DRAFTING, PLEADINGS AND

CONVEYANCING ASSIGNMENT

SUBMITTED BY- KUNAL MEHTO SUBMITTED TO – MISS

NAVDITYA TANWAR KAUNDAL

ASSISTANT PROFESSOR OF LAW

R.N. -1020161716

BA LLB 7th Sem.

 ACKNOWLEDGEMENT
Every project big or small is successful largely due to the effort of a number of wonderful people
who have always given their valuable advice or lent a helping hand. I sincerely appreciate the
inspiration; support and guidance of all those people who have been instrumental in making this
project a success.

I, Kunal, the student of H.P. National Law University (Shimla), am extremely grateful to H.P.
National Law University (Shimla) for the confidence bestowed in me and entrusting my
assignment of Drafting, Pleadings and conveyancing.

At this juncture I feel deeply honored in expressing my sincere thanks to Honorable

REGISTRAR Prof. S.S. Jaswal and Honorable VICE CHANCELLOR Prof. Nishtha Jaswal for
making resources available at right time and providing valuable insight leading to the successful
completion of my assignment.

I also extend my gratitude to my Project Guide Ms. NavdityaTanwar, Assistant Professor of

Law, who assisted me in compiling the project.

I would also like to thank all the faculty members of H.P. National Law University (Shimla) for
their critical advice and guidance without which this project would not have been possible.

Last but not the least I place a deep sense of gratitude to my family members and my friends
who have been constant source of inspiration during the preparation of this project work.
 ABBREVIATIONS USED

1. HC HIGH COURT

2. SC SUPREME COURT

3. AIR ALL INDIA REPORTER

4. Anr. ANOTHER

5. ART. ARTICLE

6. COMM. COMMITTEE

7. COMMR. COMMISSIONER

8. Ltd. LIMITED

9. Govt. GOVERNMENT

10. Ed. EDITION

11. SCC SUPREME COURT CASES

Facts of the matter in dispute

‘Ramlal’ (mortgager) a resident of Shimla mortgaged a piece of land to ‘Dinesh’ (mortgagee) a

resident of Delhi in 1987. According to the clause 3 of the contract between two parties, it was
stated that that if Ramlal fails to repay the money (5 lacs.) within the time of 30 years then the
mortgaged property will be transferred to Dinesh the mortgagee. Eventually, Ramlal failed to
repay the loan, and hence, Dinesh initiated the process of transferred property. Later Dinesh
came to know that by virtue of Sec. 118 of Himachal Pradesh Land Tenancy Act, a non-
himachali cannot the the agricultural property in Himachal.

At Additional District Court level, a decree was passed in favour of Dinesh to which Ramlal took
the matter in appeal to High Court Shimla challenging the decree to be against the provision of
land Tenancy and Land Reforms Act, 1972.

Section 118 of the H.P. Tenancy and Land Reforms Act, 1972

It provides for restriction on transfer of land in favour of a person who is not an agriculturist of
the State. This Section and rules there under have been amended from time to time to further the
basic intention behind its enactment of protecting the interests of local inhabitants while ensuring
that the development of the State is not hampered. A number of instructions and clarifications
have been issued to assist in decisions by the field staff on the various queries which arise in
relation to interpretation of various definitions and provisions.

118. Transfer of land to non-agriculturists barred.- (1) Notwithstanding anything to the

contrary contained in any law, contract, agreement, custom or usage for the time being in force,
but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree
of a civil court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange,
lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in
favour of a person who is not an agriculturist. Explanation.- For the purpose of this sub-section,
the expression “transfer of land” shall not include,- (i) transfer by way of inheritance; (ii) transfer
by way of gift made or will executed, in favour of any or all legal heirs of the donor or the
testator, as the case may be; (iii) transfer by way of lease of land or building in a municipal area;
but shall include- (a) a benami transaction in which land is transferred to an agriculturist for a
consideration paid or provided by a non-agriculturist; and
(b) an authorization made by the owner by way of special or general power of attorney or by an
agreement with the intention to put non-agriculturist in possession of the land and allow him to
deal with the land in the like manner as if he is a real owner of that land.

 Drafting of above given problem.

