Skip to content


Haranath Deb Nath and ors. Vs. Baishnab Charan Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal178,166Ind.Cas.552
AppellantHaranath Deb Nath and ors.
RespondentBaishnab Charan Das and anr.
Cases ReferredAsanuddin Mondal v. Asmatulla
Excerpt:
- .....defendants themselves, to extinguish the mortgage sought to be enforced by the plaintiffs in the suit. the receipt in the case, taking the same along with the case of the contesting defendant before the court, was a document by means of which the extinction of a right under the mortgage was sought to be established, and as such, its registration was compulsory; and the document could not be received in evidence, as it was unregistered. the receipt in the case before us is one to which the observations contained in the judgment of this court in the case in asanuddin mondal v. asmatulla : air1933cal198 , are applicable, namely, that:there can be no doubt on the statement contained in the receipt that the mortgage exonerated the mortgagor from any liability under the mortgage, and the.....
Judgment:

1. This is an appeal from an order of remand, passed by the learned Additional District Judge, second Court, Sylhet. The plaintiffs-appellants in this Court, instituted a suit for enforcement of a mortgage bond executed by the defendants on 1st December 1930. The contesting defendant in the suit admitted the mortgage, but asserted in his defence that the mortgage had been satisfied by the payments made by the mortgagors. The issue raised in the case relevant for the purpose of the appeal was issue 2: Has the plaintiffs' claim in question been satisfied? The trial Court decided the question raised in that issue against the defendants, after refusing to admit in evidence a receipt mentioned in the written statement filed by defendant 1, and sought to be used in evidence in the case, on the ground that it was an unregistered document, and that its registration was compulsory under the law. The receipt was of the following description:

On receiving Rs. 5,000 in cash in respect of your entire debt and our entire dues, after amicably giving remissions, I release you from your entire debt. Be it mentioned that from today nothing is due to us.

2. The Court of appeal below, on appeal by defendant 1 in the suit, came to a different conclusion so far as the question of the admissibility of the receipt in evidence was concerned. According to the Additional District Judge, unless there was the recital clearly expressed that a mortgage was extinguished, a receipt was admissible in evidence, though not registered. On that view of the matter in controversy, the admissibility of the receipt in evidence, the Judge in the Court below remanded the case to the trial Court for admitting the receipt in question in evidence, and allowing the plaintiffs in the suit opportunity to show that they did not grant or sign the receipt. The plaintiffs appealed from the order of remand.

3. The decision of the question arising for consideration in the appeal depends upon the determination of the position purported to have been created by the receipt which was sought to be used as evidence in the case before us to prove satisfaction and extinction of the mortgage, which the plaintiffs in the suit wanted to enforce, by means of the suit in which this appeal has arisen. The case before the Court, so far as the defendants were concerned, was that the entire mortgage on the footing of which the claim in suit was made, was satisfied; and in evidence thereof, the receipt was produced in Court. Taking the receipt, the operative part of which has been quoted above, as a whole, and regard being had to the purpose for which it was sought to be used as evidence in the case before us, there can be no question that the receipt was for payment of the money due under a mortgage, and it required registration, as it purported, according to the defendants themselves, to extinguish the mortgage sought to be enforced by the plaintiffs in the suit. The receipt in the case, taking the same along with the case of the contesting defendant before the Court, was a document by means of which the extinction of a right under the mortgage was sought to be established, and as such, its registration was compulsory; and the document could not be received in evidence, as it was unregistered. The receipt in the case before us is one to which the observations contained in the judgment of this Court in the case in Asanuddin Mondal v. Asmatulla : AIR1933Cal198 , are applicable, namely, that:

There can be no doubt on the statement contained in the receipt that the mortgage exonerated the mortgagor from any liability under the mortgage, and the document purported to extinguish the liability under the mortgage.

4. As in the case referred to above, on the date of the receipt, the mortgage bond in suit would not have been satisfied by the payment mentioned in the receipt, for the document showed that there was a larger sum due, and the document could not be used for the purpose of proving the payment. As indicated above, we have no hesitation in holding in agreement with the view taken by this Court in Asanuddin Mondal v. Asmatulla : AIR1933Cal198 that the trial Court was right in its decision that the receipt in question was not admissible in evidence, as it was an unregistered document. The Judge in the Court below is not, in our judgment, right in holding that unless there was a recital clearly expressed that a mortgage was extinguished, a receipt for payment of money due on the mortgage, extinguishing the mortgage, as in the case before us, is admissible in evidence, though the document was not registered. In the result, the appeal is allowed; the order of remand passed by the Court of appeal below, against which this appeal was directed, is set aside and the case is sent back to that Court for the purpose of being dealt with on the materials on the record other than the receipt which we have held to be inadmissible in evidence, as it was an unregistered document. The appellants are entitled to their costs in this Court. The hearing fee in this appeal is assessed at two gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //