# RAGHUNA'rH & ORS v. KEDAR NAIB

- **Citation:** [1969] 3 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 1969-02-03
- **Case number:** Civil Appeals Nos. 457 and 458 of 1966
- **Bench:** 1. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raghuna-rh-ors-v-kedar-naib-4607
- **Pages:** 8

## Headnote

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Tran!Jfer of Property Act, 1882, ss. 4 and 54-Jndian Registration Act,
1908, " 49 as amended by Transfer of Property (Amendment) Supplementary Act. 1929, s. l~ection 4 of T .P. Act whether makes s. 49 of
Registration Act applicable to documents compulsorily registrable under
s. 54 of T.P. Act-Unregistered sale-deed whether admissible in evidence.
Construction of documents-Mortgage or sale.
Practice-High Court in appeal whether can give further relief than
given to plaintiff by trial court when plaintiff did nor file appeal against
decree of trial court.
D took a loan of Rs. 1700/ - from M, father of the defendants.
On
27th July 1922, D along with his· grandmother executed a possessory
mortgage deed (Ex.4) in respect of a house for the amount of the aforesaid loan in favour of M. On 23rd February 1953, D's heir sold the said
house to the plaintiffs who filed a suit for redemption of the house and for
accounts.
The defendants who were sons of M resisted the suit on the
ground that Ex .. 4 was not a deed of mortgage though apparently so.
According to them when read with Ex. 26 which was executed in October
1922 it was an outright sale. The !rial court decreed the plaintiff's suit
for redemption on payment of an amount fixed by it.
The first Appellate
Court allowed the defendants' appeal. The High Court when finally disposing of the second appeal set aside the judgment elf the lower appellate
court and restored the judgment of the trial court. The High Court further remanded the case to the lower appellate court with the direction that
"the defendants be asked to render accounts before they claim any pay·
meat from the plaintiff at the time of the redemption of the mortgage".
In appeals before this Court the contentions on behal'f of the defendantsappellanls were : ( i) That Ex. 4 was really a sale deed and not a mortgage
deed and it should be read with Ex. 26; (ii) Thats. 4 of the Transfer of
Property Act did not make s. 49 of the Registration Act applicable to
documents compulsorily registrable by the provisions of s. 54 paragraph 2
of the Transfer of Property Act, and therefore Ex. 26 though unregistered
was not inadmissible in evidence; (iii) That in any case since the respon·
dents (olaintiffs) had not filed any appeal against the decree of the trial
court, the High Court should not have granted them further relief as it did
by giving a direction that the defendants should
be asked
to render
accOU11ts before they claimed payment from the plaintiff at the time elf the
redemption of the mortgage.
HELD : (i) The terms of Ex. 4 clearly showed that it was a mortgage
deed and not a sale deed.
(ii) Ex. 4 could not be read with Ex. 26 because the latter was required to be registered under s. 54 of the Transfer of Property Act. In
the absenee of such registration this document could not be received in
evidence of any transaction affecting the property in view elf s. 29 of the
Registration Act. [500 B--501 EJ
The contention that s. 4 of the Transfer of Property Act did not make
s. 49 of the Registration Act applicable to transactions under s. 54 para-
498
SUPREME COURT REPORTS
[1969] 3 S.C.R.
graph 2 of the Transfer of Property Act could
not be accepted.
Any
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doubt in this respect was removed by s. 10 of the Transfer of Property
1 Amendment) Supplementary Act, 1929 which introduced the words '"by
""Y provision of the Transfer of Property Act, 1882" in s. 49 of the Registration Act. This amendment made it clear that the documents in the
supplemental list i.e. the documents of which registration
is
necessary
under tl'c Transfer of Property Act but not under the Registration Act
fall within the scope of section 49 of the Registration Act, and if. not registered are not admissible in evidence of any transaction
aifectlng any
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immovable property comprised therein and do not affect any such immov·
able property. (503 F-504 BJ
Sohan Lal & Ors. v . . "v/o/wn Lal & Ors., I.LR. 50 All. 986 and Rama
Sahu v. Gowro Ratho, I.LR. [1921

## Text

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RAGHUNA'rH & ORS.
v.
KEDAR NAIB
February 3, 1969
B
[1. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
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Tran!Jfer of Property Act, 1882, ss. 4 and 54-Jndian Registration Act,
1908, " 49 as amended by Transfer of Property (Amendment) Supplementary Act. 1929, s. l~ection 4 of T .P. Act whether makes s. 49 of
Registration Act applicable to documents compulsorily registrable under
s. 54 of T.P. Act-Unregistered sale-deed whether admissible in evidence.
