I.N. Modi, J.
1. These are two connected appeals which arise out of the judgment and decree of the learned District Judge, Jhunjhunu dated the 18th of October, I960 in a suit for redemption of a mortgage. Appeal No. 125 of 1961 has been filed by the mortgagor Ali Mohammad while appeal No. 134 of 1961 by the mortgagees. I propose to dispose of both these appeals by a single judgment.
2. It is common ground between the parties that the plaintiff Ali Mohammad along with his mother Mst. Laxmi made a mortgage of the two shops in suit in favour of the defendants to secure a loan of Rs. 1565 by a registered mortgage deed dated 22nd August, 1927 vide Ex. A3. The mortgage was of a usufructuary character. The plaintiff, therefore, claimed to redeem the shops in suit on payment of the mortgage money amounting to Rs. 1565. The defendants resisted the suit.
In addition to the mortgage deed Ext. A-3 they urged that by another document Ext. A-1 dated Kati Sudi 9 S. 1987 corresponding to sometime in November, 1931, the mortgagor and his mother Laxmi had sold the roof (or as if is stated in the document 'Dagla') on his shops to them. It appears from the document that there was a 'medi' on the top of the shops which had fallen down owing to rains whereupon the mortgagees asked the mortgagor to repair the roof of the shops or to redeem them by paying off the mortgage money. To this the reply of the mortgagor was that he was in no financial position to either redeem the shops or to invest any money on the repairs thereof and, therefore, he was willing to sell and actually sold the roof to them so that they were free to raise, any kind of construction thereon and it was made perfectly clear in this document that thereafter, the mortgagor would lay no claim whatever to the roof or to the construction which they would raise on it. As it transpired this document was not registered.
It may also be pointed out at this stage that the mortgagor Ali Mohammad was a minor at the time of the execution of the document. Be that as it may, the case of the defendants was that by this document they had become owners of the roof and the construction viz., chobara which they had built on it at cost of some two thousand rupees. Apart from this the defendants also claimed a sum of Rs. 886/ 12/6 which it is alleged, they had advanced to the mortgagor as a further loan, and another sum of Rs. 425 which was spent by thorn by way of repairs to the suit shops.
The claim for both these amounts is sought to be supported by two writings Exs. A5 and A2 respectively dated 24-10-1938 and 14-1-1942 (Katik Sudi 1 S. 1995 and Mah Sudi 3 S. 1998), but admittedly both these documents are also unregistered. The trial court awarded a preliminary decree for redemption in favour of the plaintiff on payment of the following amounts
(1). Rs. 1565 the mortgage money.
(2). Rs. 886/12/6 as additional mortgage dues.
(3). Rs. 425 as cost of repairs, and
(4). Rs. 1882 as the cost of construction of the 'chobara'; in all amounting to Rs. 4558/ 12/6.
Both parties went in appeals to the learned District judge, Jhunjhunu which were disposed of by a single judgment which is now impugned before me. By this judgment the defendants mortgagees' appeal was partly allowed and redemption was decreed on payment of the sums of Rs. 1565, Rs. 886/12/6 and Rs. 425 as aforesaid, but the remaining amount of Rs. 1682 which had been allowed by the trial court as cost of construction of the 'chobara', was disallowed and the defendants were left free to remove their materials on it. The defendants' appeal wherein, they claimed the ownership of the roof of the shops and the 'chobara' which had been constructed by them thereon, was dismissed. Aggrieved by this decision, both parties have filed appeals to this Court as already stated.
3. I shall take up the defendants appeal first. The sole point raised for determination in this appeal is about the alleged sale of the roof of the shops by the plaintiff to the defendants by the writing Ex. A1 dated Kati Sudi 9 S. 1987 (sometime in November, 1931). Admittedly, this writing is not registered. Admittedly again it was executed by Ali Mohamad who was a minor at that time and by her mother Laxmi who was his de facto guardian. On both these grounds i.e. want of registration and want of competence on the part of the minor and his de facto guardian to enter into any such transaction, the courts below came to the conclusion that no title could or did pass from the plaintiff mortgagor to the defendants mortgagees and consequently, the latter did not become owners thereof and the mortgage subsisted. This finding has been hotly assailed before me on behalf of the defendants.
It is contended that even if the document was compulsorily registrable, but was not registered, it could lawfully be looked at in order to determine the character or the nature of the defendants' possession with respect to the roof or 'dagla' of the defendants and reliance has been placed in support of this proposition on N. Varada Pillai v. Jeevarathnam-mal, AIR 1919 PC 44 and Lachhmi Narain v. Kalyan, AIR 1960 Raj 1 (SB).
On the other hand it is equally strenuously argued on behalf of the plaintiff mortgagor that even if objection as to registration of the document Ex. A1 is ignored, the transaction embodied therein was and is void ab initio inasmuch as the document was executed by a minor and that such a document could not be pressed into use at all for converting what was initially permissive possession into an adverse one and consequently, the said document was altogether useless to serve as a foundation for the contention that the defendants had thereby become owners of the roof in any manner whatsoever. Reliance is placed in support of this submission on Khiarajmal v. Daim, (1905) ILR 32 Cal 296 and Padma Vithoba v. Mohd. Multani AIR 1963 SC 70. The question, therefore, is which of these two submissions is correct.
Now, I may state at once that it was conceded before me by learned counsel for the defendants appellants that mortgages and sales were compulsorily registrable in the former State of Jaipur from which part of Rajasthan the present case arises, & they were registrable irrespective of the value of the property which was the subject matter of mortgage sale. It was however, contended on their behalf that the transaction embodied in this document did not amount to a sale, a contention which was raised here for the first time and the chief reason which was adduced in support of this submission was that there was no price fixed for the so-called sale which was a sine qua non of a transaction of sale according to law and, therefore, it was contended that the document was not compulsorily registrable.
On the other hand it was contended by the learned counsel for the plaintiff that the case put forward on behalf of the defendants throughout the course of this litigation was that the transaction embodied in Ex. A1 was one of sale and that being so, if was compulsorily registrable, and so far as the question of the consideration or the price for which the sale of the roof was sought to be made, was concerned, it was urged that the sale had been made for the amount of money which should be spent by the defendants and which they were authorised to do in executing the repairs thereto.
It may also be stated that learned counsel for both parties were unable to place before me the relevant law of registration of the then State of Jaipur as it existed at the relevant time, in spite of the fact that all possible opportunities were given to them to do so, Be that as it may, I do not consider it necessary to make any definite pronouncement on the question whether the document Ex. A1 was or was not compulsorily registrable because in my opinion, the question of its proper effect can be determined affirmatively from another angle.
4. And that brings me to the question that this document was admittedly executed by Ali Mohammad who was, unquestionably a minor at that time, and the contention raised before me is that as the minor had no competence to enter into any such contract, it was void ab initio and it is altogether insufficient in law to serve as any basis for the acquisition of title by itself, or by adverse possession which would be the only other method by which the defendants could acquire title, if the document Ex. A1 was insufficient in law to serve as a direct foundation for the acquisition of title by the defendants with respect to the property in question. Now the law is indeed much too well established to admit of any doubt or dispute at this date that a contract made by the minor is wholly void or void ab initio, so that it was entirely ineffectual to pass title by itself.
It is contended by the learned counsel for the defendants that even so it can be used as a basis to show that the possession of the defendants which was originally as mortgagees became adverse against the plaintiff mortgagor ever since the document Ex. A1 came to be executed and the title became perfect by more than 12 years adverse possession by the time the present suit was brought in 1956. On giving my careful and anxious consideration to this aspect of the case, I have unhesitatingly come to the conclusion that it is devoid of of substance, and a direct authority is furnished for this view by the decision of their Lordships of the Supreme Court in AIR 1963 SC 70 (supra).
It was held in this case that when a person gets into possession of a property as mortgagee, he cannot by any unilateral act or declaration of his, without consent, prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of a mortgagor. But if the mortgagor and the mortgagee subsequently enter into a transaction under which the mortgagee thereafter comes to hold the same not as a mortgagee but as owner, that would be sufficient to start adverse possession against the mortgagor. Where however, the owner of the mortgaged property is a minor at the time of entering into the subsequent transaction of sale with the mortgagee, the possession of the mortgagee which is lawful cannot become adverse to the minor.
