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Kshetra Mohan Pal Choudhury Vs. Tufani Talukdar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal474
AppellantKshetra Mohan Pal Choudhury
RespondentTufani Talukdar and ors.
Excerpt:
- .....to the plaintiff to recover the mortgage money, was dated the 4th falgoon 1332, b.s. by which a list of bonds which were allotted to the share of the plaintiff and which the plaintiff received from the arbitrator was prepared. the plaintiff's claim in suit, specially his title to recover the mortgage money, was denied by defendant 6, and it was this defendant who contested the plaintiff's claim in suit. it was pleaded by him that there was no valid or competent partition between the brothers; that the dues under the mortgage bond in suit was not allotted to the plaintiff's share.2. the issue raised at the instance of the contesting defendant 6 in this behalf, was whether the plaintiff could maintain the suit as framed. on this question the trial court, as also the court of appeal.....
Judgment:

Guha, J.

1. This appeal is directed against the decision of the Subordinate Judge, Second Court, Dacca, dated 8th June 1928, holding that the plaintiff-appellant in this Court could not maintain a suit for enforcement of a mortgage. The mortgage bond on which the plaintiff's claim in suit was based, was executed by defendant 2 and his father in favour of defendant 6. The plaintiff's case was that the loan was advanced out of joint family funds of the plaintiff and his brothers, defendants 6 and 7; that the bond was allotted to the share of the plaintiff by virtue of an award made by an arbitrator. The document conferring a title to the plaintiff to recover the mortgage money, was dated the 4th Falgoon 1332, B.S. by which a list of bonds which were allotted to the share of the plaintiff and which the plaintiff received from the arbitrator was prepared. The plaintiff's claim in suit, specially his title to recover the mortgage money, was denied by defendant 6, and it was this defendant who contested the plaintiff's claim in suit. It was pleaded by him that there was no valid or competent partition between the brothers; that the dues under the mortgage bond in suit was not allotted to the plaintiff's share.

2. The issue raised at the instance of the contesting defendant 6 in this behalf, was whether the plaintiff could maintain the suit as framed. On this question the trial Court, as also the Court of appeal below have agreed in holding that the suit was not maintainable. According to the Courts below, the document dated the 4th Falgoon, 1332, B.S. to which reference has been made above was an instrument of partition, and it not being a registered one, no evidence could be allowed to be given by the plaintiff in proof of the partition by virtue of which the mortgage bond in suit was allotted to the plaintiff's share. The plaintiff has appealed to this Court. We have carefully gone through the contents of the document upon which the plaintiffs title to recover the mortgage money is based, and we are not able to take the view that has been taken by the Courts below in regard to the same. The document is no doubt signed by the parties to whose shares the different-bonds mentioned in the list contained in the document are allotted; but we are unable to hold that it was an instrument of partition, of which registration was compulsory, under the law. The document containing a list is a memorandum; a mere partition list containing a list of properties, does not require registration. Whether such a document is or is not a deed of partition must be decided on perusal of the document itself. It is, in my judgment, impossible to extend the provisions of the Registration Act to the document under consideration in the case before us; and we hold that want of registration of the same did not invalidate the plaintiff's title to the mortgage bond in suit. According to the purport and meaning of the document, the suit as instituted by the plaintiff was maintainable at his instance. The mortgage which was sought to be enforced having been allotted to his share, according to the award of the arbitrator, and to which award defendant 6 in whose favour the mortgage bond was executed, had expressly signified his assent, by his signing the list contained in the document.

3. In the above view of the case before us, the decision and decree of the Courts below dismissing the plaintiff's suit must be set aside, and the case remitted to the trial Court for determination of the other questions, if any, arising for consideration in the suit. If the mortgagor defendants have no defence in the suit, the plaintiff would be entitled to a decree as prayed by him in the suit. In the result, the appeal is allowed and the case remanded. We make no order as to costs in this appeal and the costs in the Courts below. Parties are to bear their own costs in the litigation up to the present stage.

M.C. Ghose, J.

4. I agree.


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