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Ramnandan Prasad Narayan Singh v. Chandradip Narain Singh

Patna High Court

Feb 26, 1940

Judgment

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Factual and Procedural Background

This is an appeal by the defendants (appellants) from a decree of the Third Subordinate Judge of Gaya in a mortgage suit brought by the plaintiffs. On 9 July 1921 defendants 1 and 2 executed a mortgage in favour of Deoki Singh (the deceased father of plaintiffs 1–3 and grandfather of plaintiff 4) for Rs. 10,000 with interest; the plaintiffs claimed Rs. 34,268-13-6 and a mortgage decree for Rs. 39,261-0-11 with future interest at 6% p.a. was passed by the Subordinate Judge. The properties described in the mortgage included 16 annas share in two villages in Gaya District and "5 kathas of land" in village Mera in Patna District; the mortgage bond was registered in Patna District.

In their written statement the defendants raised several pleas; the principal plea in the appeal concerned the validity of registration. Defendants contended that the Patna Sub-Registrar lacked jurisdiction because the effective mortgaged properties were situated in Gaya, and that the Mera parcel in Patna had been inserted only to enable registration at Patna (a device to defraud the registration laws). The learned Subordinate Judge found most issues for the plaintiffs but accepted that the 5 kathas in Mera were not intended to form part of the security and had been inserted as a device; nevertheless he held the defendants were parties to that device and therefore could not avoid the mortgage on that ground. The defendants appealed, confining their argument mainly to the registration point.

Legal Issues Presented

Whether the mortgage bond was validly registered in Patna District under Section 28 of the Registration Act, 1908, given that an undefined parcel of "5 kathas" in village Mera (Patna District) was included in the deed.
Whether a party to a fraud on the registration law (i.e., insertion of fictitious or ineffective property to obtain registration) can later raise want of valid registration as a defence in a suit between the mortgagee and mortgagor.
Whether evidence of the parties' intention (parol evidence) is admissible to show that an item of property mentioned in a registered instrument was not really intended to form part of the transaction, in light of Section 92 of the Evidence Act and its provisos.
Whether the description "5 kathas of land in Mera" is sufficient under Section 21 of the Registration Act to identify immovable property for the purposes of registration, and whether insufficiency of description deprives the Sub-Registrar of jurisdiction.

Arguments of the Parties

Appellants' (Defendants') Arguments

The only effective mortgaged properties were the two 16-anna shares in villages in Gaya District, so the Patna Sub-Registrar had no jurisdiction to register the mortgage.
The insertion of 5 kathas of land in Mera (Patna District) was a device to enable registration at Patna because of urgent need for funds and the mortgagor's need to remain in Patna to instruct counsel.
The 5 kathas in Mera were not described or identified (no boundaries, khasra number, or classification), so they gave no effective security and could not be sold in execution; thus they were never intended as security.
Parol evidence of intention and other evidence showing the 5 kathas were only inserted to enable registration is admissible to show invalidity of registration (relied on proviso to Section 92 of the Evidence Act).
As an additional point (argued but ultimately not necessary to decide), Section 7 of the Bihar Money-lenders (Regulation of Transactions) Act, 1939, would limit any decree to Rs. 20,000.

