Mt. Waji-hun-nissa Begam vs Valmiki Sahay and Others

Jwala Prasad, J.—This appeal arises out of a suit to enforce a mortgage. The defendant No. 6 Mt. Bibi Wajihunnissa of the second party is the appellant before us. One of the mortgaged properties was described in the bond as bearing Tauzi No. 9907. This was mauza Sherpore Chak Makhan alias Sherpore Ramnath Chakla Garjaul, Pergana Disara extent of share 5 annas, Thana Mahua, Registry Office Mahua, Division Hojipore, District Muzefferpore. The plaintiffs stated that the aforesaid tauzi number was inserted in the document by the mistake of the scribe and the correct tauzi number of the village was 6607, that the mortgagors defendants, Nos. 1 and 2 of the first party had no other property under Tauzi No. 9907, and that the defendants Nos. 6 and 7, who subsequently purchased the property, had information of the mortgage of the plaintiffs. The plaintiff therefore claimed that in the decree the correct Tauzi No. 6607 should be mentioned.

The defendant No. 6 obtained this property by virtue of a deed of gift dated the 30th of October 1914 executed by the defendant No. 7, who had purchased it by a sale deed, dated the 14th of November 1912, from one Mrs. Allen Clement. Mrs. Allen Clement purchased the property from the defendant No. 2, the owner of the property in question. The defendant No. 6 stated in. the written statement that the property mortgaged was described in the bond of the plaintiffs as bearing Tauzi No. 9907 and hence the plaintiffs are not entitled to sell the proprietary interest in Touzi No. 6607 which was purchased by her. She also denied any knowledge of the plaintiffs'' mortgage before she obtained the property under the deed of gift of 1914. She took other pleas and her case is stated by the learned Subordinate Judge in the following words: "The defendant No. 6 alleges that the bond is without consideration and contends that it is barred by limitation and she further contends that the claim for interest is unconscionable and her learned Vakil contends that plaintiff No. 2 has purchased for Rs. 3,500 only, so he cannot recover more."

The defence taken by the defendants Nos. 3 to 5 need not be set forth inasmuch as they do not contest the decree passed by the Court below.

Upon the pleas taken by the two sets of defendants the Court below framed the following issues:

(1) Whether the plaintiff has any cause of action.

(2) Whether the suit is barred by limitation.

(3) Whether the bond dated the 19-12-14 set up by the plaintiff was Executed by Mr. R Brown and for consideration. Is it bona fide transaction?

(4) Whether the mortgaged properties are liable to be sold?

(5) Whether the plaintiff is not owner or purchaser of the bond in suit?

The Court below decided all the aforesaid issues in favour of the plaintiffs and gave a mortgage decree directing the sale of the mortgaged properties in suit. It also directed that the Tauzi number of the property No. 1 Sherpore Chak Makhari alias Sherpore Ramnath, be corrected and the correct number 6607 be given in the decree. The appeal by the defendant No. 6 is directed against this part of the decree on the principal ground that the Court below was wrong in directing that the Tauzi number of the property in question should be described in the decree as No. 6607 and that the Court below should have released the property No. 1 entirely from the decree.

It has been argued before us that the property purchased by the defendant No. 6 was not subject to the mortgage of the plaintiffs. On behalf of the respondents it is urged that such a definite plea does not appear to have been expressly taken either in the written statement or in issues framed by the Court and that issue No. 4, namely, whether the mortgaged properties are liable to be sold relied upon by the appellant does not cover the plea in question. Assuming for the sake of argument that the aforesaid issue does cover the contention, it is clear upon the evidence placed before us that the property intended to be mortgaged was that described in Tauzi No. 6607. The plaintiffs filed copies of Register D of Tauzi numbers 9907 and 6607; (Exes. 7 and 7 (A). Those documents show that under Tauzi No. 9907 there was no village of the name of Sherpore Chak Makhan or Sherpore Ramnath and of that Tauzi number Mr. Brown, the mortgagor, was not the proprietor. In that Tauzi the estate was known as Raghubar Sahay, and the proprietors were a number of persons other than Mr. Brown. The Register containing Tauzi No. 6607 showed that there was an estate known as Sherpur Ram Nath Mander, Perganna Bisara, Thana Muzafferpore of which Mr. Brown was a proprietor The sale deed Ext. 5 dated the 3rd of July 1918, whereby the plaintiff No. 2 sold the mortgage in question to plaintiff No. 1 described the property as bearing Tauzi No. 6607, but this is of a very recent date and may not have much evidentiary value. Plaintiffs'' witness No. 3 deposed to the fact that the tauzi number of the property was written by mistake as No. 9907 in place of 6607 and that 9907 crept into the document by a mistake. There can be no doubt as to the identity of the property in question or that it was mortgaged to the plaintiffs under the deed in question. The property was sold subsequently by Mr. Brown to the predecessor-in-interest of the defendant No. 6 and is now held by her (defendant No. 6). Ordinarily, therefore, this property in the hands of the defendant No. 6 is subject to the mortgage of the plaintiffs.

