(1) This is a plaintiff's appeal against the decree of the Subordinate Judge. 1st Class, Barnala dismissing his suit for the recovery of Rs. 6,000/-.
(2) According to the allegations of Kehar Singh, plaintiff, Jeon Singh defendant, owed him Rs. 5,400/- and in lieu thereof on 14-3-1955 he mortgaged his land measuring 37 bighas and 17 biswas with possession with the plaintiff for Rs. 6,000 after having received Rs. 600 in cash from him by an unregistered deed, exhibit P. D. On 15-3-1955 the defendant got a report regarding this mortgage entered in the roznamcha of the Patwari, which bore the thumb-marks of both the plaintiff and the defendant. The defendant failed to give possession of the land to the plaintiff after the execution and completion of the deed and he also did not get the mutation sanctioned. He did not even return the amount of Rs. 6,000/- to the plaintiff, which necessitated the filing of the Present suit for its recovery.
(3) The suit resisted by the defendant, who controverted all the allegations made by the plaintiff. He pleaded that neither he owed any debt to the plaintiff nor did he execute any mortgage-deed in his favour. According to him, if any deed was proved to have been executed, the same was without consideration.
(4) On the pleadings of the parties, the following issues were framed:--
1. Whether the defendant had executed mortgage-deed for Rs. 6,000/- on 14-3-1955 in favour of the plaintiff, but had failed to deliver possession of the property mortgaged?
2. Whether the transaction of mortgage was without consideration?
The trial Judge came to the conclusion that the document, Exhibit P. D., had been executed by the defendant, who had failed to prove that it was without consideration. He also found that the defendant had not delivered possession of the land mentioned in the deed to the plaintiff. He, however, came to the conclusion that since this deed was unregistered, it was inadmissible in evidence for proving the mortgage transaction as well as the consideration mentioned therein. He further found that the plaintiff had not filed the suit on the original advances made by him, but had based it on this document alone. In the document in question, according to the learned Judge, there was no personal covenant by the mortgagor to pay the mortgage money and the plaintiff could not sue for the refund of the same under section 68 of the Transfer of Property Act, 1882. On these findings, the suit was dismissed. Against this decree, the present appeal has been filed by the plaintiff.
(5) During the pendency of the appeal in this Court, Kehar Singh, appellant, died on 6-12-1959 An application for bringing his legal representatives on the record was filed on 15-3-1960, that is about 9 days after the prescribed period of limitation (vide Civil Miscellaneous No. 445/C of 1960). It was stated in the application that Kehar Singh died suddenly in the way while he was coming from village Dhanaula to his own village Kattoo and there was no opportunity for him to convey any information regarding this appeal to his legal representatives. It was further stated that the said legal representatives were not aware of the pendency of this appeal in this Court and they came to know about the same for the first time on 12-3-1960, when they received letter addressed to Kehar Singh from his counsel at Chandigarh, demanding the balance of his fee as well as the fee of the junior counsel. Under these circumstances we feel that there was sufficient cause for the delay in filing this application, which is hereby condoned.
(6) Coming to the merits of the appeal, the sole question for determination is whether in the present case the plaintiff is entitled to the refund of Rs. 6,000/-, which have been proved to have been paid to the defendant at the time of the execution of the time of the execution of the document, Exhibit P. D.
(7) It has been found that though it was mentioned in this deed that the property had been mortgaged with possession, the possession, as a matter of fact, was not given to the plaintiff. In this situation, the present document being a usufructuary mortgage, the case would be covered by the provisions of section 68(1)(d) of the Transfer of Property Act, 1882, which are as under:--
'S. 68(1) The mortgagee has a right to sue for the mortgage-money in the following cases and no others namely:
(d) where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor.
In Ram Narayan Singh v. Adhindra Nath, ILR 44 Cal 388 : (AIR 1916 PC 119), it was decided by their Lordships of the Privy Council-
The question for determination on this appeal was whether the respondents (mortgagees) were entitled to recover from the appellant (mortgagor) the balance due on a usufructuary mortgage dated 14th April, 1896, Where it was alleged that they had been deprived of part of their security by the wrongful acts of the mortgagor. It had been calculated that the amount borrowed, with interest, would be paid off by the rents of the properties mortgaged, on 14th January, 1903, when they were to be returned to the mortgagor. Both parties acted on the deed, but on the date mentioned it was found that the mortgagee in possession had not by the collection of the rents received sufficient to discharge the principal of the loan with interest as mentioned in the deed. In a suit brought by the mortgagee on 13th January, 1909 the deficiency was attributed in paragraphs 6 and 7 of the plaint to the facts that the defendant (mortgagor) had taken rents which should have gone to the mortgagee, but which had not the rents in some cases were less than those mentioned in the deed, and those were wrongful acts complained of. The claim was for a mortgage decree under Order 34, Rule 4 of the Civil procedure Code, 1908, or in the alternative for a decree for the amount due on the footing of the personal liability of the mortgagor. In the course of the suit it appeared that the mortgage deed had not been attested and the Subordinate Judge held that it could not having regard to section 59 of the Transfer of Property Act (4 of 1882) be enforced as a mortgage, which decision as it was not appealed from become final. The sole question, therefore, was whether the mortgagor was personally liable. The facts on which the alienations of wrongful acts by the mortgagor were based were not investigated, but both Courts in India held that on the construction of the deed it imposed a personal liability on the mortgagor and they made decree in his favour.
Held (reversing those decisions), that the nature and terms of the deed were such as to show that it was not originally intended that the mortgagor should be personally liable. The respondent ought to be given an opportunity of proving the allegations in paragraphs 6 and 7 of the plaint and of establishing that those facts were sufficient to bring section 68 of the Transfer of Property Act into operation. The position of the mortgagor under that section could not, however by reason of the deed, be better than it would have been if the mortgage had been duly attested. The case was for that purpose remitted to India for further trial.'
The mortgage in the Privy Council decision, cited above was a usufructuary one and in the deed there was no personal liability of the mortgagor to repay the mortgage amount and the same being unattested could not be enforced as a mortgage by virtue of the provisions of section 59 of the Transfer of Act, 1882. Under these circumstances, their Lordship of the privy Council were to the opinion that the mortgagee ought to be given an opportunity of proving the allegations of paragraphs 6 and 7 of their plaint and of establishing that those facts were sufficient to brig section 68 of the Transfer of Property Act into operation. In other words, if they could succeed in proving those allegations, they would be entitled to the amount claimed by them.
In the present case, Exhibit P. D. was unregistered and there was no term in the deed that the mortgagor would be personally liable for the mortgage amount. But since the mortgagee had been able to establish that though he was entitled to the possession of the mortgaged property, the mortgagor had failed to deliver the same to him, he could, under the provisions of section 68(1)(d) of the Transfer of Property Act, sue for the return of the mortgage Money, which had been found to have been paid to him. I may make it clear that I am basing my decision entirely on the authority of the Privy Council mentioned above. The contrary view taken in Kesari Ram v. Musafir Tewari, AIR 1937 All 711, and referred to in the judgment of the lower court, has not noticed the Privy Council decision cited above. Wadhawa Singh v. Kunj Lal, AIR 1938 Lah 497 mentioned by the Court below has also not considered the Privy Council judgment, referred to above.
(8) Following the Privy Council decision, I accept this appeal set aside the judgment and decree of the trial Court and decree the plaintiff's suit. Since the respondents is not represented before us, we will make to order as to costs in this Court.