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HANSIA V. BAKHTAWARMAL AIR 1958 RAJ. 102 (OVERRULED)

 HANSIA V. BAKHTAWARMAL AIR 1958 RAJ. 102 (OVERRULED)

FACT

  • Plaintiffs, Respondent Nos. 1 and 2, claimed that their father and uncle mortgaged a house in village Sawrad with Sobha, Tiloka, and Bhoma, who were predecessors-in-title of the defendants, for Rs. 209/- in Samwat 1967.
  • The mortgage was to be redeemed after 31 years. Upon seeking redemption after the expiry, defendants refused to accept payment and hand over possession.
  • Plaintiffs filed a suit for redemption against the defendants. Two defendants, Bhania and Benia, admitted the claim, while the other two, Hansia and Achalia,(Defendants) contested it.
  • Defendants contested the suit, arguing the mortgage deed was unregistered and thus inadmissible in evidence.
  • The suit was solely for redemption, seeking possession of the disputed house based on the mortgage of Samwat 1967
  • The trial court held that the mortgage in question was based on an unregistered mortgage-deed, making it inadmissible in evidence.
  • First appeal in favour of plaintiffs, and a preliminary decree for redemption was passed in their favour as the appellate court allowed the use of the unregistered mortgage deed to determine the interest amount prescribed by the defendants.
  • Hence, the present second appeal before division bench HC.

ISSUE

  • Whether a suit for redemption can be maintained based on an unregistered mortgage deed.
  • Whether possession by the mortgagee for over twelve years converts the invalid mortgage into a valid one.

RULE

  • Under the Marwar Registration Act and the Transfer of Property Act, S.59 court determined that an unregistered mortgage deed is inadmissible in evidence.
  • Possession under an invalid mortgage does not confer a valid mortgagee status or the right to redeem.

HELD

  • In Purusottam Das v. S. M. Desouza [AIR 1950 Ori. 213], if the person has been in possession for over twelve years, the right of the mortgagor under the invalid mortgage to recover back possession of the limited interest without payment is extinguished and the mortgagee under the invalid mortgage becomes a full-fledged mortgagee as if the mortgage was valid and must be redeemed.
  • The court disagreed with Purusottam Das's judgments that suggested adverse possession i.e., 12 years could convert an invalid mortgage into a valid one.
  • In Ma Kyi v. Maung Thon [AIR 1935 Rang 230 (FB)], the Rangoon High Court held that where a usufructuary mortgage for over Rs. 100/- is not registered, a suit by the owner for 3 the possession of the property on redemption is not competent.
  • It emphasized that a suit for redemption cannot be equated with a suit for possession as a suit for redemption, the limitation is sixty years; in a suit for possession, it is only twelve years.
  • We do not think in such a suit it would be right after so many years to permit the plaintiff to amend the plaint and convert it into a suit for possession. In the present case, the plaint was a pure and simple plaint in a suit for redemption.
  • The court dismissed the suit for redemption, stating that the plaintiffs must file a separate suit for possession based on title.
  • It clarified that the suit cannot be amended into a suit for possession after a long period and that each case must be considered on its merits.

 

THE ABOVE CASE IS OVERRULED BY LACHHMI NARAIN AND ORS. VS. KALYAN AND ORS. (31.07.1959 - RAJHC): MANU/RH/0001/1960

EXTRACT –

“We fail to see how Section 59 is nullified if any right is acquired by operation of law. If the view suggested in Hansia's case, ILR (1958) 8 Raj 126: (MANU/RH/0032/1958 : AIR 1958 Raj 102), be the correct one, then there can be no acquisition of rights' in immovable property, except under the provisions of the Transfer of Property Act. With great respect it may be submitted that this is not the correct view. Take the case of an unregistered sale deed. If the so-called vendor has parted with the possession of the property, the vendee acquires full right of ownership by the operation of the law of Limitation after 12 years from the date when he came into the possession. Section 54 of the Transfer of Property Act which provides that in a case of tangible immovable property of the value of Rs. 100/- and upwards the sale can be made only by a registered instrument, is not nullified because the ownership has been transferred on account of the Law of Limitation.

Though there is no sale in the eye of law at the time when the transaction took place, yet there is a transfer of ownership of property later on by operation of Law of Limitation. Thus, we do not think that the provisions of the Transfer of Property Act are in any way affected on account of the acquisition of rights by prescription.”

HELD-

  1. Hansia's case suggested that unregistered mortgage deeds are inoperative under Section 49. The court countered this by stating that while such documents cannot affect immovable property or serve as evidence of a transaction, they can still be used to demonstrate the character and nature of possession.
  2. Hansia's case argued that Article 144 does not apply to mortgages invalid from inception. However, the court disagreed, asserting that the loss of interest in immovable property can occur through various means, including trespass, and the right to recover possession exists regardless of a valid transaction.
  3. Hansia's case contended that tenancies and mortgages cannot arise through prescription. The court disagreed, citing Supreme Court precedents and asserting that the law can create relationships such as mortgagor and mortgagee by operation of law.