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Joginee Mohun Chatterjee Vs. Bhoot Nath Ghosal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal654
AppellantJoginee Mohun Chatterjee
RespondentBhoot Nath Ghosal
Cases ReferredBeni Madhab Mitter v. Khatir Mondul
Excerpt:
registration - mortgage- registration act (iii of 1877), sections 17, 18, 28, 49--registration of documents--jurisdiction to register documents--effect of registration by an officer not having jurisdiction--mortgage security, ineffectuality of, by reason of defective registration--money-decree--limitation. - .....amount claimed to be due under the bond.3. the bond which is dated the 10th of october 1896 is a registered document and purports to hypothecate two pieces of property as security for the debt.4. the defendant, a bengali youth, who gives his age as 22 or 23, denies having received full consideration upon the bond, and he practically states that he was induced by people, who were more or less in league with nobin chander gangooly, to enter into this transaction.5. he has also given his evidence, and in his deposition he asserts that at the time of the execution of the document, he understood it only to be a money-bond and not a mortgage deed; with that i will deal presently.6. upon the evidence of the witnesses, who have been examined on the part of the plaintiff, i have no doubt that.....
Judgment:

Ameer Ali, J.

1. The circumstances which have given rise to this suit are shortly as follows. One Nobin Chander Gangooly, who was at one time a member of the Subordinate Judicial Service, and after his retirement from office as Subordinate Judge, had taken to the more profitable business of a money-lender, advanced to the defendant Rs. 1,000 upon the bond which forms the basis of the present action.

2. Mr. J. N. Chatterjee is now acting as Receiver to the estate of Nobin Chander Gangooly, and as such Receiver he has brought the present action for the amount claimed to be due under the bond.

3. The bond Which is dated the 10th of October 1896 is a registered document and purports to hypothecate two pieces of property as security for the debt.

4. The defendant, a Bengali youth, who gives his age as 22 or 23, denies having received full consideration upon the bond, and he practically states that he was induced by people, who were more or less in league with Nobin Chander Gangooly, to enter into this transaction.

5. He has also given his evidence, and in his deposition he asserts that at the time of the execution of the document, he understood it only to be a money-bond and not a mortgage deed; with that I will deal presently.

6. Upon the evidence of the witnesses, who have been examined on the part of the plaintiff, I have no doubt that Nobin Chander Gangooly did advance Rs. 1,000 to Bhoot Nath Ghosal, the defendant, although a considerable sum out of that amount went into the hands of the vakil and the broker by way of their remuneration.

7. Bhoot Nath Ghosal's allegation is that the vakil Ganendra Chander Mookerjee gave him only Rs. 100 and kept the remainder himself. Ganendra Chander Mookerjee, who, besides being a vakil of this court, is also a professor in the General Assembly's Institution, swears that he received from Khetter Nath Banerjee, who represented Nobin Chander Gangooly, the Rs. 1,000, and at the Registration office at Sealdah gave to the plaintiff Rs. 900; that is, Rs. 1,000 less Rs. 100, his own fee.

8. Mon Mohan Gangooly, the broker, says he received Rs.50 for his remuneration. They both speak as to the cashing of two notes by the defendant that night.

9. The suggestion made on behalf of the defendant that he was taken by the pleader to a chemist's place in Nimtollah Street, is contradicted by those witnesses, and I believe there is no foundation for the suggestion.

10. The defendant upon his own account seems to have led a rather dissipated life and was given to a great deal of extravagance at the instigation of his companions. I believe the evidence of the pleader Ganendra Chander Mookerjee and the two other witnesses called for the plaintiff in preference to that of Bhoot Nath Ghosal with regard to his receipt of Rs. 850 out of the Rs. 1,000 advanced by Nobin Chander Gangooly.

11. Rupees 150 were, according to these men's statements, actually disbursed by him. I must therefore hold him liable for the amount of the debt.

12. The question, however, is-what is the nature of the document upon which the suit has been brought? It purports to be a mortgage deed and hypothecates two pieces of property-one situated within the jurisdiction of the Registrar of Calcutta, and the other within that of the Sub-Registry Office of Sealdah. It is upon the basis of this latter property that the document was registered at the Sealdah Registration Office.

13. The defendant's contention is that there was no such property in Sealdah, and that, as it was registered by the Registrar of Sealdah without any jurisdiction in that behalf, the document cannot take effect as a mortgage deed.

14. Mr. Sinha on behalf of the plaintiff contends that, inasmuch as the document has been registered, the entry by the Registrar upon the deed is conclusive as to the validity of the Registrations This position seems to me to be untenable.

16. Section 17 of the Registration Act III of 1877 declares what documents shall be registered.

17. Clause (b) is to this effect

Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards to or in immoveable property.

18. Section 59 of the Transfer of Property Act provides that

Where the principal money secured is one hundred rupees or upwards a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

19. Section 28 of the Registration Act deals with the place of registration and runs as follows

Save as in this part otherwise provided, every document mentioned in Section 17, 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.

Section 49 declares that

No document required by s. 17 to be registered shall affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property, or conferring such power, unless it has been registered in accordance with the provisions of this Act.

20. In view of these provisions this Court has held that where registration has been effected by a Registrar who had no jurisdiction in that behalf under Section 28 of the Act, the document is not effective for the purpose for which it is created? In the case of Beni Madhab Mitter v. Khatir Mondul ((1887) l. L. R. 14 Calc. 449.), Mr. Justice Mitter held that, although 'under Section 60 the certificate is adducible in evidence to prove that the document was duly registered by the particular officer whose signature it bears, it having been shown that that officer had no jurisdiction to register it, the document was not duly registered within the provisions of the Registration Act.'

