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H.B. Kinlock Vs. Tota Ram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.335
AppellantH.B. Kinlock
RespondentTota Ram and anr.
Cases ReferredJoginee Mohun Chatterjee v. Bhoot Nath Ghosal
Excerpt:
mortgage - property mortgaged different from property described--transferee of mortgaged property not bound by the mortgage--priority. - - at a time when the courts were being flooded with more or less doubtful claims, on the basis of nasty old deeds hunted up by reason of section 31 of act ix of 1903, i think it a little surprising that a claim like the present should have been permitted, apparently as a matter of course, to be brought upon a copy obtained from the registration department, without the plaintiff being required to offer, much less to prove, any adequate explanation of his inability to produce the original......evidence. what the plaintiff said was that the mortgage con-tract was entered into by his uncle khaman singh as the plaintiff's guardian, during the minority of the latter, and, therefore, the plaintiff says he has not got the mortgage-deed. this is mere trifling of the court. the plaintiff does not say whether khaman singh is alive or dead, and whether he has made any attempt to obtain this title-deed from khaman singh or his heirs. at a time when the courts were being flooded with more or less doubtful claims, on the basis of nasty old deeds hunted up by reason of section 31 of act ix of 1903, i think it a little surprising that a claim like the present should have been permitted, apparently as a matter of course, to be brought upon a copy obtained from the registration department,.....
Judgment:

Piggott, J.

1. The plaintiff in this case sued upon a registered mortgage-deed for Rs. 25, dated the 25th of July 1876, by which Bhoop Singh purported to hypothecate four plots of land, the areas of which are specified, situated in mauza, Nagla Salend. It has been found by the lower Appellate Court, and I am bound by that finding, that the name of mauza Nagala Salendi was inserted in the mortgage-deed by mistake and that the parties- intended to mortgage four plots of land of corresponding areas and bearing the fields numbers specified, but situated in mauza Arazi Zabti. The heirs of Bhoop Singh sold their proprietary rights in mauza Arazi Zabti, or at any rate a share in the proprietary rights including the said rights in the plots to which this mortgage relates, to the defendant-appellant, Mr. H. B. Kinlock, under a registered deed of sale, dated the 16th of February 1910. The plaintiff came into Court without producing the original mortgage-deed, and the explanation offered in paragraph 4 of the plaint is not in itself an explanation sufficient, if believed, to entitle the plaintiff to produce secondary evidence. What the plaintiff said was that the mortgage con-tract was entered into by his uncle Khaman Singh as the plaintiff's guardian, during the minority of the latter, and, therefore, the plaintiff says he has not got the mortgage-deed. This is mere trifling of the Court. The plaintiff does not say whether Khaman Singh is alive or dead, and whether he has made any attempt to obtain this title-deed from Khaman Singh or his heirs. At a time when the Courts were being flooded with more or less doubtful claims, on the basis of nasty old deeds hunted up by reason of Section 31 of Act IX of 1903, I think it a little surprising that a claim like the present should have been permitted, apparently as a matter of course, to be brought upon a copy obtained from the Registration Department, without the plaintiff being required to offer, much less to prove, any adequate explanation of his inability to produce the original. In any case, I hold that Mr. Kinlock is not bound by this mortgage-deed. The land in question was conveyed to him by his vendors under a registered deed as free from all charges. The deed in suit did not contain a description of the property actually mortgaged sufficient to indentify the same. On the contrary, it contained a misleading description which did actually mislead Mr. Kinlock. There is authority for the proposition that the registration of such a document is a nullity, vide, Baij Nath Tewari v. Sheo Sahoy Bhagut 18 C. 556 and Narasamma v. Subbarayudu 18 M. 364, while the later Calcutta case of Joginee Mohun Chatterjee v. Bhoot Nath Ghosal 29 C. 654 would be authority for the proposition that in any case the deed thus registered could not take effect as a mortgage-bond. It has been pressed upon me in argument that this mortgage-deed for Rs. 25 was not, under the law in force at the time, one the registration of which was compulsory. If it could be treated as an unregistered document the question would arise whether it can take effect against Mr. Kinlock's deed of sale. I have no desire, however, to decide this question 'upon any technicality. The result of the decree of the lower Appellate Court is simply to make Mr. Kinlock the victim of a fraud perpetrated by the heirs of Bhoop Singh, and facilitated by the blunder committed when the property mortgaged was wrongly described in the deed in suit. If any person is to suffer under such circumstances, it is not the innocent purchaser. The plaintiff, even if innocent of fraud, is responsible for the blunder which made the fraud possible. I accept this appeal, set-aside the decree of the lower Appellate Court and restore that of the Court of (first instance dismissing the suit. The defendant-appellant will get his costs throughout.


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