.
4. The learned Munsif who tried the suit did not believe the plaintiff's case that the land was ever sold to him by defendant No. 1 or that he was in possession of the same from 1951 to 1964. He therefore held that the plaintiff failed to prove his title to the disputed land and relying on the defendant's case that the registered sale deed Ex. A was executed by defendants Nos. 1 to 4 in favour of defendants Nos. 8 and 9, he found title with the latter and accordingly dismissed the suit.
5. On appeal, the learned Subordinate Judge reversed all these findings. He noticed that in the written statement filed by defendants Nos. 1 to 5 and 7, they did not specifically deny the plaintiff's case regarding the execution of the unregistered sale deed by defendant No. 1 in favour of the plaintiff and the subsequent handing over by the plaintiff of the unregistered deed to defendant No. 1 for the purpose of registration. He believed the plaintiff's witnesses who spoke about the execution of the unregistered sale deed by defendant No. 1 in favour of the plaintiff for Rs. 98/- and the passing of consideration thereunder as alleged by the plaintiff. He therefore held that the defendant No. 1 sold the land to plaintiff for Rs. 98/- and in coming to this conclusion he was considerably influenced by the fact that the nayabadi settlement deed Ex. 8 under which defendant No. 1 and the father of defendants Nos. 2 to 7 acquired the land, has come from the custody of the plaintiff who filed it in the court. Believing plaintiff's witnesses and relying on the entries in the record of rights Ex. 9 finally published in the year 1962 in which thereis a note of possession in favour or the plaintiff, he also accepted the plaintiff's case that he is in possession of the land since 1951.
In view of these findings he held that defendants had no title left in them by the year 1964 to convey title in respect or the disputed land to defendants Nos. 8 and 9 by the registered sale deed Ex. A. In the result, he reversed the judgment and decree passed by the trial court and passed a decree declaring the plaintiff's title to the disputed land and directed that he should recover possession of the same from defendants Nos. 8 and 9. Aggrieved by this decision defendants Nos. 8 and 9 have filed this appeal.
6. The findings of the learnedSubordinate judge that defendant No. 1 sold the disputed land to the plaintiff for Rs. 98/- and that since 1951 the latter was in possession of the same till he was dispossessed therefrom in the year 1954, have not been seriously assailed by Shri S. C. Mohapatra, the learned Advocate appearing for the appellants. Having closely gone through the record I am satisfied that the view taken by the learned Subordinate Judge on the disputed question of fact is not altogether unreasonable. I will therefore confine myself only to the questions of law canvassed by the Bar. It must be made clear at the outset that the plaintiff has based his claim to the suit land on the basis of an unregistered sale deed accompanied by such delivery of possession as was possible at that time in view of his assertion that the property was under his possession at that time because according to the plaintiff he was by then already in possession of the property under an usufructuary mortgage.
No case at all was made in the plaint that the plaintiff perfected his title to the property by adverse possession. It is also note-worthy that a plea of adverse possession was not also argued at the time of hearing of this appeal. The question of adverse possession is a mixed question of law and fact and if a party claims title by adverse possession, it is his duty to make clear allegation in the plaint and lead evidence on facts from which he can ask the court to draw an inference that the proved facts amount to adverse possession in law. The fact that a party is in possession of the property for more than 12 years does not necessarily lead to the inference that possession is adverse. The case of the plaintiff in this litigation must therefore stand or fall on the basis of his plea that he has acquired title to the property by sale in the year 1951. It is in evidence that defendant No. 1 is the son of the maternal uncle of defendants Nos. 2 to 7.
The disputed property, as already stated, was acquired jointly by defendantNo. 1 and Kesab, the father of defendants Nos. 2 to 7 (Ex. 8). According to the plaintiff, it is defendant No. 1 alone who sold the property to him in 1951, and there is nothing on record to show that in effecting the sale defendant No. 1 had authority and power to convey to the plaintiff the interest which the defendants Nos. 2 to 7 had in the property. In these circumstances it is conceded by Mr. S. C. Ghosh, the learned Advocate appearing for plaintiff-respondent No. 1 that under no circumstance can the plaintiff claim more than a half share in the disputed property.
