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Sec.58 Mortgage deed and sec.11 of Indian Contract Act- one of the party is minor not represented by Guardian – the Deed is void abintio Since it is a simple mortgage and no possession was delivered certificate issued under Section 4A of the K.L.R. Act is void – Apex court confirmed the judgement of High court and held that we hereby dismiss this appeal and uphold the impugned judgment of the High Court passed in the Civil Revision Petition. It is open to the parties to litigate before the appropriate court with regard to the ownership rights of the property under the relevant provisions of law to get their rights settled upon the property in question. = MATHAI MATHAI ……APPELLANT Vs. JOSEPH MARY @ MARYKKUTTY JOSEPH & ORS. ……RESPONDENTS = 2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41489

Sec.58 Mortgage deed  and sec.11 of Indian Contract Act- one of the party is minor not represented by Guardian – the Deed is void abintio Since it is a simple mortgage and no possession was delivered certificate issued under Section 4A of the K.L.R. Act is void – Apex court confirmed the judgement of High court and held that we hereby dismiss this appeal and uphold the impugned judgment of  the  High Court passed in the Civil Revision Petition. It is open to  the  parties  to litigate before the appropriate court with regard to  the  ownership  rights of the property under the relevant provisions of law  to  get  their  rights settled upon the property in question. =

 

1) Whether Exh.A1, the mortgage deed dated  1909-1910  is  a  valid

           mortgage deed and even if it is so, whether it is  a  simple  or

           usufructuary mortgage in terms of Sections 58(b)  and  58(d)  of

           the Transfer of Property Act, 1882?

 

By perusing the recitals of the  mortgage  deed,  it  is  seen  that  it

neither expressly or by implication binds the mortgagor, the  uncle  of  the

first  respondent  to  deliver  possession  of  the  property  and  for  the

mortgagee to retain such  possession  of  the  same  until  payment  of  the

mortgage money but on the other hand the mortgage is a  simple  mortgage  as

the recitals fall within the definition of simple mortgage and there  is  no

express  recital  in  the  deed  to  deliver  possession  of  the  mortgaged

property.

 

As regards to the later portion of the first point, even if we  assume

that it is a valid mortgage deed as per recitals of  the  documents,  it  is

evident that it is a simple mortgage  in  terms  of  Section  58(b)  of  the

Transfer of Property Act, 1882, but not a usufructuary mortgage  as  defined

under  Section  58(d)  of  the  Transfer  of  Property  Act. 

 

the age of the mortgagee, the deceased  mother  of  the

appellant was 15 years as mentioned in the mortgage deed itself.  Therefore,

she had not attained the majority under the Indian Majority  Act,  1875.  To

acquire the competency to enter into a contract with the uncle of  both  the

appellant and the first respondent the parties should have been  of  age  of

majority as required under Section 11 of the Indian Contract Act, 1872. 

 

Therefore, we have to hold that the mortgage  deed-Ex.  A1  executed

by the uncle of the appellant and the first respondent,  in  favour  of  the

deceased mother of the appellant, is not a valid mortgage  deed  in  respect

of the property covered in  the  said  document  for  the  reason  that  the

deceased mother at the time of execution and registration  of  the  document

was a minor, aged 15 years, and she  was  not  represented  by  her  natural

guardian to constitute the  document  as  valid  as  she  has  not  attained

majority according to law.

A  deed  of  mortgage

is a contract and we cannot hold that a mortgage in the name of a  minor  is

valid, simply because it is in the interests of  the  minor  unless  she  is

represented by her natural guardian or guardian appointed by the court.  The

law cannot be read differently for a minor who is a mortgagor  and  a  minor

who is a mortgagee as there are rights and liabilities  in  respect  of  the

immovable property would flow out of  such  a  contract  on  both  of  them.

Therefore, this Court has to hold that the mortgage deed-Ex.A1  is  void  ab

initio  in  law  and  the  appellant  cannot  claim  any  rights  under  it.

Accordingly,  the  first  part  of  first  point  is  answered  against  the

appellant.

 

 2) Whether the concurrent finding of the Appellate Authority in its

           judgment passed in AA No. 216 of 1994 is based on legal evidence

           on record and in accordance with law? 

3) Whether the finding recorded in the  impugned  judgment  by  the

           High Court in  exercise  of  its  revisional  jurisdiction  with

           regard to possession of the property holding that the  appellant

           is not in possession under the document Exh.  A1-mortgage  deed,

           and therefore, he is not  the  deemed  tenant  of  the  land  in

           question under Section 4A of the K.L.R. Act, is legal and valid?

