Parsotam Das v. Patesri Partab Narain Singh, Allahabad High Court, Judgment, Law, casemine.com

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Case Number

First Appeal No. 219 of 1911 from a decree of Shiva Prasad, Subordinate Judge of Gorakhpur, dated the 15th of December, 1910

Judges

Hon'ble Mr. Pramoda Charan Bannerji
Hon'ble Sir Henry George Richards
Hon'ble Sir Charles Ross Alston

Acts

SECTION 21 REGISTRATION ACT

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Smart Summary

Factual and Procedural Background

This appeal arises from a suit for sale upon a mortgage. The central procedural posture is an appeal against the decision of the court below which dismissed the plaintiffs' claim insofar as it sought to bring to sale the village Rasulpur, tappa Kadar.

The mortgage deed covered a number of villages, including Rasulpur. In the deed Rasulpur was described as “The entire mauza Rasulpur, tappa Padya, … pargana and district Basti … which are mortgaged with possession to other persons.” Evidence established that mauza Rasulpur is actually in tappa Kadar (not tappa Padya), but is in pargana Basti and Basti district and was mortgaged with possession to other persons.

The court below held that because the tappa was incorrectly stated in the mortgage deed the registration of the document in respect of that village was void under Section 21 of the Registration Act, 1877, and accordingly dismissed the claim for sale of Rasulpur. The plaintiffs appealed against that ruling.

Legal Issues Presented

Whether the registration of a mortgage deed is vitiated (and thereby the plaintiffs' claim for sale of the specific village defeated) by an incorrect statement of the tappa in the description of the immovable property, in light of Section 21 of the Registration Act, 1877, which requires a description sufficient to identify immovable property.
Whether the respondent purchaser (Kashi Prasad), who purchased by sale in execution of his decree, is a bona fide purchaser without notice such that he takes free of the plaintiffs' earlier mortgage.
Whether the plaintiffs' decree for sale of Rasulpur should be subject to two alleged prior mortgages (dated 2 July 1880 and 25 November 1880) claimed by respondent Hira Prasad.

Arguments of the Parties

Appellants (Plaintiffs)

The correctness of the court below's decision dismissing the claim in respect of Rasulpur was challenged; plaintiffs argued that the mistake in the tappa did not vitiate the registration of the mortgage deed.
Pointed out that the deed correctly named the village, pargana and district, and additionally stated that the mortgaged property was subject to a prior mortgage under which the mortgagee was in possession — circumstances sufficient to identify the property despite the tappa error.
Prayed for sale to be subject to the prior mortgage of 2 July 1880 (as reflected in the plaint).

Respondent — Kashi Prasad

Contended that he was a bonâ fide purchaser without notice of the plaintiffs' earlier mortgage, implying that he should take free of that earlier mortgage.

Respondent — Hira Prasad

Contended that the decree for sale of Rasulpur in favour of the plaintiff should be subject to two prior mortgages: one dated 2 July 1880 (a usufructuary mortgage) and the other dated 25 November 1880 (a simple mortgage).
Asserted rights as purchaser of the mortgagee rights in respect of half the property and redeemer of the other half, thereby stepping into the shoes of the prior mortgagee with respect to the 2 July 1880 mortgage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Beni Madho Singh v. Jagat Singh	That a sale deed having been registered is not rendered a nullity merely by reason of an error in the description of the property.	The court relied on this authority to support the conclusion that the registration of the mortgage deed should not be held void solely because of an incorrect tappa; the descriptive error could be disregarded where the property was otherwise identifiable.

Court's Reasoning and Analysis

The court examined the requirements of Section 21 of the Registration Act, 1877, which mandates that a non-testamentary document relating to immovable property should contain a description sufficient to identify the property. The Registration Manual's appendix requires entry of village, pargana and district names.

The court found that in the mortgage deed the village, pargana and district were correctly stated; the only inaccuracy was the tappa (the deed named tappa Padya while the village was in fact in tappa Kadar). The court held that this single mistake did not render the registration void because:

The description in the deed otherwise identified the village and its pargana and district correctly.

