Korban Ally Mirdha vs Sharoda Proshad Aich and Others

Prinsep, J.—The plaintiff in this case 8ues on an unregistered mortgage bond, the consideration of which is Rs. 99. The defendants, stated to he the mortgagors, denied the execution of the mortgage bond. There is another party who appeared and was brought on the record, who claims this property as having been bought under an unregistered conveyance from the other defendants, the admitted owners.

Both the lower Courts, on the authority of the decision of a Full Bench of the Allahabad High Court, in the case of Himmat Singh v. Sewaram ILR 3 All. 157 have dismissed the case, holding that the plaintiff''s mortgage bond was one of which registration was compulsory, and, therefore, cannot be made the subject of suit.

In our opinion the judgments of the lower Courts are erroneous, not being in accordance with a series of decisions delivered by this Court. The High Courts of Madars and Bombay, it may be observed, have adopted the same view of the law. The lower Courts are bound to follow the concurrent decisions of the Court to which they are immediately subordinate, and are not at liberty to adopt a contrary opinion expressed by another High Court.

We find, moreover, that the judgment of the Chief Justice of the High Court of Allahabad, in the case on which the lower Courts rely, refers expressly to a decision of this Court on the point in issue, so that the lower Courts had the means of ascertaining, if they did not otherewise know it, what rule they should follow. We would, however, refer the lower Courts to the judgments of this High Court in Isham Chandra v. Soojan Bibee 7 B.L.R. 14 : 15 W.R. 331 Rohinee Debia v. Shib Chunder Chatterjee 15 W.R. 558 Panchi Dasi v. Ahmedula 12 C.L.R. 444 Ram Doolary Kooer v. Thacoor Roy ILR 4 Cal. 61 The judgments of the other High Courts to the same effect are Vasudev Moreshvar v. Rama Babaji 11 Bom. H.C. 149 Satra. Kumaji v. Visram Hasgavda ILR 2 Bom. 97 Nana Bin Lakshman v. Anant Babaji ILR 2 Bom. 353 Narasaya Chetti v. Guruvappa Chetti ILR 1 Mad. 378 and Kattarmuri Jagappa v. Padalu Latchappa ILR 5 Mad. 119

But although the grounds upon which the lower Courts have dismissed the plaintiff''s case are untenable, it is unnecesssry to remand the case for trial on the merits, because on another point we think that the suit must fail.

The plaintiff is opposed by defendant No. 5, whose title depends upon a registered conveyance, and this, it is settled law, must prevail over his unregistered mortgage-deed.

The appeal must, therefore, be dismissed, the orders of the lower Court being affirmed, but on grounds different from those stated in their judgments.

We allow no costs in this Court. The defendants will receive one set of costs in both the lower Courts.