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Khetmal Vs. Chhaganraj and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 448 of 1962
Judge
Reported inAIR1968Raj123
ActsProvincial Insolvency Act, 1920 - Sections 4, 28 and 55; Code of Civil Procedure (CPC) , 1908 - Sections 9 - Order 34, Rule 1; Registration Act, 1908 - Sections 34, 35 and 87; Transfer of Propety Act, 1882 - Sections 58
AppellantKhetmal
RespondentChhaganraj and anr.
Appellant Advocate B.L. Purohit, Adv.
Respondent Advocate H.M. Parakh, Adv.
DispositionAppeal dismissed
Cases ReferredDasi v. Gadadhar Paul
Excerpt:
- - provided that any such transaction takes place before the date of the order of adjudication, and that the person with whom such transaction takes place has not at the time notice of the presentation of any insolvency petition by or against the debtor'.this section thus grants protection to transfers made by the insolvent after the presentation of the insolvency petition provided the conditions specified in section 55 are satisfied. its validity or otherwise must depend upon a consideration of the question whether the conditions specified in section 55 are or are not satisfied. naturally in relation to the questions arising out of insolvency the official receiver lays his claim by a higher title of his own by virtue of his office as such and has a better title under the insolvency.....l.n. chhangani, j. 1. this is a second appeal by the defendant khetmal against the appellate judgment and decree of the district judge, balotra dated 30th april, 1962. confirming the decree of civil judge, balotra dated 29th march, 1981 decreeing the plaintiff-respondent's suit for the recovery of the mortgage money by the sale of the mortgageproperty.2. it will be proper to set the material facts at the outset. one mishrimal son of jeta of samdari executed a mortgage deed in favour of chhogalal deceased, chhaganmal, achalchand and jugraj on mah sudi 13, s. 2005 corresponding to 11-2-1949. the principal amount secured by the mortgage was rs. 2199/- and the mortgage property consisted of a house at samdari. the mortgage deed is ex. 2 which was not registered on 14-2-49. after the mortgage,.....
Judgment:

L.N. Chhangani, J.

1. This is a second appeal by the defendant Khetmal against the appellate judgment and decree of the District Judge, Balotra dated 30th April, 1962. confirming the decree of Civil Judge, Balotra dated 29th March, 1981 decreeing the plaintiff-respondent's suit for the recovery of the mortgage money by the sale of the mortgageproperty.

2. It will be proper to set the material facts at the outset. One Mishrimal son of Jeta of Samdari executed a mortgage deed in favour of Chhogalal deceased, Chhaganmal, Achalchand and Jugraj on Mah Sudi 13, S. 2005 corresponding to 11-2-1949. The principal amount secured by the mortgage was Rs. 2199/- and the mortgage property consisted of a house at Samdari. The mortgage deed is Ex. 2 which was not registered on 14-2-49. After the mortgage, Mishrimal died and Khetmal defendant-appellant is his heir and successor in interest under a proper will. Chhogalal also died some time after the execution of the mortgage deed. After Chhogalal's death, Achalchand, for himself and for his son Jugraj and another son and Chhaganmal son of Chhogalal transferred their mortgagee rights in favour of Bastiram, son of Shivdatt on 5-2-1958, vide Ex. 3. This deed purported to have been executed by both Achalchand and Chhaganmal but it was presented before the Sub-Registrar only by Achalchand. Achalchand alone appeared before the Sub-Registrar and admitted the execution of the deed. Chhaganmal did not appear but the document was registered on admission of Achalchand and nothing was indicated as to the non-appearance of Chhaganmal before the Sub-Registrar. Bastirram transferred the mortgagee rights assigned to him in favour of Chhaganraj and Parasmal on 13-6-1958 vide Ex. 1 which was got registered on 14-6-1958. There had been some repayments towards the mortgage debt. Eventually Chhaganraj and Parasmal instituted a suit for the recovery of the mortgage money amounting to Rs. 1970/- by the sale of the mortgage property and impleaded Khetmal, Chhaganmal, Achalchand. Jugraj and Bastiram as defendants.

