Bapna, J. - (1.) THIS is a second appeal by the defendants is a suit for redemption.
(2.) THE respondent, Ram Hans, sued the appellants Ram Chandra and Uda in the Court of Civil Judge, Hindaun, on the 28th of July. 1945, on the allegations that a Kham Bakhi containing 13 pators described in the plaint, situated at Hindaun. was mortgaged by Kardev, predecessor-in-title of respondent No. 1, and Patriya, respondent No. 2, with Ramhet as security for a loan of Rs 200/- on Sawan Badi 14, Svt. 1989 (25th July, 1930), and a certain deed was executed, but it was not registered. THE defendants were stated to be the legal representatives of Ramhet, add the plaintiff claimed. (1) redemption of the said mortgage, (2) possession of the property on payment of Rs. 200/- to the appellants, and (3) costs of the suit. The appellants contested the suit, denied the mortgage, and pleaded that the agreement was to hand over pators on nonpayment of loan of Rs. 200/-, and that Hardev delivered the pators to the defendants in pursuance of the contract. It was pleaded further that the loan carried interest at 18% per annum and certain repairs were also done to the property so that the defendants' debt now outstanding was Rs. 1476/14/ -. The trial court held that it was a case of mortgage by conditional sale, but as the defendants had not taken any proceedings for foreclosure, the plaintiff was entitled to redeem the property, and that repairs had not been proved, but the defendants were entitled to interest at the stipulated rate subject to a maximum of Rs. 400/- according to the rule of damdupat. It accordingly passed a decree for redemption of the property subject to payment of Rs. 600/-' inclusive of the principal and interest on the loan secured by the mortgage. On appeal the learned District Judge held that there was no proof of the mortgage and the document Ex. D. 2, which could make out a case of mortgage was unregistered and had not been admitted by the plaintiff and was, therefore, neither, admissible nor could be taken to be a proof of the mortgage. He accordingly accepted the appeal and dismissed the suit. On second appeal, learned counsel for the plaintiff admitted the genuineness of Ex. D. 2, and the High Court of the then Jaipur State remanded the case to the District Judge for a fresh decision of the case after taking into consideration the said document. The learned District Judge by his Judgment, dated 31st of May, 1946, held that the decree of redemption had been rightly made by the Munsif, but the amount to be paid could not exceed Rs. 400/-, the Munsif having been held to have misunderstood the rule of damdupat. The defendants have come in appeal. It was argued by learned counsel for the appellants the two courts had considered the document Ex. 2 as a mortgage by conditional sale, and on that finding suit should have been dismissed, for the right given to a mortgagor to redeem the property, unless extinguished by the act of the parties or decree of a court, granted by sec. 60 of the Transfer of Property Act did not exist before the enforcement of the Jaipur Transfer of Property Act, 1943, and the Mortgagor by delivering the property made an absolute transfer in favour of the mortgagee, which was not invalid by any law in force at the time. The aforesaid argument would make it necessary to consider whether a mortgagor could by the act of creating a mortgage give up his right of redemption on the happening of certain contingencies. It is, however, not necessary to do so, for the finding of the two courts as to the interpretation of the document Ex. 2 has not been correctly made. The relevant portion of the document, when translated into English, is as follows : - "mortgage executed by Hardev in favour of Ramhet in lieu of Rs. 200/-borrowed where for 12 gah pators have been written (mortgaged ). The agreement to pay money is of Sawan Sudi 14. If money is not paid on due date, possession will be given on 5 gah pators. and possession to be given on all patros in the bakhar after 12 months. If money not paid on the due date, it will carry interest at Rs. 1/8/- per mensen after 12 months. Dated Sawan Budi 14, Svt. 1987". Learned counsel for the appellants wants to read the documents as if it contained a recital of a loan of Rs. 200/- carrying interest at Rs. 1/8/- per cent per mensen, payable in 12 months and in default of payment an agreement to hand over possession of the bakhar and making an absolute transfer in favour of Ramhet. This is also how the two courts seem to have understood the document, but the last condition that interest will accrue after 12 months makes it quite clear that no interest was payable for the amount for the first 12 months, and thereafter not only interest was to become due, but the possession was also to be handed over to the mortgagee obviously as a security for the additional burden of interest. The document purported to be a simple mortgage at the outset with stipulation for delivery of possession of a part of the property mortgage after 15 days and for further delivery of possession of the entire property after 12 months from which date the loan was to carry interest, and thus the right of redemption could not have been lost by a delivery of possession even according to the terms of the mortgage. Learned counsel next argued that the document creating the mortgage was, under the law in force in Jaipur State, compulsorily registrable, and, in the absence of registration, could not create a mortgage, and the suit for redemption must be dismissed. It was argued that the mortgage being an in valid one, the possession of the mortgagee became adverse from the date of the transfer of possession, and the mortgagee became an absolute owner thereof after the expiry of 12 years. Reliance was placed on Sheikh Bhu-khan Mian vs. Srimati Radhika Kumari Debi (l), wherein Manhar Lall J. observed as follows: - "in the result, the position comes to this that the plaintiff cannot prove the terms of the mortgage under which the defendant, according to the plaintiff, keeps, possession