1. This is a Second Appeal by the plaintiffs against judgment and decree of the Additional District Judge, Amritsar, dated August 5, 1968, reversing the judgment of the trial Court, whereby suit of the plaintiffs had been decreed.
2. Briefly, the facts are that Buhan Singh and Wadhawa Singh, were the owners of the property in dispute. Wadhawa Singh, it is alleged, was not heard of since the year 1900, and, therefore, he was presumed to be dead prior to 1907-1908. It is averred that consequently Bukan Singh became its sole owner thereafter. At that time the property stood mortgaged with Kala Singh son of Kharak Singh for an amount of Rs. 2,698/-. Bukan Singh sold it in favour of Hakam Singh by virtue of a registered sale deed dated February 24, 1912, for an amount of Rs. 2,500/-, and left an amount of Rs. 1,800/- with the vendee for payment to the mortgagee. It is further averred that Hakam Singh after paying the amount of Rs. 2,698/- to the mortgagee on May 10, 1912, got the land redeemed and obtained possession thereof. Hakam Singh died about 30 years back, leaving two sons, Mangal Singh and Harnam Singh plaintiff. Later, Mangal Singh also died issueless and wifeless, leaving a will regarding the property in favour of Kundan Singh, Dalip Singh and Massa Singh plaintiff Nos. 1 to 3. On the basis of the will, mutation regarding the share of Mangal Singh was sanctioned in favour of plaintiff Nos. 1 to 3 on April 22, 1964. It is alleged that thus, plaintiff Nos l to 4 became owners of the property and came in its possession. It is further averred that the defendants were threatening the plaintiffs to dispossess them forcibly which they could not do. They Consequently, filed a suit for declaration to the effect that they were owners in possession of the property previously owned by Wadhawa Singh, in the alternative that the defendants be restrained from interfering in the plaintiffs' possession except on payment of Rs. 1,349/-, the share of mortgage amount due from Wadhawa Singh.
3. The suit of the plaintiffs was resisted by the defendants, who admitted that Wadhawa Singh was a co-sharer in the land. They pleaded that they being the sister's son of Kishen Singh, father of Bukan Singh and Wadhawa Singh, were entitled to the property after the death of Wadhawa Singh. They, however, did not admit that any mortgage existed in favour of Kala Singh and that the same had been redeemed by the plaintiffs. On the pleadings of the parties, the following issues were framed-
1. Whether the suit property has been allotted in consolidation in lieu of the land mentioned in para No. 3 of the plaint?
2. Whether Shri Wadhawa Singh is presumed to have died prior to the enforcement of the Hindu Succession Act?
3. Whether Bukan Singh was the nearer heir to Wadhawa Singh?
4. Whether Bukan Singh had sold the land, mentioned in para No. 3 to Hukam Singh, the ancestor of the plaintiff?
5. Whether the plaintiffs had paid Rs. 2,698/- towards the mortgage amount of the said land? If so, to what effect?
4. The trial Court decided all the issues in favour of the plaintiffs and decreed their suit. On appeal, two points were urged before the appellate Court--one regarding the time of death of Wadhawa Singh and the second that the defendants could not interfere with the property without payment of Wadhawa Singh's share of the mortgage amount. The learned Additional District Judge held that the plaintiffs were estopped from pleading that Wadhawa Singh died before the date of sale by Bukan Singh in favour of Hakam Singh, their predecessors-in-interest and that the plaintiffs failed to prove that Hakam Singh redeemed the property in dispute on payment of Rs. 2,698/- from Kala Singh. He consequently, accepted the appeal and dismissed the suit of the plaintiffs. They have come up in second appeal to this Court.
5. The first question, that arises for determination is as to whether Wadhawa Singh will be presumed to have died before February 24, 1912, when the property was sold by Bukan Singh in favour of Hakam Singh. There is a mutation concerning the death of Wadhawa Singh which was entered on July 24, 1959. In that mutation, Harnam Singh, appellant, appeared before the revenue authorities and asserted that Wadhawa Singh was alive. Now he, including other appellants, says that Wadhawa Singh died prior to the date of sale in favour of Hakam Singh. It may also be mentioned that in the revenue records the property stood in the name of Wadhawa Singh even subsequent to the sale by Bukan Singh. In these circumstances, I am of the view that it cannot be held that Wadhawa Singh died prior to the date of the sale by Bukan Singh in favour of Hakam Singh.
6. The second question that requires determination is as to whether Hakam Singh redeemed the property, by paying Rs. 2,698/- to Kala Singh, mortgagee. In order to prove this fact, the plaintiffs produced receipt Exhibit P. 18. The learned appellate Court came to the conclusion that the receipt was not admissible into evidence to prove redemption, as it was unregistered. The, counsel for the appellants, has vehemently argued that the receipt does not require registration, as Hakam Singh paid whole of the mortgage amount and got the property redeemed. According to him, if it was mentioned in the receipt that possession of the property was delivered to the mortgagee or that the property had been redeemed, these words were surplusage and case would squarely fall within clause (xi) of sub-section (2), of S. 17 of the Registration Act. He also argued that in any case, the receipt would furnish proof of payment of the mortgage money to the mortgagee. In support of his contention he placed reliance on Kaur Chand v. Das Raj 62 Pun LR 566: (AIR 1960 Punj 529) and Ram Kumar Missir v. Ram Nath Missir, AIR 1942 Pat. 315.