INSTITUTION OF PLAINT

IN THE COURT OF ADDITIONAL DISTRICT JUDGE AT SHIMLA RSA No. 424 of

2018Reserved on: 14.03.2018 Decided on: 20.03.2018

(SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908)

____________________________________________________________ .

IN THE MATTER OF:-

Dinesh S/o Ramesh

Mayurvihar, New Delhi

Through council-

Kunalmehto

……….. Plaintiff

Versus

Ramlal Prasad, S/o Ramu Prasad,

Annadele, district Shimla(H.P)

Through council

Ankita

……Defendant
MAY IT PLEASE YOUR LORDSHIP

1. Brief facts giving rise to the filing of present suit are that-Mortgagor ramlal has
mortgaged with possession his agricultural land measuring 2 Bishwa located in
Shimla district Annadele Khasra no 552 Khatuni no. 63 for a sum of Rs. 5 lakh
to mortgagee i.e. Dinesh on 11/12/1987.
2. Both parties agree to enter into the Agreement with the terms and conditions as
follows:

Clause 1. The Mortgagor agrees to mortgage the above plot of land as a whole to
the Mortgagee as security for debts of the Mortgagor in the amount of
5,000,00(Five lakh rupees only) with simple interest at the rate of 10 per cent per
year.

Clause 2. The Mortgagee agrees to accept the mortgage of this plot of land as
agreed in Clause 1. in all respects.

3. Both parties agree that the Mortgagee shall keep this land title deed during the
term of this Agreement. According to the contract the given sum has to be
returned within 30 year of commencement of the contract i.e till 11/12/2017 with
simple interest rates 10 per cent per annum as mentioned in the contract.

4. As per the contract the amount to be paid on 11/12/2017 was 20 lakh (twenty lakh
rupees) but defendant fails to repay the specified amount on given time The
mortgagees sought the declaration on the ground that the suit land has not been
got redeemed during the period of more than 30 years and, therefore, the
defendants have lost all right, title and interest in it as per the contract signed by
the parties.
5. That the Plaintiff therefore finally issued a legal notice dated 12th december, 2017
to theDefendant calling upon the Defendant to clear the outstanding amount of
Rs. 500000/- along with interest at the rate of 10% per annum w.e.f. 11/12/1987
upto the date of payment. However, no payment has been made by the Defendant
despite the said notice.
6. For recovery of loan On 5/1/2018 the plaintiff proposed to sell the mortgaged
land to his friend for the given amount of 20 lakh rupees but defendant denied to
sell his property contending that as the mortgaged land lies in state of Himachal
Pradesh district Shimla hence Himachal land tenancy and reform act 1972 will be
applicable on the land under which transfer of a property to non-agriculturalist is
prohibited under section 118 of Himachal land tenancy and reform act 1972. As
the purchaser of a land is not a agriculturalist hence the property could not be
transferred to the said purchaser.
7. The Defendant is now liable to pay a sum of Rs. 20,000,00/- along with interest
@10% per annum from the date on the Plaintiff’s bill. The Plaintiff is however,
claiming interest form 11/12/1987 upto the date of filing of this suit @ 10% per
annum.
8. The cause of action arose on all dates when the Plaintiff called upon the
Defendant to make the payment and the later failed to comply with it. The cause
ofaction is still subsisting as the Defendant has failed to pay the outstanding
amount despite repeated oral and written requests and reminders from the
Plaintiff.
9. This Hon’ble Court has jurisdiction to entertain this suit because the land is
situated in Shimla district of Himachal Pradesh the defendant resides in Himachal
Pradesh and the contract of mortgage of property was signed in district Shimla of
Himachal Pradesh.(section 20 of CPC)
10. The suit is within the period of limitation.
11. The value of this suit for the purposes of court fee and jurisdiction is Rs. 20,
000,00. onwhich court fee of Rs. 2512 is paid.
 Prayer
It is, therefore most respectfully prayed that this Hon‟ble Court may be pleased to :-

(a) Pass a decree for Rs. 5,000,00(Five lakh rupees only) with interest @ 10% per
annum from 11/12/1987 upto the date of filing the suit in favour of the Plaintiff and
against the Defendant;

(b) Award pendentlite and future interest at the rate of 10% per annum on the

above stated amount of . 5,000,00(Five lakh rupees only) with interest @ 10% per
annum from 11/12/1987upto the date of filing the suit in favour of the Plaintiff and
against the Defendant;

(c) Award cost of the suit in favour of the Plaintiff and against the Defendant; and

(d) Pass such other and further order(s) as may be deemed fit and proper on the

facts and in the circumstances of this case.

Advocate for the plaintiff

VERIFICATION:

Verified at shimla on this 14th march 2018 that the contents of paras 1 to 7 of the plaint are true
to my knowledge derived from the records of the Plaintiff maintained in the ordinary course of
its business, those of paras 7 to 10 are true on information received and believed to be true and
last para is the humble prayer to this Hon‟ble Court.

