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Janardana Vishnu and Ravji Mangesh Vs. Anant Laxmanshet - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal Nos. 182 and 255 of 1905
Judge
Reported in(1908)10BOMLR575
AppellantJanardana Vishnu and Ravji Mangesh
RespondentAnant Laxmanshet
Excerpt:
.....of deeds-deeds executed in the mofussil-liberal construction charge-intention to make land security for payment of debt-transfer of property act (iv of 1882), section 100.;dooutnents executed in the mofussil come within the statement of the privy council in hunooman persad panday v. mussumat babooee munraj (1856) 6 m. i.a. 411, that ' deeds and contracts of the people of india ought to be liberally construed. the form of expession, the literal sense, is not be so much regarded as the real meaning of the parties which the transaction discloses.';where having regard to all the circumstances of a transaction, there remains no doubt that a document is sufficient and does show an intention to make the land security for the payment of the money mentioned therein, the document does..........amount to a clog on the equity of redemption.4. all we have to consider is whether by these four documents charges were created. 5. now we start with this that these documents were executed in the mofussil and come within the statement of the privy council in hunooman persad panday v. mussumat babooee munraj koonweree, (1856) 6 moore's i.a. 411, where it was said that ' deeds and contracts of the people of india ought to be liberally construed. the form of expression, the literal sense, is not to be so much regarded as the real meaning, of the parties which the transaction discloses.'6. exhibits 45,44 and 41 are registered and exhibit 42, the only unregistered document is security for an amount less than that in respect of which registration is required under the registration act. this.....
Judgment:

Lawrence Jenkins, C.J.

1. The only question that arises on this appeal (No. 182 of 1905) is whether the appellant is entitled to piority of payment in respect of the amount due on four instruments being Exhibits 45, 44, 41 and 42. Of these Exhibits 45 and 44 were executed in 1847, 41 in 1848, and 42 in 1868; and the appellant claims the benefit of them. He also claims the benefit of the mortgage created by an instrument Exhibit 43.

2. The lower appellate Court has decided against the appellant relying on Rajmal v. Shivaji. (1902) L.R. R. 27 Bom. 154. But that case really is not applicable as the decision cited by the learned Assistant Judge turned altogether on the fact that it was conceded and had to be conceded in the absence of registration that the document there under consideration did not create a charge.

3. It seems to us therefore that we are in no way concerned with the doctrine which forbids anything that would amount to a clog on the equity of redemption.

4. All we have to consider is whether by these four documents charges were created.

5. Now we start with this that these documents were executed in the mofussil and come within the statement of the Privy Council in Hunooman Persad Panday v. Mussumat Babooee Munraj Koonweree, (1856) 6 Moore's I.A. 411, where it was said that ' Deeds and contracts of the people of India ought to be liberally construed. The form of expression, the literal sense, is not to be so much regarded as the real meaning, of the parties which the transaction discloses.'

6. Exhibits 45,44 and 41 are registered and Exhibit 42, the only unregistered document is security for an amount less than that in respect of which registration is required under the Registration Act. This is not without its significance.

7. From Section 100 of the Transfer of Property Act we learn what a charge is : for, it is there provided ' Where immoveable property of one person is by act of parties made security for the payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property.' The form of words used is immaterial, all we have to be satisfied of is that the documents show an intention that the person in whose favour they were executed should have the benefit of the security of the land.

8. Approaching these documents in the spirit of what is laid down by the Privy Council, and having regard to all the circumstances of the transaction we feel no doubt that the documents are sufficient and do show an intention to make the land security for the payment of the money mentioned therein, and from that it follows that the documents do create the charge, and we therefore think that the appellant is right in his contention. The plaintiffis entitled to redeem on payment of the amount that will be found due on basis of our decision.


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