SECOND APPEAL 4/1882 on 28 August 1985

Issues

RSA No.2585 of 1985 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH

RSA No.2585 of 1985 (O&M)

Date of decision:22.03.2011.

Khuda Bux

Versus

...Appellant

Sukhan Ram

...Respondent

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN

Present:Mr. M.L.Sarin, Senior Advocate, with Ms. Alka Sarin, Advocate, for the appellant.

None for the respondent.

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RAKESH KUMAR JAIN, J.

The sole substantial question of law involved in this appeal is as to“whether oral mortgage is permissible in the State of Haryana since theprovisions of Section 59 of the Transfer of Property Act, 1882 [for short “theAct”] are extended vide notification No.S.O.75/C.A.4/1882/S.1/67 dated05.08.1967?”

The defendant is in second appeal against judgment and decree ofthe learned First Appellate Court by which judgment and decree of the learnedTrial Court has been reversed and the suit filed by the plaintiff has beendecreed.

In brief, the plaintiff filed a suit for permanent injunction allegingtherein that he is in possession of the suit land as Gair Mourusi Bawajah RehanJabani for a sum of `11,500/- and is in its cultivating possession since 1981.He sought permanent injunction on the ground that the defendant is threateningto take forcible possession. In the written statement, the allegation of theplaintiff of advancing `11,500/- as mortgage money to the defendant wasdenied. It was also denied that the plaintiff is in possession, rather it wasalleged that he had got recorded an illegal entry in the Khasra Girdawari in collusion with the revenue authorities on the basis of which the present suit hasbeen filed. The plaintiff filed replication. On the pleadings of the parties, thefollowing issues were framed: - “1.Whether the plaintiff is in permissivepossession of the suit land?OPP.possession of the suit land?OPP.

2. Whether the suit land has been mortgaged withthe plaintiff by the defendant orally forconsideration of `11,500/- if so to whateffect?OPP.the plaintiff by the defendant orally forconsideration of `11,500/- if so to whateffect?OPP.

3. Whether the suit is not maintainable in thepresent form?OPD.present form?OPD.

4. Relief.”

The learned Trial Court, vide its judgment and decree dated29.08.1983, dismissed the suit of the plaintiff on the ground that he has failed toprove his possession over the land in dispute. The learned First AppellateCourt, however, allowed the appeal vide its judgment and decree dated10.08.1985 and granted injunction restraining the defendant from interfering inpossession of the plaintiff except in due course of law.

Aggrieved against the judgment and decree of the learned FirstAppellate Court, the present appeal has been filed in which notice of motionwas issued on 28.08.1985 and status quo regarding possession was ordered tobe maintained. On 19.11.1985, the appeal was admitted, however, the statusquo order was vacated. The defendant/appellant then filed CM No.1353-C of1986, in which the following order was passed on 24.09.1986: - “The learned counsel for the appellant states that it isagreed that the appellant shall deposit an amount ofRs.1,500/-, the alleged mortgage money, in the trialCourt within two weeks and the respondent shall beentitled to withdraw the amount on furnishing securityto the satisfaction of the Executing Court forrestitution of the amount in case the appeal isaccepted. It is also agreed that the respondent, in case the amount is deposited by the appellant, shallnot be entitled to possession of the property till thedecision of the appeal. In view of the agreed orderthe appellant does not press the petition.”

However, the defendant/appellant did not receive the intimationabout the order dated 24.09.1986 and could not deposit the amount of `11,500/-and hence, he filed another CM No.3405-C of 1986, in which the followingorder was passed on 21.01.1987: -

Arguments

“After hearing the learned counsel I condone thedelay in depositing the amount. Now the applicantmay deposit the amount in the trial Court within threeweeks. Sukhan Ram respondent will be entitled towithdraw the amount in terms of the order dated 24[th]September, 1986. Civil Misc. is disposed ofaccordingly.”

Learned counsel for the appellant has argued that the entire case ofthe plaintiff is that he is in permissive possession of the disputed property onthe basis of an oral mortgage against a sum of `11,500/- and the learned FirstAppellate Court had also observed that “such oral mortgages are notuncommon in India”. It is submitted by learned counsel for the appellant thatoral mortgage in Haryana is not permissible after 05.08.1967. He submits thatif the principal money secured involved in a mortgage is `100/- or upwards, themortgage can be effected only by a registered instrument signed by themortgagor and attested by at least two witnesses and where principal moneysecured is less than `100/-, the mortgage can be by way of delivery of theproperty. In this regard, he has referred to the provisions of Section 59 of theAct, which reads as under: - “59. Mortgage when to be by assurance.-- Wherethe principal money secured is one hundred rupees orupwards, a mortgage [other than a mortgage bydeposit of title deeds] can be effected only by aregistered instrument signed by the mortgagor and attested by at least two witnesses.

Where the principal money secured is less thanone hundred rupees, a mortgage may be effectedeither by [a registered instrument] signed andattested as aforesaid or (except in the case of asimple mortgage) by delivery of the property.”

He has further submitted that before 05.08.1967, oral mortgagewas in vogue in the State of Haryana as the provisions of Section 59 werenotapplicablebutaftertheissuanceofnotificationNo. No.S.O.75/C.A.4/1882/S.1/67 dated 05.08.1967, the oral mortgage in theState of Haryana is not permissible because Section 59 of the Act has beenextended to the State of Haryana. The aforesaid notification reads as under: - “PART III

REVENUE DEPARTMENT

Notification

The 5[th] August, 1967

No.S.O.75/C.A.4/1882/S.1/67. -- In exercise ofthe powers conferred by section 1 of the Transfer ofProperty Act, 1882 [Central Act No.4 of 1882), theGovernor of Haryana is pleased to extend theprovisions of Section 59 of the said act to the State ofHaryana with effect from the date of publication ofthis notification in the Official Gazette.

B.S.GREWAL,

Financial Commissioner, Revenue and Secretary to Government, Haryana, Revenue Department.”

Learned counsel for the appellant has also relied upon a decision of this Court in the case ofAmar Singh and another Vs. Dalip Singh,1991 PLJ469, in which it has been held that after the extension of Section 59 of the Actto the State of Haryana, no oral mortgage could be created.

No-one has appeared on behalf of the respondent to contest theappeal, but despite that I am fully satisfied with the argument raised by learned

counsel for the appellant that after the extension of Section 59 of the Act to theState of Haryana in terms of the aforesaid notification and in view of thedecision of this Court in the case of Amar Singh and another (supra), the oralmortgage in the State of Haryana is not permissible after 05.08.1967 and sincein the present case, the plea of oral mortgage is being taken after 05.08.1967 inrespect of the secured amount of more than `100/-, the plaintiff cannot claimpermissive possession. As a matter of fact, whole case of the plaintiff that hehas been given possession by the defendant by way of oral mortgage collapseslike a pack of cards.

Thus, the sole substantial question of law, framed in the beginningof the judgment, is answered in favour of the defendant/appellant and in viewthereof, the present appeal is hereby allowed and the impugned judgment anddecree of the learned First Appellate Court is set aside and that of the learnedTrial Court is hereby restored.

In the given facts and circumstances, the parties to the suit aredirected to bear their own costs.

March 22, 2010. vinod*

(RAKESH KUMAR JAIN)JUDGE