1. These two appeals arise out of a single suit for recovery of money.
2. Kishan Lal instituted the present suit on 15-5-1948, on the allegations that he had dealings with Pabu Dan and Kami Dan, defendants Nos. 1 and 2, and on 5-11-1938, the previous account was taken. Some more advance was made, and the two defendants executed a khata of Rs. 1701 and for repayment of the amount, they hypothecated their one-fourth share in the income of Dakaniyawas, and their half share in Kothi Phalsawali, situated in the same village, for 17 years from Sarnwat 1995 to Sam-wat 2012, by way of Baraskatti, and it was stipulated that if the debtors did not permit the recovery of the income of this land in any year, they would pay Rs. 200 for that particular year. It was alleged that Chandi Dan and Ram Karan Dan stood as sureties for the carrying out of the aforesaid agreement. It was then alleged that the plaintiff recovered the income of the hypothecated land till Samwat 2001, but thereafter the debtors did not permit the recovery of the income from the hypothecated, land. The plaintiff claimed Rs. 600 for three years, Samwat 2002, Samwat 2003 and Samwat 2004, according to the agreement.
3. Pabu Dan and Kami Dan denied execution of the Khata or having any dealings with the plaintiff at any time. Chandi Dan and Ram Karan Dan had both died, and their legal representatives Ranmal Dan son of Chandi Dan, and Gopal Dan son of Ram Karan Dan, who were made defendants in the suit, also denied the execution of the Khata or having anything to do with the debt in question. A further plea was raised by both sets of defendants that the agreement amounted to a mortgage, and the document being unregistered, it was not admissible in evidence, and the agreement was not enforceable at law.
4. Several issues were framed by the trial Court, and it was held that the execution of the Khata Ex. 1 for Rs. 1701 with several stipulations mentioned therein had been proved to have been executed by Pabu Dan and Kami Dan as debtors and by Chandi Dan and Ram Karan Dan as sureties. No specific plea as to want of consideration was taken, and there is no clear finding, but the reference to the various documents held to have been proved impliedly amounts to a finding that the consideration as alleged in the said documents had been proved. Ex. 3 is an entry in the account book of the plaintiff, and shows that the previous amount due was Rs. 550, Rs. 150 were added by way of interest, and Rs. 601 were advanced in cash on that day, and Rs. 400 were mentioned as advances to the debtors but were to be kept separately with the plaintiff to cover cost of purchase of articles to be utilised for the Nukta of Kalu Dan. Documents Exs. 5 and 6 showed that articles were purchased for the said sum of Rs. 400. As a matter of fact the total amount of the articles supplied came to a little over Rs. 400. It was held that Ex. 1, which formed the basis of the suit, was not a mortgage deed, and did not require registration, and was admissible as a bond after payment of duty and penalty. The Court, however, held that the plaintiff was only entitled to Rs. 100 per annum for the disturbance of po session, but not the extra Rs. 100 per year by way of expected profit. It, however, gave the plaintiff interest at Re. 1 p. m. on the amount due every year, and gave a decree for Rs. 376 with costs, and future interest at 6 per cent, per annum.
5. The plaintiff filed an appeal for the sum disallowed, and the defendants filed cross-objections for setting aside the decree. Both were dismissed by the learned Additional District Judge, Jaipur, by Judgment dated 6-12-1930. The defendants have filed a second appeal, which is No. 82 of 1951. The plaintiff's appeal is No. 117 of 1951.
6. The Learned counsel for the defendants appellants contended that the lower Courts had committed error in holding that the execution of the document had been proved. It was contended in the first place that there was no evidence to prove execution, but as the arguments proceeded, the argument boiled down to a contention that the evidence proved in support of the execution of the bond was nob reliable. Whether a particular document is proved to have been executed or not is a question of fact. There was undoubtedly evidence on the record of witnesses who said that the executants affixed their signatures in their presence. Then there is evidence of persons who purported to identify the signatures of the executants, and if this evidence was believed by the two lower Courts, the contention that a proper appreciation was not made of this evidence cannot be successful, as a second appeal can only lie on a question of law.