 

The appellant has  failed  to  produce

and establish the fact in the  absence  of  recital  in  the  mortgage  deed

Exh.A1 as to how the mortgagee has come  into  the  possession  and  how  he

continued possession as successor of the mortgagee.  The  aforesaid  factual

and legal  aspect  has  not  been  taken  into  consideration  by  both  the

authorities while coming to the conclusion  on  the  basis  of   Exh.A1  and

instead, accepted the oral testimony of the appellant, and  the  finding  is

erroneously recorded by  them  in  his  favour  holding  that  the  deceased

mortgagee was in possession of the land in question and after her  death  he

continued in possession as a mortgagee. Therefore,  the  concurrent  finding

of fact of the appellate authority that  he  has  proved  this  claim  as  a

deemed tenant under Section 4A of the K.L.R. Act and he is entitled  to  get

the purchase certificate of the  owner  of  the  property  is  not  only  an

erroneous finding but suffers from error in law and it has been rightly  set

aside by the High Court in exercise  of  its  wider  civil  jurisdiction  by

recording a finding that the appellant’s possession of the property  is  not

that of a mortgagee under the mortgage deed.

the  mortgagor  (or  his  legal  heirs)  have  not  been

impleaded as a party to the original claim  or  to  subsequent  proceedings.

 

Further, the first respondent’s claim  of  ownership  through  her

father is also highly curious  as  it  is  not  stated  how  the  father  is

claiming ownership over the property.  In  the  absence  of  this  important

evidence, we cannot adjudicate upon the ownership of the  property.  We  can

only hold that the appellant cannot claim to be a deemed tenant of the  land

in question under the K.L.R Act and it is open to the  parties  to  litigate

on the question  of  ownership  of  the  property  in  question  before  the

appropriate authority. We hold that the impugned judgment of the High  Court

is perfectly legal and valid, and that the orders of the Land  Tribunal  and

Appellate Authority are erroneous for the reason that the  facts  and  legal

evidence have been wrongly appreciated and held in favour of the  appellant,

although it  is  contrary  to  the  recitals  of  Exh.A1,  as  well  as  the

provisions of the Indian Contract Act and the provisions of the Transfer  of

Property Act.

 In view of our findings on the point Nos. 1 to 3 against the  appellant,

we hereby dismiss this appeal and uphold the impugned judgment of  the  High

Court passed in the Civil Revision Petition. It is open to  the  parties  to

litigate before the appropriate court with regard to  the  ownership  rights

of the property under the relevant provisions of law  to  get  their  rights

settled upon the property in question. 

 

2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41489

 

GYAN SUDHA MISRA, V. GOPALA GOWDA

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4479 of 2007

 

 

 
MATHAI MATHAI ……APPELLANT
Vs.
JOSEPH MARY @ MARYKKUTTY JOSEPH & ORS. ……RESPONDENTS

 

 

 

 

J U D G M E N T

 

V.Gopala Gowda, J.

 

 
This appeal is directed against the impugned judgment and order dated
1.7.2005 passed by the High Court of Kerala at Ernakulam in Civil Revision
Petition No. 873 of 1997(C) allowing the Civil Revision Petition and
rejecting the O.A. No. 230 of 1981, urging various facts and legal
contentions.
2. Necessary relevant facts of the case are stated hereunder:-
The appellant herein filed Original Application No. 230 of 1981 before
the Land Tribunal, Kottayam claiming to be a deemed tenant under Section 4A
of the Kerala Land Reforms Act, 1963 (hereinafter referred to as “the
K.L.R. Act”) read with Kerala Land Reforms Tenancy Rules (for short “the
Tenancy Rules”) and stating that his uncle had executed a mortgage deed in
the year 1909-1910 in favour of the appellant’s mother late Smt. Aley as a
collateral security for a sum of 7000 Chakram which was the
dowry amount.

