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Hazur Singh Vs. Jaggar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1412 of 1963
Judge
Reported inAIR1965P& H479
ActsHindu Minority and Guardianship Act, 1956 - Sections 8(2); Indian Registration Act - Sections 17 and 49
AppellantHazur Singh
RespondentJaggar Singh and ors.
Cases ReferredIn Jogendra Nath v. Safiuddin Sheikh
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....1. fauja singh, who is not a party to the present litigation directly sold the land in dispute to i share singh, hazura singh and sapuran singh, who are three real brothers and who were defendants in the suit from which this appeal has arisen. harnek singh and mohinder singh, minor sons of fauja singh, vendor instituted a suit for possession of the land in question on the basis of a claim for pre-emption. on 28th of january, 1959 this suit was compromised. the compromise decree was to the effect that the sale was converted into a mortgage for the sum of rs. 9,300 and the plaintiffs were given the right to redeem the property by paying that amount to the defendants. in this compromise the minors, who were plaintiffs in the pre-emption suit, acted through their mother as their next friend.....
Judgment:

1. Fauja Singh, who is not a party to the present litigation directly sold the land in dispute to I share Singh, Hazura Singh and Sapuran Singh, who are three real brothers and who were defendants in the suit from which this appeal has arisen. Harnek Singh and Mohinder Singh, minor sons of Fauja Singh, vendor instituted a suit for possession of the land in question on the basis of a claim for pre-emption. On 28th of January, 1959 this suit was compromised. The compromise decree was to the effect that the sale was converted into a mortgage for the sum of Rs. 9,300 and the plaintiffs were given the right to redeem the property by paying that amount to the defendants. In this compromise the minors, who were plaintiffs in the pre-emption suit, acted through their mother as their next friend and natural guardian.

(2) It appears that subsequently Harnek Singh, etc., acting through their mother further mortgaged the property in question for a total sum of Rs. 12,000 and left Rs. 9,3000 out of the said mortgage amount with Ujagar Singh (Jaggar Singh) plaintiff for payment by him directly to the mortgagee, i.e., Hazura Singh and his brothers, defendants in the instant suit. According to the allegations of Ujagar Singh he paid out the said sum of Rs. 9, 3000 to Hazura Singh etc., vide receipt Exhibit P. 2 on the 9th of March, 1959 and redeemed the property. On 1-12-1961 Ujagar Singh filed a suit for possession of the land in question on the ground that it belonged to him under the compromise decree dated 28-1-1959 consequent on his having paid out the total sum of Rs. 9, 300. He further alleged that in spite of his having paid out the total sum of Rs. 9,300 and in spite of his having taken possession of the land at the time of redemption he had been subsequently dispossessed forcibly by Hazura Singh and others. In para 3 of the plaint of this suit it was stated as follows:--

'That the plaintiff paid out the mortgage amount of Rs. 9,300 to the defendants in the presence of witnesses and recovered possession of the mortgaged land. The receipt regarding redemption is attached herewith'.

(3) The suit was contested on behalf of the defendants who denied the receipt of Rs. 9,300/- in question and claimed to be in possession of the property as mortgagees and averred that the plaintiff was not entitled to take possession of the same with out paying Rs. 9, 300/- From the pleadings of other parties following issues were framed by the trial Court :--

1. Whether Harnek Singh, Mohinder Singh through their next friend Mst. Mukhtiar Kaur mortgaged 29 Bighas 10 Biswas kham comprised in Khasra No. 1262 with Ujjagar Singh plaintiff for Rs. 12,000/- on 9-3-61 (should be 9-3-59).

2. Whether the plaintiff redeemed the said land from the defendants on payment of Rs. 9,300/- and took possession thereof ?

3. Whether the defendants took possession of the land in dispute illegally 11/2 years prior to the institution of the suit ?

4. Whether the land mentioned in para 5 of the plaint has been allotted in consolidation proceedings in lieu of Khasra No. 1262 ?

5. Whether the suit is correctly valued for purposes of court fee and jurisdiction ?

6. Relief.

(4) By first time judgment dated 28-9-1962 the learned Subordinate Judge 1st Class, Bhatinda decreed the suit of the plaintiff holding that the alleged payment had been made, vide receipt Exhibit P. 2 which was duly proved and which was admissible in evidence. The first appeal of the defendants was dismissed by the Court of shri shamshad Ali Khan, Senior Subordinate Judge, Bhatinda on 6-11-1963. It is against this judgment of affirmance that the present second appeal has been filed in this Court by one of the defendants.

