GOHEL DHULABHAI KALLUBHAI Vs. GOHEL MABHAI HIMATSING
HIGH COURT OF GUJARAT
GOHEL DHULABHAI KALUBHAI
GOHEL MABHAI HIMATSING
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(1.)This is a second appeal by the original defendant against the judgment and decree in appeal of the learned District Judge of Panch Mahals at Godhra in a suit filed by the respondent for the redemption of the suit property which was in the possession of the defendant usufructuary mortgagee. The property is land 5. No. 67/3 in Barkrol village. The admitted facts are that there were three mortgages in respect of the said property in favour of the same mortgagee. namely the appellant. The first is a usufructuary mortgage dated 10-2-1944 for Rs. 999/in which the period was fixed at seven years. The second is a mortgage dated 6-3-1946 for Rs. 200 It is termed as an additional possessory mortgage and it fixed the period at seven years. The third is also an additional possessory mortgage dated 12-12-1947 for Rs. 250/and it fixed the period of fifteen years The first Court held that the plaintiff was not entitled to possession dated 10-2-1944 but it held that the plaintiff was not entitled to possession as there are two other subsequent mortgages dated 6-546 and 12-12-47 for Rs. 200/and Rs. 250/respectively. In appeal the learned District Judge held that the plaintiff is entitled to redeem the suit property on payment of Rs. 999.00; he also ordered that the defendant should deliver to the plaintiff quiet and peaceable possession of the suit property after the amount of Rs. 999 has been deposited. He held that the second and third mortgages were merely mortgages of equity of redemption. He also held that the intention of the parties was to keep their rights under the suit mortgage in tact and that therefore the mortgagor was entitled to get possession of the property after the first mortgage bond had been redeemed and that the second and the third mortgage deeds did not affect the mortgagors right to obtain possession of the property.
(2.)In second appeal it is contended that the order of the learned District Judge in first appeal ordering deft. to deliver possession of the property to the plaintiff. is erroneous. I allow this appeal for the following reasons: It is an admitted fact that the first document (Ex. 33) for Rs. 999/dated 10 is a usufructuary mortgage of the land in question namely Survey No. 387/3 in village Bakrol. The controversy between the parties however relates to the interpretation of the second and third documents. On a careful perusal of these two documents it is clear that these two documents are additional possessory mortgages. The second document (Ex. 34) dated 6-5-46 contains the words *** *** These words clearly show that the usufructuary mortgage of 1944 was kept in tact and was unaffected by the second mortgage. They also show that an additional possessory mortgage was given by the second document With reference to the words *** it is argued that these words show that what executed was a mortgage of the equity of redemption. The document clearly mentions the time as seven years and also provides that the interest will be paid on the additional amount advanced namely Rs. 200 It also provides that the transferee should pay the assessment and should take income from the land instead of playing interest. The word *** in my opinion does not mean equity of redemption. The words *** would only mean that the security imposed by the first document is augmented by the second document. The same remarks apply to the interpretation of the third document (Ex. 32). It also contains the words *** These words clearly show that additional possessory mortgage was created by the third document. In my opinion the learned District Judge was wrong in interpreting the words *** and *** as referring to equity of redemption. Both these words refer to the additional security given to the mortgagee. A mortgage is a transfer of an interest in specific immovable property. A second mortgage means a second transfer of interest. If what is transferred by the second document is equity of redemption then that would amount to a complete sale of the property. It is however urged that equity of redemption was not transferred but only mortgaged.
(3.)A mortgage is a transfer of an interest in specific immoveable property. A mortgage must belong to one of the classes mentioned in sec. 58 of the Transfer of Property Act. Equity of redemption can be transferred but there cannot be a usufructuary mortgage of equity of redemption because although equity of redemption is an interest in immoveable property and although therefore it may be immoveable property it is not specific immoveable property. The contention that the second mortgage and the third mortgage are mortgages of the equity of redemption would recoil on the plaintiff because if the equity of redemption is mortgage the plaintiff cannot redeem. In any case it is clear from the two documents Exs. 32 and 34 that they are possessory mortgages of the land and that they do not transfer the equity of redemption or any interest in the equity of redemption.
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