It may be useful to mention at this stage that on 30-4-1958 some creditors of a firm Peerdan Peerchand at Bikaner alleging that Achalchand and Chhaganmal along with others were partners of the firm Peerdan Peerchand applied for declaring them insolvent. Chhaganmal was not declared insolvent but Achalchand and a few others were declared insolvents on 14-1-1961. These facts have been mentioned as the arguments during the course of the hearing of the appeal centered upon these facts. Chhaganmal, Achalchand. Jugrai and Bastiram did not contest the suit. Only Khetmal opposed the plaintiff's suit. He took various pleas but the pleas with which we are concerned in this appeal need only be mentioned. It was alleged that as an insolvency petition had been presented against Chhaganmal and Achalchand the transfer by them of their mortgagee rights was not valid. The other plea was that as Chhaganmal did not appear and admit the execution of the deed Ex. 8 thedeed was void and did not affect immovable property and was inadmissible in evidence.

3. The trial court framed a number of issues. The issues covering the above pleas of the defendant Khetmal are issues Nos. 8 and 10 and read as follows:

8. Whether the sale deed was not registered only by defendant No. 3 and therefore it is inadmissible in evidence.

9. Whether insolvency proceedings were pending against defendants Nos. 2 and 3 and therefore they had no right to sell the mortgagee rights and therefore the suit is incompetent?

Dealing with issue No. 8 the trial court held that the registration was valid and that absence of admission by Chhaganmal before the Sub-Registrar was only a defect of procedure and was curable under Section 87 of the Registration Act. Dealing with issue No. 10, the trial court observed that the defendant did not lead any evidence and did not press the plea,

4. With these findings on the two issues material in this appeal and recording findings on other issues substantially in favour of the plaintiff the trial court decreed the plaintiff's suit for the suit amount.

5. The defendant Khetmal filed an appeal before the District Judge, Balotra which was dismissed by him. The defendant has filed the present second appeal.

6. The learned counsel for the appellant principally raised two points in this appeal.

7. In the first instance it was contended that at the time when Chhaganmal and Achalchand executed Ex. 3 and transferred their mortgagee rights in favour of Bastiram an insolvency petition had been pending against them in the court of District Judge, Bikaner. Eventually Achalchand was declared insolvent. It was urged that under Section 28(2) of the Insolvency Act on the making of the order of adjudication the whole of the property of the insolvent vested in the Court or in a Receiver. Relying upon Sub-section (7) it was further urged that the order of adjudication related back to and took effect from the day of the presentation of the petition on which the order of adjudication was made and consequently the property of Achalchand vested in the Receiver with effect from 30th January, 1958 and the assignment having been made on 5-2-58 the assignment was inoperative and ineffective in law inasmuch as Achalchand stood divested of his rights in the property with effect from 30th January, 1958

8. I have given due consideration to the arguments made on behalf of the counsel for the appellant and have come to ths conclusion that the argument merits no consideration. It is true that under Section 28(2) and (7) the property of the insolvent does vest in the Receiver on an order of adjudication and that the propertv should be deemed to have vested in the Receiver with effect from the date of the presentation of the insolvency petition. These provisions, however cannot be read in isolation. They have to be read in conjunction With other provisions in the Insolvency Act dealing with the transfers by insolvents. It may be pointed out at this stage that before the District Judge the counsel for the parties invoked Section 54 of the Insolvency Act in connection with adjudication of the validity or otherwise of the transfer and the first appellate court also gave its decision with reference to Section 54. I must, however, point out that Section 54 cannot be attracted in the present case. Section 54 deals with transfers and transactions prior to the presentation of the insolvency petition. The proper section to be considered is Section 55 which reads as follows:

'Subject to the foregoing provisions of this Act with respect to the effect of insolvency on an execution, and with respect to the avoidance of certain transfers and preferences, nothing in this Act shall invalidate in the case of an insolvency-

(a) any payment by the insolvent to any of his creditors;

