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Shridhar Shabaya Jotishi Vs. Janak Shankar Jotishi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 327 of 1923
Judge
Reported inAIR1924Bom447; (1924)26BOMLR486
AppellantShridhar Shabaya Jotishi
RespondentJanak Shankar Jotishi
DispositionAppeal dismissed
Excerpt:
indian registration act (xvi of 1908), section 17(h) - receipt of mortgage, money--not compulsorily registrable.;a receipt showing that the whole of the mortgage money has been paid off is not compulsorily registrable under section 17(b) of the indian registration act 1908. it would fall within the section, if it went further and stated that thereby the mortgage had been extinguished.;shidlingappa v. chenbasappa (1879) i.l.r. 4 bom. 235, followed. - .....we think that the judge was right in holding that the two receipts showing that the whole of the mortgage money was paid did not require registration. if it had been mentioned that thereby the mortgage had been extinguished then they would come within the provisions of section 17(b) of the indian registration act. the plaintiff was entitled to show that the mortgage money had been paid, and if he suceeded he would undoubtedly be entitled to recover the mortgaged property. but while he was proving the payment it was not necessary for him to prove that the passing of the receipts would extinguish the mortgage, and that was the distinction referred to in the decision in shidlingappa v. chenbasappa i.l.r. (1879) 4 bom. 285, where it was held on the facts of the case that receipts passed by.....
Judgment:

Norman Macleod, Kt., C.J.

1. We think that the Judge was right in holding that the two receipts showing that the whole of the mortgage money was paid did not require registration. If it had been mentioned that thereby the mortgage had been extinguished then they would come within the provisions of Section 17(b) of the Indian Registration Act. The plaintiff was entitled to show that the mortgage money had been paid, and if he suceeded he would undoubtedly be entitled to recover the mortgaged property. But while he was proving the payment it was not necessary for him to prove that the passing of the receipts would extinguish the mortgage, and that was the distinction referred to in the decision in Shidlingappa v. Chenbasappa I.L.R. (1879) 4 Bom. 285, where it was held on the facts of the case that receipts passed by a mortgagee for sums paid on account of the mortgage debt and exceeding Rs. 100 each, were not inadmissible in evidence for want of registration under Act III of 1877, Section 17. The learned Chief Justice said (p. 238):--

Undoubtedly the payment reduces the sum due at the time on the mortgage, and thus modifies the account between the mortgagor and the mortgagee; but it does not operate to limit or confine within narrower limits the right or interest of the mortgagee in the land, which is simply to have the payment of the principal and interest secured on the mortgaged premises by some one or other of the remedies available for that purpose.

2. When the money has been paid, the need for the security has gone.

3. The appeal, therefore, will be dismissed with costs.


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