Madan Mohan Punchhi, J. - (1.) THIS is a Defendant's appeal against the judgment and decree of Shri Ved Parkash Aggarwal, HCS, District Judge, Gurgaon who decreed the suit against him in full. The trial Court had decreed the suit of the Plaintiffs partially. It has arisen on the following premises:
(2.) ONE Smt. Phulian, widow of Bhura mortgaged land as given in the mortgage deed Exhibit P -1 executed on October 16, 1900, in favour of Tota and others. The Defendants are the successors -in -interest of Smt. Phulian and the Plaintiffs are the successors -in -interest of Tota and others mortgagees. Undoubtedly, the mortgage deed specifically provided field numbers of the land, the interests in which were subjected to usufructary mortgage. Along therewith there was a recital, which is the subject matter of controversy between the parties i.e., in the words "BAMAI HAKUK DAKHLI VA KHARJI VA MANSAB BISWADARI YANI BANJAR VA CHAYANI VA SHORE VA KALAR VA ABADI VA GAIR ABADI VA DARAKHTAN SAMRAN VA GAIR SAMRAN VA JHIL VA TALAB VA NADI VA NALA VA QULA VA WALA VA BUR BRAMAD VA, DARYA VA BAR VA RET VA KHET etc." The Plaintiffs claimed that they had been owners of the mortgaged land by prescription and along therewith had become owners of the shamlat share of the mortgagor, on the strength of the aforesaid recital in the mortgage deed. The Defendants contested the suit and pleaded that neither had the mortgagees become owners of the land by prescription, nor did the aforesaid recital make them owners of shamlat rights. It was also pleaded on their behalf that rights in the shamlat were never mortgaged by their predecessors -in -interest. Reliance was also placed by them on the entries of the revenue records where the land stood mortgaged, but without shamlat rights. On the pleadings of the parties following issues were framed: 1. Whether the land in dispute was mortgaged with share of shamlat deh? 2. Whether the mortgage in dispute has become more than 60 years old and therefore the Plaintiffs and Defendant No. 2 have become the absolute owner of the mortgaged property? Whether the Plaintiffs and Defendant No. 2 or their ancestors ever acknowledged the mortgage in question within limitation and to what effect? 3.IS the suit not maintainable in the present form? 4.RELIEF . Under issue No. 1, the learned trial Court held that the land in dispute was mortgaged with the Plaintiffs but without any share of shamlat deh. It also held that the mortgage in dispute was more than 60 years old and therefore, the Plaintiffs and the proforma Defendants had become absolute owners of the property. It also held issue No. 3 in favour of the Defendants, inasmuch as no acknowledgement was ever proved so as to scuttle the claim of land by prescription. On appeal, by the Plaintiffs, the learned lower appellate Court, however, took the view that the mortgage of the land included share of the shamlat deh as there was no specific mention of those rights having been kept back while executing the mortgage deed Exhibit P -1. It is this view of the learned lower appellate Court which is being seriously challenged by the learned Counsel for the Appellant.
(3.) It was contended that a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payments of money advanced. That has been urged on the strength of the language used in Section 58 of the Transfer of Property Act (hereinafter referred to as the Act). It is the admitted case of the parties that the mortgage was usufructuary and possession had passed. Now on the bare reading of Exhibit P -1, the mortgage deed, it is patent that specific field numbers have been subjected to mortgage. It only remains to be seen as to whether the view of the learned lower appellate Court that the above said recital reflective of conveying some rights was natured as appendage to the main mortgaged property or were rights conveyed by mortgage in the shamlat deh. It has been noticed, that the transfer by way of mortgage is of an interest and that too in specific immovable property. Negatively put, there can be no mortgage of implied immovable property. Cases have been cited at the bar, Skeoji Singh and Anr. v. Sheoji Singh and Ors. 1907 P.L.R. 84 by the learned Counsel for the Respondents and Baga and Ors. v. Shadi and Ors. : A.I.R. 1970 P&H 298 and Chaman Lal v. Amlok Singh, 1980 P.L.J. 26 by the learned Counsel for the Appellant, to contend that there can be cases in which impliedly while effecting a sale, shamlat deh rights get transferred by the employment of recitals suggesting that implication. The stress and stretch of the language of the aforesaid three decisions help us not because those are cases of sales and from a given set of facts a Court can come to the conclusion that certain rights were impliedly part and parcel of the sale. Sale, as its definition goes, in Section 54 of the Act, is a mere transfer of ownership, in exchange for a price paid or promised to be paid or part paid or part promised. Advisedly, the legislature in insisting specifications to immoveable property in the case of mortgage had a twin object in view, (i) that the transfer was merely as a security and likely to revert back to the owner and (ii) the security was likely to be retained by the mortgagee in the event of prescription. It appears to me, as at present advised, that there is no such thing as an implied transfer of immoveable property by way of mortgage. The view of the learned lower appellate Court that tine mortgage deed did not make specific mention of having kept back the shamlat rights; is faulty on the premises that the deed had specifically to mention that the shamlat rights had been transferred, failing which it has to be assumed that they were not transferred. In permitting implied transfers by way of mortgage, one has to do violation to the language of Section 58 of the Act. Though strictly speaking, the said Act was not applicable to the territories from which this cause has arisen at the time when the mortgage was executed, but its general principles on the basis of justice, equity and good conscience have always been held to be applied to such like transfers.;