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Kaur Chand Vs. Defendants Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1175 of 1958
Judge
Reported inAIR1960P& H529
ActsIndian Registration Act, 1908 - Sections 17 and 17(2)
AppellantKaur Chand
RespondentDefendants Raj and ors.
Cases Referred and Piare Lal v. Makhan
Excerpt:
.....limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - in my view the endorsements on the mortgage deeds are clearly admissible in evidence......of land. the ground on which possession was claimed was that the land was under mortgage with kaur chand's father bhagat ram and had been redeemed. after redemption, kaur chand had taken forcible possession of the land. the defence to the suit set up by 'kaur chand was that bhagat ram had divided the mortgagee rights between his sons bachan dass and kaur chand and therefore kaur chand was in possession of the property as a mortgagee, and there being no redemption by him the plaintiff's could not take possession of the land. both the courts below have decreed the plaintiff's suit holding that the mortgagee was bhagat ram and there was no partition of the mortgagee rights between bachan das and kaur chand.the plea of kaur chand that the mortgage in favour of bhagat ram had not been.....
Judgment:

(1) This present suit was filed by Defendants Raj and Anant Ram against Kaur Chand and others for possession of land. The ground on which possession was claimed was that the land was under mortgage with Kaur Chand's father Bhagat Ram and had been redeemed. After redemption, Kaur Chand had taken forcible possession of the land. The defence to the suit set up by 'Kaur Chand was that Bhagat Ram had divided the mortgagee rights between his sons Bachan Dass and Kaur Chand and therefore Kaur Chand was in possession of the property as a mortgagee, and there being no redemption by him the plaintiff's could not take possession of the land. Both the Courts below have decreed the plaintiff's suit holding that the mortgagee was Bhagat Ram and there was no partition of the mortgagee rights between Bachan Das and Kaur Chand.

The plea of Kaur Chand that the mortgage in favour of Bhagat Ram had not been redeemed was negatived on the ground that Bhagat Ram admitted in the trial that he had received the entire mortgage money and had handed back the possession to the mortgagor. In the Courts below on the question of redemption by Bhagat Ram Kaur Chand contended that the endorsements on the mortgage deeds acknowledging the payment of the entire mortgage money were inadmissible in evidence under Section 17 of the Indian Registration Act (XVI of 1908). The plea was based on the ground that the endorsements not merely stated about the receipt of the mortgage money but went further and stated that the mortgage had been extinguished. This plea did not prevail with the Courts below. Moreover, relying on the statement of Bhagat Ram, the Courts below were of the opinion that the redemption was proved independently of the endorsements on the mortgage deeds. Dissatisfied with this decision, Kaur Chand has come up in second appeal to this Court.

(2) After hearing the learned counsel for the appellant, I see no merit in this appeal. In my view the endorsements on the mortgage deeds are clearly admissible in evidence. Reference in this connection may be made to Section 17(2)(xi) of the Indian Registration Act, which is in these terms:

'17(2)(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; or'

There is a conflict of opinion as to the interpretation of this provision, but it seems to me that the correct vie is that where the mortgage money is discharged in full the mere statement that the mortgage is extinguished would be a mere surplusage because the very fact of the payment of the entire amount would ipso facto put an end to the mortgage. Nothing further has to be done by the mortgagee. It is only in those cases where the mortgage is extinguished on part payment of the mortgage is extinguished on part payment of the mortgage money that the endorsement which states that the mortgage is extinguished would require registration. I am fortified in my view by the decision of the Bombay High Court reported as Mahamad Kasam v. Ranu Yesji, 9 Bom LR 254, wherein Batty J. observed as under:

'Endorsements or receipts acknowledging satisfaction of mortgage by the payment of the whole mortgage-money, would not be compulsorily registrable under clause (n) of the same section. But that clause indicates that an operative instrument which not merely evidences the satisfaction of a mortgage, but which is a transaction annulling an interest by a new act of will between the parties, is compulsorily registrable as ruled in Uppalakandi v. Kunnam, ILR 19 Mad. 288. The distinction more explicitly stated appears to be as follows. A payment made in discharge of an existing obligation, as in paying off a mortgage-debt according to its tenor, is a payment made in satisfaction of that obligation--and is not technically 'consideration paid in order to obtain the extinction of that obligation. In other words, the extinction of an obligation, when it is effected by the performance or satisfaction of the obligation according to its terms, follows from the terms of that obligation and is not induced by any new consideration. And neither clause (b) nor clause (n) requires registration in respect of the mere satisfaction or performance of the preexisting obligation. Those clauses require registration only when money or other value is paid or passed as consideration for a notation or new agreement by a fresh act of the parties, the effect of which is to do away with the old obligation not by accepting performance thereof, but on receiving a sum paid for the benefit of the new agreement.' See also in this connection decisions reported as Rajani Kanta Nath v. Ali Noaz, AIR 1930 Cal. 79 and Piare Lal v. Makhan, ILR 34 All 528.

(3) In this view of the matter, the contention of the learned counsel for the appellant has no merit.

(4) For the reasons given above, this appeal fails and is dismissed with costs.

(5) Appeal dismissed.


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