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Sailendra Nath Singha and anr. Vs. Keshab Chandra Choudhury - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1937Cal347
AppellantSailendra Nath Singha and anr.
RespondentKeshab Chandra Choudhury
Cases ReferredAmba v. Shrinivasa Kamathi
Excerpt:
- .....there a breach of a contract in writing registered? in other words, was the document, the mortgage deed, registered? now, the provisions with regard to registration of documents of this kind are contained in three sections of the registration act. the first of the sections is section 17(1)(b) which provides: (i cite the relevant parts only)the following documents shall to registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which act no. 16 of 1864 or the registration act, 1866 or the registration act, 1871 or the registration act, 1877 or this act came or comes into force, namely other nontestamentary instruments which purport to operate, to create, declare, assign, whether in present or in future, any.....
Judgment:

D.N. Mitter, J.

1. This is an appeal by the plaintiff under Section 15, Letters Patent, against the decision of Manmatha Nath Mukerji, J., by which his suit for recovery of a certain sum of money on a personal covenant contained in a deed purporting to be a mortgage deed has been dismissed. It is not necessary to state the facts as they have been stated with sufficient fulness in the judgment of Mukerji, J. The question of law which falls for determination in this Letters Patent appeal is one which concerns limitation. It appears that the suit which was instituted by the plaintiff was one in which he sought for a decree for sale upon a mortgage bond. The mortgage bond is dated 2nd Pous 1327 B.S. corresponding to December 1920. It contained a personal covenant to pay the consideration money on the mortgage. It has been found by the Court of first instance which finding has not been displaced by Mukerji, J.-that the registration of the mortgage deed was obtained by fraud seeing that it was represented to the registering officer who registered the deed in question that there were certain properties within the jurisdiction of the said registering officer in order to give the officer jurisdiction to register. It has been found that property was a fictitious property and had no existence in fact. The registration was obtained, therefore, by practising fraud on the law of registration. The deed, therefore, as a mortgage deed was invalid.

2. There is no dispute with regard to the principle which should guide the Courts in cases of such description where the registration of a particular deed was obtained by representation that a certain property was within the jurisdiction of the registering officer in order to entitle him or to give him jurisdiction to register the said deed. The question was considered by their Lordships of the Judicial Committee in a case which went on appeal from this Court, namely, the case in Harendra Lal Roy v. Hari Dasi Debi AIR 1914 P C 67. In that case it appeared that a property had been wrongly included in the mortgage and there was no evidence that such inclusion was made through mistake. In such circumstances their Lordships of the Judicial Committee made certain observations which are pertinent to the controversy now before us. Their Lordships said:

Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists is a fraud on the registration law, and no registration obtained by means thereof is valid.

3. It has been contended before us on behalf of the appellants that these observations of their Lordships must refer to the question of the validity of the deed as a mortgage and that their Lordships did not intend to lay down that the document would not be treated as valid for the other purpose, namely, so far as the personal covenant to pay was concerned in other words, it is said on behalf of the appellants that it is not invalid for all purposes. This argument was advanced on behalf of the appellants before Mukerji, J. and, in my view, was rightly negatived. In a subsequent case it appears that in somewhat similar circumstances their Lordships of the Judicial Committee used language which would go to support the view that the document was to be treated as an unregistered document for all purposes where registration was obtained by perpetrating fraud on the registration law. I am referring to a later decision of the Judicial Committee in Dottie Karan v. Lachmi Prasad Sinha where the registration was obtained by contravention of the express provisions of the Registration Act. Sir Lancelot Sanderson in delivering the judgment of the Judicial Committee said this at p. 67:

Their Lordships are of opinion that the mortgage bond in suit was not registered in accordance with the provisions of the Indian Registration Act; accordingly it was not a registered instrument and no mortgage was effected thereby.