Plaintiff.
 AFFIDAVIT

IN THE COURT OF ADDITIONAL DISTRICT JUDGE AT SHIMLA RSA No. 424 of

2018Reserved on: 14.03.2018 Decided on: 20.03.2018

(SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908)

____________________________________________________________ .

IN THE MATTER OF:-

Dinesh S/o Ramesh

Mayurvihar, New Delhi

Through council-

Kunal Mehto

……….. Plaintiff

Versus

Ramlal Prasad, S/o Ramu Prasad,

Annadele, district Shimla(H.P)

Through council

Ankita

…...Defendant

AFFIDAVIT OF Dinesh, S/O Ramesh, Aged About 62 Years, R/O Mayurvihar, New Delhi.

I, Dinesh the deponent hereinabove do hereby solemnly affirm and state hereunder:
1. I say that I am the Authorized Representative, I am aware of the facts and circumstances of
the present suit based upon the records of the Plaintiff maintained in the ordinary course of
business and I am duly authorized and competent to swear and file the present suit and affidavit.

2. I say that the accompanying Suit has been drafted and filed by my counsel upon my
instructions and contents of the same are true and correct.

3. I say that the documents filed along with plaint are true copies of originals.

DEPONENT
 Decree for Foreclosure

IN THE MATTER OF:-

Dinesh S/o Ramesh

Mayurvihar, New Delhi

Through council-

Kunal Mehto

……….. Plaintiff

Versus

Ramlal Prasad, S/o Ramu Prasad,

Annadele, district Shimla(H.P)

Through council

Ankita

…..Defendant

(Order XXXIV, Rules 2,3 and 4)

IN THE COURTADDITIONAL DISTRICT JUDGE AT SHIMLA

SUIT NO . 424 of 2018

The suit coming on this 14.03.2018 day; It is hereby declared that the amount due to the
Plaintiff on the mortgage in the plaint calculated upto this day of 20.03.2018is the sum
ofRs15,000,00 for interest on the principal, the sum of Rs10,000for costs, charges and expenses
(other than the costs of suit) and the sum of Rs20,000 for the costs of this suit awarded to
plaintiff.

2. It is further declared that plaintiff is entitled to receive payment of the amount due on
defendant after selling of mortgaged land.
3. As per the contention raised by the defendant that the property could not be sold to non-
agriculturalist as per the section 118 of Himachal land tenancy and reforms act 1972, in this
regard court is of the view that property could be sold to agriculturist belonging to state of
Himachal Pradesh . For sell of property court appoints an officer who will look after the
procedure of sell and competent buyer of the disputed property.

5. In the case where a sale is ordered under Cl. 4 that the money realized by such sale shall be
paid into Court and be duly applied after deducting there from the expenses of the sale in
payment of the amount payable to plaintiff under the decree and any further orders that may have
been passed after decree and in payment of the amount with interest if any, which the Court may
have adjudged due to defendant in respect of such cost of the suit and such costs, charges and
expenses as may be payable to the plaintiff under Rule 7 of Order XXXIV of the First Schedule
to the Code of Civil Procedure (Act V of 1908) and that the balance, if any, shall be applied in
payment of the amount due to the plaintiff and that, if any further balance be left, if shall be paid
to defendant.
6. That, if the money realized by such sale shall not be sufficient for payment in full of the
Amounts due to plaintiff, the balance, if legally recoverable otherwise than out of the property
sold, be personally paid by defendant to plaintiff.

In Appeal

IN THE HON’BLE HIGH COUR OF HIMACHAL PRADESH AT SHIMLA

R.F.A NO. 5465/2018

IN MATTER OF
Ramlal Prasad, S/o Ramu Prasad,

Annadel, district Shimla(H.P)

Through council

Ankita

……….. appellant

Versus

Dinesh S/o Ramesh

Mayurvihar, New Delhi

Through council-

Kunalmehto

……...respondent

WRITTEN STATEMENT ON BEHALF OF RESPONDENT

MOST RESPECTFULLY SHOWETH:

1. Para I is accepted.
2. Para II is accepted.
3. Appellant in para III argued that the present contract violates he principles of Himachal
land tenancy and reforms act 1972 but it is clear from the decree passed by the additional
district judge that the no section of of said act is being violated by the contract.
4. Appellant in para IV argued that the Mortgage was of different in nature i.e Mortgage by
Deposit of Title Deeds but it is clear that Such a mortgage is restricted to the towns of
Kolkata, Mumbai and Chennai and other towns notified by the State government for this
 purpose and as mortgage was property was held in Shimla here no such type of contract is
clearly permissible in any the Official Gazette.

