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Dirgpal Singh Vs. Pahladi Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in54Ind.Cas.528
AppellantDirgpal Singh
RespondentPahladi Lal and ors.
Cases ReferredMuhammad Sajjad Ali Khan v. Muhammad Ishaq Khan
Excerpt:
civil procedure code (act v of 1908), section 103 order xlv, rule 3 - appeal to his majesty in council--remand, order of, whether appealable--mortgage-registration, fraud effected in procuring, effect of whether question of general importance. - - this is clearly a substantial question of law......one to enforce two simple-mortgages. the present applicant, who is the purchaser of a part of the mortgaged property, contested the suit on the ground that the registration of the mortgages was invalid inasmuch as a part of the property comprised in the mortgage, which lay within the jurisdiction of the sub-registrar in whose office the mortgage-deeds were registered, did not belong to the mortgagor and was never intended to be included in the mortgage. the court below held that the registration of the document was invalid by reason of the fraud perpetrated on the registering officer. it relied for its decision upon the ruling of their lordships of the privy council in the case of harendra lal roy chowdhuri v. hari dasi debt 23 ind. cas. 637 : 41 c 972 : 27 m.l.j. 80 : 12 a.l.j. 774 :.....
Judgment:

1. This is an application for leave to appeal to His Majesty in Council. The suit was one to enforce two simple-mortgages. The present applicant, who is the purchaser of a part of the mortgaged property, contested the suit on the ground that the registration of the mortgages was invalid inasmuch as a part of the property comprised in the mortgage, which lay within the jurisdiction of the Sub-Registrar in whose office the mortgage-deeds were registered, did not belong to the mortgagor and was never intended to be included in the mortgage. The Court below held that the registration of the document was invalid by reason of the fraud perpetrated on the registering officer. It relied for its decision upon the ruling of their Lordships of the Privy Council in the case of Harendra Lal Roy Chowdhuri v. Hari Dasi Debt 23 Ind. Cas. 637 : 41 C 972 : 27 M.L.J. 80 : 12 A.L.J. 774 : 16 M.L.T. 6 : (1914) M.W.N. 462 : 1 L.W. 1050 : 18 C.W.N.. 817 : 19 C.L.J. 404 : 16 Bom. L.R. 400 : 41 I.A. 910 (P.C.). Upon appeal to this Court the learned Judges of this Court found that the mortgagor obtained registration of the document in the office of the Sub Registrar of Budaun by perpetrating this fraud, that he got the Sub-Registrar to register the document whereas he had no interest in the property and he had not intended to mortgage it but had included it in the mortgage simply with the object of obtaining registration of it in the office of the Sub-Registrar of Budaun. They, however, found that in this fraud the mortgagee did not participate, inasmuch as the property was recorded in the revenue papers in the name of the mortgagor although under an arbitration award it had been allotted to the share of other members of the family to which the mortgagor belonged. The learned Judges held that as the mortgagee did not join in the fraud, the registration was not vitiated by reason of the fraud of the mortgagor, They accordingly remanded the case to the Court below for trial of the other issues which arose in the case. From this order of remand the present application for leave to appeal to His Mejesty has been preferred on two grounds. The first is that the order of remand was incorrect and the decision of the learned Judges of this Court was erroneous upon the question of fraud. The second ground is that even if no appeal lies from the order of remand, the case is otherwise a fit one for appeal to His Mejesty in Council within the meaning of Rule 3, Order XLV, of the Code of Civil Procedure. We have recently held in the case of Muhammad Sajjad Ali Khan v. Muhammad Ishaq Khan 54 Ind. Cas. 504 : 1 U.P.L.R. (H.C.) 168 that an order of remand made under circumstances similar to those of the present case is not a .final order within the meaning of Section 109 of the Code of Civil Procedure and that an appeal does not lie as of right from that decision. We may mention that the value of the subject-matter of the suit and of the proposed appeal exceeds Rs. 10,000. The decision to which we have just now referred follows a long series of rulings of this Court and, therefore, we must hold that an appeal does not lie to His Majesty in Council in the present case from the order of remand to the Court below. We have next to consider whether the case is 'otherwise a fit one' for appeal to His Majesty in Council. In order to justify us in certifying the case to be a fit one for appeal, we have to see whether the case involves a substantial question of law and whether that question of law is one of general importance. In the Privy Council case to which the learned Judges of this Court have referred, it was held that if the property of which registration was obtained did not exist, or if it existed, and the mortgagor arid the mortgagee joined together for the purpose of committing a fraud in the registration department and getting the property registered by a Sub-Registrar who should not have registered it, the registration would not be valid and the mortgagee would not be entitled to take the benefit of the document so registered as a valid document. That is not the cage here The question in the present case, as already pointed out, is whether the fraud of the mortgagor alone would vitiate registration and disentitle the mortgagee (who was ignorant of the mortgagor's fraud) to enforce the mortgage. This is clearly a substantial question of law. It does not appear to have been decided in any other case so far as we are aware and so far as cases have been cited to us. The question is one of first impression and, being a substantial question of law, we should be justified in granting the application for leave to appeal if it is one of general importance. We are of opinion that the question is also one of general importance, as it frequently arises in cases similar to the present. We are, therefore, of opinion that this case is 'otherwise a fit one' for appeal to His Majesty in Council and we so certify.


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