Mortgage deed

2016 PLD 604 SUPREME-COURT Judicial Precedent

First Sched. Arts. 15 & 40Loan secured by company by mortgaging landMortgage deedPayment of stamp dutyRatePossession of land not given to lender (mortgagee)

Where possession of land was not given or agreed to be given (to the mortgagee), the stamp-duty shall be charged on the amount secured by such (mortgage) deed as was provided by Art.15 of the First Schedule of Stamp Act, 1899

Possession of land, in the present case, had not been given to the mortgagee

Words used in the agreement between the parties that "the mortgagor shall not without the prior written consent of the lender part with possession of the mortgage property" unmistakably showed that possession had not been given to the lender

Lender's right to sell the mortgaged property without intervention of the Court would accrue only, if the mortgagor defaulted in payment of mortgage money and not otherwise

Case of appellant company was, thus, covered by Art.15 and not Art.40(a) of the First Schedule of the Stamp Act, 1899

Stamp duty had to be charged accordingly.

2016 PLD 604 SUPREME-COURT Judicial Precedent

S. 48 & First Sched. Arts. 15 & 40Mortgage deedStamp duty, evasion ofPenalty imposed by District CollectorReduction in amount of penaltyScope

District Collector had calculated liability against the appellant-company with respect to stamp duty along with additional sum equal to five times of the purported payable stamp duty as penalty

Plea of appellant-company was that nothing on the record showed that it had wilfully under-stamped the mortgage deed to evade the payment of the proper stamp-duty, therefore, it could not be subjected to any penalty

Validity

Such plea did not deserve unqualified acceptance when provisions contained in Arts.40 & 15 of the First Schedule of the Stamp Act, 1899 being clear and unambiguous did not admit of more than one interpretation

However, in the circumstances of the present case, five times penalty was too harsh and two times penalty of the deficient portion of the duty would be sufficient to meet the ends of justice

Appeal was disposed of accordingly.

2016 YLR 1567 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Suit for declarationGeneral power-of-attorneyMortgage deedProofProcedure

Witnesses of power-of-attorney who allegedly identified the executant of the same were neither relatives nor executant was known to them prior to attestation of document

Beneficiary of document had to prove its contents

Beneficiary of document was bound to produce evidence to the effect that document had validly been scribed and attested

Sub-Registrar who made endorsement on the document ought to have been produced by the defendants

Mere production of Registry Moharrir who was only custodian of record would not be sufficient to prove that executant had put her appearance before the Sub-Registrar and had given consent for execution and attestation of document

General power-of-attorney had not properly been attested, any act done on the basis of such general power-of-attorney would be of no legal effect

Time given in the mortgage deed was one month for payment of mortgaged money and on failure of return, defendant would become exclusive owner which was against the spirit of law

No suit for foreclosure had been filed by the mortgagee

Mortgagee, in circumstances, had no right to claim the ownership of suit property

Payment of consideration had not been proved nor purpose of execution of alleged mortgage-deed had been mentioned

Transaction was collusively made in order to deprive the legal heirs of principal/owner from getting their shares out of her legacy

Alleged attorney had to take special permission from the principal for mortgage/transfer of property in favour of his wife as there existed fiduciary relation between them

No such transfer could be effected without permission from principal

Both general power-of-attorney and mortgage-deed were executed on one and the same day

If foundation was baseless then superstructure, if any raised thereupon, would crumble down

Findings recorded by the Appellate Court were modified and both the general power-of-attorney and mortgage-deed were annulled in toto

Legal heirs of the executant of said documents would be entitled to get their shares out of legacy as per their respective shares

Revision was dismissed in circumstances.

2014 YLR 336 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 60Civil Procedure Code (V of 1908), S. 148Suit for redemption of mortgageMortgage deedEnlargement of timePowers of courtScopeSuit was decreed in favour of plaintiff subject to deposit of decretal amount within three monthsPlaintiff did not file appeal however, defendants filed appeal

Plaintiff failed to deposit decretal amount within the period fixed by the Trial Court and his application for permission to deposit the same was rejected and suit stood dismissed

Appeal of the defendants was disposed of by dismissing the suit

Validity

Conditional decree was passed in favour of plaintiff which had a penal provision

Decree of Trial Court had attained finality

Trial Court was functus officio when appeal was disposed of

Application for extension of time was moved after three months

Amount deposited could not benefit the plaintiff as same was subject to objections from other side

Discretion exercised by the Trial Court had been exercised properly and no illegality or irregularity or perversity was found in the impugned order

Impugned order of the Appellate Court did not need further resolution as suit had not been decreed

Both revision and appeal were dismissed.