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Parsotam Das and ors. Vs. Raja Patesri Partap Narayan Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.923
AppellantParsotam Das and ors.
RespondentRaja Patesri Partap Narayan Singh and ors.
Excerpt:
registration act (iii of 1877), section 21 - description of property--error in part of description--sufficient identification--registration already effected not void--decree on mortgage--merger--mortgage unenforceable after decree becoming time-barred. - - the description given, in spite of the error in the tappa, was, in our opinion, sufficient to identify the property and that part of the description which was in fact erroneous may well be disregarded......arose in bent madho singh v. jagat singh 10 a.l.j. 33; 16 ind. cas. 337 and it was held that a sale-deed having been registered, the registration could not be a nullity merely by reason of there being an error in the description of the property. the court below was, therefore, in our opinion, wrong in dismissing the claim as regards the village rasulpur.4. it was contended on behalf of the respondent, kashi prasad, that he was a bona fide purchaser without notice of the plaintiff's earlier mortgage. in the first place, we may point out that the property was sold and was purchased by kashi prasad in execution of his own decree, ln the next place, there is nothing to show that he made any inquiry as to the existence of a prior mortgage on the property. if he had made any inquiry, it is.....
Judgment:

1. This appeal arises out of a suit for sale upon a mortgage, and the only question we have to determine is whether the Court below was right in dismissing the claim in so far as it sought to bring to sale the village Rasulpur, tappa Kadar. The Court below has held that having regard to the provisions of Section 21 of the Registration Act of 1877, the registration of the mortgage-deed as regards that village was void and it has accordingly dismissed the claim in respect of that village. The correctness of this decision is challenged in this appeal by the plaintiffs.

2. The mortgage comprises a number of villages among which is the village Rasulpur and it is thus described in the mortgage-deed: 'the entire Mauzah Rasulpur, tappa Padya Parganah and District Basti which are mortgaged with possession to other persons.' Mautah Rasulpur is not in tappa Padya but is in fact in tappa Kadar. This is established by the evidence to which the Court below has referred; but it is admitted that it is situate in Parganah Basti and in the Basti District, and it was also 'mortgaged with possession to other persons.' The Court below holds that as the tappa, in which the property in question is situate has been wrongly given in the mortgage-deed, the registration of that document is thereby vitiated. Section 21 of the Registration Act merely provides that a non-testamentary document relating to immoveable property should contain a description of such property sufficient to identify the same, and the appendix to the Registration Manual requires that the name of the village, parganah and district should be entered. In the present instance, the name of the village and the names of the parganah and the district in which it is situate are given in the mortgage-deed. The only defect is the mistake in the name of the tappa. The fact that it is further mentioned in the mortgage-deed that the mortgaged property is subject to a prior mortgage under which the mortgagee is in possession is another circumstance which would enable one to identify the property intended to be mortgaged and mentioned in the mortgage-deed. We are unable to hold that the mistake in the tappa is alone sufficient to vitiate the registration of the document which was accepted for registration and actually registered. The description given, in spite of the error in the tappa, was, in our opinion, sufficient to identify the property and that part of the description which was in fact erroneous may well be disregarded.

3. A similar question arose in Bent Madho Singh v. Jagat Singh 10 A.L.J. 33; 16 Ind. Cas. 337 and it was held that a sale-deed having been registered, the registration could not be a nullity merely by reason of there being an error in the description of the property. The Court below was, therefore, in our opinion, wrong in dismissing the claim as regards the village Rasulpur.

4. It was contended on behalf of the respondent, Kashi Prasad, that he was a bona fide purchaser without notice of the plaintiff's earlier mortgage. In the first place, we may point out that the property was sold and was purchased by Kashi Prasad in execution of his own decree, ln the next place, there is nothing to show that he made any inquiry as to the existence of a prior mortgage on the property. If he had made any inquiry, it is clear that he would have found that the property, which is mentioned in the mortgage deed in suit as being in the possession of a prior mortgagee, is the property now sought to be sold. He never came forward to say that he was misled in any way by the misdescription in the mortgage deed. The plaintiff, therefore, is entitled to a decree for sale of Raslupur as against the respondent, Kashi Prasad.

5. It was contended on behalf of the respondent, Hira Prasad, that the decree for sale of Rasulpur in favour of the plaintiff, should be subject to two prior mortgages, namely, one of July 1880 and the other of the 25th of November 1880. The mortgage of the 2nd of July 1880 is a usufructuary mortgage made in favour of Ram Narain and others, and the other mortgage is a simple mortgage in favour of Sham Narain and others, the predecessors-in-title of Hira Prasad. Hira Prasad has purchased the mortgagee rights in regard to half of the property and has redeemed the mortgage in respect of the other half and has thus stepped into the shoes of the prior mortgagee. He is, therefore, entitled to claim that the decree in the plaintiff's favour should be subject to the mortgage of the 2nd of July 1880. This is conceded by the learned Advocate for the plaintiff, and indeed in the plaint the plaintiff's prayer was that the sale should be subject to that mortgage. As for the mortgage of the 25th of November 1880, the Court below has held that as a decree was obtained on the basis of that mortgage the said mortgage has merged in the decree and that the decree has become time-barred and is no longer capable of execution. So that Hira Prasad cannot now claim that the sale in enforcement of the plaintiff's mortgage should be subject to the mortgage of the 25th of November 1880. In the connected Execution First Appeal No. 303 of 1912 Hira Prasad Panday v. Kashi Prasad 18 Ind. Cas. 897 decided by us to-day, we have held that the decree obtained on foot of the mortgage of the 25th of November 1880 is no longer capable of execution and is time-barred and it is clear that it was also time-barred on that date on which the plaintiffs brought their suit. That being so, that mortgage no longer subsists and cannot be enforced.

6. The result is that we allow the appeal so far that we vary the decree of the Court below by adding to the decree a direction for sale of the village Rasulpur, tappa Kadar, subject to the mortgage of the 2nd of July 1830. The appellants will have their costs in both Courts as part of the decretal amount which may be recovered by sale of the village Rasulpur and the other villages ordered to be sold by the decree of the Court below. In other respects, we affirm the decree of the Court below. We extend the time for payment for six months from this date. The costs in this Court will include fees on the higher scale.


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