S.N. Dwivedi, J.@mdashIn this case, the Plaintiff appeals to this Court in the following circumstance:
2. One Raghurai Pandey made a usufruc tuary mortgage of the suit property in favour of Baldeo Pandey, the Defendant Respondent, by a mortgage deed, dated 8-1-1923. Raghurai Pandev, the mortgagor, sold the equity of redemption to the Plaintiff Appellant for Rs. 500 by a registered sale deed dated 25-5-1927. Out of the sale consideration, a sum of Rs. 190 was left with the Plaintiff by the mortgagor for payment to the Defendant mortgagee towards the mortgage debt. It is said tint the Plaintiff tendered the amount of Rs. 190 to Defendant towards the mortgage debt as required by Section 83 of the Transfer of Property Act, but the Defendant refused to accept the amount and that on his refusal the Plaintiff was obliged to file the suit, out of which, this appeal has arisen, for the redemption of the mortgage and for recovery of possession of the mortgaged property.
3. Baldeo Pandey, the Defendant Respondent, contested the claim of the Plaintiff and filed a written statement. It was admitted that Ragburai Pandey had mortgaged the suit property in favour of the Defendant but it was alleged that by an unregistered sale deed dated 18-2-1927 Raghurai Pandey, the mortgagor, had sold the equity of redemption to the Defendant mortgagee for a sum of Rs. 50 so that the mortgage did not subsist on the date of the institution of the suit. There were various other pleas, but we are not concerned with them in this appeal.
4. The learned Munsif held that the Plaintiff was the owner of the equity of redemption in the suit property by virtue of the sale deed dated 26 5 1927 in his favour. It was further held by the learned Munsif that the sale deed dated 18-2-1927 was not a registered sale deed and it could not, therefore, transfer the mortgagor''s equity of redemption in the suit property to the Defendant. In spite of the said sale deed, the Defendant remained a mortgagee and the mortgage was liable to be redeemed at the suit of the Plaintiff. The learned Munsif, accordingly, decreed the claim of the Plaintiff'' and thereupon the Defendant filed an appeal against the judgment and decree of the learned Munsif.
5. Relying upon the decision in Sohan Lal v. Mohan Lal ILR 50 All. 986 (FB) the lower appellate court held that although the sale deed in favour of the Defendant was an unregistered document, it could still be seen for ascertaining the nature of the Defendant''s possession over the suit property According to the lower appellate court, the possession of the Defendant becomes adverse to the mortgagor from the date of the execution of the unregistered sale-deed and since the Defendant had been in adverse possession for more than twelve years, he had prescribed for the owner''s title over the suit property and the Plaintiff was therefore, not entitled to redeem the property.
6. The lower appellate court has allowed the Defendant''s appeal and set aside the judgment and decree of the learned Munsif and dismissed the Plaintiff''s suit.
7. Aggrieved by the judgment and decree of the lower appellate court, the Plaintiff has preferred the present appeal to this Court. At first the appeal was put up for hearing before a learned Single Judge of this Court who, having regard to the importance of the question involved in the appeal, has referred the same to a Division Bench and hence this appeal has now come up before us for decision.
8. Sohan Lal''s case ILR 50 All. 986 (FB) formulated four rule?--(1) Where an immoveable property is in possession of the usufructuary mortgagee and the mortgagor proposes to sell the equity of redemption to the mortgagee, the sale can be effected only by a registered instrument; (2) An unregistered sale deed transferring equity of redemption of the value of less than Rs. 100/- to the mortgagee in possession is ineffective on account, of the provisions of Section 54 of the Transfer of Property Act; (3) Section 49, Registration Act does not apply to documents which are required to be registered u/s 14, Transfer of Property Act; (4) Since Section 49. Registration Act is inapplicable to a document mentioned in Rule (2) above, it is admissible in evidence and it can be seen to ascertain the nature of possession of the mortgagee from the date of its execution.
9. On the strength of Rule (4), it was held in that case that the unregistered sale deed converted the permissive possession of the mortgagee into adverse possession from the date of its execution and that the mortgagee, having remained in adverse possession of the vended property for over twelve years, had prescribed for the full owner''s title to the property and the mortgage was extinguished.
10. The first two rules in Sohan Lal''s case ILR 50 All. 986 (FB) still retain their weight and authority and we are bound to follow them. Relying upon those rules we would hold that the unregistered sale deed dated 18-2-1927 did not pass the equity of redemption to the Defendant. But it seems to us that Rules (3) and (4) have lost their vitality and are no more binding on us. Transfer of Property (Amendment) Act No. XXI of 1929 which was enforced from 1-4-1930, amended Section 49, Registration Act and made it applicable to all documents which are required to be registered "by any provision of the Transfer of Property Act, 1882." In consequence of this amendment the unregistered sale deed in favour of the Defendant was not admissible in evidence. We are not unconscious of the fact that the unregistered sale deed had been executed much before the commencement of the amending Act, but the general principle is that parties are governed by the procedural law as it stands at the date of the institution of the suit.
11. Notwithstanding the above said amendment in law it has still to be considered whether the unregistered sale deed in favour of the Defendant can be seen for the collatoral purpose of explaining the nature of Defendant''s possession over the suit property after the date of its execution. In other words, can this document be seen for changing the permissive possession of the Defendant into his adverse possession from the date of its execution?
