Jogini Mohan Chatterji v. Bhut Nath Ghosal

Ameer Ali, J.:— The circumstances which have given rise to this action are shortly as follows:— One Nabin Chandra Ganguly who was at one time a member of the Sub-ordinate Judicial Service and after his retirement from office as Sub-ordinate Judge had taken to the more profitable business of a money-lender, had advanced to the Defendant Rs. 1,000 upon the bond which forms the basis of the present action.

Mr. J.M Chatterjee is now acting as Receiver to the estate of Nabin Chandra Ganguly and as such Receiver he has brought the present action for the amount claimed to be due under the bond.

The bond which is dated the 10th of October 1896 is a registered document and purports to hypothecate two pieces of property as security for the debt.

The Defendant, a Bengali youth who gives his age as 22 or 23, denies having received full consideration upon the bond, and he practically states that he was induced by people who were more or less in league with Nabin Chandra Ganguly to enter into this transaction.

He has also given his evidence and in his deposition he asserts that at the time of the execution of the document, he understood it only to be a money bond and not a mortgage deed; with that I will deal presently.

Upon the evidence of the witnesses who have been examined on the part of the Plaintiff, I have no doubt that Nabin Chandra Ganguly did advance Rs. 1,000 to Bhut Nath Ghosal, the Defendant, although a considerable sum out of that amount went into the hands of the vakil and the broker by way of their remuneration.

Bhut Nath Ghosal's allegation is that the vakil Ganendra Chandra Mukerjee gave him only Rs. 100 and kept the remainder himself. Ganendra Chandra Mukerjee who besides being a vakil of this Court is also a professor in the General Assembly's Institution, swears that he received from Khetter Nath Banerji who represented Nabin Chandra Ganguly the Rs. 1,000 and at the Registration Office at Sealdah gave to the Plaintiff Rs. 900, that is, Rs. 1,000 less Rs. 100 his own fee.

Mon Mohan Ganguly, the broker, says he received Rs. 50 for his remuneration. They both speak as to the cashing of two notes by the Defendant that night.

The suggestion made on behalf of the Defendant that he was taken by the pleader to a chemist's place in Nimtollah Street, is contradicted by those witnesses, and I believe there is no foundation for the suggestion.

The Defendant upon his own account seems to have led a rather dissipated life and was given to a great deal of extravagance at the instigation of his companions.

I believe the evidence of the pleader Ganendra Chandra Mukerjee and the two other witnesses called for the Plaintiff in preference to that of Bhut Nath Ghosal with regard to his receipt of Rs. 850 out of the Rs. 1,000 advanced by Nabin Chandra Ganguly.

Rs. 150 were according to these men's statements actually disbursed by him, I must therefore hold him liable for the amount of the debt.

The question, however, is what is the nature of the document upon which the suit has been brought. It purports to be a mortgage deed and hypothecates two pieces of property, one situated within the jurisdiction of the Registrar of Calcutta and the other within that of the Sub-Registry Office of Sealdah. It is upon the basis of this latter property that the document was registered at the Sealdah Registration Office.

The Defendant's contention is that there was no such property whatsoever, and that as it was registered by the Registrar of Sealdah without any jurisdiction in that behalf, the document cannot take effect as a mortgage deed.

Mr. Sinha on behalf of the Plaintiff contends that inasmuch as the document has been registered, the entry by the Registrar upon the deed is conclusive as to the validity of the registration. This position seems to me to be untenable.

Sec. 17 of the Registration Act III of 1877 declares what documents shall be registered.

Cl. (c) is to this effect:—

“Other non-testamentary instruments which purport or operate to ??? clare, assign, limit or extinguish, ??? in present or in future, any right, or interest, whether vested or ??? of the value of one hundred rupees ??? upwards, to or in immoveable property ???

Sec. 59 of the Transfer of Property ??? Act provides that “where the principal money secured is one hundred rupees or upwards a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.”

Sec. 28 of the Registration Act deals with the place of registration and runs as follows:—

“Save as in this part otherwise provided, every document mentioned in sec. 17, cls. (a), (b), (c) and (d), and sec. 18, cls. (a), (b) and (c), shall be presented for registration in the Office of a Sub-Registrar within whose Sub-District the whole or some portion of the property to which such document relates is situate.”

Sec. 49 declares that “No document required by sec. 17 to be registered, shall affect any immoveable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered in accordance with the provisions of this Act.”

In view of these provisions this Court has held that where registration has been effected by a Registrar who had no jurisdiction in that behalf under sec. 28 of the Act, the document is not effective for the purpose for which it is created. In the case of Beni Madhab Mitter v. Khatir Mondul Mr. Justice Mitter ??? that although “under sec. 60 the ??? is adducible in evidence to ??? that the document was duly registered by the particular officer whose ??? nature it bears, it having been shown ??? at that officer had no jurisdiction to register it, the document was not duly registered within the provisions of the Registration Act.”