3. It is the case of the appellant that his mother has been in
possession of the land involved in the case as a mortgagee from the date
of execution of the mortgage deed referred to supra and she has been in
continuous possession of the same for more than 50 years as on the date of
the commencement of the K.L.R. Act (substituted by Act 35 of 1969)
immediately preceding the commencement of the Kerala Land Reforms
(Amendment) Act, 1969 which was published in the Kerala Gazette
Extraordinary No. 295 dated 17.12.1969 w.e.f. 1.1.1970. Therefore, he
should be registered as deemed tenant in respect of the land in question as
it has conferred a statutory right on him to purchase the mortgaged land in
toto to the extent of 2 acres 48 cents. In the said proceedings the father
of the appellant got impleaded and opposed the claim made by the appellant
and further denied that the mother of the appellant had right as the
mortgagee and was in possession and holding the land as a deemed tenant for
the 50 years immediately preceding the amended provisions of Section 4A of
the K.L.R. Act, which provision came into effect from 1.1.1970. Therefore,
he has contended that he is not entitled to be registered as a deemed
tenant and cannot obtain purchase certificate of the land in question as
per Section 72B of the K.L.R. Act. Vide order dated 21.3.1994, the Land
Tribunal, after recording the finding of fact, held that the appellant is a
deemed tenant under Sections 4A of the K.L.R. Act and therefore, he is
entitled to get the purchase certificate.

4. Aggrieved by the said order, the first respondent and others filed an
appeal before the Appellate Authority (Land Reforms) under Section 102 of
the K.L.R. Act questioning the correctness of the order dated 21.3.1994
passed by the Land Tribunal, Kottayam, on various factual and legal
contentions. The Appellate Authority has adverted to certain relevant facts
in respect of the previous proceedings in relation to the same land
initiated by the appellant under Section 72 of the K.L.R. Act in O.A.
No. 531 of 1975, which was allowed by order dated 25.4.1978 which order
was challenged by the first respondent herein before the Land Reforms
Appellate Authority, Ernakulam as L.R.A.S. 534 of 1978 which appeal came to
be allowed and the case was remanded to the Land Tribunal for
reconsideration. In the said proceedings the Revenue Inspector had filed
his Report dated 23.4.1992 as contemplated under Section 105A of the K.L.R.
Act. The same was marked as Exh.C1, after examining Revenue Inspector in
the proceedings. The said report was not challenged by the first
respondent’s father and the same was accepted in toto by the Land Tribunal.
It is further stated that the objection of the father of the first
respondent was taken in the original application before the Land Tribunal
but he was not examined as a witness in support of his claim as he died
during the pendency of the case. However, he was examined as a witness
before the Land Tribunal in the previous O.A. No. 531 of 1975. In his
deposition he has clearly stated that the possession and enjoyment of the
disputed property was by the appellant herein. The said deposition is
marked as Exh.A8 before the Land Tribunal.

5. The Appellate Authority after referring to the registered mortgage deed
which is marked as Exh.A1, has recorded the finding of fact holding that
the property involved in the original application of the appellant has been
in his possession and enjoyment of the appellant and he has effected
improvements on it and cultivated the property and that the first
respondent has no title or possession over the property at any time. To
prove the mortgage deed, A1 the appellant herein and independent witnesses
were examined on behalf of the appellant as A2 and A3 and documentary
evidence produced were marked as Exhs.A1 to A9 in support of his claims.
The said evidence has been corroborated by the Revenue Inspector’s report
and the first respondent was examined and she did not have direct knowledge
of the property in dispute and her evidence was not accepted by the
authorities. It is observed by them that the respondent’s evidence does not
carry any weight and reliance was placed upon both oral and documentary
evidence of the appellant and the finding recorded by the appellate
authority holding that he is the deemed tenant and the order passed by the
Land Tribunal does not call for interference as there is no merit in the
appeal and the order of the Land Tribunal was confirmed by dismissing the
appeal of the first respondent with no cost by its order dated 9.4.1997.
This order was challenged by the first respondent before the High Court of
Kerala under Section 103 of the K.L.R. Act, urging various legal
contentions. The High Court passed a cryptic order after adverting to
certain rival contentions and examined the correctness of the same in the
Revision Petition. The learned Judge of the High Court at para 3 of the
impugned order has recorded the finding of fact holding that the factum of
possession of the appellant cannot be disputed in view of the concurrent
finding of fact. However, he has further held that mere possession of the
disputed land does not give right of tenancy of the same on the basis of
Exh.A1, the registered mortgage deed, which is the hypothecation bond and
held that no possession of the disputed land was granted under the said
document. Hence, it is held that Section 4A of the K.L.R. Act is not
attracted to the fact situation of the case on hand to enable the appellant
to get purchase certificate in respect of the disputed land under Section
72B of the K.L.R. Act as it was necessary to prove that he is a cultivating
tenant holding the property in possession as a mortgagee which is absent in
the present case. The learned Judge of the High Court held that the
concurrent finding of fact by both the appellate authority as well as the
Land Tribunal that Exh. A1 is the deed of mortgage under which the
appellant is claiming possession of the land in question as the mortgagee,
is not factually and legally correct and accordingly has allowed the
Revision Petition of the first respondent and rejected the Original
Application No. 230 of 1981 filed by the appellant.

