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Ve. Rm. V. Ramanathan Chettiar Vs. Muthukumaru and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in58Ind.Cas.849
AppellantVe. Rm. V. Ramanathan Chettiar
RespondentMuthukumaru and ors.
Cases ReferredSankaran Nambiar v. Narayanan Thirumumpu
Excerpt:
registration act (xvi of 1908), section 28 - mortgage--part of property intended as security, inclusion of, to give jurisdiction to sub-registrar, effect of--registration, validity of--interpolation in document--presumption as to time of interpolation. - - on the other hand, it was the duty of the sub registrar, under section 20 of the registration act, to satisfy himself whether any interpolation had been made after the execution, and the fast that the registrar did not make any note to that effect shows that he was satisfied that the writing in question existed before execution. the appellant, who has failed as against the 3rd respondent, will pay his costs of this appeal......of the 1st plaintiff, against the decree of the subordinate judge in a suit on a mortgage. the subordinate judge has given a simple money-decree holding that the hypothecation-bond was not duly registered and, therefore, was invalid in law. the 1st and fourth defendants executed the mortgage. the 2nd defendant is the undivided son of the 1st defendant, the 3rd defendant is the son of the 1st defendant's brother. but it is found that he was divided and, therefore, the mortgage will not bind him, and mr. venkatachariar, the learned vakil for the appellant, has now sought to impeach that finding. therefore, so far as that defendant is concerned, the decree will not bind him and his share in the property. the lower court found that the consideration for the mortgage had been.....
Judgment:

1. This is an appeal preferred by the 2nd plaintiff, who is also the legal representative of the 1st plaintiff, against the decree of the Subordinate Judge in a suit on a mortgage. The Subordinate Judge has given a simple money-decree holding that the hypothecation-bond was not duly registered and, therefore, was invalid in law. The 1st and fourth defendants executed the mortgage. The 2nd defendant is the undivided son of the 1st defendant, the 3rd defendant is the son of the 1st defendant's brother. But it is found that he was divided and, therefore, the mortgage will not bind him, and Mr. Venkatachariar, the learned Vakil for the appellant, has now sought to impeach that finding. Therefore, so far as that defendant is concerned, the decree will not bind him and his share in the property. The lower Court found that the consideration for the mortgage had been satisfactorily proved, although that appears to have been questioned as the main defence in the suit, and no argument has been addressed to us on behalf of the respondents against this finding of the lower Court.

2. The Subordinate Judge also found that the document was duly attested as required by law : that is to say, the attesting witnesses saw the execution of the document and subscribed their names as attesting witnesses. That finding has been sought to be re-opened before us by the learned Vakil for the respondents, but we have no hesitation in accepting the finding as correct. In our opinion the evidence of plaintiff's 2nd witness on the point is quite clear.

3. The Subordinate Judge, however, refused to give a mortgage-decree on the ground that a portion of the property, that is, 39 cents of land in Sittubotti village within the jurisdiction of the Sub-Registrar of Peraiyur, was inserted in the mortgage-deed with the intention of having the document registered at Peraiyur as it was not convenient to the parties to go to the Waltrap Sub-Registrar's office on account of the weather and distance. He seems to be under the impression that, if parties to a mortgage-deed include certain properties as security for the money advanced but, primarily, in order to have the document registered by the Sub-Registrar within whose jurisdiction the property is situate, according to the law of registration the document must be held not to be duly registered, in accordance with the ruling of the Privy Council referred to in Harendra Lal Roy v. Hari Dasi Dabi 23 Ind. Cas. 637. All that the Privy Council, however, decided in that case was that, if the parties to a document have entered certain properties which did not belong to the mortgagor and which they never intended to use as security, then such a fictitious entry would not validate registration by the officer in whose jurisdiction the property, as entered, is alleged to be situate. They do not lay down that if a certain property is included in the deed, mainly with the object of giving jurisdiction to the officer in whose jurisdiction it is situate, although the value of such properties may be very small, that would not satisfy the requirements of the law of registration. In fact the ruling of the Judicial Committee in Hari Ram v. Sheodyal Mal 11 A 136 shows that registration in such circumstances would be entirely in accord once with law. They point out, that the smallness of the value of any item of property can make no difference in this connection, because the Act says that the parties can have the document registered within the jurisdiction of any Registrar where any portion of the property is situate. The recent ruling of this Court, to which one of us was a party, in Sankaran Nambiar v. Narayanan Thirumumpu 55 Ind. Cas 86 also bears out this proposition.

