Bapu vs Bahadur Singh

The appellant is hereby assailing the correctness, legality and propriety of the decree which has been passed by IIIrd Additional District Judge, Dhar in the matter of Civil Appeal No. 26-A of 1978 by which the appeal of the appellant was dismissed so far as his claim in respect of repayment of Rs. 900-00 was concerned.

Few facts need to be stated hereinunder for understanding the matter. On 7-7-1970 respondent Bahadursingh had taken Rupees 900-00 from appellant Bapusingh. Land was to be handed over by Bahadursingh in view of a document which was not registered. A document was prepared in this context. The land was not handed over in possession of Bapusingh at all. It appears from the record that Bapusingh was thereafter cutting the grass growing in the said land for nonpayment of interest over the said amount of Rs. 900-00. When Bapusingh was obstructed in cutting the grass, he filed the suit for specific performance in respect of the said transaction.

The trial Court dismissed the suit. Bapusingh filed an appeal in the District Court, District Court also dismissed his appeal and that resulted in preferring the second appeal.

Heard Shri A. Siddiqui, learned counsel for the appellant and Shri M.L. Agrawal, learned, counsel for the respondent.

The question in controversy is, whether the said document which is unregistered indicating the mortgage can be considered for the purpose of indicating a pecuniary liability on Bahadursingh for re-payment of sum of Rs. 900-00 which was taken by him from Bapusingh on 7-7-1970, which is the substantial question of law which has been formulated when this appeal was admitted.

Section 49 of the Registration Act, 1908 (hereinafter referred to ''the Registration Act'') provides as under :-

"49. Effect of non-registration of documents required to be registered.- No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power.

unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."

Shri Siddiqui, learned counsel for the appellant placed reliance on the decision of the Division Bench of Patna High Court in the matter of Kalika Prasad Ojha v. Mt. Jhenjho Kuer, reported in AIR 1964 Patna 241, wherein Division Bench of Patna High Court has held -- "In the case of a simple mortgage bond, an unregistered mortgage, though invalid as a mortgage, may be used to prove the debt."

Shri M. L. Agrawal, learned counsel for the respondent on the other hand placed reliance on the judgment of Allahabad High Court in the matter of Sana Ullah v. Jai Narain Singh, reported in AIR 1942 All 409, wherein the Division Bench of Allahabad High Court held -- "Where in the case of a usufructuary mortgage of occupancy rights which is void from its inception as being in contravention of the statutory provisions, the mortgagee is dispossessed by the landlord through the intervention of the Court, the mortgagee can have no claim against the mortgagor for the amount advanced from the mere act of dispossession because the mortgagor did not dispossess him. Nor can he have any claim against the mortgagor u/s 68, T. P. Act, because there never was a valid mortgage. The only provision under which the mortgagee can lay claim to the amount advanced is Section 65, Contract Act. In such a case there can be no question of any contract having become void u/s 65 because there was never a contract. The agreement being void in its inception must, in the absence of special circumstances, be considered to have been discovered to be void at the time when the parties entered into it. The parties must be deemed to have been aware of the statutory provisions and it must be assumed that they knew that the agreement was void when they entered into it. The cause of action to recover the amount advanced must, therefore, be taken to have arisen at the time when the parties entered into the agreement."

Shri M. L. Agrawal, learned counsel for the respondent also placed reliance on the judgment of Rajasthan High Court in the matter of Mst. Sanjya Vs. Chauthmal and Others, wherein Rajasthan High Court, hold - "The defendant executed a Khata in favour of the plaintiff mentioning therein that he had borrowed a sum of Rs. 901 from the plaintiff on the security of a shop. In the circumstances of the said case as the document was not registered, the plaintiff was declared to be not entitled to bring a suit for recovery of the loan on being dispossessed from the shop."

The language of Section 49 of the Registration Act is clear. There cannot be any other interpretation than indicated by plain language of the section. In view of provisions of Section 49, such document cannot be used for affecting any immovable property comprised therein or for confer any power to adopt or cannot be received as evidence of any transaction affecting such property or conferring such power. In the present case the property was not transferred at all. The right of cutting the grass was also not accepted by respondent in favour of appellant. Therefore, the ratio of Kalika Prasad Ojha v. Mt. Jhenjho Kuer, of Patna High Court will have to be followed. Decisions of Rajasthan and Allahabad High Court are irrelevant to issue in question. Thus, I hold that ia the present matter, the said document which was not registered should have been received by the Courts below on the point of payment of Rs. 900-00 and pecuniary liability on collateral point in that context, though the said document was not registered as required by Section 17 of the Registration Act.

However, I find substance in the submissions made by Shri M. L. Agrawal, learned counsel for the respondent that the Courts below should have given a finding whether the said document was proving pecuniary liability on respondent for re-payment of Rs. 900-00 to appellant or not. Thus, the matter is remanded to the trial Court for adjudicating on this point within a month from receipt of the record and proceeding. The trial court shall also consider after giving due opportunity to parties to lead evidence whether the said document is proved or disproved.

Thus, the appeal is allowed to this extent and in the circumstances, the parties shall bear their own costs.