6. The correctness of the said order is under challenge before this Court
raising certain questions of law. Mr. M.T. George, the learned counsel for
the appellant has contended that the High Court exceeded its jurisdiction
under Section 103 of K.L.R. Act in as much as there is a failure to decide
any question of law and has rendered an erroneous decision on the question
of law framed by the appellate authority. He further urged another legal
contention that the High Court was not justified in interfering with the
orders of the Land Tribunal and the Appellate Authority, both on the
factual and legal question which was not agitated by the first respondent
before the Land Tribunal and the Appellate Authority. Further, the High
Court was not justified in reversing the orders of the Land Tribunal as
well as the Appellate Authority, when it found that the appellant’s mother
was a mortgagee and it is further found by both the authorities as well as
the High Court the fact that the appellant’s mother and the appellant were
in possession of the property for the statutory period prescribed under
Section 4A of the K.L.R. Act. The Land Tribunal and the Appellate Authority
recorded the finding on the contentious issue and held that the appellant
is the deemed tenant of the land in question under Section 4A of the K.L.R.
Act, which order has been erroneously interfered with by the High Court in
exercise of its revisional jurisdiction. It was urged on behalf of the
appellant that the appellant is entitled for the relief as he is the deemed
tenant under Section 4A of the K.L.R. Act when his deceased mother was
admittedly the mortgagee of the land in question and he continued as such
and both the fact finding authorities have found them to be in possession
of the land in question for more than the statutory period as provided
under the above provision of the Act. It was contended that the High Court
in exercise of its revisional jurisdiction should not have interfered and
annulled the orders of both the Land Tribunal and the Appellate Authority
and it has erroneously set aside the concurrent findings of fact recorded
by both the authorities vide the impugned order passed in the Revision
Petition. Therefore, he submits that the impugned order is liable to be set
aside as it is not only erroneous but also suffers from error in law. The
appellant’s contention is that the property was mortgaged as a collateral
security for the Stridhan amount given on behalf of the appellant’s mother
at the time of her marriage with the father of both the appellant and the
first respondent and though the document does not contain anything
regarding delivery of possession of the property to the deceased mother of
the appellant in the mortgage deed, nonetheless the appellant was put in
possession of the property in question on the date of the mortgage itself
and she continued to be in possession with the same till her death and
thereafter, the appellant came into possession. The appellant’s counsel has
contended that the conclusion of the High Court on the contentious issue is
unwarranted and not justified and that both the Land Tribunal and the
appellate authority have correctly held on facts that the appellant is the
mortgagee and has been in possession together with his mother for more than
50 years as on the date the amended provision has come into force, and
therefore, they have rightly held that he is a deemed tenant of the land,
and hence entitled to get the purchase certificate in respect of the
property in question. He has further contended that all that the law
requires is that the tenure of the appellant as a mortgagee must be for a
period of not less than 50 years and Section 4A does not demand that the
mortgagee has to be put in possession under the mortgage deed itself.
Therefore, the finding of the High Court in the impugned order that ‘no
possession of the land in question was given under the document’ is an
unwarranted finding which is outside the scope of revisional jurisdiction
while examining the correctness of the concurrent finding on the
contentious issue.