The deed also stated that the mortgaged property was subject to a prior mortgage under which the mortgagee was in possession — an additional factual particular that would enable identification of the property intended to be mortgaged.

Given these identifying particulars, the error in the tappa could be disregarded and was not alone sufficient to vitiate the registration of a document which had in fact been accepted for registration and registered.

The court reinforced this conclusion by reference to Beni Madho Singh v. Jagat Singh, where it was held that a registered sale deed is not necessarily a nullity merely due to an error in description.

On the contention that respondent Kashi Prasad was a bonâ fide purchaser without notice, the court analyzed the facts and concluded:

Kashi Prasad had purchased the property in execution of his own decree.

There was no evidence he made any inquiry about a prior mortgage; had he done so he would have discovered that the property mentioned in the mortgage deed was in the possession of a prior mortgagee.

He did not assert that he had been misled by the misdescription in the deed.

Therefore he could not successfully claim bona fide purchaser without notice, and the plaintiff was entitled to a decree for sale of Rasulpur against him.

Regarding Hira Prasad's contention about the two prior mortgages:

The 2 July 1880 mortgage (usufructuary) in favour of Ram Narain and others survived as a subsisting mortgage; Hira Prasad had stepped into the position of the prior mortgagee for half the property and redeemed the other half, so he was entitled to have the sale subject to that mortgage. This position was conceded by the plaintiffs and reflected in the plaint.

The 25 November 1880 mortgage had resulted in a decree which, the court below held, had merged in that decree and had become time-barred and no longer capable of execution. The present court (also in a connected execution appeal, No. 303 of 1912) held that the decree based on the 25 November 1880 mortgage was time-barred and was already time-barred at the date the plaintiffs brought their suit; thus that mortgage no longer subsisted and could not be enforced.

On this basis the court concluded the court below erred in dismissing the claim for Rasulpur; the deed's registration should not be avoided because of the tappa error, and the plaintiffs were entitled to sale subject only to the valid prior mortgage of 2 July 1880.

Holding and Implications

APPEAL ALLOWED IN PART — the decree of the court below is modified to direct the sale of the village Rasulpur, tappa Kadar, subject to the mortgage of 2 July 1880.

Direct consequences and implications for the parties:

The plaintiffs' claim for sale of Rasulpur succeeds; the court adds a direction for sale of Rasulpur, subject to the prior mortgage dated 2 July 1880.

Kashi Prasad cannot successfully claim to be a bonâ fide purchaser without notice; the plaintiffs are entitled to decree for sale against him.

The claim that the sale should be subject to the mortgage of 25 November 1880 fails because that mortgage had merged in a decree which was time-barred and no longer capable of execution; accordingly that mortgage cannot be enforced.

Costs in both courts are awarded to the appellants and are to form part of the decretal amount recoverable by sale of Rasulpur and the other villages ordered to be sold.

The court extended the time for payment for six months from the date of the opinion.

The opinion does not announce any broader change in law; it applies Section 21 of the Registration Act, the Registration Manual's descriptive requirements, and the precedent cited to resolve identification and registration validity issues in the particular facts of this mortgage suit.

Decree modified.

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Parsotam Das v. Patesri Partab Narain Singh