In summing up the legal position their Lordships posed and answered the question thus: 'If possession is lawful at the inception, can it become adverse under an arrangement entered into by a minor? Now the minor is in law incapable of giving consent, and there being no consent, there could be no change in the character of possession, which can only be by consent, and not by unilateral act.' In this state of the law I do not think that there is or can be any escape from the conclusion that as the mortgagor in this case was admittedly a minor at the time when Ex. A1 came to be entered into in November, 1931, the contract embodied therein was altogether insufficient in law to convert the character of the possession of the defendants mortgagees which was to start with permissive, into hostile or adverse as owners, irrespective of the length of such possession.
Learned counsel sought to distinguish the present case from that before the Supreme Court on two grounds:--
1. that the sale was not merely by the minor but also by his de facto guardian, and
2. that there was evidence in this case that the 'chobara' had been built by the defendants on the roof in question in spite of the protest of the minor.
The first ground however, seems to me to be a distinction without any difference because the law is firmly settled that a de facto guardian of a Muslim minor has no power to transfer any right or interest in the immovable property of the minor and that such a transfer is not merely voidable, but void. See Mata Din v. Ahmad Ali, (1912) 39 Ind App 49 (PC), Imambandi v. Mutsaddi, 45 Ind App 73 = (AIR 1918 PC 11) and Mohd. Amin v. Vakil Ahmad, AIR 1952 SC 358.
5. In the last mentioned case it was held, relying on the decision of the Privy Council in 45 Ind App 73 = (AIR 1918 PC 11) (supra) that:
'The test of benefit resulting from the transaction to the minor was negatived by the Privy Council and it was laid down that under the Mohamedan Law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a 'de facto guardian' has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant.'
It was further held that:
'If the deed of settlement was thus void, it would not be void only qua the minor plaintiff but would also be void altogether qua all the parties including those who were sui juris.'
6. As to the second ground that the defendants' possession of the roof in question had become adverse because while the defendants were raising their construction on it, the minor plaintiff had protested and they continued and completed the building in spite of such protest, what I need say is, that nothing really turns on this line of distinction either. The reason is that the minor was entirely incapable of giving his consent to anything which the defendants did or wanted to do &, therefore, his lack of consent thereto must be held to be equally immaterial.
7. That being the correct position in law I have no manner of hesitation in coming to the conclusion that not only the document Ex. Al was not binding on the minor but it was void and inoperative with respect to the other parties concerned with the documents including his mother and the defendants could not take any advantage of it, and consequently. a transaction like this could be of no avail whatsoever to change the character of the possession of the defendants with respect to the roof in question from permissive to adverse.
It must follow, therefore, that the correct legal situation in which the defendants stood with respect to the roof or the 'dagla' in question was that of nothing but mortgagees, notwithstanding Ex. A-1 which must be held to be void and of no effect and, that being so, their contention that by virtue of that document they became owners thereof by adverse possession, must be held to be untenable.
8. Before concluding my discussion on the defendants' appeal, I may make it clear that although in the memorandum of appeal filed in this Court, the defendants had raised an alternative case that even if Ex. A1 was held to be ineffective as sale it had permitted the appellants to repair the roof and construct a room over it and, therefore, the appellants were entitled to the money spent by them on such construction, this ground was wholly given up by the learned counsel at the time of arguments before this Court and, therefore, it is not necessary for me to pursue it. This disposes of the defendants' appeal.
9. Turning next to the appeal of the plaintiff, it may be mentioned straightway that the amount of Rs. 425 allowed by the courts below being the money spent by the defendants mortgagees on certain repairs to the morgaged property, has not been challenged before me and therefore, the defendants are undoubtedly entitled to recover the same from the plaintiff along with the mortgage money, A forceful argument as however, addressed to me with respect to the remaining amount of Rs. 886.12.6 allowed by the courts below to the defendants along with the redemption money.