7. This appeal is strongly opposed by the first respondent’s counsel who
sought to justify the correctness of the finding recorded by the High Court
in its order in exercise of its revisional jurisdiction after noticing the
pleadings and documentary evidence on record. The first respondent, in her
counter affidavit and written submissions has stated that the appellant is
bound to prove the fact that he is the mortgagee and that the possession of
the property has come to him as the mortgagee and that his deceased mother
and the appellant have continued in possession of the property in dispute
for more than 50 years as on 1.1.1970, the date on which the K.L.R. Act
came into force to get the benefit of deemed tenancy upon the land in
question. It is contended by the learned counsel that there is no recital
in the document of the mortgage deed and that Ex. A1, the mortgage deed
does not stipulate that the mortgagee is put in possession by virtue of
that document. There is no express clause for delivery of possession of the
schedule property in favour of the mortgagee at the time of registering the
document nor impliedly or by implication which binds the mortgagor to
deliver the possession of the mortgage property to the mortgagee. The first
respondent has further contended that as far as the mortgage deed is
concerned, the brother of the appellant’s father is the mortgagor and the
claim can only be made against him and his property but however, the
appellant has not claimed the right against him but instead against the
first respondent and their father. The mortgagor was not impleaded as a
party and it is the contention of the first respondent that the appellant
is attempting to get the ownership of the entire property. Further, both
the Land Tribunal and the Appellate Authority have failed to take into
consideration the relevant fact namely, that at the time of the death of
his mother, the appellant was a minor and therefore, could not have
acquired possession over the property as claimed by him. Therefore, they
have not taken into consideration the fact that after the death of the
mortgagee, the mother of the appellant, possession of the land came to the
father of the appellant and the first respondent and therefore, the
appellant is not entitled to claim continuous possession of the same to get
the benefit under Section 4A of the K.L.R. Act, even assuming without
conceding that the appellant’s mother acquired a right under Exh.A1, the
mortgage deed. Both the Land Tribunal and the Appellate Authority should
have noticed the fact that the mortgagee-mother of the appellant was not at
all in possession of the property but it was in the exclusive possession of
his father. As per family settlement of the year 1965, 94 cents of property
covered under Exh. A1 was allotted to the first respondent. Again as per
the sale deed of 1975, 1 acre 68 cents of land covered under Exh. A1 was
given to first respondent and ever since she is in exclusive possession and
enjoyment of that extent of the property which was originally covered under
Ex. A1-mortgage deed. Therefore, it is seen that the property covered by
Ex. A1-mortgage deed was in the exclusive possession and enjoyment of the
appellant’s father. It was contended by the learned counsel that this
aspect of the matter has not been considered by the Land Tribunal and the
Appellate Authority. Further, it is urged that the appellant and the first
respondent are children of the deceased Mathai Mathai, though they are only
half-brother and sister being born to two different mothers. Therefore, the
first respondent is also one of the legal heirs and entitled to inherit the
property of her father but the appellant utilizing or misusing the position
as a mighty man with muscle power managed to get oral evidence in his
favour though there was no documentary evidence supporting his claim and he
has tried to grab the entire property left behind by their father in
exclusion of the first respondent and therefore, she requested this Court
not to interfere with the impugned order.

8. We have heard the learned counsel for the parties and with reference to
the above factual and rival legal contentions urged on behalf of the
parties the following points would arise for our consideration :-

1) Whether Exh.A1, the mortgage deed dated 1909-1910 is a valid
mortgage deed and even if it is so, whether it is a simple or
usufructuary mortgage in terms of Sections 58(b) and 58(d) of
the Transfer of Property Act, 1882?
2) Whether the concurrent finding of the Appellate Authority in its
judgment passed in AA No. 216 of 1994 is based on legal evidence
on record and in accordance with law?
3) Whether the finding recorded in the impugned judgment by the
High Court in exercise of its revisional jurisdiction with
regard to possession of the property holding that the appellant
is not in possession under the document Exh. A1-mortgage deed,
and therefore, he is not the deemed tenant of the land in
question under Section 4A of the K.L.R. Act, is legal and valid?
4) What order?

Answer to Point No. 1
9. The first point is required to be answered against the appellant for
the following reasons:-

It is an undisputed fact that Exh. A1 is the mortgage deed executed
by the uncle of the appellant and the first respondent in favour of the
deceased mother of the appellant as collateral security towards the dowry
amount. At the time of execution and registration of the document, it is an
undisputed fact that the age of the mortgagee, the deceased mother of the
appellant was 15 years as mentioned in the mortgage deed itself. Therefore,
she had not attained the majority under the Indian Majority Act, 1875. To
acquire the competency to enter into a contract with the uncle of both the
appellant and the first respondent the parties should have been of age of
majority as required under Section 11 of the Indian Contract Act, 1872. The
aforesaid aspect fell for interpretation before the Privy Council in the
case of Mohori Bibee v. Dharmodas Ghose[1], wherein the Privy Council after
interpretations of relevant provisions of Section 11 of the Indian Contract
Act, 1872, has held that the contracting parties should be competent to
contract as per the above provision and the minor’s contract was held to be
void as he cannot be the mortgagor, the relevant paragraphs referred to in
the aforesaid decision are extracted hereunder :-
“Looking at these sections their Lordships are satisfied that the
Act makes it essential that all contracting parties should be
“competent to contract,” and expressly provides that a person, who
by reason of infancy is incompetent to contract, cannot make a
contract within the meaning of the Act”

In the later part of the same paragraph, it is stated,
“The question whether a contract is void or voidable presupposes
the existence of a contract within the meaning of the Act, and
cannot arise in the case of an infant. Their Lordships are
therefore of opinion that in the present case there is not any
such voidable contract as is dealt with in section 64.”