(b) any payment or delivery to the insolvent;

(c) any transfer by the insolvent for valuable consideration; or

(d) any contract or dealing by or with the insolvent for valuable consideration;

Provided that any such transaction takes place before the date of the order of adjudication, and that the person with whom such transaction takes place has not at the time notice of the presentation of any insolvency petition by or against the debtor'. This section thus grants protection to transfers made by the insolvent after the presentation of the insolvency petition provided the conditions specified in Section 55 are satisfied. In relation to transfers conditions are two -

1. The transfer must be for valuable consideration.

2. The transferee should not have notice of the presentation of insolvency petition by or against the debtor.

On a consideration of Section 28(2) and (7) and Section 55, the proper conclusion to arrive at is that the transfer by an insolvent cannot be considered as altogether void; its validity or otherwise must depend upon a consideration of the question whether the conditions specified in Section 55 are or are not satisfied.

9. The learned counsel for the appellant relied upon two cases: Kashinath Ganesh v. Ganesh Bhola, AIR 1939 Nag 207 and V. Vasudeva Sastri v. Y. Annapurnamma Garu, AIR 1935 Mad 809.

10. In the first case it was held that Sections 53 and 54 deal with transfer which is voidable at the option of the creditor The transaction which is made after the creditors' petition on which an order of adjudication is void ab mitio and is not covered by Sections 53 and 54. That case does notrender any substantial assistance to the appellant inasmuch as the validity of the transfer under Section 55 was not examined.

11. In the Madras case there was a suit for specific performance of an agreement to execute a mortgage by a person against whom an insolvency petition had been presented. Such a suit after presentation of the insolvency petition but prior to an order of adjudication was considered incompetent under Section 28(2). This case does not deal with the case of a completed transfer by a person against whom an insolvency petition had been presented. These cases cannot persuade me to hold that the transfer should be considered nullity without considering the factual position under Section 55 of the Insolvency Act. In my opinion, the validity or otherwise of the transfer depends upon a consideration of the question whether the requirements of Section 55 had been fulfilled and whether the transfer is protected.

12. This brings me to the real controversy between the parties. The two questions were agitated in this behalf.

13. Whether the alleged transfer of his interest by Achalchand after the presentation of an insolvency petition by certain creditors against him and others is protected under Section 55 or deserves to be avoided and ignored, can be agitated in civil courts or not. The counsel for the appellant contends that the jurisdiction of the Civil Court is not barred On the other hand, the counsel for the respondent contends that the question has to be decided by the Insolvency Court in the exercise of its special jurisdiction and the Civil Courts have no competence to decide such a question.

14. At the outset it may be pointed out that Section 4 of the Insolvency Act empowers the Insolvency Court to decide all questions whether of title or of proprietary or any nature whatsoever and whether involving matters of law or of fact which may arise in any case of insolvency coming within the cognizance of the court or which the court may deem it expedient and necessary to decide for the purpose of doing complete justice or complete distribution of property in such case,

15. The questions arising before the Insolvency Court may be classified in two categories-

1. Questions arising out of insolvency, and

2. Questions not so arising. In the first category of cases I may mention case of transfer made between the date of the insolvency petition and adjudication order, transfers amounting to fraudulent preference voluntary transfer without consideration within two years prior to the adjudication, transfers amounting to acts of Insolvency etc.