4. The real difficulty has been created by a decision of their Lordships of the Judicial Committee in Bishwanath Prasad v. Chandra Narayan Choudhuri AIR 1921 P C 8. That was a case also where, as in the case of Harendra Lal Roy Choudhury v. Hari Dasi Debi Harendra Lal Roy v. Hari Dasi Debi AIR1914 P C 67 the registration was obtained by fraud. In that case Viscount Finlay referred with approval to the observations of Lord Moulton in the case of Harendra Lal Roy Choudhury Harendra Lal Roy v. Hari Dasi Debi AIR1914 P C 67 to the following effect:

Their Lordships hold that this parcel is in fact a fictitious entry and represents no property that the mortgagor possessed or intended to mortgage or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists is a fraud on the registration law and no registration obtained by means thereof is valid.

5. After quoting from Lord Moulton, Viscount Finlay proceeded to observe as follows:

In the Harendra's case Harendra Lal Roy v. Hari Dasi Debi AIR1914 P C 67 just mentioned the property was non-existent. In the present case, though the Kolhua Mouza existed the mortgagor had no interest in it and the parties to the mortgage never intended that it should form part of the security. The two cases stand on the same basis for the purposes of the Registration Act;

and after observing this Viscount Finlay proceeded to make the following remarks with regard to the alternative claim for a personal judgment (and upon these remarks a contention has been raised that the Privy Council, although in this case, they treated the document as not operating as a mortgage by reason of fraud on the Registration law, treated it as a registered document for the purpose of the personal covenant to pay). Viscount Finlay said:

As regards the alternative claim for a personal judgment for the mortgage debt it is to be observed that no such claim was made in the Courts in India. There is nothing in the evidence or in the judgments which would enable their Lordships to Seal with such a claim. At the same time their Lordships think it desirable in this case that the plaintiffs should have an opportunity of bringing this matter before the High Court. If any such application is made, it will be for the High Court to consider whether any such claim is open upon the present pleadings and, if not, whether any amendment raising it should be made; and further, whether under all the circumstances the claim should be entertained at this stage of the proceedings.

6. There is nothing in this judgment as reported in the Indian Appeals from which the contention of the appellants would receive support, namely, that their Lordships when making these observations treated the claim on personal judgment for the mortgage debt as being based on a registered instrument. These observations are quite consistent with the claim being made on an unregistered document; but our attention has been drawn to certain arguments which have been reported with reference to this very case in the 25th Volume of C.W.N. [p. 985] Bishwanath Prasad v. Chandra Narayan Choudhuri AIR 1921 P C 8 from which it is sought to be contended that there was no point in their Lordships' sending back the case to the Court in India if the three years' rule of limitation applied, for in the face of the argument and the remarks of some of their Lordships it would appear that the suit was filed more than three years and less than six years from the last date of payment on the bond.

7. That contention no doubt has found favour in the Madras Court and our attention was drawn to a decision of the Madras Court in Dronamraju Rama Rao v. Kesaprogada Vedayya AIR 1923 Mad 447 where after considering the report in the Calcutta Weekly Notes, Phillips and Devadoss, JJ. both came to the conclusion that the judgment of the Privy Council in the case in Bishwanath Prasad v. Chandra Narayan Choudhuri AIR 1921 P C 8 sending the case back for a trial with reference to the personal covenant would only be justified if their Lordships thought that the document could be regarded as a registered document for purposes of that personal covenant. Reliance has also been placed on a decision of this Court in Joginee Mohun Chatterji v. Bhut Nath Ghosal (1902) 29 Cal 654 at p. 663, where Ameer Ali, J., as he then was, in circumstances which were not quite similar to the present but where the registering officer had no jurisdiction given to him under Section 28, Registration Act, to register the document, held that the suit could be brought on a personal covenant more than three years after the date of the execution. It is difficult for us to accede to this contention or to agree with the Madras decision seeing that the language used by their Lordships of the Judicial Committee both in Harendra Lal Roy Choudhury's case Harendra Lal Roy v. Hari Dasi Debi AIR1914 P C 67 as well as in the later case is that registration is altogether invalid. In a case to which our attention has been drawn which is reported in Amba v. Shrinivasa Kamathi AIR 1922 P C 135, the Privy Council proceeded to use language which suggests that registration under such circumstances would make the deed a nullity. That is the case of Amba v. Srinivasa Kamathi AIR 1922 P C 135. In that case Lord Atkinson in delivering the judgment of the Board said this with reference to the contravention of some of the provisions of the Registration Act which affected the deed in question before their Lordships:

He was not an executant of the said deeds or either of them; neither was within the meaning of Section 34 of that Act the representative, assign or agent duly authorized on behalf of Krishna Kamathi deceased, the only executant. The presentation by him of the two deeds for registration was in direct conflict with the express provisions of this Section 34. The deeds were consequently never legally registered. The registration of them which was procured was illegal, invalid and a nullity; and if that be so, as in their Lordships' opinion it must be held to be, it is not disputed that the deeds would be void and unenforceable, and this apart altogether from the question whether they have not been impliedly revoked by the agreement dated 9th June 1908, entered into between Krishna Kamathi and the respondent and duly registered by the former on 12th June 1908.

8. According to this decision, whenever, there is a contravention of the provisions of the Registration Act, more particularly in a case where the whole transaction is vitiated by fraud, the deed would be treated as a nullity for purposes of registration. The question which, therefore, arises is that the plaintiff who has got merely a right to sue on a personal covenant as on an unregistered bond should have brought his suit within the period of limitation provided for by the statute. Treating it as an unregistered bond the proper Article applicable is Article 66 of the Schedule to the Limitation Act, which allows only three years from the due date in a suit on a single bond, i.e., on a bond to which no condition is attached as in the present case and where a date is specified. It is conceded by Mr. Bose, who appears for the appellants, that if that Article is held to be the proper Article applicable, the suit is undoubtedly barred by the Statute of Limitation. I am in complete agreement with Mukerji, J. when he says that the effect of fraud on the registration law affects the deed as a whole and it cannot be said that the deed s to be treated as an unregistered document for one purpose and a registered document for another. In this I am of opinion that Mukerji, J. has taken the correct view with regard to the question of limitation.

9. At one time in the course of the argument it struck me that even if the document were treated as a registered document for purposes of personal covenant whether the suit would not be barred by the three years' rule having regard to the decision of their Lordships of the Privy Council in Ganesh Lal v. Khetra Mohan Mahapatra AIR 1926 P C 56 where with regard to a personal covenant contained in a mortgage deed the Privy Council came to the conclusion that it was the three years' rule that was applicable and that Article 66 applied. It is true that decision is contrary to the previous decisions in the Indian Courts which applied the six years' rule and there are later decisions both of Bombay and of this Court which seem to explain away the decision of the Judicial Committee and seem to suggest that notwithstanding that decision the six years' rule as laid down by Article 116, Limitation Act, still applies. Speaking for myself it would, be difficult to accept that view in the face of the clear language used by their Lordships in Ganesh Lal v. Khetra Mohan Mahapatra AIR 1926 P C 56. But it is not necessary to express any final opinion on that question having, regard to the observations which I have made on the other question. The cases which suggest that notwithstanding Ganesh Lal v. Khetra Mohan Mahapatra AIR 1926 P C 56 the law with regard to the period of limitation regarding the claim in a personal covenant or for a personal decree is six years are the following: Vasanji Kallianji v. Eruchshaw Dossabhai AIR 1935 Bom 203, Umapada Trivedi v. Haripada Saha : AIR1931Cal801 and Dharanidhar Ghose v. Indra Narayan Sinha : AIR1933Cal268 . It would be for their Lordships of the Judicial Committee to say when occasion arises whether the view taken by the Indian Courts after the decision in Ganesh Lal v. Khetra Mohan Mahapatra AIR 1926 P C 56 is correct. Having regard to all these considerations I agree with Mukerji, J. and would dismiss this appeal with costs.

Derbyshire, C.J.

10. I agree. I have come to the same conclusion upon somewhat different lines. The appellant lent money to the respondents and the respondents executed a mortgage in favour of the appellant in 1920. Thereafter certain instalments of interest were paid ending, on 19th October 1927. This suit was brought in April, 1933.

