TMI Blog2008 (3) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the appellant. The possession of the said property was delivered in favour of the mortgagee. The period prescribed in the said Deed of Mortgage was seven years. The amount of mortgage was ₹ 20,000/-. It was agreed that upon expiry of the said period, the property would revert back to the mortgagor. 3. Allegedly, an unregistered agreement was entered into by and between the parties herein, stating: This agreement in writing executed by us in respect of land C.S. No. 1943 admeasuring 252 Sq. meters situated Mouje Gadhinglj which includes house and open space belongs to us absolutely. Earlier the house admeasuring East West 39 feet i.e. 11 meters 89 centimeters and South-North 49 feet i.e. 14 meters 94 centimeters, totally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiffs entitled to redeem the mortgage by obtaining reconveyance of the suit property from the defendant? 4. Are they entitled to possession of the suit property? 5. What order and decree? 7. On issue No. 1, learned Trial Court opined: Now we have to see what was intended by the parties to these three documents. It may be noted that parties to these documents are the same. The defendant claims tenancy rights by virtue of agreement dated 24.2.1983 (Exh.52). On the other hand according to the plaintiff the property comprising this agreement is not the subject matter of the mortgage the controversy has to be solved by going through the contents of the document. From the recitals it appears that the Municipal House No. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right created by plaintiffs, in favour of the defendant in the immovable property for ₹ 20,000/- as a mortgagee, has been extinguished. By the terms and conditions of this agreement, parties, intended to change the right created in favour of defendant, under registered deed of mortgage, which was admittedly executed for the mortgage amount of ₹ 20,000/-. Therefore, Under Section 17(1)(b) of the Indian Registration Act, this second agreement dated 1.3.1983 (Exh.53) requires registration. Admittedly, this document is not registered document. Therefore, under this second agreement (Exh.53) the relations created in between the plaintiffs and defendant as mortgagor and mortgagee, cannot be extinguished. I hold that, the Kararpatr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the lease were separate and independent transactions. The Court of First Appeal as also the High Court, thus, committed a serious error in passing the impugned judgment. The learned Counsel furthermore urged that although a decree for redemption could be granted but in execution of the said decree, only symbolical possession could be directed to be issued. 12. The Deed of Mortgage dated 28.2.1983 was a registered document. The terms of a registered document could be varied or altered only by another registered document. A finding of fact has been arrived at that the appellant could not prove his possession as a tenant. We have noticed hereinbefore that the appellant was put in possession as a mortgagee. It was, therefore, in our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been drawn to a decision of this Court in Gopalan Krishnakutty v. Kunjamma Pillai Sarojini Amma and Ors. [1996]3SCR355 wherein upon taking into consideration some of its earlier decisions, this Court held: The High Court, in the present case, proceeded on the erroneous assumption in law that surrender of the lease by the lessee (defendant) must be implied from the fact of execution of the usufrucuary mortgage in his favour by the lessor (plaintiff). As indicated, this is an erroneous assumption in law. This question has to be decided on the contents of the deed since there is no other evidence of surrender of the lease by the defendant on execution of the mortgage. We find nothing in the mortgage deed (Annexure A-1) dated 18.7.1974 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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