16. These questions have special consideration in the Insolvency Law. Under thescheme of the Insolvency Law after adjudication of insolvent the Receiver is to take possession of the assets of the debtor, ascertain liabilities and then make equitable distribution of assets amongst the creditors. Naturally in relation to the questions arising out of insolvency the official receiver lays his claim by a higher title of his own by virtue of his office as such and has a better title under the insolvency law than the insolvent had himself. Under the civil law such transfers ordinarily constitute valid transaction and cannot be impeached. It Is only on account of higher claims of the Receiver that these transfers can be impugned under the provisions of the Insolvency Act and naturally they must be decided by the Insolvency Court under its special jurisdiction. On a consideration of the scheme of the Insolvency Law, I am inclined to hold that the controversy could not be properly raised in the present litigation in a civil court. The validity or otherwise of the transfer should have been appropriately raised before the Insolvency Court. There are two modes of bringing the controversy before the Insolvency Court. Either the Receiver may apply to the Insolvency Court for annulling the transfer or the Receiver having succeeded in obtaining possession of the property transferred or having threatened to deprive the transferee of his possession the transferee may approach the insolvency court and secure adjudication relating to the validity of the transfer. In these circumstances, I am doubtful whether the validity of the transfer can be allowed to be questioned in this litigation. However, I need not rest my decision on this pure question of law and proceed to examine the controversy on merits.

17. At the outset I must observe that in considering the question of the validity of the transfer it will be proper to notice the conduct of the receiver and the creditors of the insolvent in relation to the property, the subject matter of the transfer in the Insolvency Court as also the conduct of the defendant who seeks to impugn the present transfer. No materials have been brought on record to show whether the present property which stands transferred in favour of the plaintiff-respondent was ever declared as insolvent's property in the insolvency proceedings and whether any action was taken either on behalf of the creditors or on behalf of the Receiver to get the property in the possession and control of the Receiver. The Insolvency petition was presented in the year 1958 and Achalchand was declared insolvent in January 1961, 9 and 6 years have passed since the presentation of the petition and the declaration of Achalchand as insolvent. But nothing seems to have been done in the insolvency court in relation to the property in dispute.

18. The conduct of the appellant has not been what it should have been and is avery strong factor against him. He took a general plea that as the insolvency proceedings were pending against defendants Nos. 2 and 3 the transfer was invalid. It was not even mentioned whether the transfer was with or without consideration or, whether the plaintiff respondent or their predecessor Bastiram had information of the presentation of the insolvency petition. During the trial of the suit he led no evidence whatsoever in this connection. At the time of arguments he did not press his plea and did not raise any controversy whether the transfer stands protected or not under Section 55. In the first appeal the counsel for the appellant also did not join any controversy on the facts but only addressed arguments on the question of law. Reference was made only to Section 54 of the Insolvency Act which as I have already pointed out earlier, was not applicable. It is also worthy of note that the defendant did not give any information in the insolvency court as to the pendency of the suit against him. It may also be mentioned that the mortgage was a usufructuary one and the mortgagor obtained the house lease, yet the defendant did not take any steps to deposit the arrears of rent in the insolvency court. During the pendency of the second appeal the defendant after taking leave of the court had sold the property which was the subject matter of the mortgage. Considering the conduct of the parties concerned in the insolvency court in relation to the property and the conduct of the defendant-appellant I have no hesitation in coming to the conclusion that the defendant cannot succeed in avoiding and ignoring the transfer.

19. The counsel for the appellant, however, emphasised that the burden of proving that the transfer stands protected lay heavily upon the transferee and relied upon Karamsingh Natha Singh v. Mohinder Lal Batta, AIR 1957 Pep 22. I do not see any force in the point made out by the counsel for the appellant. The defendant came forward with a very vague plea. Naturally an issue was framed with burden on the defendant. He led no evidence, nor did he take any objection to the wrong burden placed upon him. It will be hardly in the interest of justice to permit him now to emphasise the abstract doctrine relating to the burden of proof and to question transfer particularly in view of the discussions relating to the conduct of the parties concerned in the Insolvency Court in relation to the property and the conduct of the appellant.