Thus, it was held that a minor cannot be a contracting party, as a minor is
not competent to contract as per Section 11 of the Indian Contract Act. At
this juncture, it is also necessary to extract Sections 2 and 11 of the
Indian Contract Act, 1872 which read as under:-
“2.Interpretation-clause. In this Act the following words and
expressions are used in the following senses, unless a contrary
intention appears from the context :-
(a) When one person signifies to another his willingness to do
or to abstain from doing anything, with a view to obtaining the
assent of that other to such act or abstinence, he is said to
make a proposal;
(b) When the person to whom the proposal is made signifies his
assent thereto, the proposal is said to be accepted. A proposal,
when accepted, becomes a promise;
(c) The person making the proposal is called the “promisor” and
the person accepting the proposal is called the “promisee”;
(d) When, at the desire of the promisor, the promisee or any
other person has done or abstained from doing, or does or
abstains from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a
consideration for the promise;
(e) Every promise and every set of promises, forming the
consideration for each other, is an agreement;
(f) Promises, which form the consideration or part of
the consideration for each other, are called
reciprocal promises;
(g) An agreement not enforceable by law is said to be void;
(h) An agreement enforceable by law is a contract;
(i) An agreement which is enforceable by law at the option of
one or more of the parties- thereto, but not at the option of
the other or others, is a voidable contract;
(j) A contract which ceases to be enforceable by law becomes
void when it ceases to be enforceable.
11. Who are competent to contract- Every person is competent to
contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind and is not
disqualified from contracting by any law to which he is
subject.”

 

This important factual and legal aspect has been conveniently ignored by
the authorities including the High Court while adverting to Exh.A1, the
mortgage deed. A strong reliance was placed upon it by both the Land
Tribunal and the Appellate Authority in allowing the claim application of
the appellant holding that he is a deemed tenant under Section 4A of the
K.L.R. Act without noticing the aforesaid relevant factual aspect of the
matter. Therefore, we have to hold that the mortgage deed-Ex. A1 executed
by the uncle of the appellant and the first respondent, in favour of the
deceased mother of the appellant, is not a valid mortgage deed in respect
of the property covered in the said document for the reason that the
deceased mother at the time of execution and registration of the document
was a minor, aged 15 years, and she was not represented by her natural
guardian to constitute the document as valid as she has not attained
majority according to law. Many courts have held that a minor can be a
mortgagee as it is transfer of property in the interest of the minor. We
feel that this is an erroneous application of the law keeping in mind the
decision of the Privy Council in Mohori Bibee’s case (supra).

10. As per the Indian Contract Act,1872 it is clearly stated that for an
agreement to become a contract, the parties must be competent to contract,
wherein age of majority is a condition for competency. A deed of mortgage
is a contract and we cannot hold that a mortgage in the name of a minor is
valid, simply because it is in the interests of the minor unless she is
represented by her natural guardian or guardian appointed by the court. The
law cannot be read differently for a minor who is a mortgagor and a minor
who is a mortgagee as there are rights and liabilities in respect of the
immovable property would flow out of such a contract on both of them.
Therefore, this Court has to hold that the mortgage deed-Ex.A1 is void ab
initio in law and the appellant cannot claim any rights under it.
Accordingly, the first part of first point is answered against the
appellant.

11. As regards to the later portion of the first point, even if we assume
that it is a valid mortgage deed as per recitals of the documents, it is
evident that it is a simple mortgage in terms of Section 58(b) of the
Transfer of Property Act, 1882, but not a usufructuary mortgage as defined
under Section 58(d) of the Transfer of Property Act. The relevant
provisions of the same are extracted hereunder :-

“58.(b)-Simple mortgage – Where, without delivering
possession of the mortgaged property, the mortgagor binds
himself personally to pay the mortgage-money, and agrees,
expressly or impliedly, that, in the event of his failing to
pay according to his contract, the mortgagee shall have a
right to cause the mortgaged property to be sold and the
proceeds of sale to be applied, so far as may be necessary,
in payment of the mortgage-money, the transaction is called a
simple mortgage and the mortgagee a simple mortgagee.

