(1.) Appellants are the legal representatives of original plaintiff Puran Chand, whereas respondent No. 1 is defendant No. 1 and respondents 2 to 5 are the legal representatives of original defendant No. 2, Smt. Chandoo. In this appeal under S. 100, C. P. C., the appellants have assailed the decree and judgment dated 8-1-1998 passed by the District Judge, Shimla, whereby their appeal was dismissed and the decree and judgment dated 1-9-1994 passed by the Sub-Judge, Ist Class (2), Shimla, was affirmed. The Sub-Judge had dismissed the suit of original plaintiff Puran Chand and allowed the counter claim of defendant No. 1 for possession of land in dispute measuring 12 bighas 3 biswas, comprised in Khasra Nos. 24, 26, 50, 57, 63 and 66, situated in Mauza Kalyana, Hadbast No. 16, Tehsil and District Shimla.

(2.) The suit filed by the original plaintiff Puran Chand was for declaration that he was in possession of the land in dispute as charge-holder and he could not be dispossessed therefrom until the amount spent by him on the improvement thereof and the maintenance of original defendant No. 2 Smt. Chandoo and her parents, was reimbursed to him. He had also prayed for decree for permanent prohibitory injunction restraining the defendants from interfering in his possession till the money spent by him on aforesaid two counts was paid to him. The basis of claim of Puran Chand was Power of Attorney Ext. PW3/A, dated 26-10-1974 and agreement dated Ext. PW3/B, dated 28-10-1974, which were allegedly executed by Smt. Chandoo in his favour. According to him, he has spent an amount of Rs. 1 lac on the maintenance of Smt. Chandoo and her parents and another sum of Rs. 50,000.00 on the improvement of the land in dispute, which was charge on it, as such, she could not have sold the land in dispute in favour of Raghu Raj for a sum of Rs. 70,000.00 vide registered sale deed dated 29-12-1988, which was done surreptitiously.

(3.) The suit was contested by the defendants by filing common written statement. As per them, by taking undue advantage of the illiteracy and simplicity of Smt. Chandoo, Puran Chand got executed Power of Attorney in his favour for the management of the suit property, but the execution of the agreement in respect of maintenance of Smt. Chandoo and her parents or for improvement of the land in dispute by Puran Chand, was denied. In the alternative, it was alleged that the said agreement being not registered was inadmissible in evidence and was of no avail. It was specifically denied that Puran Chand had in fact maintained Smt. Chandoo and her parents and made improvement over the land in dispute. As per them, possession of the land in dispute was handed over to defendant No. 1 by Smt. Chandoo at the time of its sale in December, 1988. In the alternative, if it was found that Puran Chand was in possession of the land in dispute, decree for possession was prayed by the defendants by filing counter- claim.

(4.) In the written statement to the counter-claim, Puran Chand had reiterated that he was in possession of the land in dispute and defendant No. 1 was not entitled to the relief of possession. (5.) On the pleadings of the parties, following issues were framed :

1. Whether the plaintiff is in exclusive possession of the suit land, as prayed? OPP. 2. Whether the plaintiff has charge/lien over the suit property as alleged? If so, to what effect? OPP. 3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP. 4. Whether the agreement dated 28-10-74, has been procured by misrepresentation and was against the interest of defendant, as alleged? OPD. 5. Whether there is no cause of action? OPD. 6. Whether the suit is not properly valued? OPD. 7. Whether the defendant No. 1, is in exclusive possession of the suit property, as prayed? OPD. 8. If issue No. 7 is not proved in affirmative, whether defendant No. 1, is entitled for the relief of mandatory injunction, as prayed? OPD. 9. Relief.

(6.) On the basis of evidence on record, the trial Court decided issue Nos. 2, 3, 5, 6 and 8 against the plaintiff and in favour of the defendants, whereas issue Nos. 1, 4 and 7 in favour of the plaintiff and against the defendants. Power of Attorney Ext. PW3/A was held duly executed by Smt. Chandoo in favour of Puran Chand, but no charge was held to be created by it, whereas agreement Ext. PW3/B was rejected as inadmissible in evidence for want of registration and the claim of Puran Chand as charge-holder was dismissed. However, he was found in possession of the land in dispute, which he was liable to hand over to its owner defendant No. 1, having no right, title and interest therein. These findings were maintained by the District Judge in his decree and judgment. Hence, the present regular second appeal was admitted on the following substantial questions of law :

1. Whether charge on immovable property is required to be created in a particular form and if the intention of parties for creating charge is manifest and the same is contained in a Registered Document like power of attorney, will it amount to a charge on immovable property?

2. Whether the view taken by the learned District Judge that document Ext. PW3/A cannot be treated as charge though it is duly registered, is a correct view in view of the authority reported in AIR 1970 SC 1041?

3. Whether the findings of the courts below are sustainable in the face of the evidence and legal position as applicable to the facts of the case?

4. What is the legal effect of the Judgment of the learned District Judge, below who has failed to formulate proper points for determination?

(7.) This Court has heard the learned counsel for the parties and gone through the record.