7. It is, however, contended by Mr. S. C. Mohapatra that even if it is established that defendant No. 1 sold the disputed property to the plaintiff for Rs. 98/- whether orally or under an unregistered deed of sale, the sale would be invalid in view of the fact that according to the plaintiff's case he was by that time already in possession of the property as usufructuary mortgagee. Mr. Mohapatra's submissions are these :--
(1) Where the vendee is the usufructuary mortgagee of the property sought to be sold, what is sold is not the property as such but only the equity of redemption. Equity of redemption being intangible im-moveable property the sale, irrespective of the amount of consideration, must be by a registered instrument. As admittedly in this case no registered sale deed has been executed, the plaintiff has acquired no title.
(2) Assuming that the sale in such a case will be deemed to be of tangible, im-moveable property and the sale deed is not registered, the sale would be valid only if it is effected by delivery of possession of the property which means that it must be actual and not constructive delivery of possession. As in the case of usufructuary mortgage, the vendee is already in possession of the property, delivery of possession to evidence the sale is no more possible and consequently in such a case, although the consideration is less than Rs. 100/-, the sale can be effected only by a registered instrument,
8. In support of the first contention reliance is placed on a Bench decision of the Calcutta High Court in Hasmat v, Jamir, (AIR 1919 Cal 325 (2)). That was also a case of sale by the mortgagor to the usufructuary mortgagee of the property and their Lordships held that :--
'The thing sold was merely a right in immovable property, the property being in. tbe actual possession of the mortgagee. The sale thus being of any intangible thing could be made only by a registered instrument and as the document was unregistered no sale was effected.'
This mater came up for consideration before a Full Bench of Allahabad High Courtin Sohan Lal v. Mohan Lal, (AIR 1928 All 726 (FB)). Although the majority of Judges did not accept the view propounded in AIR 1919 Caf 325 (2), Sulaiman, J. who constituted the minority expressed the view that although the mortgagor is the legal owner of the usufructuarily mortgaged property, whatever rights he possesses, so long as the mortgage subsists, cannot be treated as 'tangible', and consequently the sale of such a right by the mortgagor in favour of the mortgagee is a sale of intangible property and must consequently be effected by (sic) one of the learned Judges of the Assam High Court in a Division Bench in Dharameshwar Sarma v. Lakhyadhar Borgohain, (AIR 1950 Assam 107).
9. As the very definition of a 'mortgage' shows a mortgage is nothing more than a transfer of an interest in im-moveable property, and all that the mortgagee gets is not the legal ownership of the property but merely an interest in immoveable property. Hence when a mortgagor sells the mortgaged property, what he is selling is not merely an interest in the property but the property itself, although the property sold may be encumbered by the mortgage which the mortgagor had created. The majority of Judges which constituted the Full Bench in AIR 1928 All 726, referred to above, expressed the view that in selling what is popularly called the 'equity of redemption' even a usufructuary mortgagor is in reality selling the properly itself and the sale of such interest of the mortgagor is tangible im-moveable property. A Full Bench of the Bombay High Court in Bhikhabhai Nanabhai v. Chimanlal Maganlal, (AIR 1953 Bom 437 (FB)) endorsed the above majority view of the Full Bench of the Allahabad High Court. The same view was also expressed by the Full Bench of the Patna High Court in Suraj Prasad v. Mt. Aguta Devi, (AIR 1959 Pat 153 (FB)). The contention advanced before their Lordships was that the sale of a tangible immoveable property which had been mortgaged could be effected only by a registered instrument. K. Sahai, J. who spoke for the Full Bench observed :
'Under the English Common law, a mortgagee became the owner of a property mortgaged to him subject to a covenant for reconveyance if his mortgage dues were paid to him within a fixed time. The mort-agor's right to redeem the mortgage until e was debarred from it by foreclosure or the mortgaged property was sold under the orders of the Court was recognised by the courts of Equity which held that a mortgage was merely a security for money. This right is called the equity of redemption. Even when the mortgagor was given this right, the mortgagee continued to be the legal owner of the mortgaged property.This lasted until the Law of Property Act, 1925, was passed whereunder the legal ownership was vested in the mort-agor. Two important points of difference between the English Law and the Indian Law on this subject may be noted. Firstly, no such expression as 'the equity of redemption' has been used in the Indian Law. The right which a mortgagor has been given under Section 60 of the Transfer of Property Act is the right to redeem. It will be quite incorrect to consider this expression to be a substitute for 'the equity of redemption' because the latter expression imports that the ownership at law is vested in some one other than the holder of the equity of redemption. Secondly, a mortgage is, according to Section 58 of the Transfer of Property Act, the transfer of an interest in specific immoveable property and not that of the immoveable propertyitself.