(5) Three questions have been raised before me in this case by Shri D. N. Aggarwal, the learned counsel for the appellant. It is firstly contended by him that there was no legal mortgage in this case as Harnek Singh etc. Plaintiffs in the previous suit were minors and acted through their mother Mst. Mukhtiar Kaur wife of Fauja Sing, without obtaining previous permission of the Court as required by S. 8(2) of the Hindu Minority and Guardianship Act 32 of 1956. Under that provision of law, no natural guardian can, without the previous permission of the Court, mortgage any part of the immovable property of a minor. On behalf of the plaintiff-respondent it is urged by Mr. Tirath Singh Munjral, Advocate, that no such plea was taken in the written statement nor was this point raised in any of the Court below. The object ion is that this plea raises a disputed question of fact as to the previous permission of the Court, etc., and cannot be allowed to be raised for the first time in a second appeal. No doubt, this point is specifically covered by ground No.. 7 of the grounds of appeal in this Court. But I think, there is a great force in the contention of Mr. Munjral which must prevail. I, therefore, decline to allow the raising of this new point involving a disputed question of fact at the second appellate stage.

(6) The second question raised by Mr. Aggarwal on behalf of the appellants was that the finding of the Courts below to the effect that the plaintiff had in fact made payment of Rs. 9,300 is not correct according to the evidence on the record and that the said finding is vitiated for various reasons. In the view that I have decided to take in this case it is wholly unnecessary to go into this question. Even otherwise this ground of attack would not have been available to the learned counsel for the appellant as it involves a pure question of fact.

(7) The third and the main ground on which the judgments of both the Courts below are being attacked by the learned counsel for the appellant is that the receipt Exhibit P. 2 is not admissible in evidence and that both the Courts below have erred in taking it into consideration in deciding issue No. 2. Section 49(c)

of the Indian Registration Act provides, inter alia, that no document required by section 17 of the Act to be registered shall be received as evidence of any transaction affecting such property. Relevant part of section 17(1)(c) of that Act, provides that all non-testamentary instrument which acknowledge the receipt of payment of any consideration on account of extinction any right title or interest of the value of Rs. 100/- and upwards to or in immovable property shall be registered. Relevant part of clause (xi) of sub-s. (2) of S. 17 of the Registration Act, however provides that nothing in clause (c) of sub-section (I) of that section applies to any receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage.

(8) It is not disputed that boy receipt Exhibit F. 2 the defendants are alleged to have acknowledged the receipt of a sum of more than Rs. 100/- and that the payment of the amount does result in extinguishment of an interest worth Rs. 9, 300/- in immovable property. The document, therefore, admittedly falls within the mischief of section 17(1)(c) of the Registration Act. The only question to be decided in the instant case is whether the admissibility of the document into evidence is saved boy section 17(2)(xi) of the Act or not. Again, it is not disputed that the other ingredients of clause (xi) of sub-section (2) section 17 of the Registration Act are satisfied in this case. But what is disputed is only this that according to the defendants the document does purport to extinguish the mortgage and is, therefore compulsorily registrable.

(9) So far as the factual aspect of this contention is concerned, only tow things are relevent. First is the contents of paragraph 3 of the plaint and the allegation of the plaintiff himself that the property was redeemed, vide the receipt in dispute. The second consideration is the contents of the receipt itself which when translated into English would read as follows :-

'Receipt regarding redemption.

We Ishar Singh, Sapuran (Sampuran?) Singh and Jazur Singh, sons of Kahar Singh, Jats, residents of Pacca Kalan, Tehsil Bhatinda, do hereby declare as under :-

According to the order dated 28th January, 1959, passed boy the Court of the Sub-Judge, Ivth Class, Bhatinda land measuring Bighas Kham /29 Biswas /18, bearing Khasra No. 1262, situate in the area of Pacca Kalan stands mortgaged with possession with us, the executants, by Harnek Singh alias Modan and Mohinder, minors sons of Fauja Singh alias Dongur under the guardianship of their mother Mst. Mukhtiar Kaur. It is mortgaged for Rs. 9,300. Now, we, the executants, having received in cash Rs. 9,300, double of Rs. 4,650 from Ujagar Singh, son of Khazan Singh, Jat, resident of Pacca Kalan, mortgagee, on behalf of Harnek Singh alias Modan, etc., mortgagors on account of the mortgage money in respect of the aforesaid mortgaged land measuring 29/Bighas Kham 18/Biswas in the presence of the marginal witnesses, have executed this receipt and have delivered the possession of the land, on which crop is standing after harvesting the Rabi crop, to Ujagar Singh, mortgagee. Hence his receipt has been executed so that it may serve as authority and be of use in time of need.

