1. This is a suit to realize mortgage securities. There are altogether five mortgages and two further charges involved in the suit. The mortgagor was one Haridas Biswas, who was originally defendant 1. He died on 5th January, 1932. On his death his infant sons were brought on the record and are now the first three defendants. The mortgage in favour of the plaintiff is dated 20th March 1927. All the other mortgages and further charges are subsequent in date to the mortgage of the plaintiff. Defendants 4 to 8 are the subsequent mortgagees. The mortgages have all been duly proved and in the normal course a mortgage decree in the usual form would follow.
2. A question of priority has however been raised by the defendant Durgacharan Mitra. This has led to some further evidence being given and considerable argument being advanced, in the course of which various cases have been cited. The mortgage in favour of the defendant Durgacharan Mitra was executed on (SI) th June 1927, and registered on the following day. There was a further charge in favour of the defendant Durgacharan Mitra on 6th August 1927, which was registered on 8th August 1927. The defendant Durgacharan Mitra has claimed that, though his mortgage and further charge are subsequent to the plaintiff's mortgage and the mortgage in favour of the defendant Kunjalal Datta, which was executed on 21st May 1927, Durgacharan Mitra should have priority over the mortgages of the plaintiff and the defendant Kunjalal Datta. The way this claim has been formulated is to be found in paras. 3 and 4 of Durgacharan Mitra's written statement. Though there was a suggestion of fraud made in para. 3 of the written statement, learned Counsel appealing on behalf of the defendant Durgachaian Mitra stated that he did not rely on any case of fraud. In para. 3 it has been alleged that, through the 'gross neglect' of the plaintiff and the defendant Kunjalal Datta in not getting their respective mortgages registered until after the mortgage and further charge in favour of the defendant, Durgacharan Mitra, he was prevented from having any notice or knowledge of the prior mortgages and was induced bona fide to advance money to the mortgagor Haridas Biswas on the security of the mortgage and further charge. In para. 4, the claim has been put forward that the plaintiff and the defendant Kunjalal Datta are estopped from claiming priority in respect of their mortgages. In support of his case, the defendant Durgacharan Mitra has relied on the evidence of his solicitor, Babu Rajkumar Basu. The defendant Kunjalal Datta gave evidence on his own behalf. The plaintiff has not called any evidence.
3. Now, it is clear that the ease of 'gross-neglect' made by the defendant Durgacharan Mitra is based simply on the fact that the mortgages in favour of the plaintiff and the defendant Kunjalal Datta had not been registered prior to the mortgage and further charge in his favour. The mortgage in favour of the plaintiff was presented for registration on 22nd June 1927, and was registered on 12th August 1927. The mortgage in favour of the defendant Kurjalal Datta was resented for registration on 21st September 1927, and was registered on. 20th January 1928. The delay in registration in both cases was undoubtedly due, to a great extent, to the default of the mortgagor, who in both casts had to be compelled to register the documents. Mr. P.C. Ghosh on behalf of the defendant Durgacharan Mitra has argued that there was a duty on the part of the prior mortgagees to register their mortgages within a reasonable time and he submitted that, by neglecting to register their mortgages prior to the date of his client's mortgage and further charge, they had held out that the properties were free from encumbrances, and so induced his client to advance the money. He contended that on general equitable principles and under Section 78, T.P. Act, his client was entitled to priority. The sole question therefore for determination by me as has been admitted by Mr. P.C. Ghosh, is whether the plaintiff and the defendant Kunjalal Datta, by not having their mortgages registered prior to the date of the mortgage and further charge of Mr. P.C. Ghosh's client, could be said to have been guilty of such 'gross neglect' as would entitle the defendant Durgacharan. Mitra to claim that his mortgage should have priority over theirs.
4. In the course of his argument, I asked Mr. P.C. Ghosh if he could tell me as to what would be reasonable time within which a mortgage should be registered or presented for registration. Mr. P.C. Ghosh said that the answer to the question would depend on the facts of each particular case, and he suggested that, in the circumstances of this case, the prior mortgagees should have presented their mortgages for registration within a week from the date of execution. I am not prepared to accept that suggestion. Moreover, I cannot see how the presenting of the mortgages for registration could have improved the position so far as Mr. P.C. Ghosh's client was concerned. If a mortgagor has to be compelled to register the mortgages, as happened in the case of the mortgages in favour of the plaintiff and Kunjalal Datta, considerable time might elapse between the date of the presentation and the date of the actual registration of the deeds; and until the actual registration the subsequent mortgagee would not have known of the prior mortgages. On the facts of this case I am unable to hold that there has been any such 'gross neglect' on the part of the plaintiff and the defendant Kunjalal Datta as would entitle the defendant Durgacharan Mitra to claim priority over them. For the meaning of 'gross neglect' within Section 78, T.P. Act, I adopt the observations of Page, J., in the ease of Lloyds Bank, Ltd. v. P.E. Guzdar & Co. : AIR1930Cal22 . Each case however must turn upon its own facts.
5. Here the only suggestion of gross neglect' is that there was unreasonable delay in registration. In my judgment, there has been no unreasonable delay. The mortgage in favour of Durgacharan Mitra was executed about 16 days after the mortgage in favour of the defendant Kunjalal Datta and a little over two and half months after the mortgage in favour of the plaintiff. The defendant Kunjalal Datta has given an explanation as to why his mortgage could not be registered earlier and, though the plaintiff gave no evidence, on the materials before me, I do not think I would be wrong in holding that whatever delay there has been in the presenting of the mortgages for registration and in their actual registration was due largely to the default of the mortgagor. I am not prepared to hold that the mere fact that the prior mortgagees in this case had not registered their mortgages prior to the date of the mortgage and further charge in favour of the defendant Durgacharan Mitra is sufficient by itself to postpone their mortgages. In my view, when a mortgage is registered within the period of four months allowed by Section 23, Registration Act, it is prima facie registered within a reasonable time. Whore a prior mortgagee has done nothing towards inducing a subsequent mortgagee to advance money, but has simply availed himself of the time given to him by the law for registering his mortgage, he cannot be said to be guilty of 'gross neglect' within the meaning of Section 78, T.P. Act. Section 47, Registration Act, lays down that a registered document shall operate from the time from which, it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration and, in my view, where a mortgage is prior in date and has been validly registered within the time allowed by the law, it cannot be postponed to a subsequent mortgage merely because the prior mortgagee had omitted to get his mortgage registered until after the execution of a subsequent mortgage.
There is no special hardship on the subsequent encumbrancer, because, as in this country documents do not take effect from the date of registration, every person who acquires property takes it subject to the risk that there may be a prior title created within the preceding four months or in some instances even eight months. Sections 23 and 24, Registration Act: see Jadunandan Prosad Singh v. Kallyao Singh (1911) 13 IC 653.
6. In my judgment the defendant Durgacharan Mitra has failed to make out his case and cannot therefore claim any priority. There will be the usual mortgage decree. The costs will be as usual in a mortgage suit like the present one, except that the defendant Durgacharan Mitra must pay the costs of the second day's hearing of the suit to the plaintiff and the defendant Kunjilal Datta. The guardian-ad-litem's costs will be paid in the first instance by the plaintiff and will be added to the plaintiff's claim.