LexRAGHUNATH & ORS. versus KEDAR NATH
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A RAGHUNA'rH & ORS. v. KEDAR NAIB February 3, 1969 B [1. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] c D E F G H Tran!Jfer of Property Act, 1882, ss. 4 and 54-Jndian Registration Act, 1908, " 49 as amended by Transfer of Property (Amendment) Supple- mentary 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 afore- said 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 dis- posing of the second appeal set aside the judgment elf the lower appellate court and restored the judgment of the trial court. The High Court fur- ther 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 defendants- appellanls 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 re- quired 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 Re- gistration 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 re- gistered are not admissible in evidence of any transaction aifectlng any B 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 C was not legally justified in giving further relief to the plaintiff than that granted by the trial court. Accordingly the p
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