Admittedly, this was a cash advance given by the defendants to the plaintiff vide Ex. A2. This amount consists of two items; one of Rs. 36.12.6 and the other of Rs. 850, From the relevant entry in Ex. 5 it clearly appears that the mortgagor had agreed that he would redeem the mortgage which had been made in favour of the defdts, by him with respect to the two shops which are the subject matter of the present suit, after having paid the sum of Rs. 886.12.6. This entry is dated Bhadva Sudi 9 S. 1998 corresponding to 1st August, 1941. This amount was later incorporated in Ex. A2 another document executed between the parties dated Magh Sudi 3 Smt. 1998, corresponding to 14th January, 1942, along with the item of Rs. 425 referred to above and about which there is no dispute at this stage.
In that document the mortgagor undertook to pay the total amount which was due from him upto that date viz., Rs. 1565 mortgage money, Rs. 886.12.6 by virtue of Ex. A5 and Rs. 425 on account of repairs, the total amounting to Rs. 2876.12.6 within three years from the date of the execution of that document failing which he further agreed that the defendants mortgagees will become the absolute owners of the mortgaged property. This is an unregistered document and consequently, inadmissible in evidence.
Further it has been held by both courts below that the condition contained in this document that if the money as stated therein, was not paid during the period of three years, the mortgage shall stand extinguished and the mortgagees shall become absolute owners thereof amounts to a clog on the equity of redemption and such a condition is inoperative. No controversy has been raised before me so far as the non-admissibility of this document is concerned and, therefore, it cannot be looked at for any purpose.
It will be noticed however, that this document itself makes a reference to the amount of Rs. 886.12.6 and further mentions that a document had been earlier written with respect to it and that is admittedly Ex. A5. It is contended on behalf of the plaintiff that this was simple loan and that the defendants' claim with respect to it was, obviously barred by time and, therefore, the courts below have fallen into error in allowing this amount to the defendants along with the mortgage money.
10. On the other side it has been contended that the transaction in question amounts to a charge and is therefore, recoverable as such and no question of limitation can possibly arise as the defendants were raising their claim with respect to this amount in their defence in answer to the plaintiffs suit for redemption. The final question, therefore, is whether this amounts to a charge or not. Learned counsel for the plaintiff forcefully contends that it is not a charge and relies in support of his submission on Hakam Singh v. Gajja Singh, AIR 1934 Lah 938. It was held in this case that, the two bonds which were executed subsequent to the mortgage deed did not contain any agreement for-bidding redemption of the mortgage until the bonds were paid off and that being so the plea of charge was negatived.
Now it seems to me with all respect that this case is perhaps distinguishable on facts from the present case, but if it is not then I have not felt persuaded to accept it as affording a correct guidance for the decision of the question before me for it seems to me to substantially run counter to the principle approved by their Lordships of the Privy Council in M. Aditya Prasad v. Ram Ratan Lal, AIR 1930 PC 176.
The language of the bond which was sought to be supported as a charge before their Lordships was certainly stronger than in the case before me inasmuch as it contained a clear stipulation that without the payment of the subsequent debt the mortgagor would not be able to redeem the mortgaged property. That, however, does not seem to me to be a decision of the matter inasmuch as in coming to the conclusion to which their Lordships did, they approved of a decision of Sir Lawrence Jenkins, C. J., in Janardan Vishnu Kulkarni v. Anant Lakshmanshet, (1908) ILR 32 Bom 386.
Now, so far as the latter case goes, the bonds subsequent to the mortgage simply stated therein that the executants thereby bound themselves to pay the amounts before redemption of the mortgage and a strong contention was raised before the Court that such bond was not and cannot create a charge on the mortgaged property. This is how Jenkins, C. J., disposed of the contention and I have felt tempted with all respect to state his conclusion in his own forceful language:
'Now we start with this that these documents were executed in the mofussil and come within the statement of the Privy Council in Hunoomanpershad Pandey v. Mt Babooee Munraj Koonweree, (1858) 6 Moo Ind App 393 at p. 411 (PC) where it was said that 'Deeds and contracts of the people of India ought to be liberally construed. The form of expression, the literal sense, is not to be so much regarded as the real meaning of the parties which the transaction discloses.'
'Approaching these documents in the spirit of what is laid down in the Privy Council, and having regard to all the circumstances of the transaction we feel no doubt that the documents are sufficient and do show an intention to make the land security for the payment of the money mentioned therein and from that it follows that the documents do create the charge: and we therefore think that the appellant is right in his contention.'
