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Sampuran Singh Mehman Singh Vs. Sampuran Singh NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1422 of 1959
Judge
Reported inAIR1965P& H155
ActsIndian Registration Act, 1908 - Sections 17(1), 17(2) and 17(10)
AppellantSampuran Singh Mehman Singh
RespondentSampuran Singh NaraIn Singh
Cases Referred and Piare Lal v. Makhan
Excerpt:
.....constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - is clearly admissible to establish the payment of a mortgage debt. the ruling of this decision would be clearly applicable to the facts of the present case, if the receipt was to be used to prove redemption and the consequential extinguishment of the mortgage. makhan, ilr 34 all 528. in my view and the case clearly falls within the rule of exception laid down in clause (xi) of sub-section 92) of section 17 of the..........in section 17(2)(xi) ' the bench observed that 'such receipt can be relevant only as evidence of payment mortgage debts either in full or in part.' according to the ratio decided of this authority therefore, the receipt exhibit p. a. is clearly admissible to establish the payment of a mortgage debt. the other authority to which references has been made by the lower appellate court is a single bench judgment of bhide j. in bhan singh v. narinjan singh, air 1940 lah 68 where it was held that if the amount of mortgage and possession had been given back, the receipt is inadmissible in evidence if it is not registered. the ruling of this decision would be clearly applicable to the facts of the present case, if the receipt was to be used to prove redemption and the consequential.....
Judgment:

(1) This is an appeal of plaintiff Sampuran Singh son of Mihan Singh direct against Sampuran Singh son of Narian Singh arising out of a suit in which it was prayed that the plaintiff may be allowed to retain possession of half share of 17 bighas and 17 biswas of land in village Harpalpur till a sum of Rs. 800/- was paid by the respondent Sampuran Singh. This suit though decreed by the trial Judge has been dismissed by the lower appellate Court and the plaintiff has come in appeal to this Court. It is not disputed that the parties between themselves owned in equal shares 17 bighas and 17 biswas of land in village Harpalpur of Rajpura tehsil and it had been mortgaged for a sum of Rs. 1600/- with Gopal and Krishan. On the 11th of June 1950 the plaintiff appellant alone is stated to have made the payment of Rs. 1600/- to the mortgage to get the land redeemed. The plaintiff on redemption remained in possession of this land till half of it came to be handed over to the defendant in consolidation proceedings. The plaintiff felt obliged to bring a suit for the half share of land which belonged to the defendant at one time till the payment of Rs. 800/- as his share of the redemption money was paid. The defendant pleaded that he had made the payment of the moiety of the mortgage debt as his contribution and the substantial issue in the case was whether the sum of Rs. 1600/- was paid in its entirely by the plaintiff. On a consideration of the evidence the trial Judge decreed the plaintiff's suit. The lower appellate Court, however, was of the view that the receipt Exhibit P. A. being unregistered could not be received in evidence and thus the appeal of the defendant was allowed and the suit dismissed.

(2) Under clause (b) of sub-section 10 of S. 17 of the Indian Registration Act, 1908 a document requires registration if inter alia it extinguishes any right, title or interest in immovable property, of the value of Rs. 100/- or upwards. It is, however, to be borne in mind that clause (xi) of sub-section (2) of section 17 of the Act provides an exception to the general rule in case of 'any endorsement on a mortgage deed acknowledging the payment of the whole or any part of the mortgage money and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage.'

(3) Mr. Puran Chand the learned counsel for the appellant contends that the receipt though it may be said to have extinguished the mortgage can certainly be used as evidence to show that the sum of Rs. 1600/- had in fact been paid by the plaintiff, The D. B. Authority of Pandrang Row and King JJ. in Bharma Lingappa v. Nilakantappayya, AIR 1938 Mad 533 relied upon by the lower appellate Court makes out this distinction. While holding that 'receipts purporting to put an end to the mortgaging rights do not come within the exception embodied in section 17(2)(xi) ' the Bench observed that 'such receipt can be relevant only as evidence of payment mortgage debts either in full or in part.' According to the ratio decided of this authority therefore, the receipt Exhibit P. A. is clearly admissible to establish the payment of a mortgage debt. The other authority to which references has been made by the lower appellate Court is a Single Bench Judgment of Bhide J. in Bhan Singh v. Narinjan Singh, AIR 1940 Lah 68 where it was held that if the amount of mortgage and possession had been given back, the receipt is inadmissible in evidence if it is not registered.

The ruling of this decision would be clearly applicable to the facts of the present case, if the receipt was to be used to prove redemption and the consequential extinguishment of the mortgage. This is, however, not the purpose of the suit which has been dismissed by the lower appellate Court. All that the plaintiff sought to establish was that he and he alone had paid the sum of Rs. 1600/- to the mortgage and this could not fall within the ambit of section 17(1) of the Registration Act. Mahajan J. in kaur Chand v. Des Raj, 62 Pun LR 566: (AIR 1960 Punj 529) went so far as to say that it is only in those cases where the mortgage is extinguished on part of payment of the mortgage money that the endorsement which states that the mortgage is extinguished would require registration. However, on the other hand when the mortgage money is discharged in full the mere statement that the mortgage is extinguished would be a mere surplusage and would not require registration. Mahajan J. referred to a conflict of authorities on this point and preferred to relay on the judgment of the Bombay High Court in Mahmad v. Ranu, 9 Bom LR 254 and Piare Lal v. Makhan, ILR 34 All 528. In my view and the case clearly falls within the rule of exception laid down in clause (xi) of sub-section 92) of section 17 of the Registration Act and I would accordingly allow this appeal, set aside the judgment and decree of the lower appellate Court and restore that of the trial Judge. As the respondent has not chosen to contest this appeal, there would be no order as to costs.

(4) Appeal allowed.


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