20. There is thus no substance in the first point made out on behalf of the appellant's counsel.

21. The second point made out by the appellant's counsel was under the Registration Law. It was contended that as Chhaganmal did not appear before the Sub-Registrar and did not admit the execution of the document assignment deed Ex, 3, therefore, the assignment deed was void and created norights in favour of Bastimal the transferee from Chhaganmal and Achalchand. Basti-ram having thus had no transferable right the subsequent transfer by Bastiram in favour of the plaintiff-respondent was also void. On the other hand, the counsel for the respondent contended that the deed having been properly registered on an admission by Achalchand the deed was validly registered and the defect was only of procedure and was curable under Section 87 of the Registration Act. A number of cases were cited at the Bar in support of their respective contentions. I consider it proper to commence the review of cases from the earliest Privy Council Case reported in Sah Mukhun Lall v. Sah- Koondun Lall. (1874-75) 2 Tnd App. 210 (P.C.). Although the question did not directly arise before their Lordships of the Privy Council yet they made the following observations for determining whether the deed was nullity or not:--

'There are no words in Section 36 (now 34) declaring that the registration of a deed shall be null and void if made without the appearance of the persons who executed it; and it is very doubtful whether the words of the section are not merely directory to the registering officer for the benefit of the parties to the deed, and whether his acting without the appearance of the parties, and upon evidence, instead of the admission of the parties of the execution of the deed, was more than a defect in procedure within the meaning of Section 88 (now 87). Again, it is not clear that the words 'unless it shall have been registered in accordance with the provisions of this Act' in Section 49, are not especially as regards strangers to the deed, confined to the procedure on 'admitting to registration' without reference to any matters of procedure prior to registration, or to the provisions of Sections 19. 21. or 36 of the Act. (now 34-35), or other provisions of a similar nature. In considering the effect to be given to Section 49, that section must be read in conjunction with Section 88 (now 87), and with the words of the heading of part 10, 'of the effects of Registration and nonregistration.' Now considering that the registration of all conveyances of immoveable property of the value of Rs. 100 or upwards is by the Act rendered compulsory, and that proper legal advice is not generally accessible to persons taking conveyances of land of small value, it is scarcely reasonable to suppose that it was the intention of the Legislature that every registration of a deed should be null and void by reason of a non-compliance with the provisions of Sections 19, 21 or 36 (now 34-35). It is rather to be inferred that the Legislature intended that such errors or defects should be classed under the general words 'defect in procedure' in Section 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer, on whom they would naturally place reliance. If the registeringofficer refuses to register, the mistake may be rectified upon appeal under Section 83 (now 72) or upon petition under Section 84 (now Sections 73, 74 and 75) as the case may be; but if he registers where he ought not to register, innocent persons may be misled, and may not discover, until it is too late to rectify it, the error by which, if the registration is in consequence of it to be treated as a nullity, they may be deprived of their just rights'.

The question again came before the Privy Council in Muhammad Ewaz v. Brijlal, (1876-77) ILR 1 All 465 (P.C.). In that case a deed was alleged to have been executed by three persons. Two of them appeared before the Sub-Registrar and admitted execution but objected to the registration. They denied execution on behalf of the third alleged executant. The trial court held the registration valid qua two persons admitting execution and did not consider the registration against the third person valid. On a special appeal the High Court held that the registration of the deed of sale was null and void because the requirements of the Registration Act had not been complied with and that the sale deed could not be received in evidence against the persons who admitted the execution before the Registrar. The Privy Council reversed the decision of the High Court and restored the decision of the trial court and quoted the above passage in (1874-75) 2 Ind App. 210 (P.C.) as embodying the relevant considerations in support of their decision

It is significant that in pursuance of the decision in Mumammad Ewaz's case, (1876-77) TLR 1 All 465 (PC) Section 35 of the Registration Act was amended so as to give effect to the Privy Council decision and to refuse registration only with regard to the persons denying the execution. Another Privy Council Case which deserves to be noticed is Mujib-Un-Nissa v Abdur Rahim, (1900) ILR 23 All 233 (P. C). In this case the executant of a document gave a power of attorney to his agent to present it for registration but died before the document was presented The Registrar was aware of his death but accepted and registered the document. The Privy Council held that the registration of the deed was illegal, Their Lordships referred to Section 32 and observed that the power and jurisdiction of the Registrar come into play when he is invoked by some person having a direct relation to the deed It was further observed that the Registrar indeed did not merely disregard Section 32 for he proceeds to accept the admission of the alleged attorney as good admission of the execution of the deed although Section 34 requires in the case of a deceased the admission of the representative. In vet another case reported. Jambu Prasad v. Muhammad Nawab Aftab Ali Khan, AIR 1914 PC 16 the Privy Council made the observation to the following effect:--

'One object of Sections 32, 33, 34 and 35 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under the Act.