Dated the 9th March, 1959.

Executed by.............'

(10) The receipt purports to have been thumb-marked by Ishare Singh, Sampuran Singh and Hazura Singh and is witnessed by two other persons. If this document is admissible in evidence, it is not open to me in this appeal under S. 100 of the Code to question the correctness of the concurrent findings of fact recorded by the Courts below to the effect that the receipt was in fact executed boy the defendants and it was so executed on payment of the requisite amount.

(11) Besides the averments in para 3 of the plaint referred to above, three points in the receipt Ex. P-2 are significant for the purposes of deciding the question of law raised by the learned counsel for the appellant :-

(I) that the heading of other receipt is (in Urdu) Rasid Raq-ul-rehan (receipt regarding redemption);

(ii) the consideration of the amount is described in the receipt as 'the mortgage money in respect of the aforesaid mortgaged land', and

(iii) the receipt contains an averment to the effect that in the presence of the marginal witnesses the defendants have executed this receipt and have delivered the possession at the spot of the land which was vacant and of the remaining land, on which crops were standing, after harvesting the Rabi crop.

(12) Mr. Aggarwal has relied on a Division Bench judgment of the Allahabad High Court in Jwala Prasad v. Mohan Lal. ILR 48 All 705; (AIR 1926 All 693), where a similar question arose. The receipt in that case was construed to mean that the amount had been accepted in full satisfaction of the mortgage debt as it went on to say that when the mortgagor comes the mortgagees shall return the mortgage-deed to him. It was contended in that case that the receipt should be held to be admissible in evidence on the authority of an earlier Division Bench of that Court in Piari Lal v. Makhan, ILR 34 All 528, where despite the presence of the words in the receipt 'The bond is returned. No money remains due', it was held that the receipt did not purport to extinguish the mortgage and that the receipt was, therefore, admissible in evidence although unregistered. After referring to the said earlier judgment Piari Lal's case, ILR 34 All 528, the Division Bench in Jwala Prasad's case. ILR 48 All 705: (AIR 1926 All 693), proceeded to observe as follows:--

'With all due respect to the learned Judges who decided that case we are unable to agree with this view. When the mortgagee gives a written acknowledgment that the mortgage debt has been satisfied in full and that nothing further remains to be paid and goes on to say that he had returned the mortgage bond, in our opinion this acknowledgment does purport to extinguish the mortgage. It is difficult to see how the mortgagee could extinguish the mortgage in clearer terms and, therefore, in our opinion such a receipt would require registration'.

(13) In Asanuddin v. Asmatulla, AIR 1933 Cal 198. Mitter and Ghose, JJ, held that a receipt in the following words purported to extinguish the mortgage and therefore, required registration:--

'.............I have received from you Rs. 555, nothing more remains due upon the bond. I cannot return the bond to you now as it is with my pleader. After getting back from my pleader I shall return it to you.'

(14) On construing the above document the Division Bench of the Calcutta High Court held as follows:--

' There can be no doubt on the statement contained in the receipt that the mortgagee exonerated the mortgagor from any liability under the mortgage and this document purported to extinguish the liability under the mortgage'.

(15)In Haranath Deb v. Baishnab Charan AIR 1937 Cal 178, another Division Bench of the Calcutta High Court (Guha and Bartley, JJ.) held that a receipt in other following words was inadmissible in evidence as it purported to extinguish the mortgage:--

'On receiving Rs. 5,000 in cash in respect of your entire debt and our entire dues, after amicably giving remissions. I release you from your entire debt. Be it mentioned that from today nothing is due to us'.

(16) Their Lordships of the Calcutta High Court held in connection with the above document as follows:--

'Taking the receipt, the operative part of which has been quoted above, as a whole, and regard Boeing had to the purpose for which it was sought to be used as evidence in the case before us, there can be no question that the receipt was for payment of the money due under a mortgage, and it required registration, as it purported, according to the defendants themselves, to extinguish the mortgage sought to be enforced boy the plaintiffs in the suit'.

'The above observation regarding the purpose of production of the receipt aptly applies to the instant case where, vide para 8 of the plaint the very basis of the allegation about redemption in the plaint is the receipt in question.'

(17) The learned counsel for the defendant appellant then relies on the judgment of Bhide, J. In Bhan Singh v. Narinjan Singh, AIR 1940 Lah 68, where the facts were almost the same as in the instant case, Bhide, J. after reciting the facts of the case held as follows:

'The defendants denied that the mortgage hand been redeemed.........The plaintiff had relied on a receipt for Rs. 700 in support of his contention that the mortgage had been redeemed. The sum of Rs. 700 was alleged to be the balance of the mortgage money and it was stated in the receipt that this amount had been paid to the mortgagees and possession had been given back..........................

After considering the various authorities cited, it seems to me that the learned District Judge was right in holding the receipt produced in this case to be inadmissible in evidence for want of registration. According to Clause (xi) sub-s (2) of S. 17, Registration Act, a receipt for payment of money due under a mortgage does not require registration, if the receipt 'does not purport to extinguish the mortgage. The question whether a receipt does or does not purport to extinguish a mortgage has naturally to be decided on the contents of the receipt. In Muhammad Hussain v. Karm Ilahi, ILR 10 Lah 709: (AIR 1929 Lah 312), on which the learned counsel for the appellant has mainly relied, the receipt was only for the mortgage money. 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. In the present instance the receipt does state that possession had been restored and the plaintiff himself relies on this fact as evidence of redemption of the mortgaged property. I am, therefore, of the opinion that this receipt was rightly held to be inadmissible evidence. I dismiss the appeal with costs.'

(18) Mr. Tirath Singh Munjral, the learned counsel for the plaintiff-respondent has referred me to the judgment of Shadi Lal, C. J. and Bhide, J in AIR 1929 Lah 312, wherein it was held that where the receipt makes no reference at all to the extinction of the mortgage, but being a receipt for the last payment it may have had the effect of extinguishing the mortgage, it does not require registration unless it purports to extinguish the mortgage. The relevant part of the receipt is quoted in the judgment and it is a clean receipt for sum of Rs. 96-8-0 being the balance of the interest due on the mortgage amount and for Rs. 1, 400 on account of the balance of the principal amount. It says nothing beyond this. Obviously this receipt could not be held to purport to extinguish the mortgage. It did not talk of delivery of possession; It did not refer to the return of the mortgagedeed; it did not use the word 'redemption' (Faq-ul-rehan) in it. The judgment in this Division Bench case was also written by Bhide, J.who gave the judgment in Bhan Singh's case in 1939, which was reported in AIR 1940 Lah 68. The learned Judge referred to this Division Bench judgment (ILR 10 Lah 709; (AIR 1929 Lah 312), and distinguished it on the ground that the receipt in Muhammad Hussain's case, AIR 1929 Lah 312, did not either talk of cancellation or return of the mortgage-deed or restoration of possession of the mortgaged property.

(19) Reliance is then placed by Mr. Munjral on a judgment of Blacker, J. in Mt. Kirpa Devi v. Arjan Singh, AIR 1939 lah 272, where it was held that the words 'purport to extinguish', in S. 17(2)(xi) of the Registration Act cannot be interpreted as being equivalent to the words 'have the effect of extinguishing'. It was held in that case that the mer fact that the receipt said that the whole of the mortgage debt had been paid could not be taken to purport to extinguish the mortgage and, therefore, the receipt was not compulsorily registrable. Admittedly the receipt Ex. P-2 in the case before me goes far beyond mere acknowledgment of the full amount of the mortgage money..

(20) The learned counsel for the respondent then relied on a recent judgment of D. K. Mahajan, J. in Kaur Chand v. Des Raj, AIR 1960 Punj 529. That case, however, related to an endorsement on a mortgage bound, which is the other eventuality referred to in clause (xi) of sub-s (2) of S. 17 of the Registration Act. This case is wholly irrelevant for the purposes of deciding the present case as in the case of an endorsement on a mortgage-deed Clause (xi) of sub-s (2) of S. 17 of the Registration Act does not place the additional embargo of the document not purporting to extinguish the mortgage which is placed by the Statute in case of exempting a receipt from compulsory registration.

(21) Judgment of Tek Chand and Sharma JJ. in Gurdial Singh v. Kartar Sing, 1963 Cur L J 341: (AIR 1964 Punj 141), is then referred to by Mr. Munjral. The receipt Ex. D-I in that case included the words 'Arazi Maz Kar Dee Hai Yani Chhor Dee Hai'. This was construed to amount to a clear expression of the extinction of the mortgage. I do not think that the judgment of this Court in Gurdial Singh's case, 1963 Cur LJ 341 : (AIR 1964 Punj 141), can possibly help the learned counsel for the respondents.

