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Rangampudi Malliah and ors. Vs. Mutta Venkateswarlu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1934Mad713
AppellantRangampudi Malliah and ors.
RespondentMutta Venkateswarlu and ors.
Cases ReferredJanardana v. Anant
Excerpt:
- .....to the bank have become subrogated to that charge and therefore they have got a priority over, the suit mortgage bond. this point was not raised in the written statement and the document in favour of the imperial bank was not even filed in the lower court. they have now filed an application for admitting fresh evidence. it is merely a letter addressed to the imperial 'bank by defendant 1's father under-taking not to alienate certain properties. at the time of the letter no loan was taken, from the imperial bank though some time after the letter moneys were lent by the bank to defendant 1's father. we do not think such a letter amounts to a charge. we agree with the decision in sivanna v. venkatakrishna murthi (1913) 19 i.c. 478 and with the judgment of bankin, c.j., in imperlal bank of.....
Judgment:

1. This appeal is by defendants 3 to 6 against the decree passed by the Subordinate Judge of Cocanada in a suit brought on a mortgage bond Ex. A, dated 8th November 1916, executed by defendant 1's father. The appellants defendants are purchasers of the equity of redemption in execution of a money decree obtained by them after the mortgage. The Subordinate Judge granted a decree. Two points are argued in appeal. The first is that the mortgage bond is not supported by consideration and is merely nominal. The Subordinate Judge discusses the evidence. We see no reason to differ from his estimate of the evidence. The burden of proof is upon the defendants. Not only have they not discharged the burden but there is considerable evidence for the plaintiff to show that consideration was fully paid. It is unnecessary to dwell on the oral and documentary evidence in detail.

2. The second point argued is that there is a charge on the suit land created in 1912 in favour of the Imperial Bank of India and these appellants having paid off the debt due to the Bank have become subrogated to that charge and therefore they have got a priority over, the suit mortgage bond. This point was not raised in the written Statement and the document in favour of the imperial Bank was not even filed in the lower Court. They have now filed an application for admitting fresh evidence. It is merely a letter addressed to the Imperial 'Bank by defendant 1's father under-taking not to alienate certain properties. At the time of the letter no loan was taken, from the Imperial Bank though some time after the letter moneys were lent by the Bank to defendant 1's father. We do not think such a letter amounts to a charge. We agree with the decision in Sivanna v. Venkatakrishna Murthi (1913) 19 I.C. 478 and with the judgment of Bankin, C.J., in Imperlal Bank of India v. Bengal National Bank 1931 Cal. 223 which judgment is not touched by the decision of the Privy Council in Imperial Bank of India v. Bengal National Bank 1931 P.C. 245 on this point. We think that oven a charge though it may not amount to a transfer creates some interest; in immovable property and such a document must be registered. The decision in Gobinda Chandra v. Dwarka Nath (1908) 35 Cal. 837 relates to a decree which is exempt from registration. The decision in Janardana v. Anant (1908) 32 Bom. 386 relates to three registered instruments and another instrument for less than Rs. 100. In the decision in Jawahir Mal v. indomati 1914 All. 187 the real question was whether the document was a mortgage and whether the suit was not barred by limitation. Nobody was interested in arguing that there was no charge. At the most it may be a charge but if it is not a mortgage the suit was barred by limitation. Therefore even if fresh evidence can be admitted, it Will not help the appellants. The result is the appeal fails and is dismissed with costs of the plaintiff-respondent 1.


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