1. This is a plaintiff's second appeal against a decree of the lower Appellate Court reversing the Court of first instance which decreed the plaintiff's claim in part. The suit out of which this appeal arises was brought by the plaintiff for the recovery of Rs. 1,236 on the basis of a mortgage deed dated 2nd August 1928 which had been executed by one Jai Ram Tewari, deceased, in favour of the plaintiff for Rs. 799-15.0. The defendants were the personal representatives of the deceased executant Jai Ram Tewari. The mortgage was a possessory mortgage and the suit was brought to recover the said sum of Rs. 1,236 on the ground that the mortgagor had failed to put the plaintiff in possession of the mortgaged property.
2. The defendants raised a number of defences, but it is only necessary in this appeal to consider one of them. They alleged that the mortgage was invalid by reason of the fact that it was registered in the Ballia district, whereas in fact the property was situate entirely in the district of Arrah in the Province of Bihar.
3. The learned Munsif decreed the plaintiff's claim in part, but on appeal the learned Civil Judge held that as no part of the property was situate within the Ballia district, the mortgage could not be received in evidence by reason of the provisions of Section 49, Registration Act, and consequently he reversed the trial Court and dismissed the claim in its entirety.
4. There can be no question that the property which was the subject matter of this mortgage was situate in the district of Arrah and not in the Ballia district. It appears that a long time ago the river which divided these two districts changed its course and the property comprised in the mortgage had for a very considerable period of time been situate in the district of Arrah. It is conceded that a mortgage such as the present one required registration by reason of Section 17(1), Registration Act, and Section 28 of the same Act provides that every document mentioned in certain clauses of Sub-section (1) of Section 17 and certain clauses of Section 18 must be registered in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which the document relates is situate. It is not contested that Section 28, Registration Act, applies to this document and therefore it should have been presented for registration not to a Sub-Registrar of Ballia district but to a Sub-Registrar of the district of Arrah in the province of Bihar. There is no finding as to why this document was registered in Ballia though from the judgment it would appear as if everybody must have known that this property was no longer situate in Ballia district. It probably was registered in the Ballia district in order to avoid a case having to be brought eventually in the Province of Bihar.
5. There can be no question that this document has not been properly registered and that being so, Section 49, Registration Act, applies to it. That section is in these terms:
No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall:
(a) affect any immoveable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Ch. 2, Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A, T.P. Act, 1882, or as evidence of any collateral transaction not required to be effected by a registered instrument.
6. This proviso was added by Act 21 of 1929 and it is doubtful whether it can possibly apply to this case as this mortgage was executed in the year 1928. However, in my judgment, the proviso, even if applicable to this mortgage, cannot affect the decision in this case.
7. In my judgment the learned Civil Judge was right in holding that this mortgage had not been validly registered and therefore could not be received as evidence of the transaction. This view is supported by decisions of this Court. In Bansraj Singh v. Rajbans Bharti A.I.R. 1914 All 76 a Bench of this Court held that a Registrar had no jurisdiction to register a document dealing with property, no portion of which is situate within his district, and a document thus registered was not a duly registered document within the meaning of Section 28, Registration Act, and that omission to comply with the provisions of Section 28 could not be regarded as a mere defect in procedure. In that case a mortgage bad been registered in a district in which no part of the mortgaged property was situate and the Bench held that the registration was invalid and that the claim based on the mortgage was bound to fail.
8. Another case of this Court is Bisal Singh v. Roshan Lal A.I.R. 1924 All 373 in which Mukerji, J. held that a claim upon a mortgage failed because it had been invalidly registered. In that case the mortgage was registered in a district in which no part of the mortgaged property was situate and consequently its registration was invalid and it was held that the mortgagee could not sue upon the mortgage.
9. It has been 'contended, however, by Mr. Sinha on behalf of the appellant that though the document cannot be looked at as a mortgage, yet it can be regarded as a bond properly registered, and reliance is placed upon oases of other High Courts in support of this contention. In Dronamraju Rama Rao v. K. Vidayya A.I.R. 1923 Mad. 447 it was held that where a document consisted of two or more parts, or where there were two or more covenants in a document, the mere fact that one part became inoperative or invalid by reason of non-compliance with or violation of the provisions of the Registration Act, need not necessarily make the other parts of the document invalid or inoperative. In that case a mortgagee sued upon a simple mortgage which had been invalidly registered. The Court held that though the mortgagee could not sue upon the mortgage, yet the document could be regarded as a validly registered bond, because a bond need not be registered in any particular place. It was pointed out in the case that in a simple mortgage there is a personal covenant to pay and that even if the document failed as a mortgage, yet it was good as a registered bond, that is, as a registered instrument containing a personal covenant to pay. A similar case is the case in Joginee Mohun Chatterjee v. Bhoot Nath Ghoshal (1902) 29 Cal. 654. In that case the sub-registrar of Sealdah registered a mortgage deed dated 10th October 1896, purporting to hypothecate immoveable property within the area of the Sealdah registration office. In the suit brought on 21st August 1901 for the enforcement of the mortgage bond, the defendant contended inter alia that no such property as described in the deed ever existed; and no satisfactory evidence was given as to its existence. In those circumstances Ameer Ali, J. held that the document could not take effect as a mortgage bond, but as it was registered, the plaintiff was entitled to a money decree for the whole amount secured by the deed though the suit was brought more than three years after the execution of the deed. In short, it was held that though the mortgagee could not sue on the mortgage, he could treat the document as a registered bond and bring a suit within a period of six years from the date of its execution.
