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Kedarnath Das Vs. Jyanta Kumar Shome and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.583
AppellantKedarnath Das
RespondentJyanta Kumar Shome and ors.
Cases ReferredJogeshwar Narain Singh v. Rai Radha Rawan
Excerpt:
mortgage - inclusion of non-existent property to enable registration in particular office--mortgage, validity of--transfer of property act (iv of 1882), section 59. - .....hathazari in the district of chittagong and the other was situated in the town of chittagong. the document was registered on the 12th may 1904 by babu monmohan ghua, special sub-registrar at chittagong. it has now been proved that the property which was stated to be situated in the town of chittagong never belonged to the mortgagor, even if it be assumed that it had any real existence. consequently the case falls within the principle recognised by the judicial commitee in harendra lal roy chowdhuri v. srimati hari dasi debi 23 ind. cas. 637 : 41 c. 972 : 41 i.a. 110 : 27 m.l.j. 80 : 16 m.l.t. 6 : (1914) m.w.n. 462 : 1 l.w. 1050 : 18 c.w.n. 817 : 16 bom. l.r. 400 : 19 c.l.j. 484 : 12 a.l.j. 774 (p.c.) and mathura prasad v. chandra narayan 60 ind. cas. 833 : 48 : i.a. 127 : 25 c.w.n. 985.....
Judgment:

1. This is an appeal by the plaintiff in a suit to enforce a mortgage. The defendant resisted the claim on the ground that as the document had not been registered in accordance with the provisions of the Indian Registration Act, there was no enforceable mortgage security. The Court of the first instance upheld this contention and dismissed the suit. Upon appeal the Subordinate Judge has affirmed the decision of the primary Court.

2. It appears that two properties were included in the mortgage bond: one of these was situated in Hathazari in the District of Chittagong and the other was situated in the town of Chittagong. The document was registered on the 12th May 1904 by Babu Monmohan Ghua, Special Sub-Registrar at Chittagong. It has now been proved that the property which was stated to be situated in the town of Chittagong never belonged to the mortgagor, even if it be assumed that it had any real existence. Consequently the case falls within the principle recognised by the Judicial Commitee in Harendra Lal Roy Chowdhuri v. Srimati Hari Dasi Debi 23 Ind. Cas. 637 : 41 C. 972 : 41 I.A. 110 : 27 M.L.J. 80 : 16 M.L.T. 6 : (1914) M.W.N. 462 : 1 L.W. 1050 : 18 C.W.N. 817 : 16 Bom. L.R. 400 : 19 C.L.J. 484 : 12 A.L.J. 774 (P.C.) and Mathura Prasad v. Chandra Narayan 60 Ind. Cas. 833 : 48 : I.A. 127 : 25 C.W.N. 985 : 40 M.L.J. 489 : 19 A.L.J. 385 : 33 C.L.J. 440 : 23 Bom. L.R. 629 : (1921) M.W.N. 370 : 14 L.W. 1 : 29 M.L.T. 413 : 2 P.L.T. 397 (P.C.). These cases affirm the principle that if a property has been introduced in a mortgage bond, which has either no existence or does not belong to the mortgagor, with a view to secure registration of the document in a particular office, the registration must be deemed to be futile, with me result that there is no enforceable security under Section 59 of the Transfer of Property Act. It has been contended, however, that even if the property which is alleged to have been situated in the town of Chittagong be excluded from the document there is still an operative mortgage, inasmuch as the Sub-Registrar, who registered the document, had authority to register documents in respect of lands situated anywhere in the District of Chittagong. Reference has been made on behalf of the appellant to Section 7 of the Indian Registration Act to show that when as in this case the office of the Sub-Registrar, has been amalgamated with that of the Registrar, he must be deemed to have authority to register a document precisely in the same manner as the Registrar himself could have done. But this contention is manifestly not supported by Sub-section 4 of Section 7 which indicates that when the office of the Sub-Registrar has been amalgamated, with that of the Registrar, the Sub-Registrar may be authorised to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar to whom he is subordinate. It was consequently incumbent upon the plaintiff to adduce evidence to show that this Sub-Registrar had authority to register documents dealing with lands situated in any part of the District of Chittagong. No such direct evidence has been produced. But our attention has been invited to another document which was registered in 1901 by this Sub-Registrar in respect of land situated in Hathazari. We may consequently, assume for the purpose of this appeal, that the Sub-Registrar had in fact authority to register this document that, however, does not necessarily justify the inference that the document was validly registered. The fact remains that the Sub-Registrar was never given the opportunity to exercise the discretion which it would be incumbent upon him to exercise under Section 30 of the Indian Registration Act, if he were called upon to register a document in respect of land not situated in the town of Chittagong. We cannot accordingly hold that the document should be deemed to have been registered in exercise of the authority vested in the Sub-Registrar under Section 30 read with Section 7. This view is supported by the judgment of Piggot and Ghose, JJ., in Baij Nath Tewari v. Sheo Sahoy nagut 18 C. 556 : 9 Ind. Dec. (N.S.) 372 though a contrary view appears to have been adopted by Petheram, C.J. The decision in Jogeshwar Narain Singh v. Rai Radha Rawan 3 C.L.J. 165 does not assist the contention of the appellant. In tit case, a Sub-Registrar was empowered under Section 30 to discharge the duties of the District Registrar, and in exercise of the powers so conferred on him, he registered the bond which could have been registered by the Registrar at his direction, under Section 30. In such circumstances, the bond was held to have been (sic) registered in accordance with the provisions of the Statute. We agree with the subordinate Judge that the document in the present case was not properly registered that there is no mortgage which can be enforced.

3. The decree of the Subordinate Judge is affirmed and this appeal dismiss with costs.


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