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Saiyid Muhammad Vs. Lala Parshotam Saran - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in66Ind.Cas.681
AppellantSaiyid Muhammad
RespondentLala Parshotam Saran
Excerpt:
mortgage - property situated within two registration offices--property where deed registered not belonging to mortgagor--fraud--estoppel--mortgage, validity of. - .....of 1887 was a valid and a binding deed and had been acted upon, and that the registration of the deed of mortgage of the 18th august 1913 at moradabad was a fraud on the law of registration. we think this appeal can be disposed of without our having to express an opinion upon the validity of the deed of waqf of 1887. the name of the mortgagor stood in the municipal registers in respect of the land that formed part of the compound of a bungalow in the civil lines at moradabad at the time that the mortgage in gait was given. the mortgagor represented to the mortgagee that he (the mortgagor) was the owner and proprietor of the said land. it is not proved that the mortgagee knew at the time of taking the mortgage that the land in question was part of the waqf property. the mortgagor.....
Judgment:

1. This appeal arises out of a gait brought by the plaintiff-respondent for the enforcement of a mortgage given to his father Durga Prasad on the 18th August 1913 by the defendant-appellant Saiyid Muhammad. It appears that the latter gave the mortgage of two of his properties in lieu of Rs. 1,000. The two properties were (1) land at Mauza Gandupal, and (2) some land forming part of the compound of a bungalow in the Civil Lines at Moradabad. The mortgage-deed was registered at Moradabad, Durga Prasad died prior to the institution of the suit. The plaintiff, as the legal representative of the original mortgagee, instituted the suit out of which this appeal has arisen in the Court of the Subordinate Judge of Moradabad on the 1st of August 1919 for the recovery of the mortgage-money by sale of the two properties hypothecated in the dead. The claim was resisted on various pleas, but we are concerned with one of them only in this appeal. The said plea was that the land which formed a part of the compound of the bungalow situated in the Civil Lines at Moradabad did not belong to the mortgagor and hence the registration at Moradabad was invalid inasmuch as it was a fraud on the law of Registration and the registration being invalid the deed of the 18th August 1913 could not be enforced as a mortgage deed. The plea wag based on the allegation that the land in question with some other property had been dedicated to some charities by the mortgagor's grandfather under a deed of 1887. At the time of the execution of the mortgage-deed of the 18th August 1913, the mortgagor was not the owner and proprietor of the said land and ho could not create a valid mortgage in respect of it. Both the Courts below found that the deed of waqf of 1887 relied upon by the mortgagor was in itself invalid and never acted upon. The claim of the mortgagee, i. e., the plaintiff-respondent was, therefore, decreed, The mortgagor has some up in second appeal before us and contends that the deed of waqf of 1887 was a valid and a binding deed and had been acted upon, and that the registration of the deed of mortgage of the 18th August 1913 at Moradabad was a fraud on the law of registration. We think this appeal can be disposed of without our having to express an opinion upon the validity of the deed of waqf of 1887. The name of the mortgagor stood in the Municipal registers in respect of the land that formed part of the compound of a bungalow in the Civil Lines at Moradabad at the time that the mortgage in gait was given. The mortgagor represented to the mortgagee that he (the mortgagor) was the owner and proprietor of the said land. It is not proved that the mortgagee knew at the time of taking the mortgage that the land in question was part of the waqf property. The mortgagor cannot, therefore, take advantage of his own fraud by pleading that the mortgage deed was not registered at the proper plate, As the land in question was hypothecated and entered in the mortgage deed, the deed could be presented before the Registrar at Moradabad and could be properly registered. It was so registered. In our opinion there was a valid registration and the deed of mortgage is enforsible as such. The appeal fails and is dismissed with coats including in this Court fees on the higher scale.


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