1. The facts which have given rise to this appeal are these. Two persons Someshwar and Drigbijai executed the mortgage on which the suit, out of which this appeal has arisen, was brought. The deed was executed on the 4th of June 1907. Someshwar is dead and the mortgagee. Kandhai Lal, is also dead. Kandhai Lal's sons sued Someshwar's sons and Drigbijai for recovery of money on foot of the bond. The defences taken, inter alia, were that the deed had not been properly attested and that it was not properly registered. The lower Appellate Court found that the deed had been properly attested and as to the registration it found that the properties mortgaged included a house in village Ghauspur Khathola, Pargana Chail, which never in fact existed. It is common ground that it was owing to the inclusion of this house in the mortgage-deed that the Sub-Registrar of Chail alis Allahabad had the jurisdiction to register it. The learned District Judge also found, or purported to find, that the mortgagee was no party to the fraud committed on the Law of Registration and that it was the mortgagors who were solely to blame in the matter.
2. In this Court it has been urged that the deed was not properly attested, that the property which was found to be fictitious was never intended to be security for the money and, that it must be inferred, therefore, that it was included simply for the sake of registration. Further, it is urged that, whatever the intention of the mortgagee may have been, the law has been infringed, and the registration cannot be held to be good. One more panic was taken in the grounds of appeal, namely, ground No. 5. But it has not been pressed.
3. As to the attestation, it is clear that the learned District Judge believed the marginal witness who swore that the executants signed the deed before him. The finding, therefore, of the Court below must be upheld.
4. On the question of registration, it appears to me that it is difficult to hold with the Court below that the mortgagee was an entirely innocent person in the matter. It being an admitted fact that the property did not exist, it follows that the mortgagee never had a look at the property in order to ascertain whether it should form an adequate security, or it should form with the other properties mortgaged an adequate security, for the money he was going to advance. So far, therefore, as he himself was concerned he was indifferent as to the value or nature of the property. In this state of things, the only legitimate inference to be drawn is that the property was included for the purposes of registration and not for the purposes of security. It has been urged by the learned Counsel for the respondents that this is really going against the finding of fact by the lower Appellate Court. But the so-called finding of the learned District Judge is really an inference to be drawn from the proved facts. There is no direct evidence referred to by the Court below that the mortgagee acted on a particular representation and what that representation was. The defendant Drigbijai Singh- gave evidence to the effect that the mortgagee had requested that the property should be included in the mortgage, but that evidence was disbelieved by both the Courts below. The discarding of that evidence does not give the result that it was proved by any positive evidence that the mortgagee was unaware of the fact that the property did not exist. As I have said, he was perfectly indifferent as to whether the property existed or not. If that was the ease, the only object with which the property could have been included was the obtaining of registration in the office of Sub-Registrar of Allahabad. It may be (but there is no evidence to prove it) that the mortgagor said that they had a property within the jurisdiction of the Sub-Registrar of Allahabad and if that was included the registration could be effected at Allahabad and, further, it may be the case that, the mortgagee accepted those words and agreed that for the purposes of registration that property might be included. This is the utmost view that may be surmised in favour of the mortgagee. But the question is, does it absolve him from his responsibility in the matter?
5. It is conceded that it the mortgagee was aware of the fact that the property alleged to be in, Chail did not exist, the registration would be void. Now, assuming that the mortgagee believed that the property really existed bub he allowed it to be included with the other property in the deed, in order that the Sub-Registrar of Allahabad might have jurisdiction, the question would be whether' the registration is valid. In my opinion the law on the point is very clearly stated in Section 28 of the Registration Act and it simply says that to give the Sub-Begistrar jurisdiction the property included in the deed or a part of it must be situated within the jurisdiction of that officer. No question of fraud by one party or the other enters into the language of the law. The question of fraud may be pleaded only to stop a party from raising a plea, but the jurisdiction of a registering officer cannot come into play simply because one of the parties to a transaction has been guilty of fraud. There was no property within the jurisdiction of the Sub-Registrar of Allahabad and in my opinion it follows as clearly as possible that he had no jurisdiction to register the deed. There is no case law which deals directly with the point. In every case that has been brought to my notice, the inference was that the mortgagee was more or less culpable. Such an inference is really irresistible and the case which I am tasked to suppose is practically impossible to accept. I am, however, of opinion that assuming even that the mortgagee was absolutely innocent in the matter that fact would not give the Sub-Registrar of Allahabad jurisdiction to register the deed. The result must follow, namely, that the deed is inoperative. It may be that the mortgagors have laid themselves open to prosecution or a suit for damages, but that is a different matter.
6. The result is that the appeal succeeds. I set aside the decrees of the Courts below and dismiss the suit of the plaintiffs-respondents with costs throughout.