Rajasthan High Court

Basanti Lal vs Mst. Phaphi And Ors. on 8 May, 2007

Equivalent citations: AIR 2008 Raj 72

Author: B Prasad
Bench: B Prasad

ORDER Bhagwati Prasad, J.

1. Heard learned Counsel for the parties.

2. This appeal is preferred by the appellant against the judgment and decree dated
12-12-1988 passed by the Additional District Judge, Rajsamand, in civil original
No. 10 of 1982.

3. The appellant-plaintiff, in the suit filed by him contended that a house owned
and possessed by the defendant-respondent was mortgaged to him for
consideration of Rs. 10,000/-. The mortgage deed was registered after execution by
the defendant respondent. Yet he had neither parted with the possession nor
permitted the plaintiff appellant to make use of the house. Therefore, it was prayed
in the suit that the plaintiff should be awarded monthly mesne profit, and the
arrears as well.

4. The defendant-respondent contested the suit and submitted that the mortgage
deed was neither for consideration, nor any related action had taken place in
relation to the mortgage, nor has he handed over the possession, because the
plaintiff had promised that he will give Rs. 10,000/- to the defendant-respondent
yet he did not do so and when the defendant-respondent waited for two-three days
and the plaintiff started repudiating the claim, a notice was sent to the plaintiff on
23rd May 1980 that he had not given money. He sent a wrong reply. On 18-5-1980
yet another document of sale was got registered in the name of the brother of the
appellant of the same property. A suit has already been filed to annul that sale
deed. In the background of the defence of the respondent-defendant, it was claimed
that the suit is not liable to be decreed.

5. On the basis of the pleadings of the parties, the following issues were framed.

(Vernacular matter omitted....Ed.

6. In support of the case, the plaintiff examined three witnesses and the respondent
examined four witnesses. After considering the case of both the parties on issue
No. 1, the trial Court came to the conclusion that the consideration for mortgage
was not passed on to the defendant because the witnesses of attestation, and
supporting witnesses had not categorically stated that in their presence money was
paid. Further the trial Court has noticed that within few days of the execution, a
notice was given by the defendant respondent regarding the non-receipt of money
and in this background the trial Court was of the opinion that Annx. 1 mortgage
deed was written without consideration. This has also been observed by the trial
Court on the strength of the statement of the plaintiff himself that possession was
not handed over to the plaintiff though the execution of the document is admitted
but the consideration having not passed, and possession having not been handed
over, it was categorically observed by the trial Court that the mortgage deed was
without consideration. Thus, issue No. 1 was decided against the plaintiff.

7. After having decided issue No. 1 against the plaintiff the trial Court decided
issue No. 2 and held that notwithstanding the fact that since money was not paid
the defendant was not entitled to any title over the property in question.

8. In issue No. 3, the trial Court, however, ordered that if the plaintiff pays a sum
of Rs. 10,000/- then he is entitled to receive the possession. For doing so, one
month's time was granted to the appellant. At the time when the appeal was filed
by the appellants it appears that the appellant has not deposited the money in
question within the time granted to the appellant. A stay order was granted by this
Court on 10-1-1989 staying the operation of the decree. Thus, it appears that it was
not necessary for the appellant to have followed the directions of the trial Court for
the deposit and payment.

9. The learned Counsel for the appellant, arguing the appeal, urged that the finding
regarding possession, though, based on the admission of the appellant, the trial
Court had gone wrong in assuming that payment was not made in cash. The
varying statements of these witnesses cannot be read so seriously against him so as
to discredit the written document Ex. P/1. When the appellant admits the execution
of the document, its contents should be accepted to be true.

10. Per contra, the learned Counsel for the respondent, supporting the findings of
the trial Court, submitted that on 5th May, 1980 a notice was given by the
respondents and that document becomes relevant with the testimony of P.W. 2
Mangilal who says that Rs. 10,000/- were given to the defendant in his presence.

11. P.W. 3 Fateh Lal says that money was not given in his presence. At the time
when he signed, the other signatures had already been made, i.e. Mangilal has been
found to be a contradicting other witness and on this count the trial Court has come
to the conclusion that when the fact of giving possession has been wrongly
recorded, other fact can also be wrongly recorded. The statement of plaintiff has
been taken note of by the trial Court wherein it is stated that the defendant was
with him when the stamps were purchased and in the next breath he says that he
was not with him.

12. Thus, after considering the entire tenor of the evidence, the trial Court has
held that the document was without consideration.

