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Broja Gopal Mukherjee Vs. Abinash Chandra Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.127
AppellantBroja Gopal Mukherjee
RespondentAbinash Chandra Biswas and ors.
Cases ReferredHariram v. Sheo Dial Ram
Excerpt:
registration - mortgage bond--inclusion of property to which mortgagor has no title--registration not invalid--registration act (iii of 1877), section 28--mortgage decree--interest after decree--discretion of court--interference by appellate court. - .....of the lower court as 'bogus property' seems to us to be misleading. the lower court apparently held that a property corresponding to the description of that given in the deed of the defendant no. 3 was in existence but that the defendant no. 1 had no right to it. it cannot, therefore, be said in this case that there was no such property within the jurisdiction of the sub-registrar of lakhisarai. all that can be said is that there was such a property but that the defendant no. 1 had no title thereto. we are of opinion that, in a case like the present, where apparently an item of property is included in the bond but there is a dispute as to the title to it of the executant of the bond and it has been found that he has no title, that circumstance is not sufficient to justify a court in.....
Judgment:

1. The facts of the case but of which this appeal arises are not disputed. The only questions which have been raised in support of the appeal are two questions of law. The first point taken on behalf of the appellant is that the lower Court erred in law in holding that the document on which the defendant No. 3 relied was a legally registered document, and the second point taken is that the lower Court erred in allowing interest to ran only at six per cent, per annum after the expiry of six months from the date of the decree instead of at the rate fixed in the plaintiff's bond.

2. The learned pleader on behalf of the plaintiff appellant has contended that the lower Court has come to a wrong interpretation of the effect of the decision of this Court in the case of Baij Nath Tewari v. Sheo Sahoy Bhagut 18 C. 556. He has argued that, as in that case the Full Bench held that, where the description of the property was misleading and insufficient for the purposes of identification, no registration of the document had been effected within the provisions of the Registration Act, so the lower Court ought to have held in this case that there was no registration because the property described as situated in Barheya in the mortgage deed executed by the defendant No. 1 in favour of the defendant No. 3 was property which did not belong to the defendant No. 1 and, therefore, must be treated as no property at all. We have considered this argument with some care and we are of opinion that it cannot be accepted, so far as the facts of the present case are concerned. The description of the property given in the judgment of the lower Court as 'bogus property' seems to us to be misleading. The lower Court apparently held that a property corresponding to the description of that given in the deed of the defendant No. 3 was in existence but that the defendant No. 1 had no right to it. It cannot, therefore, be said in this case that there was no such property within the jurisdiction of the Sub-Registrar of Lakhisarai. All that can be said is that there was such a property but that the defendant No. 1 had no title thereto. We are of opinion that, in a case like the present, where apparently an item of property is included in the bond but there is a dispute as to the title to it of the executant of the bond and it has been found that he has no title, that circumstance is not sufficient to justify a Court in holding that, in fact, there is no such property covered by the deed situated within the jurisdiction of the Sub-Registrar as would give that officer power under the law to register the bond. In the case of Hariram v. Sheo Dial Ram 16 I.A. 12 : 11 A. 136, their Lordships of the Privy Council held that, I where a portion of the property covered by a deed is situated within the jurisdiction of the Registration Office, even though that portion may be a very small portion of the property covered by the deed, that is sufficient to give the Sub-Registrar jurisdiction. In this case, it has neither been suggested nor proved that there was any fraud practised on the part of the defendant No. 3 or that there was any fraud practised on the part of the defendant No. 1 in collusion with the defendant No. 3 with the object of depriving plaintiff of his rights. The whole facts of the case as they appear from the papers before us and the circumstances which have been represented to us are, in our opinion, distinctly opposed to any suggestion that there was any fraud on the part of the defendant No. 3. We are of opinion, therefore, that the first point taken in support of the appeal fails and that the conclusion of the lower Court on that point is correct and should be maintained. We may here observe that we have been informed that, since the decision of this case in the lower Court, the defendant No. 3 has taken the steps suggested in the judgment of that Court to remedy any possible defect that there may have been in the registration by having the deed registered over again at Monghyr. This has cleared up any possible defect in his title and has removed any obstacle, which if our finding on the first point had been different, might have stood in his way to prevent him from being allowed to pay off the mortgage debt.

3. We are also of opinion that there is no substance in the second point taken in support of the appeal. The allowance of interest after the date of the decree is a matter as to which the Court has to exercise its discretion, and, where, as in the present case the Court has exercised that discretion and has directed that interest at six percent. per annum should run from the expiry of the period allowed in the judgment for the payment of the mortgage debt, we consider that it would not be right for this Court in appeal to interfere with that order without good and sufficient reasons. The only reason suggested before us is that interest ought to have been allowed at the rate fixed in the bond. We are, however, unable to hold that, under the law, the lower Court was bound to allow interest at that rate. The second point, therefore, also fails. The result, therefore, is that the appeal is dismissed with costs.

4. The hearing fee will be determined according to the value of appeal as decided by this Court when the question of valuation came before it at a previous hearing.


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