7. It was next contended that the consideration had not been proved. It was alleged that in the plaint the plaintiff had mentioned the consideration to be a sum of Rs. 700 due on account of previous dealings, and an advance of Rs. 1001 on the date of execution of the document. It was urged that while leading the evidence, the theory set up in the plaint was varied, and it was stated for the plaintiff that only Rs. 601 had been advanced on that day, while keeping back a sum of Rs. 400 for meeting the cost of articles for the Nukta of Kalu Dan. It was also urged that the Nukta was to take place on 7-11-1938, while the documentary evidence showed expenditure of money for the articles on 9th of November and 14-11-1938. It was contended that as the Nukta was to take place on the 7th, there could be no expenditure for purchase of articles after the Nukta. The allegation in the plaint is not of a cost advance of Rs. 1001 on 5-11-1938, but it is said that a cash and credit advance was made of Rs. 1001 on that date. In the statement before issues, the plaintiff made it clear that only Rs, 601 were advanced on that day, while he had undertaken to have goods supplied to the defendants of the value of Rs. 400. The issue is also to the effect whether the debtors executed a document after making up old accounts and receiving Rs. 601 in cash and articles worth Rs. 400, and whether Chandli Dan and Ram Karan Dan undertook to become sureties for that debt. There was thus no variance between pleading and proof, when the plaintiff led evidence later on to the effect that Rs. 601 only were advanced on that day, and Rs. 400 were left on account of cost of articles supplied. The entry regarding the supply of articles made a couple of days later does not make any material defect in the evidence of the plaintiff, because the entry Ex. 5, which is with respect to the cost of articles of the value of Rs. 394/12/6 says that the articles mentioned therein were supplied directly from the bazar at Naraina. The plaintiff is a resident of Phuiera, and it is possible that he made the entry after he came back from Naraina. The next entry of Rs. 9/11/9 on 14-11-1938, is also in respect of articles which may have been supplied a few days earlier.
8. It was next contended that the document, which is the basis of the suit, amounted to a mortgage deed, and as it was unregistered, it was not admissible in evidence, and its condition cannot be enforced by a suit. Learned counsel for the respondent contended that a document which may amount to a deed of mortgage, if unregistered, could still be utilised to support a claim for money, which may arise out of the undertaking to pay the amount secured by the mortgage.
9. There is no doubt that a deed, which may amount to a deed of mortgage, even if unregistered, may be used as a bond for the purpose of founding a personal liability on the executant provided of course the claim sought to be enforced arises out of a personal undertaking to pay. In the present case, the document Ex. 1, which, is the foundation of the suit, is to the following effect :
Khata of Pabu Dan Kami Dan, sons of Kaludan, dated 5-11-1938.
"Rs. 1701. The old outstandings were Rs. 700 Advanced today in connection with the Nukta of Kalu Dan Rs. 1000, making a total of Rs. 1701, and in security thereof is hypothecated our one-fourth share in village Dakaniawas and half share in Kothi Phalsawall, and give it on Baraskatti or 17 years from Samwat 1995 till Samwat 2012. You (creditor) to realise the rents for this period. No interference will be made in this period. The document is not got registered. IE any objection (interference) is made (by debtors) Rs 100 for one year and Rs. 100 by way of expected profit, total Rs. 200 will be paid. Chandi Dan and Ram Karan Dan stand as sureties for compliance of the aforesaid conditions by Pabu Dan and Kami Dan. They will assist in realising the rents and will not allow the rents to be taken away, but if they so do, we will pay the money ourselves.
Thumb impression of Pabu Dan.
Thumb impression of Kami Dan.
Bd. Kalanmal (scribe) (Sd. Chandi Dan.) Sd. Ram Karan Dan."
10. A perusal of the document narrated above clearly shows that it is a document of mortgage and nothing else. The mortgage is usufructuary, inasmuch as certain property was purported to be made over to the creditor for enjoyment for a period of 17 years in satisfaction of the debt. What is claimed in the present suit is not any money which has remained outstanding on the date of the suit, but the enforcement of the terms of the mortgage to pay Rs. 100 per year and another Rs. 100 by way of expected profit, a year. The debt did not purport to have been payable by instalments of Rs. 100 per year, but there is an overall agreement to let the creditor remain in possession of certain property in satisfaction of the entire debt. If a transaction of mortgage becomes void, or is unenforceable, because of non-registration, the consensus of authorities is that the creditor is entitled to sue for his debt. There are also authorities for the proposition that even in case of an unregistered mortgage, the creditor may sue for the balance of his money, in case he is dispossessed, but none of the authorities can support the present claim, which is for enforcement of the mortgage arising out of a docu-ment which has not been registered. If the claim for recovery of money can be deduced from the document, as a separate matter from the condition of mortgage, or if there is a personal undertaking to pay the amount of. the loan, a claim on such agreement or in such circumstances for the balance of the amount of the loan is entertainable by the Courts. In the present case the creditor has not stated what amount was really recovered from the debtors during the period he was in possession or what amount has remained outstanding if all the rents actually realised were to be taken into consideration. There is no specific agreement dividing the loan to be paid by any instalments, and the document read as a whole purports to be a usufructuary mortgage of property for 17 years, and in case of disturbance of possession an agreement to pay Rs. 200 a year by way of damages for such disturbance. The plaintiff's claim is clearly to enforce the term of the mortgage, and the document being unregistered cannot be utilised to support or enforce the terms of the mortgage.
11. The defendants' appeal is, therefore, allowed, the judgment and decree of the lower Court are set aside, and the suit is dismissed with costs throughout. The plaintiff's appeal automatically fails and is dismissed with costs.