It is the duty of the Courts in India not to allow the imperative Provisions of the Act to be defeated when, as in this case, it is proved that an agent who presented a document for registration had not been duly authorised in the manner prescribed by the Act to present it'.

22. It appears that the observations in the latter Privy Council decision and particularly references to Sections other than Section 32 of the Act laid some divergence of judicial opinion on the point whether non-compliance with the provisions of Section 34 or 35 is a defect of a vital nature or is merely a defect of procedure curable under Section 87. Judicial opinion also differed on the weight to be given to the passage in Shah Mukhum ball's case, (1874-75) 2 Ind App 210(P.C.). In 'Razi-Un-Nissa v. Sabir Husain (1903) ILR 26 All 57 and J. and D. Eziekeil Co. v. Annoda Charan Sen, AIR 1923 Cal 35 it was held that if a document which has been executed by several persons is registered upon the appearance and admission of one of those persons there is clearly no effective registration as regards the other executants, who neither appeared nor admitted the execution. It may be pointed out that while the observations in Muhammad Ewaz's Case, (1876-77) ILR 1 All 465 (P.C.) were in respect of persons denying the execution the observations in (1903) ILR 26 All 87 and AIR 1923 Cal 35 went further and treated the case.s of persons denving the execution and persons simply not appearing before the Registrar on the samp Anting

A different view was however taken by the Rangoon Chief Court in S.M.A.R, Chetty Firm v. Ko Taik ATR 1923 Rang 176. According to the Rangoon Chief Court there is no conflict between the earlier and later Privy Council rulings. Robinson C. J. observed that these Privy Council cases clearly bring out the distinction that must be drawn between the defect in procedure that is the fault of the Registering Officer for which the persons presenting the document for registration are in no way responsible and a mistake arising from their own wrongful act. The learned Chief Justice further expressed the opinion in the following words :--

'Having regard therefore, to the authorities, I am of opinion that, where a document is presented by a person duly authorised to present it, who thus initiates the jurisdiction of the Registering Officer, and who does all that he is required to do under the Act and is guilty of no short-coming thereunder, it would be contrary to the scheme of the Act, and it could not have been the intention of the Legislature, that he should be punished for, any error or defect in the procedure of the Registering Officer subsequent to the presentation.'

The view taken by the Rangoon Chief Court appears preferable to the view taken by the Calcutta High Court, specially in view of the subsequent pronouncement of the Privy Council in Ma Pwa May v. S.R.M. M.A. Chettiar Firm, AIR 1929 PC 279. Lord Atkin delivering the judgment of the Board laid down the law in the following terms:--

'Where the Registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction or where the presentation is out of time, Section 87 is inoperative. On the other hand, if the registrar having jurisdiction has made a mistake in the exercise of it, Section 87 takes effect.'

The observations in the Privy Council case AIR 1929 PC 279 were approved in Kishore Chandra Singh v. B. Ganesh Prasad Bhagat, AIR 1954 SC 316.

23. Reference may also be made to a decision of the Lahore High Court: Munilal v. (Firm) Haji Ghulam Hussain Nur Ahmad, AIR 1935 Lah 416. A bench of that Court noticed the various Privy Council cases as also the Allahabad, the Calcutta and the Rangoon cases and came to the conclusion that the weight of the authorities was in favour of treating a defect of the present nature as one of the procedure. It was pointed out that the principle laid down in Sah Mukhum Lall's case, (1874-75) 2 Ind App 210 (PC) had not been subsequently departed by the Privy Council but on the other hand these principles had been expressed, approved and applied in AIR 1929 PC 279.