Construction of documents-Mortgage or sale.
Practice-High Court in appeal whether can give further relief than
given to plaintiff by trial court when plaintiff did nor file appeal against
decree of trial court.
D took a loan of Rs. 1700/ - from M, father of the defendants.
On
27th July 1922, D along with his· grandmother executed a possessory
mortgage deed (Ex.4) in respect of a house for the amount of the aforesaid loan in favour of M. On 23rd February 1953, D's heir sold the said
house to the plaintiffs who filed a suit for redemption of the house and for
accounts.
The defendants who were sons of M resisted the suit on the
ground that Ex .. 4 was not a deed of mortgage though apparently so.
According to them when read with Ex. 26 which was executed in October
1922 it was an outright sale. The !rial court decreed the plaintiff's suit
for redemption on payment of an amount fixed by it.
The first Appellate
Court allowed the defendants' appeal. The High Court when finally disposing of the second appeal set aside the judgment elf the lower appellate
court and restored the judgment of the trial court. The High Court further remanded the case to the lower appellate court with the direction that
"the defendants be asked to render accounts before they claim any pay·
meat from the plaintiff at the time of the redemption of the mortgage".
In appeals before this Court the contentions on behal'f of the defendantsappellanls were : ( i) That Ex. 4 was really a sale deed and not a mortgage
deed and it should be read with Ex. 26; (ii) Thats. 4 of the Transfer of
Property Act did not make s. 49 of the Registration Act applicable to
documents compulsorily registrable by the provisions of s. 54 paragraph 2
of the Transfer of Property Act, and therefore Ex. 26 though unregistered
was not inadmissible in evidence; (iii) That in any case since the respon·
dents (olaintiffs) had not filed any appeal against the decree of the trial
court, the High Court should not have granted them further relief as it did
by giving a direction that the defendants should
be asked
to render
accOU11ts before they claimed payment from the plaintiff at the time elf the
redemption of the mortgage.
HELD : (i) The terms of Ex. 4 clearly showed that it was a mortgage
deed and not a sale deed.
(ii) Ex. 4 could not be read with Ex. 26 because the latter was required to be registered under s. 54 of the Transfer of Property Act. In
the absenee of such registration this document could not be received in
evidence of any transaction affecting the property in view elf s. 29 of the
Registration Act. [500 B--501 EJ
The contention that s. 4 of the Transfer of Property Act did not make
s. 49 of the Registration Act applicable to transactions under s. 54 para-
498
SUPREME COURT REPORTS
[1969] 3 S.C.R.
graph 2 of the Transfer of Property Act could
not be accepted.
Any
A
doubt in this respect was removed by s. 10 of the Transfer of Property
1 Amendment) Supplementary Act, 1929 which introduced the words '"by
""Y provision of the Transfer of Property Act, 1882" in s. 49 of the Registration Act. This amendment made it clear that the documents in the
supplemental list i.e. the documents of which registration
is
necessary
under tl'c Transfer of Property Act but not under the Registration Act
fall within the scope of section 49 of the Registration Act, and if. not registered are not admissible in evidence of any transaction
aifectlng any
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immovable property comprised therein and do not affect any such immov·
able property. (503 F-504 BJ
Sohan Lal & Ors. v . . "v/o/wn Lal & Ors., I.LR. 50 All. 986 and Rama
Sahu v. Gowro Ratho, I.LR. [1921] 44 Mad. 55. referred to.
(iii) The appellants were right in contending that when the plaintifi
had not filed an appeal against the decree of the trial court the High Court
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was not legally justified in giving further relief to
the plaintiff than
that granted by the trial court.
Accordingly the portion of the decree
of the High Court remanding the case to the IO\ver appellate court with a
direction that the dofendants should be asked to tender accounts, was liable
to be set "'ide. [504 D-E]
CIVIL APPELLATE JURISDICTION :
Civil Appeals Nos. 457
and 458 of 1966.
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Appeals by special leave from the judgment aind order date\I
April 27, 1964 of the Allahabad High Court in Second Appeals
Nos. 4940 and 3660 of 1961.
S. P. Si11ha and Shaukat Hussain, for the appellants (in both
the appeals).
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J. P Goyal and G. Nabi Untoo, for the respondent (in both
the appeals).
The Judgment of the Court was delivered by
Ramaswami, J.
