Bhiklmblia Harisinhji and Another vs Rana Nanubht Ratansing

Chhatpar, J.

1 This appeal arises out of suit by the Respondent for recovery of Rs. 2500/-mterest thereon making the total of IK 4000/-isle the Appellant on the siren the of a dour of integration and'' formation the State of Saurashtra. The period of limit.-lion under the Marvin State law was five year the suit has been, filed on 16-4-1951 to can o limitation is involved in the present

This document is very peculiar. It purmortgage with possession executed by Loin the present Appellants and recites that the possession has been delivered to the mortgagee who had advance a sum of Rs. 2500/-. Mortgage was respect of certain properties in the Malia Taluka, formerly in the State of Morvi, now in Madhya Saumslura D Ntrict of the Saurashtra Slate.

It hears the signature of the first Appellant: and a thumb impression alleged to be of Appellant 2; but in the first paragraph of the mortgage it is clearly stated that the writer of this deed was Appellant 1 to whom the sum of Rs. 2500/- was paid by the morgage the Respondent. In the body of agreement there is also a covenant by him that if any objection is raised he himself would settle it.

The are also covenants by both the alleged "wxecutams relating to the mortgage, bill) so far as the receipt of the consideration is concerned, the .first naragraph is quite clear that the money was paid by the Respondent to Appellant 1 only. The document recites that it would be registered but it was not in fact registered and the mortgagee alleged that the possession was never delivered to him although in was so stated in the deed. II" therefore filed the Jpnesmnt suit for recovery of the money udvuneod along'' with Rs. 1500/- as interest, making the total of Rs. 4000/- as above stated.

Both the Appellants denied execution and onsideration but ultimately the first Appellant admitted execution but ho denied consideration while "ho svjoond Appellant ''denied both the consideration Well as execution; she was a pardanashiu lady -Bad did. not know anything about this deed. The ''Sriitl Court held execution proved by both the Appellants and decreed the suit allowing Rs. 2500/- witb interest at 12 per cent. On appeal, by the defeadmts the lower appellate Court reduced ''he interest to 6 per cent. The Defendants have now -Come in second appeal to this Court.

Mr. Hathi the learned advocate for the Appellants has challenged both the consideration as well as the execution, but as these are" questions of fact which cannot be assailed in. a second appeal refuse to go into the evidence and" I am bound by "Use finding that the Respondent had advanced Rs. 2500/- and further that both the Appellants had executed this document, What the effect of the document would be so far as Appellant 2 is conrned will be discussed hereafter.

Mr. Hathi principally raised a legal point that as this deed required registration and was "not in faeifc registered, it cannot be put in evidence for any purpose whatsoever on the ground that consideration and execution a-o inextricably connected with the mortgage with the possession and since the mortgage cannot be proved, the document cannot be put in evidence for any purpose, even for ''the purpose of proving the advance of money. Ha relies upon Section 49, Indian Registration Act.

He further states that u/s 68, Transfer -of Property Act, the mortgagee is not entitled to demand the return of the mortgage money unless kiera is a personal covenant to pay. There is no such covenant in the deed. Those arc the two joints urged before me.

So far as the second point is concerned, 68, Transfer of Property Act, obviously refers to a mortgagee whose mortgage is valid in law. The section presupposes a valid mortgage duly registered. If the mortgage is invalid for any purpose, there is no question of the mortgagee as such stung on any personal covenant for payment of money under the mortgage deed. In this connection I may refer to ohitaley''s Transfer of Property Act, P. 1225, 1950 Edition, wherein it is observed that the section presupposes the existence of a valid, mortgage. This disposes of the second poht.

So far as the fiwt point is concerned, much argument has been advanced by both tire learned advocates, Messrs. V.G. Hathi for the Appellants and J. J!. A.njaria for the Respondent. Now Section 9, Registracion Act, as it originally stood, rn''ohibitou any iuMnnncnt required to be registered, to be received in evidence in any civil proeceodings in any Court or to be acted upon by any public officer.

But there have been subsequent amendments and now clause (c) of the Section prohibits receipt "as videoed of any Iran we lion or conferring such power", and the proviso peril an unregistered document to fetching Immovable property to be received, as evidence of any collateral transaction not required to be effected by registered instrument. In view of the amendments of this section, and the form in which it at present stands'', the prohibition of receiving as evidence only relates to the transactions affecting Immovable property and such an instrument is also admissible as evidence of any collateral transaction not required to be affected by a registered instrument.