Ownership does not pass by way of mortgage but by way of sale as defined in Section 54. It seems to me that the conflict of authority on the question of whether the mortgagor holds a tangible immoveable property or only an intangible right has arisen generally because, in some cases the distinction between the Indian Law and the old English law has not been kept in view with the result that, taking the mort-agor's interest to be a bare equity of re-emption and not that of an owner, it has been held that he has only an intangible right.'
10. Having regard to the bare definition of mortgage in Section 58 of the Transfer of Property Act and the weight of authority I am unable to accept the contention of Mr. Mohapatra that what the mortgagor in respect of the property mortgaged has conveyed by sale, is intangible immoveable property, the sale of which can be effected only by a registered instrument
11. I would now refer to the second contention advanced on behalf of the appellants that even if the property sold is tangible immoveable property, still if the sale is for an amount of less than Rs. 100/- and is not effected by a registered instrument it must be effected by delivery of possession; that delivery of possession in such case must be actual and not constructive delivery and that such a delivery is not possible where the sale is to the usufructuary mortgagee who is already in possession of the property and consequently the sale in such a case must be by a registered instrument. In support of this contention reliance is again placed on the two Full Bench decisions, AIR 1953 Bom 437 and AIR 1928 All 726, referred to above. In the Allahabad case the sale was to an usufructuary mortgagee. The contention which found favour with their Lordships is that as the property to be sold was in possession of the proposed vendee,there can be no further delivery of the property to him. In this connection referring to Section 54 of the Transfer of Property Act it was pointed out that law requires that title to the property can only be transferred by two modes, and the reason why these two modes are indicated is that there should be sufficient publicity and sufficient notice to the world when a title is transferred.
Registration itself is sufficient notice, but where registration is dispensed with in case of property of small value the law requires that there should be delivery of property. That being the position the delivery of possession must be real and cannot be constructive because publicity will be completely absent in such a case. The view expressed in the Allahabad case was accepted by the Full Bench which decided AIR 1953 Bom 437 (FB). In that case the sale was again to the mortgagee for a sum of less than Rs. 100/- and there was no registered instrument to evidence the same. But after the sale there was mutation in the record of rights in the name of the mortgagee-vendee at the instance of the mortgagor and it was contended that where mortgagee himself is in possession and as such possession cannot be again given to him, a declaration by the mortgagor of the right of the mortgaged to the property is sufficient delivery of possession within the meaning of Section 54 of the Transfer of Property Act. This contention did not find favour with the Bench, which held that what Section 54 contemplates is the transfer of actual possession and not merely a change in the nature of possession.
12. If Section 54 is construed so rigidly the benefit that the legislature wants to confer on the parties in case of sale of properties of smaller value will in a large number of cases become illusory. If oral sale accompanied by delivery of possession is one of the modes in which the sale of tangible immoveable property of the value less than Rs. 100/- can be effected, there appears to be no valid reason why this mode of transfer should not be available, simply because the vendee is already in possession of the property under some legal right on the date of sale provided that the vendor does all that is possible for him to indicate his intention to part with title. This can be done by the vendor making appropriate declarations or by doing such acts as are necessary.
A Bench of the Patna High Court in Pheku Mian v. Syed Ali, (AIR 1937 Pat 178), held that delivery of possession when the property is in possession of the vendee can be made by the vendor making a declaration that thenceforward whatever right he had in the property had been transferred to the vendee, and that would be a sufficient compliance with the provisions of Section 54. In that case certainproperty had been given in usufructuary mortgage. Subsequently the mortgagor sold the property to the mortgagee for value less than Rs. 100/-. No further actual delivery of possession could be or was given. But the mortgagor-vendor got the name of the mortgagee-vendee recorded in the record of rights in respect of the property. It was held that this was sufficient compliance with the provisions of Section 54 of the Transfer of Property Act.