(8.) The execution of document Ext. PW3/A is not denied by the defendants. It is dated 26-10-1974, but registered on 28-10-1974 before the Sub-Registrar, Shimla. It is executed and registered as general power of attorney and from its clauses 1 to 7 it is clear that Puran Chand was authorised to manage the lands owned as well as possessed as tenant by Smt. Chandoo. However, in clause No. 8 it is mentioned that the power of attorney will not be revoked or cancelled unless Puran Chand had been reimbursed of all the expenses incurred by him in managing, improving and breaking any part of the holding of Smt. Chandoo. In this clause there is no mention that Puran Chand would maintain Smt. Chandoo and her parents being her attorney for managing her lands. Further, in this power of attorney there is also no such condition as to debar Smt. Chandoo from selling her lands including the land in dispute unless the expenses incurred by Puran Chand in managing, improving and breaking the lands, were reimbursed to him.

(9.) Interpreting these clauses both the Courts have concurrently held and, rightly so, that there was no intention to create charge on the land in dispute by executing document Ext. PW3/A. This intention is also clear from the preceding and attending circumstances. Had the parties intended to create charge by document Ext. PW3/A, the general power of attorney, there was no necessity of agreement Ext. PW3/B allegedly executed on the day, the general power of attorney Ext. PW3/A was got executed in the office of the Sub-Registrar, Shimla. In fact Ext. PW3/A was executed as general power of attorney and was submitted for registration as such on the stamped paper of Rs. 15.00 and had it been purported to be a document creating charge, the Sub-Registrar would have not registered it being under-stamped and would have demanded extra registration fee. It is correct that to ascertain whether by a particular document charge is created no on immovable property, intention of the parties to the document is required to be ascertained from the terms and conditions of such document which may be even power of attorney. Section 100 of the Transfer of the Property Act defines charges as under : Charges.- Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have charge on the property, and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge."

(10.) If the charge is created on an immovable property for securing the payment of money for more than Rs. 100.00, it will be by a registered instrument signed by the parties and attested by at least two witnesses as provided for simple mortgage under S.59 of the Transfer of Property Act, which is as under :

"Mortgage when to be by assurance.- When the principal money secured is one hundred rupees or upwards, a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of simple mortgage) by delivery of the property."

(11.) In M/s. J. K. (Bombay) Private Ltd. v. M/s. New Kaiser-I-Hind Spinning and Weaving Co. Ltd., AIR 1970 SC 1041, the learned Judges of the Supreme Court while pointing out the distinction between charge and mortgage have made it clear that : ". . . . . . . . . . . . . . While in the case of a charge there is no transfer of property or any interest therein, but only the creation of a right of payment out of the specified property, a mortgage effectuates transfer of property or an interest therein. No particular form of words is necessary to create a charge and all that is necessary is that there must be a clear intention to make a property security for payment of money in praesenti."

(12.) This judgment helps this Court only to the extent of deciding whether from the document Ext. PW3/A the intention of the parties can be gathered that the property in dispute will be security for payment of expenses incurred for managing, improving and breaking the land is dispute. The answer is in the negative. In fact no charge was created on the lands of Smt. Chandoo, as no restriction or embargo was put on her for transfer thereof in any manner and the only right created in favour of Puran Chand, was to claim the expenses already incurred by him in managing, improving and breaking the lands, if his power of attorney was revoked or cancelled.

(13.) So far the other document Ext. PW3/B allegedly creating charge on the land in dispute is concerned, both the Courts have concurrently held it inadmissible in evidence for want of registration and the learned counsel for the appellants has not assailed these findings. However, referring to S. 202 of the Contract Act, the learned counsel for the appellant has tried to argue for the first time that the agency created in favour of Puran Chand could not be terminated as he had interest in the land in dispute. This arguments deserves to be rejected outrightly in view of the findings that no interest in the property was created by document Ext. PW3/A, even if Puran Chand was made her agent by Smt. Chandoo by this document. The right of reimbursement of expenses incurred by Puran Chand does not amount to creation of interest in the property which is sine qua non to make the power of attorney as irrevocable one. It only creates a right incidental to the agency to get reimbursement of the expenses incurred in managing, improving and breaking of the land in dispute, which could only be claimed from Smt. Chandoo, defendant No. 2. Even in the case of charge, the transferee for consideration without notice of charge is not liable, as provided under second part of S.100 of the Transfer of the Property Act, but it has no relevance in the present case in view of the findings that no charge was created by document Ext. PW3/A. Accordingly, substantial question Nos. 1 and 2 are answered. (14.) So far the substantial question No. 3 is concerned, the learned counsel for the appellants has not been able to point out any piece of evidence which has either not been considered or misread or misinterpreted to assail the concurrent findings of both the Courts below that no charge was created in favour of Pu

ran Chand by Smt. Chandoo and hence he is liable to hand over the possession of the land in dispute to its owner. The submission of the learned counsel that since defendant No. 2 has failed to step into the witness box, adverse inference was required to be drawn against the defendants by rejecting their case set up in defence is without any substance. In support of this submission, the learned counsel has relied upon Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera, (1999) 3 SCC 457 : (AIR 1999 SC 1341) and Smt. Garib Devi v. Mandir Thakur Nar Singh Ji Maharaj, 2001 (1) Sim LC 5. The proposition of law as held in these judgments cannot be disputed, but it has no application in the facts and circumstances in hand. Both the defendants have filed common written statement and besides her general attorney Chander Singh, DW-2, defendant No. 2 Raghu Raj has also appeared to reiterate the defence set up in the written statement. Therefore, it cannot be said that for the failure of Smt. Chandoo to come in the witness box, any part of the averments made in the written statement was not stated on oath. Substantial question No. 3 is answered accordingly. (15.) The learned counsel for the appellant has not made any submission in support of substantial question No. 4. (16.) The result of above discussion is that there is no merit in this appeal and it is rejected. No costs. Appeal dismissed.