In the suit which is the subject matter of
these appeals the plaintiff alleged that one Dwarka Prasad took
a loan of Rs. 1700 from Madho Ram, father of the defendants,
and that on 27th July, 1922, Dwarka Prasad along with one
Mst. Kunta. his maternal grand mother, executed a possessory
mortgage deed of the disputed house for Rs. 1700 in favour of
Madho Ram.
The tenns of the mortgage deed were that the
mortgagor was to pay interest of Rs. 12, 12/- per month out of
which the rent amounting to Rs. 6/-
which was the agreed
usufruct of the house in suit was to be adjusted and the mortgagor
was to pay Rs. 6/12/- per month in cash towards the balance of
the interest. The parties agreed that the mortgage would be redeemable within twenty years after paying the principal amount
and that portion of interest which was not discharged by the usufruct and other amounts. When Dwarka Prasad wiis unable to
pay the amount of Rs. 6/12/- per month, he delivered possession
of the house to Madho Ram who let out the house on a monthly
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RAGHUNATH v. KEDAR NATH (Ramaswami, J.)
499
rent of Rs. 25. The mortgagors Dwarka Prasad and Mst. Kunta
died leaving Mst. Radha Bai as Dwarka Prasad's heir.
Radha
Bai sold the house in dispute to the plaintiff on 2nd February,
1953 and executed a sale deed. The plaintiff, therefore, became
entitled to redeem the mortgage and asked the defendants to render accounts.
The defendants contested the suit on the ground
that Madho Ram was not the mortgagor nor were the defendants
mortgagees.
It was alleged that in the locality where the house
was situated, there was a custom of paying Haqe-chaharum and
to avoid that payment, the original deed dated 27th July, 1922
was drafted and executed in the form of a mortgage though it was
actually an out-right sale. According to the defendants, the house
was actually sold to Madho Ram and was not mortgaged. The
defendants also pleaded that if the deed dated 27th July, 1922 was
held to be a mortgage, the mortgagees were entitled to get the payment of Rs. 6442/8/- as interest, Rs. 2315 as costs of repairs etc.
The trial court held that the deed dated 27th July, 1922 was a
mortgage deed, that Dwarka Prasad did not sell the house to
Madho Ram and that the plaintiff was entitled to redeem the
mortgage on payment of Rs. 1709/14/..
The trial court.accordingly decreed the plaintiff's suit for redemption on payment of
Rs.
1709/14/-. Against the judgment of the trial
court the
defendants preferred an appeal before the District Judge, Varanasi, who allowed the appeal and dismissed the plaintiff's suit.
The plaintiff took the matter in second appeal to the High Court
which framed an issue and remanded the case back to the lower
appellate court for a fresh decision.
The issue framed by the
High Court was "Have the defendants become the owners of the
property in dispute by adverse possession ?" The High Court also
directed the lower appellate court to decide the question oi admissibility of Exts. A-25 and A-26. After remand the lower appellate
court held that the deed dated 27th July, 1922 was a mortgage deed
and not a sale-deed, and, therefore, the plaintiff was entitled to redeem the mortgage. The lower appellate court further held that the
defendants had failed to prove that they had acquired title by
adverse possession.
The lower appellate court made the following order:-
'The appeal is allowed with half costs in this way
that the suit is decreed for the redemption of the mortgage in question if the. plaintiff pays within six months
Rs. 1700 as principal, Rs. 9.87 N.P. Prajawat paid
before this suit and any Prajawat paid by the defendants during the pendency of this suit till the plaintiff
deposits the entire sum due under this decree and the
interest at the rate of Rs. 6/12/- per month from
27-7-19?.2 till the plaintiff deposits the entire sum due
500
SUPREME COURT REPORTS
[1969] 3 S.C.R.
under this decree. The costs of the trial court are
made easy.
Let the preliminary decree under Order
34, R. 7, C.P.C. be modified accordingly".
Against the judgment and decree of the lower appellate court both
the plaintiff and the defendants filed appeals before the High
Court. The plaintiff prayed that the decree of the lower appellate
court should be set aside and the decree of the trial court should
be restored. The defendants, on the other hand, prayed that the
decree of the lower courts should be set aside and the plaintiff's
suit should be dismissed with costs.
By its judgment dated
27th April, 1964 the High Court dismissed the secoind appeal preferred by the defendants but allowed the plaintiff's appeal and set
aside the judgment of the lower appellate court and restored the
judgment of the trial court.