The learned Judges referred to a case of Ram Coomar Sen v. Khoda Neway and after showing that the authority on which that decision purported to be based, was not in support of the conclusion therein arrived at, they differed from the decision in question and held as I have mentioned. The same question came up before a Full Bench in the case of Baij Nath Tewari v. Sheo Sahoy Bhagut.

There the property was described in the bond as bearing a certain Touzi number paying certain jama and as lying within the jurisdiction of a certain Kotwali Sub-District, Bhagulpur. That description was found to be erroneous, the property in reality being situated in the Sub-District of Bankura where the document ought to have been registered. Instead of being registered there it was registered by the Sub-Registrar of Bhagulpur who exercised and performed the powers of the Registrar of Bhagulpur to whom also the Sub-Registrar of Bankura was subordinate.

In that case all the Judges agreed in holding that registration made in contravention of the provisions of the Registration Act would be invalid.

Petheram, C.J, alone was of opinion that inasmuch as the document had been registered by the Sub-Registrar of Bhagulpur who exercised and performed the duties of the Registrar of Bhagulpur and to whom the Sub-Registrar of Bankura was subordinate, the want of jurisdiction in that particular case might be regarded as removed, but the words of Petheram, C.J, in dealing with the general question are important. He says at p. 565, I.L.R 18 Cal.: “I would reply to the question referred, that if the office in which the registration was effected was not an office constituted for the registration of documents relating to property in the area within which the property to which the document in question related is situated, no registration has been effected within the provisions of the Act. Mr. Justice Pigot also said— “It appears to me that a false description or an incomplete description of the property, in respect of matters which from their nature it lies upon the party registering the document to state, being specially within his knowledge, must invalidate the registration, if it be such as to render the description of the property insufficient to identify it.”

Whatever might have been the view expressed in 5 and 7 C.L.R it is quite clear from the Full Bench decision in I.L.R 18 Cal. and the decision of Mitter and Beverley, JJ., in I.L.R 14 Cal. that the legal effect which learned counsel for the Plaintiff wishes me to attach to the registration endorsement by the Registrar cannot be given unless the registration was effected in accordance with the law, in other words, by an officer who had jurisdiction to register the document. The decision of this matter depends upon the question of fact whether there was that property within the area of the Sealdah Registration Office so as to give jurisdiction to the Sub-Registrar of Sealdah.

The Plaintiff has produced a document which purports to be a conveyance or deed of sale in respect of one cottah and four chittacks of land by one Narain Chandra Desmuk to Bhut Nath Ghosal, the Defendant, and this is the property which is included in the bond upon which the suit is brought, and it is upon the basis of this property that it was registered in the Sealdah Sub-Registration Office. There is no other evidence, besides this deed of sale which bears date some time in September 1896, to show that there was this property belonging to the Defendant in that locality. The Defendant has sworn that he has no property, No. 251-2, Upper Circular Road, which is the number given in the deed of sale. A clerk from the Municipal Office has been called who also swears that in the books of the Municipality there is no property bearing No. 251-2 in Upper Circular Road; he also swears that had there been any such property it would have appeared in his books.

The Defendant has also called a man of the name of Annoda Persad Ghose, the Manager of one Babu Baman Das Mukherjee, who states that he knows No. 251, Upper Circular Road, for the last five or six years; that he can give its boundaries and that there is no such property as No. 251/2 there. In cross-examination he stated “my master's dwelling-house is 97, Baranasi Ghose's Street. Narain Chandra Desmuk does not claim any property in Upper ??? Road. He has told me so.”

It will be noticed that by the ??? of sale Narain Chandra Desmuk purpose ??? to sell out of his property only on ??? cottah and four chittacks, thus leaving the remainder in his own possession, and if the statement of Annoda Persad Ghose be true, then Narain Chandra Desmuk had no property in Upper Circular Road at all. Therefore although the deed of sale put in by the Plaintiff which, it is said, was received by Nabin Chandra Ganguly from the Defendant himself, is a piece of evidence regarding the existence of the property, that evidence is in my opinion not conclusive and has been rebutted by the evidence given on the part of the Defendant.

Over and above that the signature of Narain Chandra Desmuk on the deed of sale of one cottah and four chittacks, is not beyond suspicion. Considering the age of the Defendant and the date which the document bears, it does seem strange that he should have been buying this property in 1896.

On the whole, therefore, I am not satisfied that there was any such property as No. 251/2 belonging to the Defendant within the jurisdiction of the Sub-Registrar of Sealdah so as to give him, under sec. 28 of the Registration Act, jurisdiction to register the document.

If I am right in that conclusion it follows that the document cannot take effect as a mortgage deed but as it is registered, although the suit has been brought more than three years after the date of execution, the claim is not barred as was contended for by the Defendant's counsel.

??? therefore make a decree in favour ??? the Plaintiff on the bond for the ??? amount secured by it, Rs. 1,000, ??? the interest at the contract rate.

Considering the facts of the case I am justified in giving interest at the same rate during the pendency of the suit. Interest on decree at six per cent.

Costs on scale No. 2.

Mr. M.M Chatterji, Attorney for the Plaintiff.

Mr. S.D Bonnerji, Attorney for the Defendant.

A.N.C