7. I have given a thoughtful consideration to the arguments of the learned counsel but regret my inability to accept it. It cannot be disputed that if the receipt is not covered by clause (xi) of sub-s. (2) it is compulsorily registrable under clause (c) of sub-section (1) of Section 117. It will be advantageous to read clause (xi) of sub-section (2) which is as follows:--
'17(2). Nothing in clauses (b) and (c) of sub-section (1) applies to-
(xi) 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.'
From a reading of the clause it is apparent that it relates to two types of writings--first endorsement on a mortgage deed acknowledging the payment of whole or any part of the mortgage-money and secondly any other receipt for payment of money due under a mortgage. The presents case is not covered by the first part as the endorsement regarding payment is not on the back of the mortgage deed. The receipt for payment or mortgage money would be exempt from registration when it does not purport to extinguish the mortgage. In the present case, there are clear indications that the receipt does not merely acknowledge the payment but purports to redeem the property as well. It is settled so far this Court is concerned by a large number of authorities that if the receipt relates to payment of whole of the mortgage money and purports to extinguish the mortgage, it is compulsorily registrable. In Bhan Singh v. Narinjan Singh, AIR 1940 Lah 68, it was held that the essence of redemption consists in either the cancellation and return of the mortgage deed or where the mortgage is with possession, in the restoration of possession of the mortgaged property to the mortgagor after the mortgage money has been paid. It was further held that where receipt recited that the balance of the mortgage money had been paid to the mortgagee and possession had been given back, the receipt is inadmissible in evidence if it was not registered. A similar question arose before a Division Bench of Lahore High Court in Naman v. Hari Singh, AIR 1941 Lah 246. Tek Chand, J. speaking for the Bench held that the exemption in Section 17(2)(xi) covers any endorsement m a mortgage deed acknowledging payment of the whole or part of the mortgage money, irrespective of whether it contains words which expressly or by necessary implication, purport to extinguish the mortgage. But as regards other receipts (i. e. receipts other than endorsements) for payment of money due under a mortgage, the exemption can be claimed only if they do not purport to extinguish the mortgage. Later, an identical question arose in this High Court and the matter was referred by a learned Single Judge to a Division Bench. The case is reported in Gurdial Singh v. Kartar Singh, AIR 1964 Punj 141. After taking into consideration various cases including those on which the learned counsel for the appellants rolled, the Bench held that in view of the plain language of sub-secs. (1)(c) and (2)(xi) of Section 17 of the Indian Registration Act and the rule of law as laid down in the authorities cited by the learned counsel for the appellants, a receipt for payment of money under mortgage (other than an endorsement on a mortgage deed) issued by a mortgagee mentioning not only the payment of the full mortgage amount but also the extinction of the mortgage required registration. The same view was taken by Narula, J. (as he then was) in Hazura Singh v. Jaggar Singh, AIR 1965 Punj 479. I am in respectful agreement with the aforesaid view. It may be mentioned that in the present case there is a recital in the receipt by the mortgagee, that he had given up the mortgaged property and given its possession to the purchaser. The aforesaid words amount to extinguishment of the mortgage. These are not surplusage as contended by Mr. Bahal. After considering all the aforesaid circumstances, I am of the view that the receipt required registration.
8. Kaur Chand's case (AIR 1960 Punj 529) (supra) which was referred to by the learned counsel for the appellants is distinguishable. In that case, the endorsement was made on the back of the mortgage deed. Therefore, that case has no relevancy. In Ram Kumar Missir's case (AIR 1942 Pat 315) (supra) it was held that the wording of Section 17(2)(xi) implied that the endorsement on the deed was also regarded as a receipt since the expression used is ''any other receipt'' and the limitation of the exemption is intended to all such receipts including those which might be endorsed on the mortgage deed itself. Hence an endorsement made on mortgage deed was inadmissible in evidence to prove extinguishment of the mortgage. But this ban would not prevent its being taken into evidence in proof of the payment of the money. The above observations rather help the respondents. Even if it is accepted that the receipt can be taken into consideration to prove payment of the amount to the mortgagee, that will not entitle the appellants to be subrogated to the rights of the mortgagee. They can claim such rights if the property had been redeemed and not otherwise. Section 92 of the Transfer of Property Act specifically provides that right of subrogation shall not be conferred on any person unless the mortgage in respect of which the right is claimed has been redeemed in full. In the present case, the receipt Exhibit P. 18 cannot be taken into consideration for the purpose of proving the redemption of the property. Therefore, the appellants cannot be deemed to have been subrogated to the rights of the mortgagee. Consequently the receipt Exhibit P. 18 is of no help to them.
9. For the reasons recorded above, the appeal fails and the same is hereby dismissed with costs. Counsel fee Rs. l00/-.
10. Appeal dismissed.