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Thursday, May 8, 2014

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


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