Respondents' (Plaintiffs') Arguments

The plaintiffs contended that the 5 kathas in Mera were intended by the parties to form part of the mortgage security (pointing to negotiation involving one Bedman Missir who allegedly arranged to include some property in Mera).
It was argued that because the 5 kathas exist, they must be regarded as mortgaged, and therefore the deed could validly be registered in Patna District under Section 28 of the Registration Act.
The respondents relied on Section 92 of the Evidence Act to argue that evidence of intention (oral evidence) was not admissible to contradict or vary the terms of the written instrument.
The respondents also argued that the Sub-Registrar had jurisdiction and that the insufficiency of description did not invalidate registration.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
41 Cal 972	Held that an entry in a deed representing non‑existent or fictitious property used to obtain registration in a district where no real property charged existed is a fraud on the registration law and renders registration invalid.	Used to support the proposition that insertion of a fictitious or ineffective item to obtain registration is a fraud invalidating registration; court relied on this as part of a line of Privy Council authority.
48 Cal 509	Held that where an inserted property existed but the mortgagor's title was defective and the parties did not intend it to pass or to form part of the security, the document did not relate to property in that registration district and registration was invalid; mortgagor defendants could successfully plead want of valid registration.	Adopted as showing that parties to a deed (including mortgagors) may raise want of valid registration even if they participated in the device; the court relied on this to hold defendants could raise the plea.
56 All 468	Held that the term "fictitious" is not confined to non‑existing property; satisfied where the deed does not relate to the specified property for any effective purpose of enjoyment or use; courts may examine intention and admit evidence on intention.	Used to support admission of evidence as to intention and the proposition that inclusion of an item incapable of effective enjoyment can be regarded as a device to evade registration requirements.
59 Mad 539	Held that inclusion of an outlying yard in a sale, with no intention to convey and no attempt to take possession, was a device to evade the registration law and therefore registration was ineffective.	Relied on as authority that where a party did not intend an item to be conveyed or mortgaged, its insertion to obtain registration is a sham and the registration is invalid.
55 Mad 5075	Held that a vendor who participated in a fraud on registration could not be allowed to plead the invalidity of his own registration; general rule that a plaintiff cannot plead his own fraud to support a claim.	The Subordinate Judge had relied on this case to bar defendants from relying on the fraud; the appellate court distinguished it and refused to apply it to prevent defendants (mortgagors) raising want of valid registration.
AIR 1927 All 4226	Described in the opinion as a case where Ashworth J. appears to have held that evidence as to intention was not admissible in considering registration.	Cited by respondents' counsel for the proposition that parol evidence of intention is inadmissible; the appellate court considered it but concluded otherwise, favouring Privy Council authority admitting intention evidence when relevant.
AIR 1929 All 578 (Mukerji J.)	Held that it was not open to a party to a registered sale deed to prove an oral agreement that despite entry title would not pass; where parties intended to hoodwink the Sub-Registrar evidence should not obtain relief.	Cited by respondents to oppose admissibility of evidence as to intention; appellate court reviewed and distinguished Privy Council decisions that admitted relevant intention evidence and therefore upheld admissibility here.
49 Bom 821	Bombay High Court view supporting that evidence as to intention may not be admissible where registration rendered valid by the presence of some property within jurisdiction.	Cited by respondents; appellate court contrasted it with Privy Council decisions and held intention evidence admissible under the proviso to Section 92 when it goes to invalidate the document.
18 Cal 5569	Held that inaccurate or misleading property description can render registration invalid under the equivalent of Section 21; insufficiency to identify property defeats registration.	Cited by appellants to argue that insufficiency of description of the Mera parcel deprived the Sub-Registrar of jurisdiction; appellate court discussed but declined to hold on that ground because of contrary dicta approved in Privy Council authorities.
32 CWN 241	Calcutta High Court: held that defect of description in respect of any one of several immovable properties in a deed is sufficient to invalidate registration of the whole deed.	Cited by appellants; appellate court noted these authorities but expressed doubt about their continuing authority in view of Privy Council dicta and did not rely on them to invalidate registration on the description ground.
31 All 523	Allahabad High Court view supporting that lack of sufficient description to identify immovable property justifies refusal of registration.	Cited by appellants; appellate court considered these decisions but declined to follow them for reasons explained (see Rangoon/Privy Council approval discussed below).
7 Rang 624	Privy Council (Rangoon case) approved dictum of Sir Barnes Peacock that not every error in description or procedure should render registration void; such errors may be classed as 'defect in procedure' so innocent parties are not deprived by officer error.	The court relied on this approval to express doubt about the Calcutta/Allahabad cases and to decline to hold that the Sub-Registrar had no jurisdiction merely because the Mera parcel was imperfectly described.
2 IA 210 (Sir Barnes Peacock dictum)	Dictum suggesting that the Legislature did not intend that every registration error (Ss. 19, 21, 36 of earlier Act) should render a deed null and void; some defects may be procedural and not fatal.	Quoted (via the Rangoon case) to justify reluctance to hold that insufficiency of description of the Mera parcel alone voided the registration.

Court's Reasoning and Analysis

The court proceeded through the following analytic steps, adhering to the evidence and authorities cited in the opinion:

Examination of the factual record concerning the 5 kathas of land in Mera: the mortgage deed contained no boundaries, khasra number, classification or any description enabling identification; witnesses for the plaintiffs admitted the absence of any effective description or inspection; witnesses for the defendants testified the Mera item had been inserted merely to enable registration at Patna because of urgency.
Assessment of the effect of an undefined or non‑identifiable insertion: the court observed that such an insertion gives the mortgagee no effective security (cannot be brought to sale because it cannot be identified) and thus, even if the land exists physically, it may not "relate" to the transaction for any effective purpose.
Review of the relevant statutory provision: Section 28 of the Registration Act, 1908 requires presentation for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which the document relates is situate. The question was therefore whether the mortgage "related to" any property in the sub-district of the registering Sub-Registrar.
Reliance on Privy Council precedents (41 Cal 972; 48 Cal 509; 56 All 468; 59 Mad 539): the court interpreted these authorities to mean that registration is effective only if the deed genuinely relates to property within the registering district; "fictitious" entries are not limited to non‑existent parcels but include entries that do not relate to identifiable or effective property for enjoyment or use. The cited cases show that an item inserted to give the appearance of jurisdiction, when in reality it was not intended to be part of the transaction, amounts to a fraud on the registration law and renders registration invalid.
Application to the present facts: given the complete lack of description and identification and the testimony that the Mera item was inserted for registration convenience, the court concluded the 5 kathas were never intended to form part of the security — they were a device to obtain registration in Patna. Therefore the mortgage did not relate to any property in the Patna Sub-Registrar's sub-district for the purposes of Section 28, and registration was ineffective.
Consideration of the Subordinate Judge's reliance on 55 Mad 5075 (that a party cannot plead his own fraud): the appellate court analysed that authority and distinguished it. It concluded that earlier Privy Council decisions (notably 48 Cal 509) allowed mortgagor defendants to raise invalid registration even if they had participated in the device; accordingly the defendants could raise want of valid registration in this suit between mortgagee and mortgagor.
Admissibility of evidence of intention under Section 92 of the Evidence Act: the court examined Section 92 and its proviso (which permits proof of facts that would invalidate a document, including fraud). Relying on Privy Council jurisprudence where courts examined intention and admitted evidence on that point, the court held such evidence was admissible here because it did not seek to vary the written terms but to show that the document did not in fact relate to land within the registrar's jurisdiction and was invalid — precisely the kind of evidence admissible under Proviso (1) to Section 92.
On the separate argument that the Sub-Registrar lacked jurisdiction because the description was insufficient under Section 21: the court reviewed authorities holding defects in description could invalidate registration but observed that Privy Council dicta (approval of Sir Barnes Peacock's dictum in the Rangoon case) counsel caution in automatically treating every descriptive defect as fatal. The court declined to hold the Sub-Registrar had no jurisdiction on the basis of insufficiency of description alone in the circumstances of this case and instead based its decision on the finding of a fraud on the registration law.
Ancillary point (Bihar Money-lenders Act): the court noted the appellants' contention under Section 7 of that Act (that any decree could not exceed Rs. 20,000) appeared well-founded but it was unnecessary to decide because the primary ground (invalid registration) disposed of the entire claim.

