Henry Richards, Kt. C.J. and Banerji, J.
1. This appeal arises out of a suit brought to realize the amount of a mortgage, dated the 21st of March, 1900, by the sale of the mortgaged property. The defendants pleaded that after the mortgage had been executed the. mortgagors rendered certain services to the mortgagee, and that in consideration of those services a certain part of the principal and all interest up to date and all future interest were relinquished by the mortgagee. To prove this agreement a certain document was tendered in evidence. The document was unstamped and unregistered. The difficulty of stamp has been got over by the payment of duty and penalty, but the question of registration remains.
2. The court below held that the document required registration and therefore was inadmissible in evidence. Section 17 of Act No. III of 1877 (which was the Registration Act in force at the time of the execution of the document in question), provides that certain documents must be registered. A later section provides that documents which require to be registered cannot be admitted in evidence unless they are registered. Amongst the documents requiring registration are all documents of a non-testamentary nature which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest of a certain value to or in immovable property. There can be no doubt that prior to the execution of the document in question the mortgagee had a right to realize from the property mortgaged, all principal, together with all interest then accrued or that might thereafter accrue due on foot of the mortgage.
3. It is argued that the document in question comes within the exception mentioned in Clause (n) to Section 17. That clause exempts from the necessity of registration any endorsement on a mortgage deed acknowledging payment of the whole or any part of the mortgage money and also any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage. In our opinion the document in question cannot be said to come within the exceptions mentioned in Clause (n). The document is clearly an agreement to forego in part the plaintiffs' rights as against the mortgaged property in consideration of services rendered. It cannot in any sense be said to be a receipt for the payment of money not extinguishing the mortgage in whole or in part. It clearly does extinguish the mortgage to the extent of a considerable portion of the principal and the whole of the interest.
4. Under these circumstances we think that the decision of the court below was correct. We accordingly dismiss the appeal with costs.