The principle underlying this decision was adopted in a Full Bench decision of that High Court in (AIR 1959 Pat 153). A Bench of this Court in Bihari Padhan v. Daitari Dash, (1959) 25 Cut LT 281, followed the decision of Patna case. A learned Single Judge of the Madras High Court held in Swaminatha Udayar v. Mottaya Padayachi, (AIR 1957 Mad 209), that where property which is the subject of a usufructuary mortgage is sold to the mort-agee in discharge of the mortgage, a direction by the vendor to the vendee to keep the property as absolute owner amounts to delivery of possession, within the meaning of Section 54 of the Transfer of Property Act. A similar question arose before a Bench of the Andhra Pradesh High Court in Venkatasubbamma v. Subbayya, (AIR 1964 Andh Pra 21). That Bench disapproved the view held by the Full Bench of the Allahabad High Court in AIR 1928 All 726 that possession in Section 54 meant actual delivery of possession and relied upon the view expressed in the Full Bench decision of the Patna High Court in AIR 1959 Pat 153.
The learned Judges observed that delivery in Section 54 meant such delivery as the property is capable of. If the animus of the mortgagor to pass title and also possession as owner, is disclosed by appropriate declarations, delivery would be effective within the scope of Section 54. There would be delivery of property within the purview of Section 54 to a usufructuary mortgagee to satisfy the requirement of Section 54. If there is agreement between the parties that after the sale the possession of the mortgagee should be that of an absolute owner and if such intention of the mortgagor was made clear by appropriate acts or declarations. Apart from the fact that the view expressed in the Patna, Madras and Andhra Pradesh High Courts referred to above appears to be reasonable and is one designed to advance the intention behind Section 54, such a view also has been accepter! by a Bench of this Court which is binding on me.
13. The next question is whether there are any circumstances in this case which would show that after defendant No. 1 sold the disputed property to the plaintiff, it was made clear by him by any acts or declarations that thenceforward the possession which the plaintiff had of theproperty as mortgagee, was converted to possession as absolute owner. It is for the determination of this question that one has to refer to the records of the settlement proceedings which have been filed on plaintiffs side. It appears from Exs. 2 and 3 that during the settlement operation which took place round about the year 1962 the land was recorded in the draft records in the name of defendants 1 to 7 with a note that the plaintiff is in illegal possession of the same. The plaintiff then made an application that he had purchased the property and as such the property should be recorded in his name. Defendant No. 1 was noticed and he appeared before the settlement authorities and admitted to have sold the properties to the plaintiff.
The settlement authorities however, refused to record the land in the name of the plaintiff on the ground of absence of a registered sale-deed. We are not here concerned with the reasons why the settle-ment authorities refused to record the plaintiffs name. But it is clear from the records referred to above that defendant No. 1 gave a declaration before the settlement authorities that he had sold the land to the plaintiff and he did not contest that the plaintiff was in possession of the property. Having regard to the fact that the plaintiff was already in possession of the land as usufructuary mortgagee at the time of the sale, this declaration by the defendant No. 1 is sufficient to constitute delivery of possession as contemplated in Section 54 of Transfer of Property Act.
14. In the result the plaintiff would be entitled to a declaration of his title to a half share of the disputed property namely the interest which defendant No. 1 had therein. As the other half share belonging to defendants Nos. 2 to 7 had not been sold to the plaintiff he will not be entitled to the other share. The other half share was sold by defendants Nos. I to 7 to defendants Nos. 8 and 9. Until these two shares are duly partitioned the plaintiff would be entitled to a decree for joint possession with defendants Nos. 8 and 9.
15. I would accordingly allow this appeal in part and declare the plaintiff's title in respect of a half share in the disputed property. The suit land should be enjoyed jointly by the plaintiff and defendants Nos. 8 and 9, the plaintiff having a half share therein and the defendants Nos. 8 and 9 the other half share. In view of the partial success of each party I direct that the parties should bear their own costs throughout.