(21A) In Maman v. Hari Singh, AIR 1941 Lah. 246, (Tek Chand and Beckett, JJ), it was held that exemption under clause (xi) of sub-s (2) of S. 17 of the Registration Act could be claimed only if the receipt does not purport to extinguish the mortgage. That was a case of an endorsement on a mortgage-deed and it was held that it was therefore, not necessary that the document should not purport to extinguish the mortgage as the case fell in the first category of clause (xi) and not in the second one. Admittedly the receipt in the case before me is not in the shape of an endorsement on the mortgage deed and, therefore, the judgment of the Lahore High Court in Naman's case, AIR 1941 Lah 246 cannot possibly help the plaintiff.

(22) Mr. Tirath Singh then referred to the Full Bench Judgment of the Allahabad High Court in Jiwan Ali Beg v. Bas Mal, ILR 9 All 108, to impress on me the basic principles which should be kept in view in construing documents for the purpose of barring their admissibility under the Registration Act. The Full Bench of the Allahabad High Court held in that case that Court most always place the strictest construction of the provision under which the admissibility of the document is sought to be barred and unless it falls within the four corners of the restriction the document should be allowed to be admitted in evidence. There is no quarrel with this proposition of law.

(23) Principal reliance was placed by Mr. Munjral on the judgment of Karamat Husain and Tudball, JJ. in ILR 34 All 528. I have already referred to the subsequent judgment of the Allahabad High Court in ILR 48 All 705: (AIR 1926 All 693), where not only was the correctness of the judgment in Piari Lal's case, ILR 34 All 528, doubted but it was held that this case had not been correctly decided.

(24) In Rajani Kanta Nath Bhoumik v. Ali Noaz, AIR 1930 Cal 79, Cuming and Mallik. JJ, held that a document boy which a mortgagee admits that his claim has been satisfied and releases the property to the possession of the mortgagor does not require registration. This was case of usufructuary mortgage where in order to get possession of his property execution of the document was not necessary. On the facts of the case it was held that at the time of the execution of the document there was no right subsisting and there was nothing which could either be transferred or extinguished. It was in this view of other matter that it was held that the document in that case did not require registration. The facts of the case were, therefore, entirely different and the judgment of the Calcutta High Court in Rajani Kanta Nath Bhoumik's case. AIR 1930 Cal 79, cannot help me in deciding this matter one way or the other.

(25) Reliance was then placed by Mr. Tirath Singh on the judgment of the Madras High Court in Neelamani Patnaik Kussadi v. Sukaduvu Beharu, ILR 43 Mad 803: (AIR 1920 Mad 742 (2) ), wherein it was held that there was a nothing in the document to show that the mortgage interest was expressly extinguished by it and that it was only a discharge of the mortgage debt. Distinction was drawn between the discharge of a debt and the extinguishment of a mortgage though one may be the result of the other. It was held that when the receipt only discharges the debt but the mortgage continues is spite of the payment, the document could not be brought under S. 17(1)(b) of the Act. The facts of that case are not at par with the present case and that case did not involve the question which has to be decided in the instant litigation. In Krishnamurthy v. Krishna Rao, AIR 1952 Mys 82, it was held by Balakrishnaiya and Vasudevamurthy, JJ. that it depends upon the construction of the document involved in each case whether it purports to extinguish the mortgage or not. There is no quarrel with this proposition.

(26) Finally Mr. Tirath Singh Munjral referred to the judgment of the Supreme Court in Kashinath Bhaskar v. Bhaskar Vishweshwar, AIR 1952 SC 153, wherein it was held that the simple test was whether the mortgagee can, in the face of other subsequent agreement, enforce the terms of his bond. Applying this test it is clear that according to the plaintiff himself the mortgage could not be enforced after the execution of the receipt Ex. P-2 and, therefore, it is clear that the receipt purports to extinguish the mortgage, particularly in the circumstance enumerated above.

(27) In Jogendra Nath v. Safiuddin Sheikh, AIR 1924 Cal 379, it was held that where receipt only acknowledged payment of the amount due under the mortgage, that by itself did not purport to extinguish the mortgage and the document was, therefore, not compulsorily registrable.

