Harnandan Singh vs Basudeo Narayan and Others

Ross, J.—This is an appeal by the defendant. The plaintiffs purchased 1 bigha 8 kathas and 6 dhurs of land from the defendants second party by a registered deed of sale on 22nd September 1924 in consideration of Rs. 465 out of which Rs. 259 was left by the vendors in deposit with the vendees for payment to the defendants first party under a draft zarpeshgs deed.

The plaintiffs tendered this sum to the defendants first party who refused to accept it and therefore they brought this suit which is in effect a suit for redemption. The defence was that the consideration for the zarpeshgi lease was not Rs. 259 but Rs. 261 and that it was for a term which extended to 1340 Fs. i.e., for a term of nine yeara and not for a term of five yeara only as the plaintiffs allege. Consequently the plaintiffs are not entitled to redeem.

Both the Courts below have decreed the suit for Rs. 261 holding that the defendants were not entitled to prove the terms of their zarpeshgi lease, inasmuch as the document they relied upon was not stamped and registered. The learned advocate for the respondents relied upon the decision of the Judicial Committee in Skinner James R.R. v. R.H. Skinner AIR 1929 P.C. 269. That was a case of a document (which is set forth in extenso in their Lordships'' judgment) which was plainly a conveyance. It contained the following clause:

if the vendee should ever consider necessary to execute a registered sale dead the vendor or his heirs assigns etc. will always be ready to execute a registered sale deed at the expense of the vendee.

Their Lordships held that this last clause did not make any difference to the nature of the deed which was not exempted from registration. Section 17, Sub-section (2), Clause (v), Registration Act, exempts from registration any document not itself creating, declaring, assigning or extinguishing any right title or interest of the value of one-hundred rupees and upwards to or in immovable property but merely creating a right to obtain another document which will when executed, create, declare, assign etc. such right, title or interest. The question therefore turns on the construction of this document. The document has been read and it clearly states that the executants have borrowed Rs. 261 and have given the land in usufructuary mortgage for a term of nine years and have put the mortgagees in possession with the right to remain in possession until the debt is paid and the e is a clause that one of the mortgagors being ill was unable to register the document and therefore it was promised that when he recovered a registered document would be executed in the same terms.

This document in my opinion is entirely different from the document in Skinner''s case. It is merely a memorandum recording the fact that money had been borrowed on the terms of a usufructuary mortgage and that the mortgagees had been put in possession and it gives the mortgagees the right to obtain a document in a proper registered form. This document therefore did not require registration and indeed that is what has been found by the learned Subordinate Judge. It is merely an agreement to execute a usufructuary mortgage bond. This agreement is specifically performable and can be set up as a defence to the present suit. It follows that the present suit is premature and must be dismissed with costs throughout.