Wherefore it is prayed that your honour would be pleased to dismiss the suit with
explanatory cost against the appellant.

VERIFICATION:

Verified at shimla on this 6july 2018 that the contents of paras 1 to 7 of the plaint are true to my
knowledge derived from the records of the Plaintiff maintained in the ordinary course of its
business, those of paras 7 to 9 are true on information received and believed to be true and last
para is the humble prayer to this Hon‟ble Court.

Respondent

DECREE OF APPEAL

IN THE HON’BLE HIGH COUR OF HIMACHAL PRADESH AT SHIMLA

R.F.A NO. 5465/2018

IN MATTER OF

Ramlal Prasad, S/o Ramu Prasad,

Annadele, district Shimla(H.P)

Through council

Ankita

……….. appellant

Versus
Dinesh S/o Ramesh

Mayur Vihar, New Delhi

Through council-

Kunal Mehto

……...respondent

(1) The Appeal was filed by Appellant on 04/07/2018 against the decree passed by the
Additional district judge Shimla, at Shimla RSA No. 424 of 2018 passed on 20.03.2018. the
amount to be recovered was 5,000,00 with 10% interest per annum from the date of
11/12/1987 to 20/3/2018. In present circumstances after examining the contention raised by
appellant and respondent respectfully thecourt is of the view that lower court fails to
appreciate the type of contract both party have entered into.Here dispute arose that according
to the condition of English contract that if party fails to repayment of loan then mortgagee
has the right to sell the mortgaged property without seeking permission of the court in
circumstances mentioned in section 69 of the Transfer of Property Act but as the property
lies in state of himachal Pradesh where Himachal land tenancy and reform act 1972 is
prevalent and according section 118 read as-

Transfer of land to non-agriculturists barred. 1 - [(1) Notwithstanding anything to the

contrary contained in any law, contract, agreement, custom or usage for the time being in
force, but save as otherwise provided in this chapter, no transfer of land (including transfer
by a decree of a civil court or for recovery of arrears of land revenue) by way of sale, gift,
will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner
shall be valid in favour of a person who is not an agriculturist.]

[Explanation. - For the purpose of this sub-section, the expression "transfer of land" shall not
include -

(i) transfer by way of inheritance;

1
Himachal land tenacy and reforms act 1972.
(ii) transfer by way of gift made or will executed, in favour of any or all legal heirs of the donor
or the testator, as the case may be;

(iii) transfer by way of lease of land or building in a municipal area;

but shall include -

(a) abenami transaction in which land is transferred to an agriculturist for a consideration

paid or provided by a non-agriculturist; and

(b) an authorisation made by the owner by way of special or general power of attorney or by an
agreement with the intention to put a non-agriculturist in possession of the land and allow him to
deal with the land in the like manner as if he is a real owner of that land.

As it is clearly evident that section 118 of Himachal land tenancy act transfer of land to a
non-agriculturist is barred hence it defeat the essential condition under English mortgage
because respondent can never sell the mortgaged property as it violate the principle of
redemption as well as violate section 118 of Himachal land tenancy and reform act. As in
case of Shivdev Singh v Sucha Singh2, that a provision incorporated in the mortgage deed
to prevent or hamper the redemption would be void, and that the right provided by
section 60 of the Transfer of Property Act, 1882 is a statutory right and clog on this right
should be determined depending on the facts and circumstances of each case.

The present mortgage deed could fall under “Mortgage by Deposit of Title Deeds”as
contended by the appellant. Under this type of contract a debtor delivers toa creditor or
his agent document of title to immovable property, with an intention to create a security
there on also pass the possession of the property. This type of mortgage is restricted to
the towns of Kolkata, Mumbai and Chennai and other towns notified by the State
government for this purpose in the Official Gazette and Himachal land tenancy under
section 118 allow transfer of possession under special condition through clause (b) which
reads as-an authorisation made by the owner by way of special or general power of
attorney or by an agreement with the intention to put a non-agriculturist in possession of

2
AIR 2000 SC 1935
 the land and allow him to deal with the land in the like manner as if he is a real owner of
that land.

The appellant has transferred only possession of the land not the real title of the property
hence respondent could not sell the property to any other person like in case of
AchaldasDurgajiOswal v GangabisanHeda 3

Hence reverse the decree of lower court asalleged mortgage deeds do not confer any actual right,
title or interest upon the respondent . The actual title of the land was never delivered to the
respondent as a result of which, court passes this decree in favour of appellant.

(2003) 3 SCC 614

3