 
(d) Usufructuary mortgage – Where the mortgagor delivers
possession or expressly or by implication binds himself to
deliver possession of the mortgaged property to the
mortgagee, and authorises him to retain such possession until
payment of the mortgage-money, and to receive the rents and
profits accruing from the property or any part of such rents
and profits and to appropriate the same in lieu of interest,
or in payment of the mortgage-money, or partly in lieu of
interest or partly in payment of the mortgage-money, the
transaction is called an usufructuary mortgage and the
mortgagee an usufructuary mortgagee.”
On a careful reading of the recitals in Exh.A1, the mortgage deed and the
aforesaid provisions of the Transfer of Property Act, i.e. the definitions
of simple mortgage and usufructuary mortgage, wherein simple mortgage is
defined as the mortgage where property is mortgaged without delivering
possession of the mortgaged property to the mortgagee whereas usufructuary
mortgage is defined as the mortgage where the mortgagor delivers possession
or expressly or by implication binds himself to deliver possession of the
mortgaged property to the mortgagee and further authorises him to retain
such possession until payment of the mortgage- money, and to receive the
rents and profits accruing from the property or any part of such rents and
profits and to appropriate the same in lieu of interest, or in payment of
the mortgage-money, or partly in lieu of interest or partly in payment of
the mortgage-money. It is clear that in the present case, it is a simple
mortgage and not a usufructuary mortgage. Here, it is relevant to mention
the case of Pratap Singh @ Babu Ram & Anr. v. Deputy Director of
Consolidation, Mainpuri & Ors.[2], wherein this Court held as under :-
“In the case of possessory or usufructuary mortgage,
possession is delivered to the mortgagee. Delivery of
possession to the mortgagee is a sine qua non of such a
mortgage. It is delivered in terms of the mortgage by the
mortgagor of his own volition to the mortgagee. The mortgagee
gets possession over the land only because it has been
delivered to him in terms of the mortgage deed which equally
binds him.”

 

Thus, it is apparent that if a mortgage needs to be a usufructuary
mortgage, possession has to be delivered under the aegis of the mortgage
deed itself. Further, as per section 58(d) of the Act, in a usufructuary
mortgage, the mortgagor authorises the mortgagee to receive the rents and
profits accruing from the property in order to pay off the loan and in the
present case, there is nothing to show that this was happening and it is
not substantiated by the appellant by producing documentary evidence.
Further, the mortgagor has agreed to pay interest at the rate of ‘half
chakram per year for every hundred’ towards repayment of the loan amount
and this is detailed in the mortgage deed itself and hence we can infer
that there was no intention on the part of the parties to allow the
mortgagee to appropriate the rents and profits accruing out of the
mortgaged property. It is also stated in the mortgage deed that, on payment
of the principal, this mortgage deed will be redeemed, and if the principal
and interest are not repaid, then it was agreed ‘to realize it charged upon
the security property and on me’, meaning the mortgagor. Thus, it is very
clear that the mortgage deed only purports to be that of a simple mortgage.
Merely the fact that the mortgagee herein happened to be in possession of
the mortgaged property will not make it sufficient to rule that he/she was
a mortgagee in possession under the deed. Further, the argument that
possession of the property was delivered immediately after the deed was
executed also cannot be a ground to hold that mortgagee was in possession
of the land in question as per the deed as there is no recital in the deed
which delivers possession of the land to the mortgagee under the deed. In
the case of Ramkishorelal & Anr. v. Kamal Narayan[3], it was held that the
course of conduct of the parties is of no relevance for the construction of
a document which is in itself, unambiguous. In the present case, the
mortgage deed is unambiguous and it is patently clear that the mortgagor
did not intend to deliver possession of the mortgaged property as he has
clearly mentioned that he is paying interest but there is no delivery of
possession of land as per the deed.

12. By perusing the recitals of the mortgage deed, it is seen that it
neither expressly or by implication binds the mortgagor, the uncle of the
first respondent to deliver possession of the property and for the
mortgagee to retain such possession of the same until payment of the
mortgage money but on the other hand the mortgage is a simple mortgage as
the recitals fall within the definition of simple mortgage and there is no
express recital in the deed to deliver possession of the mortgaged
property.