of these lands. The plaintiff, therefore, all the time was entitled to institute a suit for recovery of possession of his lands within 12 years of the date of the invalid mortgage, invalid in the sense that it could not be enforced owing to the absence of registration; the possession of the defendant became adverse to the plaintiff from the very date of the invalid mortgage. " The reasoning adopted in this case does not seem to have taken into account the fundamental principle of adverse possession that the extent of adverseness of possession depends upon the extent of the claim of right under which possession is obtained and kept, and where such a claim is restricted to a limited interest in the property the possession is adverse to that extent alone. In Sontayana Gopala Dasu vs. Iapatalupulu Rami (2), a person in possession of a property as usufructuary mortgagee under a void mortgage, for more than 12 years was hold to have acquired by prescription only the rights of a mortgagee. In Maha Mangal Rat vs. Kishun Kandu (3), redemption was sought of a mortgage, which had been effected by an unregistered deed required to be registered, and executed 19 years before the institution of the suit. It was hold hat even though a mortgage not effected by a registered deed as required by sec 59 of the Transfer of Property Act was invalid, the recitals in the unregistered mortage deed were admissible in evidence for the purpose of explaining the nature and character of the mortgagees over the mortgaged property. In that case the mortagage was of an occupancy holding, which was void in law, but it was held that by continuance of the defendants possession for more than 12 years as usufruc-turary mortgagees, there came into existence a legally operative mortgage which the plaintiffs had to redeem as a condition precedent to a decree for possession of the holding. This was the view taken by the former High Court of Jaipur in Rurmal vs. Surajmal (4), to which I happened to be a party, and in which the case law has been discussed. It was next argued that the suit should have been for possession and not for redemption. Reliance was placed on Ma Kyi vs. Mg. Thon (5), which was approved in Maung Daw Na vs. Maung Wa Maung (6 ). There is, however, no difference between a suit for possession containing a prayer for allowing the defendant such sums of money as he may be entitled to under the previous transactions, and a suit for redemption on payment of the mortgage amount. In reality a suit for redemption is nothing more than a suit for possession with the additional prayer for letting the defendant have his money due to him before he can be dispossessed of the property. It the defendant had acquired a mortgagee's rights by prescription, he is entitled to contest a simple suit for possession, and the plaintiff would not be granted a decree for possession unless on condition that he pays to the defendant the money due on the transaction. By alleging in the plaint that the plaintiff was willing to pay the amount which he consider to be due to the defendant, he is only acting as an honest suitor. In Halka vs. Nannhon 7), a contention was raised that the plaint was framed as if it were one in a suit for redemption, and inasmuchas the mortgage did not exist, no suit for re- demption lay. It was observed that this was too technical an objection and the substantive relief claimed in the suit was one for possession, and that if the plaintiff was entitled to that relief, even if the mortgage was invalid, there is no reason why he should be denied that relief. The decree granted in this case was for possession on payment of certain amount due to the defendant on the mortgage. In Annada Hait vs. Khudiram Hait 8), it was held that a suit to redeem a usufructuary mortgage was substantially a suit for possession. This decision was cited with approval in N. Appamma vs. S. Chinnaveadu (9 ). The Calcutta case was also relied on by Wort J. in Baijnath Prasad Singh vs. Muneshwarsingh (10) where the plaintiff instituted a suit for redemption of a certain mortgage. The defence was that the mortgage being for a period of more than five years was invalid under the Chhota Nagpur Tenancy Act, and their being no valid mortgage, the action for redemption must fail. It was observed: - "it would be somewhat astounding to me if I had to come to the conclusion that the law of the country is such as to prevent a plaintiff, in the circumstances such as the present, from succeeding where in fact he has claimed possession subject to redemption, merely on the ground that it was in substance an action for redemption. " Learned counsel for the appellants contended that the above cases had been decided prior to the decision of the Privy Council in Ariff vs. Jadunath (11), and were no longer good law, for their Lordships of the Privy Council had clearly deprecated the application of the equitable doctrine of English Law relating to the right to sue upon a contract, to which the Transfer of Property Act applied, so as to create without any writing any interest which the statute says can be created by means of a registered instrument, That case is easily distinguishable, for it related to an oral lease sought to be enforced against the true owner. It was also not a case to which the doctrine of acquisition of limited interest by prescription could be applicable. In the present case, the unregistered deed could be admitted in evidence for the purpose of ascertaining the character of the possession of the defendant, as laid down by their Lordships of the privy Council in N. Varada Pillai vs. Jeevarathanmal (12 ). The document in the present case was produced by the defendant himself. The lower Court was, thererore, quite right in granting a decree for possession to the respondent on his paying Rs. 400/-, which was the amount due to the defendant-applicants in this case. The appeal is accordingly dismissed with costs.
(3.) LEARNED counsel for the appellants wanted leave to appeal to a Divisional Bench. It is hereby granted. .;