10. It is contended on behalf of the appellant that the view expressed by the Madras and Calcutta High Courts is supported by a decision of their Lordships of the Privy Council in Mathura Prasad v. Chandra Narayan A.I.R. 1921 P.C. 8. In that case a claim on a mortgage failed and their Lordships remanded the case to the High Court at Calcutta to consider the plaintiff's alternative claim for a personal judgment for the mortgage debt. Nowhere however in this judgment is it stated that a mortgage-deed which cannot be admitted in evidence for want of registration, can be treated as a validly registered bond.
11. In my judgment it is not open to me as a Single Judge to follow the view expressed by the Madras and Calcutta High Courts even if such view was applicable to this case. The two cases which I have cited of this Court do not suggest that a mortgagee suing under a mortgage invalidly registered can treat the document as a validly registered bond and obtain a decree upon it. In both the cases of this Court to which I have referred, the mortgagee's claim appears to have been dismissed in its entirety, and as I am bound by those oases, it appears to me that I could not follow the view of the Madras and Calcutta High Courts even if those cases applied to the facts of this particular case.
12. In my view however there is a very material difference between this case and the Madras and Calcutta cases to which I have referred. In this case the mortgage is a possessory one, whereas in Madras and Calcutta cases the mortgage was a simple mortgage. A simple mortgage is defined in Section 58(b), T.P. Act, and from that definition it will be seen that the mortgagor binds himself personally to pay the mortgage money. In short, a. simple mortgage contains a personal covenant upon which the mortgagor makes himself personally liable to pay the money. A usufructuary mortgage is defined in Section 58(d), T.P. Act, and from that definition it will be noted that a usufructuary mortgagor does not enter into a personal covenant to pay the mortgage money. There is therefore a very material difference between the position of a mortgagor under a simple mortgage and under a possessory mortgage. In the former case he personally undertakes to repay, whereas in the latter he does not. A registered simple mortgage may well be regarded as a registered bond even if it cannot be regarded as a valid mortgage. In the absence of any personal covenant to pay, it is difficult to see how a possessory mortgage improperly registered can be regarded as a registered bond as it contains no personal undertaking to repay the money.
13. The mortgage in suit in this case did contain a clause in which the mortgagor did covenant to pay in the event of the mortgagee being dispossessed, but in my judgment that is a very different under, taking from the undertaking in a simple mortgage to pay the debt. As I have stated in this case, the mortgagee never obtained possession and that being so the undertaking of the mortgagor never took effect. The covenant to which I have referred in this case was considered in Gauri Singh v. Bechu Singh : AIR1933All97 where it was held by a Bench of this Court consisting of Mukerji and Bennet, JJ. that such a provision only applied when the mortgagee's possession was interfered with and was not appli. cable to the case where the mortgagor had failed to deliver possession initially.
14. In my view, as the mortgage sued upon in this case is a possessory mortgage, I am bound to hold that it cannot be regarded as a validly registered bond, because it contains no personal covenant to repay the mortgage money. It is the absence of such a covenant that makes this case clearly distinguishable from the Madras and Calcutta oases to which I have referred.
15. It has been further argued on behalf of the appellant that the mortgagor is entitled to recover the sum due under this mortgage by reason of Section 68(1)(d), T.P. Act, which provides that a mortgagee has a right to sue for the mortgage money:
where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or by any person claiming under a title superior to that of the mortgagor.
16. This is undoubtedly a statutory right given to a usufructuary mortgagee, but in my judgment before he can bring such an action he must prove his mortgage. If the mortgage cannot be tendered in evidence for want of valid registration, then the mortgagee cannot recover his money under Section 68(1)(d), T.P. Act.
17. Lastly, it has been argued that in any event a mortgagee under a mortgage invalidly registered is entitled to sue for the return of the money advanced. The advance of the money created a loan due from the mortgagor to the mortgagee and suit can, it is argued, be brought to recover the money so lent. That may be so, but that cannot help the plaintiff in this case because the money was advanced on 2nd August 1928 and the suit was brought on 28th February 1933 well over three years from the date of the loan. Unless this document can be regarded as a validly registered bond, the plaintiff's claim is bound to fail.
18. For the reasons which I have given I hold that the document cannot be treated as a validly registered bond and that being so the plaintiff's claim was rightly dismissed by the lower Appellate Court. For the reasons which I have given, this appeal fails and is dismissed with costs. Leave to appeal under Letters Patent is granted.