The Privy Council in Varadu Pillui v. Jeovaratlwammal AIR 1019 PC 44 (A), hold that an, unregistered deed can be used to show the character of the possession. The Bombay High Court in Ardesir Bejonji Surti v. Sirdar Alt Khan 33 Bom 610 (B), permitted an unregistered lease deed to be received in evidence in a suit by a lessee to recover deposit to prove the fact that the money was deposited and the lessee had the right to recover it.

In - AIR 1941 90 (Privy Council) ), the Privy Council held the security by way of mortgage to be invalid for want of registration; their Lordships nevertheless gave a decree on the basis of a pronote executed along with the other documents purporting to create the mortgage.

See also a recent decision in - Had Chaad v. Kartar Singh AIR 1952 P&H 56 (D). This is on tire principle that remedy on a personal covenant is available if the mortgage is invalid for want of registration. Mr. Hathi has however relied upon a decision of the Allahabad High Court in - Kesari Ram Vs. Musafir Tewari and Others ), wherein the learned Judge observed:

It has been further argued in behalf of the Appellant that th(c) mortgagor is entitled to recover the sum due under this mortgage by reason of Section 68 (1) (d), T. P. Act, which provides that a mortgagee has a right) to sue for (he mortgage money;

Where the mortgagee being entitled the possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure (.he possession (hereof to him without; disturbance by the mortgagor or by any person claiming under a title superior'' to that of the mortgagor.

This is undoubtedly a statutory right given to, a usufructuary mortgagee, but in my judgment before he can bring such an action ho must prove his mortgage. If the mortgage cannot be tendered in evidence for want of valid registration, then the mortgagee cannot recover his money u/s 68 (I) (d); T. P. Act.

With greatest respect to the learned judge, 68 (1) (d), T. P. Act as stated above, presupposes a valid mortgage deed i.e., a mortgage deed duly registered and It has no application where the mortgage deed has not been registered and therefore (here hi no mortgage created In law. The Privy Council ruling above recited appears to be contrary to this ruling.

The Calcutta High Court in - Sailendra Nath Singha and Another Vs. Keshab Chandra Choudhury, treats the covenant as unregistered contract which entitles the mortgagee to sue thereon. With respect I follow this deaision Mulla in his Commentary of Registration Act (5th Edn.) at p., 139 seems to be of the same view. The Calcutta decision was on an invalidly registered mortgage deed, which stands on the same footing as an unregistered document.

New the document in the present matter first recites the receipt of Rs. 2,500/- by Appellant 1 from the Respondent and thereafter there are the usual provisions about the mortgage of the property with possession. This document cannot be receive as evidence of the mortgage but it can be relived in evidence for the purpose of proving that ii sum of Rs. 2,500/- passed from the Respondent to Appellant 1. This is clear from the amendments of the Section and the proviso inserted by the amendment of 1929 and the ridings discussed above.

I am therefore of the opinion that it is open to 3 Respondent to rely upon this document as evidence of his having paid the sum of Rs. 2,500/- of Appellant but so far as Appellant 2 is concerned, there is no mention in this document that IILI has received the amount, The Respondent can hose his cause of action against Appellant 1 for money had and received, the amount not being paid gratuitously taking advantage of Section 70, Indian Contract Act.

But he has no cause of action so far as Appellant 2 is concerned, because die deed does not invite that the money has been received by her. She seems to have joined in the execution of the deed as she has also an interest in the mortgage land, possession of which has been alleged to have been handed over to the Respondent. Her execution of the deed is consistent with the plausible ailment that money was alone advanced to Appellant 1 supported by the deed and she executed the deed giving her consent to the mortgage as she had also interest in the mortgage property.

I therefore hold that the Respondent Plaintiff cannot recover money from her in the absence of proof that she herself had received the amount, against which the document itself militates. If the [mortgage cannot be proved for want of registration, the Plaintiff can only fall back upon the hranvaition of his having paid the sum to Appellant 1 and on that basis he can recover his ala in against Appellant only u/s 70, Indian Contract Act of the analogy of the principle underlying the above referred to Privy Council decision that if the mortgage cannot be proved for want of acieration, the creditor can establish his loan under the Contract Act.

I therefore modify the decree of the lower appellate court by restricting the decree! against Appellant 1 only for the amount decreed and dismiss the suit of the Respondent against Appellant 2 with costs throughout. The Respondent will, have his'' costs of this appeal from Appellant