4. The Subordinate Judge seems to have confounded the question of the intention of making a certain property part of the security and the question of value of that property in proportion to the rest of the mortgage property. If the parties intended a particular property, however small in value as compared with the rest, to be part of the security, although the motive for its inclusion might be to have the document registered by a particular Sub-Registrar, that motive cannot, in any way, he said to be in fraud of, or in violation of the Registration Act.

5. As regards the facts of this case, the Subordinate Judge finds that Schedule I, containing 39 cents of land within the jurisdiction of Peraiyur Sub Registrar, was inserted in the document at the Registration office, and upon, that finding an argument has been addressed to us by the learned Vakil for the respondent that the document must be held to be invalid unless it was proved that there was a fresh execution and fresh attestation after the new insertion. The argument is that as such an insertion was material for the purpose of valid registration the execution and attestation prior to that insertion will not be in compliance with the requirements of the law of registration. This particular point is bare of authority and, we may observe, it was not raised either in the written statement or by the issues, nor at the time of the trial before the learned Judge, for nowhere in the judgment does he allude to this question. The question is not altogether free from difficulty. But it is not necessary for us to decide it, as we are unable to accept the finding of the Subordinate Judge on the evedence that the Schedule relating to 39 cents, of land in the Sittubotti village was written after the execution and attestation of the document. It is unfortunate that much of the evidence as to what happened is not available, owing to deaths of persons who played a part in the transaction. The 1st plaintiff himself had died before trial, so also his agent and the writer of the mortgage deed. The evidence of P.W. No. 2 is to the effect that the clause, and the schedule relating to the land within the jurisdiction of Peraiyur Sub-Registrar, had already been written before the execution. The only thing against it is the appearance of the writing, which is undoubtedly in darker and fresher ink than the rest of the document. That, in our opinion, is not sufficient to throw suspicion . on the evidence of P.W. No. 2. The Subordinate Judge, it seems to us, relied not only too much on the colour of the ink but also appears to have been influenced by the fact that only two Schedules are numbered on the margin instead of three, as comprising the mortgaged lands and villages, and also by the fast that 39 cents in the Settubotti village is not included in the total area given at the end of the Schedule.

6. As regards the first, the idea of the parties apparently was to indicate the two Sub-Registrar's districts in which the mortgaged lands were situate and not to numbers of the villages. As regards the total area, that only gives the area of land in the Watrap Sub Registry, for the area of the land in the Settubotti village had been already mentioned along with the description. In dealing with the evidence of the witnesses he was very much influenced by what is sailed intrinsic evidence in favour of subsequent interpolation. In our opinion, there is really nothing in the intrinsic evidence as furnished by the appearance of the document which necessarily leads to the inference that the entry in question was made after the execution of the document. On the other hand, it was the duty of the Sub Registrar, under Section 20 of the Registration Act, to satisfy himself whether any interpolation had been made after the execution, and the fast that the Registrar did not make any note to that effect shows that he was satisfied that the writing in question existed before execution. We have considered the evidence in this connection. D.W. No. 4 undoubtedly suggests, that Schedule 1 was interpolated after execution and so also the other witnesses on the side of the defendants. We prefer to accept the evidence of the plaintiff's witness No, 2 which undoubtedly is in accordance with the ordinary presumption of law. In Haisbury's Laws of England, Volume X. page 411, paragraph 739, it is laid down 'any alteration, erasure, or interlineations appearing on the face of the deed is presumed, la the absence of evidence to the contrary, to have been made before the execution of the deed.' Similarly, in Norton on Deeds, page 26 'Alterations and interlineations in a deed are presumed in the absence of evidence to the Contrary, to have been made prior to the execution.' This presumption of law is Strengthened in this case by the omission of any note by the Registrar that, at the time the document was presented to him for registration, it contained any interpolations made after execution, We therefore, hold that the Subordinate Judge was wrong in finding that Exhibit A was not properly and validly registered.

7. Only one other thing remains, namely, that of interest. The original rate of interest stipulated for was 10 1/2 percent, In default of payment of interest on the specified dates, the defendants agreed to pay 12 per cent, compound interest. The Subordinate Judge has given a decree for 10 1/2 percent. simple interest without giving any compensation as agreed in case of default.

8. We allow 10 1/2 percent. compound interest from the date of default. The plaintiff is entitled to interest at this rate up to the date of payment. The decree of the Subordinate Judge will be modified in accordance with the above finding. The respondents Nos. 1, 2 and 4 will pay the costs of the appellant throughout. The appellant, who has failed as against the 3rd respondent, will pay his costs of this appeal. Time for redemption will be extended to six months from this date.


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