11. The mortgage purported to include land in a certain district and in that district has respondents, at the instance of the appellant fraudulently-so the Judge in the Court of first instance has found-included a piece of land which was in the district in which the mortgage deed was registered. The appellant has asked for a decree for sale under the mortgage deed and also, in the alternative, for repayment of the money advanced with interest as upon the personal covenant contained in the mortgage deed to repay the money. The respondents have contended in the Courts below, and have been upheld in that contention by various Judges that the registration was null and void. If there was no registration, then the appellant who claims to bring himself within Article 116, Sch. 1, Lim. Act, is out of time. Was the document under which the appellant claims his rights, registered so as to bring him within Section 116? I am not certain that the appellant's claim for money due on the personal covenant is a claim for compensation for the breach of a contract within Article 116, but the purpose of this case I will assume that it is. The real question is, was there a breach of a contract in writing registered? in other words, was the document, the mortgage deed, registered? Now, the provisions with regard to registration of documents of this kind are contained in three sections of the Registration Act. The first of the sections is Section 17(1)(b) which provides: (I cite the relevant parts only)

The following documents shall to registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which Act No. 16 of 1864 or the Registration Act, 1866 or the Registration Act, 1871 or the Registration Act, 1877 or this Act came or comes into force, namely other nontestamentary instruments which purport to operate, to create, declare, assign, whether in present or in future, any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property.

12. It is conceded by the appellant that the mortgage in question comes within Section 17(1)(b). Section 28 of the same Act is another of the relevant sections and that states:

Save as in this part otherwise provided, every document mentioned in Section 17, Sub-section (1), Clauses (a), (b), (c) and (d) and Section 18, Clauses (a), (b) and (c), shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

13. Section 29(1) provides:

Every document other than a document referred to in Section 28, and a copy of a decree or order may be presented for registration either in the office of the Sub-Registrar in whose sub-district the document was executed, or in the office of any other Sub-Registrar under the Local Government at which all the persons executing and claiming under the document desire the same to be registered.

14. It is quite clear that the document in question purports to create a right, title or interest of the value of one hundred rupees or upwards to or in immovable property; it is a mortgage of immovable property; and it falls to be registered, according to Section 28, in the office of a Sub. Registrar within whose district the whole or some portion of the property to which such document relates is situate. In fact there is no property to which the document relates which is situate within the sub-district of the office in question. Therefore the condition precedent for registration in that office is absent and, to use the words which their Lordships of the Privy Council used in Amba v. Shrinivasa Kamathi AIR 1922 P C 135 at p. 374,

the deeds were consequently never legally registered. The registration of them which was procured was illegal, invalid and a nullity.

15. But, says the appellant, that only refers to the mortgage-the charge on the property; the personal covenant remains and the personal covenant can be the subject of registration under Section 29. He says that the document which contains the personal covenant can be registered under Section 29,

in the office of Sub-Registrar in whose sub-district the document was executed, or in the office of any other Sub-Registrar under the Local Government at which all the persons claiming under the document desire the same to be registered.

16. He says that those conditions were satisfied here-the person executing and claiming under the document did desire it to be registered in this particular office. But the appellant seems to have overlooked the opening words of Section 29(1) which says 'every document other than a document referred to in the Section 28'. Section 28 refers to the documents mentioned for purposes of this case in Section 17(1)(b). If the appellant wishes to show that the registration of this particular document was good he must show that it was a document other than the one in Section 17(1)(b), in other words, a document other than a non-testamentary instrument which purports to create any right, title or interest of the value of one hundred rupees or upwards or in immovable property. But this particular document does purport, perhaps wrongly, but certainly it purports, to create a right of that kind, namely a mortgage over non-existent immovable property situate in the area of the office. It seems to me therefore that the document can be registered either under Section 28 as prescribed by Section 17(1)(b) or else not at all. It has been registered under Section 28 but the registration is invalid because no portion of the property to which the document relates is situate in that district. The only registration possible, in my view, of this document was the registration which was attempted and which in fact turned out to be invalid. For these reasons I am of the opinion that there is no contract in writing registered in this case within the meaning of Article 116, Sch. 1, Lim Act, and therefore, the appellant is not allowed a period of six years from the date of the last payment of interest, namely October 1927, in which to bring his suit. In my view he is bound to bring suit within three years of October 1927, under Article 66 or Article 57, Sch. 1, Lim. Act. For the reasons I have given, as well as those that have been given by Mitter, J., I agree that this appeal should be dismissed with costs.


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