With respect, I am in entire agreement with these observations, if I may say so. There is ample authority for the proposition that in order to create a charge it is not necessary to employ any technical or any particular phraseology or form of words and all that is necessary is that there must be a clear intention to make a particular property a security for the payment of money. It may also be pointed out that in considering whether a particular deed or document does or does not create a charge a decision in another case is rather not a satisfactory guide, and, therefore, in order to decide whether a document creates or not a charge on the mortgaged property, we must focus our attention on the language of the particular document and find out the intention of the parties in a fair and square manner and see whether the requirements of Section 100 of the Transfer of Property Act are satisfied, which Act as in the case of AIR 1930 PC 176 (supra) must be held to be operative in the present ease on principles of justice, equity and good conscience because the Transfer of Property Act first came into force in the former State of Jaipur some time in 1944 and not before.
It may also be made clear in this connection that it has not been shown to me that Ex. A2 was compulsorily registrable at the time it came to be executed in that State. Now bearing the principles which have been laid down by the Privy Council in AIR 1930 PC 176 (supra), let us see how they apply to the present case. The relevant entry in Ex. A2 says that the plaintiff mortgagor had taken a total amount of Rs. 886.12.6 from the defendants mortgagees and that there was a usufructuary mortgage of the plaintiffs two shops with the defendants and further that whenever he will redeem that mortgage he will redeem it after paying the said amount of Rs. 886.12.6 As I look at this entry, it fulfils, in my opinion, all the essential ingredients of the charge laid down in Section 100 of the Transfer of Property Act.
The intention of the parties is clear that the security under the mortgage would also be available for the cash advances taken by the plaintiff from the defendants. For what else could be meant by saying that before the mortgagor will redeem the property under the mortgage, he shall pay off the cash advances. If, I may say so, the present case stands on a stronger footing than the case in (1908) ILR 32 Bom 386 (supra) which was approved by the Privy Council in Aditya Prasad's case referred to above.
11. Then as to the objection of limitation regarding the recovery of this amount, on the ground that it had been advanced and/or acknowledged in 1941, and therefore had become time barred at the date of the suit. I am of opinion that this has no force. In the first place, it must be remembered that the various articles of Limitation Act in Schedule 1 thereof, apply to suits and applications and not to pleas raised by way of defence and, therefore, the law of limitation cannot operate as a bar to a plea taken in defence. Thus a mortgagee can lawfully set up in his defence a mortgage deed as a shield even though his right to enforce it may have become statute barred. Likewise a tacking agreement or bond to a mortgage when pleaded in defence stands on the same footing and, therefore, the plea, that if a suit were to be brought on its basis, it would be barred by time, can be of no avail. See Paras Ram Chaubey v. Sheo Dhan Pandey, AIR 1932 All 558.
In the second place once it is held that the transaction embodied in Ex. A2 properly operates as a charge on the property already under mortgage, the question of limitation to my mind becomes futile for the charge as stipulated in Ex. A2 itself, was to come up for enforcement at the time of redemption and not before, and, consequently, the defendants were! entitled to enforce it when the plaintiff mortgagor brought his suit for redemption. My conclusion therefore is that this amount is perfectly recoverable in law, from whichever angle one may look at it.
12. In these circumstances, I have unhesitatingly come to the conclusion that the amount of Rs. 886.12.6 operates as a charge on property under mortgage and is within time 'and the plaintiff must pay this amount also in addition to the mortgage money of Rs, 1565 and a further sum of Rs. 425 which has already been held to be permissible. Thus this appeal also has no force, though in coining to the conclusion my reasons are somewhat different from those relied on by the courts below.
13. In the result both the appeals failand I hereby dismiss them. In all the circumstances of the case, I leave the parties to beartheir own costs of this Court. The plaintiffshall have four months' time from today topay off the redemption money as alsoto remove the Chaubara from the roof ofshops in suit. Let a preliminary decree be prepared to the above effect in accordance withOrder 34 Rule 7, C. P. C. in the light of thefindings arrived at by me above.