24. The Calcutta High Court also in a subsequent bench decision reported as Du-karibala Dasi v. Gadadhar Paul, AIR 1953 Cal 571 held that the non-compliance with the provisions of Section 35 is a mere procedural error and would not vitiate the registration on that ground:--

'Once a document has been presented for registration by the person executing the document or claiming under the same or by the assignor, representative of such person, the Registrar is clothed with jurisdiction to deal with the matter and any mistake, which he may have made in the process of registering the said document would be a mistake in procedure.'

25. This view is certainly contrary to the view taken in AIR 1923 Cal 35 on which the counsel for the appellant relied although the earlier case was not referred to in this case.

26. After a review of the various cases cited at the Bar I consider that the cases relating to the registered documents where out of the several executants, some only appeared and admitted execution may be broadly divided into two categories :--

Category 1.

(A) Where the alleged executants other than those admitting execution appear and deny execution or denial on their behalf isexpressly brought to the notice of the Registering Officer.

Category 2,

(B) Cases where the alleged executants other than those admitting execution, do not appear at all either to admit or to deny the execution of the document.

27. I am inclined to think that the second category of cases may be Sub-divided into two classes:--

Class (I):

(a) Where there are materials on the record to indicate that the non-appearance of some of the executants was wilful and was intended to prevent registration.

This may be when during the course of litigation such executants appear and object to the admissibility of the deed or prior to the litigation they took some steps to impugn the validity of the document.

Class (II):

(b) Where non-appearance of some of the executants was only casual, inadvertent or accidental and there are materials on record to indicate that they had no intention to prevent the registration of the document being under an impression that admission by some of the other executants would be sufficient for registration. A clear instance of such a case is the present case. In the present case Chhaganmal executant who did not appear before the Sub-Registrar was impleaded as a defendant and although the plaintiff-respondent claimed right under a deed executed by Chhaganmal, he did not oppose the suit and claim any right for himself.Ignoring the Sub-classification the cases fall in 3 categories as indicated.

28. There is conflicting judicial opinion in relation to all the three categories of the cases and while I need not and do not express any firm opinion with regard to the first two categories, I am inclined to hold that the defect in the third category of the cases should be treated as one of pure procedure not vitiating the registered deed.

29. There is, however, another line of reasoning which also sustains the decision of the courts below. The assignment deed in respect of the mortgagee rights was executed by Chhaganmal and Achalchand in favour of Bastiram. Bastiram subsequently transferred his rights to the present plaintiff-respondent. The plaintiff-respondent impleaded Chhaganmal and Achalchand. Chhaganmal did not counter the allegations made in respect of the assignment deed. He did not even deny the execution of the assignment deed. Execution by Chhaganmal has been held proved by both the courts. Chhaganmal did not challenge that finding at any stage. Chhaganmal did not assert any right in respect of the mortgagee rights claimed by the plaintiff-respondent under the assignment deed executed by Chhaganmal and Achalchand in favour of Bastiram and by Basti-ram in favour of the plaintiff-respondents. I cannot see how the defendant Khetmal can have any complaint in this behalf.

30. There is yet another consideration which also stands in the way of the defendant getting any relief in this appeal. Chhaganmal and Achalchand were co-mortgagees. It is elementary principle that if one of the co-mortgagees does not join any other co-mortgagee in instituting a suit based on the mortgage the other co-mortgagees can file a suit for mortgage money by sale of mortgage property after impleading the other co-mortgagees. In the present case even if the transfer of the rights of Chhaganmal be considered doubtful, yet there can be no manner of doubt that the plaintiffs respondent step in the shoes of one of the co-mortgagees and a suit by them against the mortgagor in which the co-mortgagee was impleaded as a defendant cannot be considered defective nor can the defendant have any grievance as there is no likelihood of his being vexed subsequently at the instance of the co-mortgagees.

31. In the light of the above discussions, I am satisfied that the decisions of the courts below are correct and call for no interference. There is no force in this appeal which is hereby dismissed with costs.

32. The counsel for the appellant praysfor leave to appeal to the Supreme Court.The leave is refused.


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