(28) Mr. Tirath Singh contended that the judgment of Bhide, J. in AIR 1940 Lah 68, was not correctly given and that the learned Judge in the case had committed an error because the provisions of S. 60 of the Transfer of Property Act were not brought to his notice. Section 60 of the Transfer of Property Act requires that in order to redeem a mortgage the mortgage-deed or other such documents relating to the mortgaged property should be returned, where the mortgagee is in possession of the mortgaged property, the possession of the mortgaged property should be delivered back to the mortgagor and the property should, at the cost of the mortgagor be retransferred to him or a registered acknowledgment in writing should be executed. In the instant case there was no mortgage-deed as the mortgage was created by a decree of the Court. The only other relevant document which formed the basis of the mortgage, was the compromise deed which had been filed in the suit for cancellation of the sale by Fauja Singh to the defendants. In the nature of things, therefore, there could be no question of the return of the mortgage-deed in this case. Regarding delivery of possession there is a definite averment in the receipt in question as to the actual possession of the entire mortgaged property having been delivered, partly straight away and partly after cutting the crops. Nothing more was required to redeem the mortgage. The whole case of the plaintiff has throughout been that the mortgage was redeemed on the execution of this receipt. It does not, therefore, lie in his mouth to say that the document in question does not purport to extinguish the mortgage.

(29) The learned counsel for the respondent then urged that the receipt could be read into evidence for the collateral purpose of proving payment. There is no force in this contention of Mr. Munjral. In AIR 1933 Cal 198, it was held in a similar situation as below:--

'There can be no doubt on the statement contained in the receipt that the mortgagee exonerated the mortgagor from any liability under the mortgage and this document purported to extinguish the liability under the mortgage. It has, however, been sought to be argued by the learned advocate for the respondent that if it is not receivable in evidence as extinguishing the liability it can be received in evidence for a collateral purpose, namely, for the purpose of showing the admission of the plaintiff that he would return the mortgage bond after endorsement of payment and that he could not return it because the mortgage bond was with his pleader. It is difficult to split up the document in this way'.

(30) It was lastly submitted boy the learned counsel for the respondent that I should go through the oral evidence on the record and hold on its basis even after excluding the receipt that the payment of the amount in question was proved on the record of this case. I am reluctant to adopt this course because it is not for this Court in second appellate jurisdiction to appraise evidence in order to give a finding of fact based on certain evidence which has not been discussed by any of the Courts below.

(31) Mr. Aggarwal, the learned counsel for the appellant contended that parole evidence cannot be taken into account for proving payment which is alleged to have been witnessed by a receipt in writing. For this proposition he relies on certain observations made in AIR 1933 Cal 198. I think the observations in the judgment. Which are reproduced below, go exactly contrary to the contention of Mr. Aggarwal:--

'The result, therefore, is that the judgment and decree of the lower appellate Court must be set aside and the case sent back to it in order that it may rehear the appeal after excluding from evidence the receipt in question which was admitted by him at the appellate stage. It will be open to the Subordinate Judge to decide the matter on such oral evidence as to payment which the respondent might offer and on such evidence.................'

(32) At this stage I asked Mr. Tirath Singh Munjral if he would like to have an opportunity to lead additional oral evidence to prove payment of the amount in question. Mr. Tirath Singh, however, insisted that he wanted issue No. 2 in the case to be decided on the basis of the evidence already on record even after excluding the receipt. Ex. P-2 and without any opportunity being allowed to any of the parties to lead any additional evidence on this issue. Indeed the issue was in clear terms and none of the parties can complain that they were not alive to the necessity to prove payment or to rebut the evidence of payment independently of the receipt Ex. P-2.

(33) In the circumstances, I hold that applying the test laid down boy the Supreme Court as well following the law laid down by Bhide, J., in AIR 1940 Lah 68, and looking to the four points in the receipt Ex. P-2 enumerated above, other receipt does purport to extinguish the mortgage and is. therefore, not saved by clause (xi) of sub-s (2) of S. 17 of the Registration Act and being otherwise compulsorily registrable under S. 17(1)(c) of the Act is inadmissible in evidence on account of the bar created by S. 49(c) of that Act. The Courts below, therefore, erred in law in admitting the receipt Ex. P-2 into evidence. In this view of the matter the judgment and decree of the Courts below is set aside and the case is sent back to the trial Court for deciding issue No. 2 on the basis of the evidence already on the record of the suit and after excluding from consideration the receipt Ex. P-2. The costs of this appeal shall abide the event.

(34) Case remanded.


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