The High Court further remanded
the case to the lower appellate court with the direction that "the
defendants be asked to render accounts before they claim any
payment from the plaintiff at the time of redempti® of the mortgage". The present appeals are brought by special leave against
the judgment of the Allahabad High Court dated 27th April, 1964
in second Appeals Nos. 4940 and 3660 of 196!.
In support of these appeals it was contended by Mr. Sinha
that the deed Ex. 4 dated 27th July, 1922 was a sale deed and
not a mortgage deed. It was pointed out that there was a subsequent deed of sale dated 8th Ock!ber, 1922 Ex. A-26 which is
named 'Titimma Bainama'.
The contention was that the document Ex. 4 dated 27th July, 1922 rr.ust be construed along with
Ex. A.26 which forms part of the same transactio!l and so construed the transaction was not a usufructary mortgage but was an
outright sale. We are unable to accept the argument put forward
on behalf of the appellant. Ex. A.26 dated 8th October, 1922 is
not a registered document, and is hence not admissible in evidence
to prove the nature of the transaction covered by the registered
mortgage deed Ex. 4 dated 27th July, 1922. If Ex. 4 is taken
by itself, there is no doubt that the transaction is one of mortgage.
The document Ex. 4 recites that in consideration of moaey
advanced the executants "mortgage the said house 'Bhog Bh!\Q.dak'
bearing No. 64/71 situate Mohalla Gola Dina Nath.'' Clause 2
provides a period of twenty years for redemption of the mortgage.
Clause 6 of the document stipulates that the cost of refJairs will
be borne by the mortgagors. Clause 1 states :
"That the said sum of Rupees Seventeen hundred
half of which is Rupees Eight hundred and fifty will
carry interest at the rate of twelve annas per cent
monthly. The sum of Rupees six wiH be deducted towards rent monthly from the interest which will accrue.
The possession of the house has been delivered to the
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RAGHUNATH v. KEDAll NATH (Ramaswami, J.)
50 I
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said mortgage Mahajan (money lender). The mortgagors will pay the balance of Rupees six annas twelve
month by month to the said mortgagee after deducting
the rent of Rupees six after giving the possession of the
said house and shop".
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Clause 4 provides :
"That we will go on paying the said Mahajan the
sum of Rupees six twelve annas the balance of the interest monthly. If the whole or part of the interest remains unpaid we will pay at the time of redemption.
ll this amount of interest is not paid the said house
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shall not be redeemed".
The reading of these terms clearly shows that Ex. 4 was a mortgage
deed and not a sale deed. It was contended on behalf of the appellants that in order to avoid the payment of Haqe-ehaharum, the
original deed dated 27th July, 1922 was drafted and executed in
the form of a mortgage but it was actually meant to be an outD
right sale.
Tn support of this argument reference was made to
Ex. A.26 dated 8th October, 1922. As we have already said Ex.
A.26 was required to be registered under section 54 of the Transfer of Property Act. In the absence of such registration this document cannot be received in evideince of any transaction affecting
the property in view of s. 49 of the Registration Act. It was,
i, however, urged on behalf of the appellants that the effect of
section 4 of the Transfer of Property Act was not to make section
49 of the Registration Act applicable to documents which are
compulsorily registrable by the provisions of s. 54, paragraph 2
of the Transfer of Property Act.
In support of this contention
reliance was placed on the decision of the full
bench of the
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Allahabad High Court in Sohan Lal & Ors. v.
Mohan Lal &:
Ors.( 1 }
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Section 4 of the Transfer of Property Act states :
"The chapters and sections of this Act which relate
to contracts shall be taken as part of the Indian Registratio,n Act, 1872.
And sections 54, paragraphs 2 and 3, 59, 107 and
123 shall be read as supplemental to the Indian Registration Act, 1908".
Section 54 of the Transfer of Property Act reads :
" "Sale" is a transfer of ownership in exchange for
a price paid or promised or part-paid and part-promised.
(I) I.LR. 50 All. 986.
SUPREME COURT REPORTS
[1969] 3 S.C.R.
Such transfer, iC1 the case of tangible immoveaoJe
property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible
thing, can be made only by a registered instrument.
In the case of tangible immoveable property, of a
value less than Qlle hundred rupees, such transfer may
be made either by a registered instrument or by delivery
of the property".