By a careful reading of the orders passed by the authorities, it is
clear that the appellant has not produced any revenue records to evidence
the fact that after Exh.A1-mortgage deed was executed by the mortgagor in
the name of the deceased mother of the appellant, her name was entered in
the revenue records as the mortgagee in possession of the mortgagor’s
property covered in Exh. A1, and in this regard no piece of evidence has
been produced to establish this fact which would have been material
documentary evidence. But on the other hand, the Land Tribunal and the
Appellate Authority have preferred to simply rely on the Revenue
Inspector’s report as well as the deposition of the father of the first
respondent and the appellant as per Exh.A8 in the proceedings in O.A. No.
531 of 1975 in order to hold that the appellant was in possession as the
mortgagee. Even assuming the said document Exh.A8 deposition of the father
is taken on record as evidence under Section 80 of the Evidence Act, the
said document at best will disclose the fact that the appellant is in
possession of the property but not as a successor of the deceased mother,
the mortgagee of the property. He also could not have claimed that he has
succeeded in possession of the land in question of the deceased mother for
the reason undisputedly as stated by the first respondent that at the time
of death of the deceased mother-mortgagee, the appellant was a minor and
therefore, he could not have come into possession and continued as such
after the death of the deceased mortgagee and so the possession of the land
falls to the father of the appellant. The appellant has failed to produce
and establish the fact in the absence of recital in the mortgage deed
Exh.A1 as to how the mortgagee has come into the possession and how he
continued possession as successor of the mortgagee. The aforesaid factual
and legal aspect has not been taken into consideration by both the
authorities while coming to the conclusion on the basis of Exh.A1 and
instead, accepted the oral testimony of the appellant, and the finding is
erroneously recorded by them in his favour holding that the deceased
mortgagee was in possession of the land in question and after her death he
continued in possession as a mortgagee. Therefore, the concurrent finding
of fact of the appellate authority that he has proved this claim as a
deemed tenant under Section 4A of the K.L.R. Act and he is entitled to get
the purchase certificate of the owner of the property is not only an
erroneous finding but suffers from error in law and it has been rightly set
aside by the High Court in exercise of its wider civil jurisdiction by
recording a finding that the appellant’s possession of the property is not
that of a mortgagee under the mortgage deed.
Answer to Point Nos. 2 and 3
13. Even in the absence of the reasons which we have given in this
judgment, the conclusion and the concurrent finding of fact arrived at by
the Land Tribunal and the First Appellate Authority is not only an
erroneous finding but suffers from error in law. Further, another important
aspect of the case that has been ignored by both the authorities and the
High Court is that the mortgagor (or his legal heirs) have not been
impleaded as a party to the original claim or to subsequent proceedings.
There is also no mention whatsoever of the status of the original dowry
amount for which the property was mortgaged in the first place. Was the
obligation discharged? What is the mortgagor’s stand on the issue? Nothing
is clear. Further, the first respondent’s claim of ownership through her
father is also highly curious as it is not stated how the father is
claiming ownership over the property. In the absence of this important
evidence, we cannot adjudicate upon the ownership of the property. We can
only hold that the appellant cannot claim to be a deemed tenant of the land
in question under the K.L.R Act and it is open to the parties to litigate
on the question of ownership of the property in question before the
appropriate authority. We hold that the impugned judgment of the High Court
is perfectly legal and valid, and that the orders of the Land Tribunal and
Appellate Authority are erroneous for the reason that the facts and legal
evidence have been wrongly appreciated and held in favour of the appellant,
although it is contrary to the recitals of Exh.A1, as well as the
provisions of the Indian Contract Act and the provisions of the Transfer of
Property Act. Therefore, the findings and reasons recorded by both the Land
Tribunal and the Appellate Authority are erroneous and suffer from error in
law for the reasons referred to supra. We answer the point Nos. 2 and 3
against the appellant.

 
Answer to Point No. 4

14. In view of our findings on the point Nos. 1 to 3 against the appellant,
we hereby dismiss this appeal and uphold the impugned judgment of the High
Court passed in the Civil Revision Petition. It is open to the parties to
litigate before the appropriate court with regard to the ownership rights
of the property under the relevant provisions of law to get their rights
settled upon the property in question. No costs.

 

 
………………………………………………………………………J.
[GYAN SUDHA MISRA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
April 25, 2014

 

 

 

 
ITEM NO.1C COURT NO.13 SECTION XIA
FOR JUDGMENT

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 4479 OF 2007
MATHAI MATHAI Appellant (s)

VERSUS

JOSEPH MARY @ MARYKKUTTY JOPSEPH & ORS. Respondent(s)
Date: 25/04/2014 This Appeal was called on for judgment today.
For Appellant(s) Mr. M.T. George,Adv.
For Respondent(s) Mr. Roy Abraham, Adv.

 

Hon’ble Mr. Justice V. Gopala Gowda pronounced the
judgment of the Bench comprising Hon’ble Mrs. Justice Gyan Sudha
Misra and His Lordship.
Civil Appeal is dismissed in terms of signed reportable
judgment. No costs.

 

 
|(Pardeep Kumar) |(Renu Diwan) |
|AR-cum-PS |Court Master |
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]

———————–
[1] (1903) I.L.R. 30 Calc. 539
[2] (2000) 4 SCC 614
[3] AIR 1963 SC 890
———————–
33

 

 

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