13. I have examined the arguments advanced by the learned Counsel and has read
the evidence of the witness.

14. The facts of passing on of the money has not been denied by any of the
witness, including the plaintiff. The manner and execution of the document has
also been stated in the statement of the witnesses of the plaintiff. A notice was
given by defendant-respondent forthwith, alleging that the money was not paid and
in that background the findings of the trial Court are not liable to be disturbed,
more particularly when the plaintiff himself admitted that the possession was not
handed over and it was only in that light that such events are written in the
document as routine and, therefore, it was very important aspect that the handing
over of the possession has been wrongly recorded. And in that background, the
finding of the trial Court on issue No. 1 are not liable to be disturbed.

15. Arguing on the findings on issue No. 2, the learned Counsel for the appellant
stated that in case the appellant has not paid the consideration, the defendant can
ask for consideration and after paying the consideration he can have possession of
the property. He has cited in support of his case a case decided by the Hoh'ble
Supreme Court in the matter of Vidyadhar v. Manikrao wherein the Hon'ble
Supreme Court has observed that the actual payment of full price at the time of
execution of sale deed is not a sine qua non for completion of sale. Real test is the
intention of the parties in execution of the document.

16. The learned Counsel for the appellant has further relied on a Supreme Court
decision decided in the matter of State of Kerala v. Cochin Chemical Refineries
Ltd. AIR 1968 SC 1861, wherein the Hon'ble Supreme Court has held as under:

A transaction of mortgage formally executed does not become void or ineffective

merely because the mortgagee fails to advance the amount of money undertaken to
be advanced by him. If without advancing the amount agreed to be advanced, he
sues on the title created under the deed of mortgage, the Court will not award him a
decree for anything more than what he has advanced. But that is not to say that the
mortgage is invalid.

17. The learned Counsel claimed that the transactions had not become invalid.

18. The learned Counsel for the respondent, per contra, contended that when
the possession was not handed over and money was not given the real
intention of the parties was not as has been canvassed and claimed by the
plaintiff. The document was a mere sham and in any case, in a case where
possession was not handed over, in the words of Hon'ble Supreme Court, as
quoted herein above in the case of State of Kerala (supra), the only thing
which can be asked for is what had been given by the mortgagee. The
mortgagee had not passed on the consideration in this case, as has been found
by the trial Court and, therefore, he cannot ask for the relief which he is
seeking.

20. As per Hon'ble Supreme Court, the plaintiff could, at best, ask for what he
had given to the defendant. The possession was not handed over to him. In
view of the law laid down by the Hon'ble Supreme Court, herein above in the
case of State of Kerala (supra), he could not have asked for more than what he
had given. He had not given money and therefore, he was not entitled to any
relief. Finding on issue No. 2 is liable to be corrected to that extent that since
he had not given money he could not have asked for anything. This Court is
conscious that this findings is being altered on the basis of the Hon'ble
Supreme Court decision given in the case of State of Kerala (supra).

21. The relief could be granted only if he had given money. Since he had not given
anything, no decree could have been granted in his favour for anything more than
what he had given and such findings can be recorded by this Court in view of the
provisions of CPC as contained in Order 41, Rule 33.

22. The learned Counsel for the appellant drew the attention of the Court towards
Order 41, Rule 22, but as the law has been discussed by this Court, in the aforesaid
paras, the decree in favour of the appellant could not be sustained and relief as
granted cannot be granted. In that view of the matter, the appeal fails and also the
suit of the appellant fails because he was not entitled to any relief and the suit
deserves to be dismissed.

23. In the result, the appeal and the suit of the appellant is dismissed with no orders
as to costs.
issues advanced

1) Whether the mortgage is effective before the payment of

consideration?
It is humble submitted to the court by the counsel for the appellant that mortgage is
not effective before the payment of consideration.

As per section 58(a) of TPA :---- A mortgage is the transfer of an interest in

specific immoveable property for the purpose of securing the payment of money
advanced or to be advanced by way of loan, an existing or future debt, or the
performance of an engagement which may give rise to a pecuniary liability. The
transferor is called a mortgagor, the transferee a mortgagee; the principal money
and interest of which payment is secured for the time being are called the
mortgage-money, and the instrument (if any) by which the transfer is effected is
called a mortgage-deed.

Therefore as defined in this section the property being transferred must carry as
definite interest specifically for mortgage. thus this intrest invovles a purpose of
securing the "Advanced payment for money".

AP means it is a type of payment made ahead of its normal schedule such as

paying for a good or service before you actually receive it.

in the case the consideration amount was 13 lakh but anyhow only 4 lakh ism paid
to Mohan, moot prep is silent on that the amount was principal amount or not,
hence there is no advance payment of money before reg. or immediately aftr regd.
thus some of the amount was recived and not the whole amount thus if no
consideration, the mortgage is VOID.

Related case Bansti lal v Mrs Phaphi (Document 1 Highlighted part) It is clear
from the facts of the case that actual amount paid is less than the consideration till
the sale of property. thus missing the elements of mortgage hence mortgage bind is
ineffective.