Richards, C.J and Banerji, J.:— This appeal arises out of a suit for sale upon a mortgage, and the only question we have to determine is whether the court below was right in dismissing the claim in so far as it sought to bring to sale the village Rasulpur, tappa Kadar. The court below has held that having regard to the provisions of Section 21 of the Registration Act of 1877 the registration of the mortgage deed as regards that village was void and it has accordingly dismissed the claim in respect of that village. The correctness of this decision is challenged in this appeal by the plaintiffs.
The mortgage comprises a number of villages, among which is the village Rasulpur, and it is thus described in the deed. “The entire mauza Rasulpur, tappa Padya, … pargana and district Basti … which are mortgaged with possession to other persons”. Mauza Rasulpur is not in tappa Padya, but is in fact in tappa Kadar. This is established by the evidence to which the court below has referred, but it is admitted that it is situate in pargana Basti and in the Basti district, and it was also mortgaged with possession to other persons. The court below holds that as the tappa in which the property in question is situate has been wrongly given in the mortgage deed, the registration of that document is thereby vitiated. Section 21 of the Registration Act merely provides that a non-testamentary document relating to immovable property should contain a description such property sufficient to identify the same, and the appendix to the Registration Manual requires that the name of the village, pargana and district should be entered. In the present instance the name of the village and the names of the pargana and the district in which it is situate are given in the mortgage deed. The only defect is the mistake in the name of the tappa. The fact that it is further mentioned in the mortgage deed that the mortgaged property is subject to a prior mortgage under which the mortgagee is in possession is another circumstance which would enable one to identify the property intended to be mortgaged and mentioned in the mortgage deed. We are unable to hold that the mistake in the tappa is alone sufficient to vitiate the registration of the document which was accepted for registration and actually registered. The description given, in spite of the error in the tappa, was in our opinion sufficient to identify the property and that part of the description which was in fact erroneous may well be disregarded.
A similar question arose in Beni Madho Singh v. Jagat Singh(1) and it was held that a sale deed having been registered, the registration could not be a nullity merely by reason of there being an error in the description of the property. The court below was, therefore, in our opinion wrong in dismissing the claim as regards the village Rasulpur.
It was contended on behalf of the respondent, Kashi Prasad, that he was a bonâ fide purchaser without notice of the plaintiff's earlier mortgage. In the first place we may point out that the property was sold and was purchased by Kashi Prasad in execution of his own decree. In the next place there is nothing to show that he made any inquiry as to the existence of a prior mortgage on the property. If he had made any inquiry, it is clear that he would have found that the property which is mentioned in the mortgage deed in suit as being in the possession of a prior mortgagee is the property now sought to be sold. He never came forward to say that he was misled in any way by the misdescription in the mortgage deed. The plaintiff, therefore, is entitled to a decree for sale of Rasulpur as against the respondent Kashi Prasad.
It was contended on behalf of the respondent Hira Prasad that the decree for sale of Rasulpur in favour of the plaintiff should be subject to two prior mortgages, namely, one of July, 1880, and the other of the 25th of November, 1880. The mortgage of the 2nd of July, 1880, is a usufructuary mortgage made in favour of Ram Narain and others, and the other mortgage is a simple mortgage in favour of Sham Narain and others, the predecessors in title of Hira Prasad. Hira Prasad has purchased the mortgagee rights in regard to half of the property and has redeemed the mortgage in respect of the other half and has thus stepped into the shoes of the prior mortgagee. He is, therefore, entitled to claim that the decree in the plaintiffs favour should be subject to the mortgage of the 2nd of July, 1880. This is conceded by the learned advocate for the plaintiff, and indeed in the plaint the plaintiff's prayer was that the sale should be subject to that mortgage. As for the mortgage of the 25th of November, 1880, the court below has held that, as a decree was obtained on the basis of that mortgage, the said mortgage has merged in the decree and that the decree has become time-barred and is no longer capable of execution. So that Hira Prasad cannot now claim that the sale in enforcement of the plaintiffs mortgage should be subject to the mortgage of the 25th of November, 1880. In the connected execution First Appeal, No. 303 of 1912, decided by us to-day, we have held that the decree obtained on foot of the mortgage of the 25th of November, 1880, is no longer capable of execution and is time-barred and it is clear that it was also time-barred on the date on which the plaintiffs brought their suit. That being so, that mortgage no longer subsists and cannot be enforced.
The result is that we allow the appeal so far that we vary the decree of the court below by adding to the decree a direction for sale of the village Rasulpur, tappa Kadar, subject to the mortgage of the 2nd of July, 1880. The appellants will have their costs in both courts as part of the decretal amount which may be recovered by sale of the village Rasulpur and the other villages ordered to be sold by the decree of the court below. In other respects we affirm the decree of the court below. We extend the time for payment for six months from this date.
Decree modified.

Parsotam Das v. Patesri Partab Narain Singh