21. The learned Judges referred to the case of Earn Coomar Sen v. Khoda Nawaz ((1880) 7 C. L. R. 223.), and after showing that the authority on which that decision purported to be based was not in support of the conclusion therein arrived at, they differed from the decision in question and held as I have mentioned. The same question came up before a Full Bench in the case of Baij Nath-Tewari v. Sheo Sahoy Bhagut (l.L.R. 18 Calc. 556). There the property was described in the bond as bearing a certain towjee number paying certain jumma and as lying within the jurisdiction of a E certain Kotwali, sub-district Bhagalpore. That description was found to be erroneous, the property in reality being situated in the sub district of Bankura, where the document ought to have been registered. Instead of being registered there it was registered by the Sub-Registrar of Bhagalpore, who exercised and performed the powers of the Registrar of Bhagalpore, to whom also the Sub-Registrar of Bankura was subordinate. In that case all the Judges agreed in holding that registration made in contravention of the provisions of the Registration Act would be invalid. Petheram C.J. alone was of opinion that, inasmuch as the document had been registered by the Sub-Registrar of Bhagalpore, who exercised and performed the duties of the Registrar of Bhagalpore and to whom the Sub-Registrar of Bankura was subordinate, the want of jurisdiction in that particular case might be regarded as removed, but the words of Petheram C.J. in dealing with the general question are important. He says at page 565, I. L. R. 18 Calc.-' I would reply to the question referred, that, if the office in which the registration was effected was not an office constituted for the registration of documents relating to property in the area within which the property to which the document in question related is situated, no registration has been effected within the provisions of the Act, Mr. Justice Pigot also said: 'It appears to me that a false description or an incomplete description of the property in respect of matters which from their nature it lies upon the party registering the document to state being especially within his knowledge, must invalidate the registration, if it be such as to render the description of the property insufficient to identify it.'

22. Whatever might have been the view expressed in Sheo Bunker Sahoy v. Hurdey Narain Sahu ((1879)5 C. L. R. 194) and Ram Coomar Sen v. Khoda Newaz ((1880) 7 C.L.R. 223), it is quite clear from the Pull Bench decision in Baij Nath Tewari v. Sheo Sahoy Bhagut ((1891) I. L. B. 18 Calc. 556.) and the decision of Mitter and Beverley JJ. in Beni Madhab Mitter v. Khatir Mondul ((1887) I. X. B. 14 Calc. 449.), that the legal effect which learned counsel for the plaintiff wishes me to attach to the registration endorsement by the Registrar cannot be given, unless the registration was effected in accordance with the law; in other words, by an officer who had jurisdiction to register the document. The decision of this matter depends upon the question of fact, whether there was that property within the area of the Sealdah Registration Office so as to give jurisdiction to the Sub-Registrar of Sealdah.

23. The plaintiff has produced a document which purports to be a conveyance or deed of sale in respect of one cottah and four chittacks of land by one Narain Chander Desmukh to Bhoot Nath Ghosal, the defendant, and this is the property which is included in the bond upon which the suit is brought, and it is upon the basis of this property that it was registered in the Sealdah Sub-Registration Office. There is no other evidence besides this deed of sale which bears date some time in September 1896 to show that there was this property belonging to the defendant in that locality. The defendant has sworn that he has no property No. 251-2, Upper Circular Road, which is the number given in the deed of sale. A clerk from the Municipal Office has been called, who also swears that in the books of the Municipality there is no property bearing No. 251-2 in Upper Circular Road: he also swears that had there been any such property it would have appeared in his books.

24. The defendant has also called a man of the name of Annoda Prasad Ghose, the manager of one Babu Baman Das Mookerjee, who states that he has known No. 251, Upper Circular Road, for the last five or six years, that he can give its boundaries, and that there is no such property as No. 251-2 there. In cross-examination he stated 'my master's dwelling-house is 97; Baranassy Ghose's Street. Narain Chunder Desmookh does not claim any property in Upper Circular Road. He has told me so.'

25. It will be noticed that by the deed of sale Narain Chunder Desmukh purported to sell out of his property only one cottah and four chittacks, thus leaving the remainder in his own possession, and, if the statement of Annoda Prasad Ghose be true, then Narain Chunder Desmukh had no property in Upper Circular Road at all. Therefore, although the deed of sale put in by the plaintiff, which it is said was received by Nobin Chunder Gangooly from the defendant himself, is a piece of evidence regarding the existence of the property, that evidence is in my opinion not conclusive and has been rebutted by the evidence given on the part of the defendant.

26. Over and above that, the signature of Narain Chunder Desmukh on the deed of sale of one cottah and four chittacks is not beyond suspicion.

27. Considering the age of the defendant and the date which the document bears, it does seem strange that he should have been buying this property in 1896.

28. On the whole, therefore, I am not satisfied that there was any such property as No. 251-2 belonging to the defendant within the jurisdiction of the Sub-Registrar of Sealdah so as to give him under Section 28 of the Registration- Act jurisdiction to register the document.

29. If I am right in that conclusion, it follows that the document cannot take effect as a mortgage deed; but, as it is registered, although the suit has been brought more than three years after the date of execution, the claim is not barred as was contended for by the defendant's counsel.

30. I therefore make a decree in favour of the plaintiff on the bond for the entire amount secured by it, Rs. 1,000, with interest at the contract rate.

31. Considering the facts of the case I am justified, in giving interest at the same rate during the pendency of the suit. Interest on decree at 6 per cent.


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