Now, the question is whether the misdescription in the mortgage bond by giving the wrong Tauzi number exonerates the property in the hands of the defendant No. 6 from the liability of the plaintiffs'' mortgage. There can hardly be any doubt that the mortgagors could not claim any exoneration on the ground of the misdescription of the property in the bond in question. Under Sections 95 to 97 of the Evidence Act and the illustrations given thereunder, it was open to the plaintiffs to show what was the property actually mortgaged to them under the bond in their favour. In the present case they have shown that the property in question was that denoted by Tauzi No. 6607 and not by 9907 which had by a mere mistake crept in the descriptive portion of the bond and that their mortgagor, Mr. Brown was the owner of the mouzah in tauzi 6607. This is a clear case of falsa demonstration. The defendant No. 6 holding the property under subsequent conveyance executed by Mr. Brown, stands in the shoes of the vendor and is bound by the lien created by the mortgage in question.

Now in order to bind she subsequent transferees with a prior lien the law of registration has been enacted so that the subsequent transferees may have an opportunity to ascertain whether the property transferred to them was subject to any prior encumbrance or not; and once that prior encumbrance is effected by means of a registered document, the subsequent transferees are presumed to have notice of the same and are in law bound by it. It has not been contended before us that the document in question was not validly registered and the Sub Registrar or the Registrar who registered the document had no jursidiction to register it. A mere misdescription of the nature such as is in the present case will not take away the jurisdiction of the Registrar to register the same if he was otherwise empowered to do so under the Act. Therefore the document in question was validly registered. Even if it was open to the defendant No. 6 in the present case to show that she or her predecessor-in-interest did not and could not know that the property was mortgaged to the plaintiffs on account of the misdescription in the deed, in other words that she had no notice of the* mortgage and that she took all possible care to ascertain and had made reasonable enquiry as to whether the property was already encumbered or not, but that the misdescription of the property in the plaintiffs'' mortgage bond prevented her from discovering the mortgage in question, the question is one of fact, and should have been proved by the appellant.

However it was merely suggested in the written statement that the defendant No. 6 had no information; but apparently, no issue was raised upon this plea and at the trial no evidence was led by the defendant No. 6 on the point. The sole witness examined on behalf of the defendant does not even suggest that the defendant No. 6 was in any way misled by the description of the property in the mortgage bond and that she was prevented from finding out whether it was mortgaged to the plaintiffs or not; no enquiry is even suggested. In short there is absence of evidence on behalf of the defendant upon the plaint in question and the onus of proof lay upon her. The documents of title of the defendant No. 6 have not been produced in this case. We do not know whether in the sale deed executed by Mr. Brown in favour of Mrs. Allen Clement on the 5th of January 1909 it was even suggested that the property in question was free from encumbrance. No doubt a statement of such a nature would not be a sufficient proof in itself that the defendant No. 6 or her predecessor-in-interest did not know that the property was mortgaged to the plaintiffs. Any how the position is that it has not been filed in the case. The defendant No. 6 apparently claimed exemption of the property from the liability of the plaintiffs'' mortgage on the mere ground of the misdescription on the property in the mortgage bond. Issue No. 4, which has been relied upon by the learned Vakil on behalf of the appellant, was disposed of by the Court below in the following terms: "Property No. 1 Sherpore Chak Makhad, is clearly liable for the mortgage debt, it being the property of Mrs. Robina Brown and being mortgaged by her long before her son transferred it to his wife from whom defendant No. 6 purchased. The Tauzi number is a mere misdescription, there is no other property of the same description belonging to Mr. or Mrs. Brown and Tauzi No. 9907 being situated in Sitamarhi Subdivision whereas Mrs. Brown''s property is in Halipore Subdivision. The correct Tauzi No. 6607 will be given in the decree." This clearly shows that there was no point raised before the Court below as to the property in question not having been mortgaged at all to the plaintiffs and that the defendant No. 6 or her predecessor-in-interest was not aware of it.

I am therefore of opinion that the grounds stated either in the petition of appeal or in the argument in this Court have not been substantiated. The appeal must therefore be dismissed with costs.

It may be mentioned that the defendant No. 6 has filed in this Court today a sworn petition asking for time to produce her documents of title and if necessary for a remand of the case to the Court below for further investigation into the matter. I do not think that sufficient ground has been made out by her to claim production of her documents of. title at this stage, or a remand of the case.

We therefore reject that petition.

Ross, J.

I agree.