12. In
...the Court cannot receive Ex. V (gift deed) in evidence to prove a gift and then infer that the Defendant''s possession was adverse and justify its acceptance of Ex. V on the ground that it confines itself to the inference and is not concerned with the fact of the gift. Because the inference is only based upon the fact and if the fact cannot be proved by the unregistered instrument, nothing can be proved on which to found an inference. In James R.R. Skinner v. R.M. Skinner and Ors. AIR 1929 P.C. 269 the Privy Council, while dealing with an unregistered sale deed, evidencing sale of immoveable property valued above Rs. 100/- observed that it cannot be used in any legal proceedings to bring about indirectly the effect which it would have had if registered.
13. Lastly, in
It is then said that the agreement of 6-2-1932, showed that since its date her possession was permissive. The High Court has held that the agreement was admissible to prove the nature of her possession. In Varada Pillai v. Jeevanathnammal AIR 1919 SC 44 it was held that a document which should have been registered but was not, was admissible to explain the nature of the possession of a person. What had happened there was that two widows who were in possession of a property in equal shares, presented a petition to the Collector on 10 10-1895, whereby after reciting that they had on 8-10-1895, given away the property as stridhan to one Duraisani, they prayed that orders might be passed for transferring villages into her name. On this petition the property was registered in the name of Duraisani and she was put in possession and thereafter continued in possession till her death in 1911. The question was whether Duraisani had acquired title to the property by adverse possession. It was held that though the petition in the absence of registration could not be admitted to prove a gift, it might be referred to for showing that the subsequent possession of Duraisani was as a donee and owner of the land and not as trustee or manager for the two donors and therefore to show that the nature of such possession was adverse to them. We cannot agree that on the authority of Varada Pillai''s case AIR 1919 PC 44, the agreement of 6-2-1932, can be admitted in evidence in the case in hand to show the nature of Harnam Kaur''s possession of the land subsequent to its date. In Varada Piilai''s Case AIR 1919 PC 44 Duraisani had got into possession only after the petit ion and claimed to retain possession only under the gift mentioned in it. The petition was therefore admissible in evidence to show the nature of her possession. In the present case Harnam Kaur had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and therofore, to give effect to the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49 of the registration Act.
14. In view of the above decisions, we are of the view that the unregistered sale deed in the present case cannot be seen to ascertain the nature of Defendant''s possession over the disputed property. The case at hand is undoubtedly converse to
15. To sum up, our view is that the unregistered sale deed is entirely inadmissible u/s 49 of the Registration Act and cannot be seen even for the limited purpose of showing that the Defendant''s possession became adverse from the date of its execution. The result is that the Defendant must be held to be the mortgage, of the disputed property and the Plaintiff is entitled to redeem the mortgage.
16. Learned Counsel for the Defendant has also contended that the Defendant mortgagee had been in adverse possession over the suit property for more than twelve years and had prescribed for the full owner''s title against the Plaintiff. For the purpose of this argument, he relied upon the finding of the lower appellate court to the effect that the Defendant mortgagee had been in adverse possession over the suit property for more than twelve years and has perfected the full owner''s title to the suit property. Ordinarily a finding of fact recorded by the lower appellate court is binding in second appeal but in this case we think we can go behind the finding. The Defendant had not set up a plea in the written statement that he had been in adverse possession over the suit property for more than twelve years arid had prescribed for the full owner''s title to the suit property. Further, no issue regarding the nature of the Defendant''s possession was framed by the trial court, so that the trial court was not invited to give a finding on that question. Again, the finding of the lower appellate court as regards the Defendant''s adverse possession is not based upon any piece of evidence direct or circumstantial but it rested solely upon the fact that the mortgagor had executed an unregistered sale deed in favour of the mortgagee and from that date, in the opinion of the lower appellate court, the possession of the Defendant mortgagee became adverse. We have already stated that the unregistered sale deed cannot be seen in this case for ascertaining the nature of the Defendant mortgagee''s possession over the suit property. Now if that document is excluded from consideration, as it should be, then there remains no evidence on the record of this case to support the finding of the lower appellate court regarding the Defendant''s adverse possession. It appears from the judgment of the trial court that the name of the Defendant mortgagee continued to be recorded in the village papers over the suit property as mortgagee even after the execution of the unregistered sale deed and this fact would indicate that the Defendant mortgagee did not at least openly, assert an adverse title against the Plaintiff. We asked learned Counsel for the Defendant to refer us to any piece of evidence on the record to support the finding of the lower appellate court regarding his adverse possession and he was unable to point out any evidence from the record in support of the finding. Our attention was invited to the statement of Baldeo Pandey, Defendant mortgagee, DW 1 to the effect that after the execution of the unregistered sale deed, the nature of his possession over the disputed property was that of an owner. A mere statement of the Defendant who is an interested party, that his possession, after the execution of the unregistered sale deed, was that of an owner, would not make his possession adverse to the Plaintiff. In a case like the present, the evidence should establish that the Defendant did some thing to the knowledge of the Plaintiff which amounted to an open assertion of hostile title to the property. There being no evidence to support the finding of the lower appellate court regarding the Defendant''s adverse possession, its finding is perverse and arbitrary and not binding upon us in second appeal. We would therefore, hold that the Defendant''s possession has not been proved to be adverse to the Plaintiff and the relationship of mortgagor and mortgagee continues to exist between the Plaintiff and the Defendant. In the result, the judgment and decree of the lower appellate court are clearly erroneous and are liable to be set aside.
17. Accordingly, we allow this appeal, set aside the judgment and decree of the lower appellate court and restore the decree of the trial court with costs throughout. The Plaintiff is, given three months to deposit Rs. 190 in the trial court for payment to the Defendant.