Section 1 7 of the Registration Act states :
"1 7. (1 ) The following documents shall be registered if the property to which they relate is situate in a
district in which, ·and if they have been executed on or
after the date on which, Act No. XVI of 1864 or the
Indian Registration Act, 1866 or the lindian Registration
Act, 1871, or the Indian Registration Act, 1877, or
this Act came or comes into force, namely :
(a) instrument of gift of immoveable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extiinguish, whether in present or in future, any right, title
or interest, whether vested or contingent, of the value of
one hundred rupees and upwards, to or in immoveable
property;
(c) non-testamentary iristruments which acknowledge the receipt or payment of any consideration on
account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
( d) leases of immoveable property from year to
year, or for any term exceeding one year, or reserving
a yearly rent;
( e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any award
when such decree or order or award purports or ope-
. rates to create, declare, assign, limit or extinguish
whether in present or in future, any right, title or interest, wheiher vested or contingent of the value of one
hundred rupees and upwards
to or in immoveable
property".
Section 49 of the Registration Act prior to its. amendment in 1929
read:
"No document required by section 17 to be registered shallA
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RAGHUNATH v. KEDAR NATH (Ramaswami, !.)
503
(a) affect any immoveable property comprised
therein, or
(b) confer any power to adopt, or
( c) be received as evidence of any transaction
affecting such property or conferring such power, unless
it has been registered".
By section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, section 49 was amended as follows:-
"No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-
( a) affect any immoveable
property comprised
there~, or
(b) confer any power to adopt, 01
( c) be received as evidence
of any
transaction
affecting such property or conferring such power unless
it has been registered.
Provided that an unregistered document
affecting
immoveable property a'1d required by this Act or the
Transfer of Property Act, 1882, to be registered may be
received. as evidence of a contract in a suit for specific
performance under Chapter
II of the
Specific
Relief Act, 1877, or as evidence of part performance
of a contract for the purposes of section 53A of the
Transfer of Property Act, 1882, or as evidence of any
collateral transaction not required to be affected by registered instrument".
The inclusion of tbe words "by any provision of the 'l;'ransfer of
Property Act, 1882" by the Amending Act,
1929 settled the
doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but
not under section 17 of the Registration Act were affected by section 49 of the Registration Act.
Section 4 o.f the Transfer of Property Act enacts that "sections 54, paragraphs 2 and 3, 59, 107
and 123 shall be read as supplemental to the India,n Registration
Act, 1908". It was previously supposed that the effect of this
section was merely to add to the list of documents of which the
registration was compulsory and not to include them in section t 7
so as to bring them within the scope of section 49.
This was the
view taken by the Full Bench of the Allahabad High Court in
Sohan Lal' s case('). The same view was expressed in a Madras
Case Rama Sahu v. Gowro Ratho(') and by MacLeod C.J. in
a Bombay case Dawal v. Dharma('). We are however absolved
(I) l.L.R. SO All. 986.
i2) I.L.R. [1921] 44 Mad. 55.
(3) l.L.R. [1918] 41Born.550.
504
SUPREME COURT REPORTS
[1969] 3 S.C.R.
in the present case from examining the correctness of these dec1-
,ions.
For these decisions have been superseded by subsequent
legislation i.e. by the enactment of Act 21 of 1922 which by inserting in section 49 of the Registration Act the words "or
by any provision of the Transfer of Property Act, 1882" has.made
it clear that the documents in the supplemental list i.e. the documents of which registration is llCCCSSary under the Transfer of
Property Act but not under the Registration Act fall within the
scope of section 49 of the Registration Act and if not registered
are not admissible as evidence of any transaction affecting a.ny
immoveable property comprised therein, and do not affect any
such immovable property. We are accordingly of the opinion
that Ex. A.26 being umegistered is not -admissible in evidence. In
our opinion, Mr. Sinha is unable to make good his argument on
this aspect of the case.
Mr. Sinha contended that in any event the High Court should
not have remainded the case to the lower appellate court with a
direction that the defendants should be asked to render accounts
before they claim any payment from the plaintiff at the time of
redemptiqn of the mortgage. It was pointed out that the plaintiff did
not file an appeal against the decree of the trial court and in the
absence of such ·an appeal the High Court was not legally justified in
giving further relief to the plaintiff than that granted by the trial
court. In our opinion, there is justification for this argument. We
accordi,ngly set aside that portion of the decree of the High Court
remanding the case to the lower appellate court with a direction
that the defendants should be asked to render accounts. Otherwise
we Sflirm the decree of the High Court allowing the plaintiffs
appeal with costs and setting aside the judgment and decree of
the lower appellate court and restoring judgmanit and decree of the
trial court dated 31st October, 1956.
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Subject to this modification we dismiss these appeals. There
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will be no order as to costs in this Court.
G.C.
Appeals dismissed.
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