Holding and Implications

Core Ruling: The appeal is allowed. The decree of the Court below is set aside and the plaintiffs' claim is dismissed.

Implications and direct consequences:

The mortgage bond could not be enforced because the registration in Patna was invalid: the 5 kathas in Mera were inserted as a device to obtain registration but were not intended to form part of the security, so the mortgage did not relate to property in the registering sub-district under Section 28 of the Registration Act.
The court held that a mortgagor may raise want of valid registration even if he participated in the device to obtain registration; the Subordinate Judge's ruling to the contrary was overturned.
The court affirmed that evidence of the parties' intention is admissible under the proviso to Section 92 of the Evidence Act where such evidence tends to show invalidity (e.g., fraud on the registration law) rather than to vary the written terms of the instrument.
Costs were awarded as follows: the defendant‑appellants were given their costs in this Court; each party was directed to pay their own costs in the trial Court.
No broader novel legal principle was laid down beyond the application and reconciliation of existing authorities: the decision applies established Privy Council principles to the facts and resolves the dispute between the parties accordingly.

Show all summary ...

Harries, C.J:— This is a defendants' appeal from a decree of the learned Third Subordinate Judge of Gaya decreeing the plaintiffs' claim in a mortgage suit. On 9th July 1921 the mortgage in suit was executed by defendants 1 and 2 in favour of Deoki Singh, the deceased father of plaintiffs 1 to 3 and grandfather of plaintiff 4. The mortgage was for a sum of Rs. 10,000 carrying interest at the rate of 18 annas 3 pies per cent, per mensem with annual rests. The claim was for Rs. 34,268-13-6. A mortgage decree was passed by the learned Subordinate Judge for Rs. 39,261-0-11 with future interest at six per cent, per annum till realization. The properties mortgaged consisted of a 16 annas share in a village called Bara Keyam Faridpore and 16 annas share in village Daniala covered by touzi No. 287 and situate in the District of Gaya together with 5 kathas of land in village Mera within the Mahal Akbarpore Bhadwa covered by touzi No. 4593 and situate in the District of Patna. The mortgage bond was registered in the District of Patna.

2. The defendants took a number of pleas in their written statement but for the purposes of this appeal it is only necessary to refer to one of them. They pleaded inter alia that the mortgage bond could not be enforced by reason of the fact that it had not been validly registered. According to the defendants the only properties mortgaged effectually were the villages of Bara Keyam Faridpore and Daniala. Both these villages were situate in the Gaya District and therefore the Sub-Registrar at Patna had no jurisdiction to register the mortgage. It was alleged by the defendants that the 5 kathas of land in village Mera situate in Patna District were never intended to form part of the mortgage security and that parcel of land was only inserted in the mortgage deed as a device to defraud the registration laws. The learned Subordinate Judge found all the issues except the one as to registration in favour of the plaintiffs. He however accepted the defendants' contention that the 5 kathas of land in village Mera in the Patna District were never intended to form part of the security and that the insertion of the same was a device to defeat the registration law. The Subordinate Judge however came to the conclusion that the defendants were themselves parties to this fraud and therefore they could not set up their own fraud to avoid the effect of the mortgage bond which they had executed. The result of his findings was that he passed a decree as indicated previously. The appellants' argument has been confined in the main to the question of registration. No point has been taken on any other of the issues which the learned Subordinate Judge decided against the defendants.

3. On this question of registration the defendants' case was that the 5 kathas of land in Mera in the Patna District had been inserted to defraud the registration law. According to the defendants they were in urgent need of money. Defendant 1 had to meet the expenses of a criminal case which had been instituted against him, and he had instructed a well-known lawyer in this district, namely Mr. Hasan Imam, who required his fees in advance. It was estimated that Rs. 10,000 would be required for the expenses of the defence in this criminal case and accordingly the defendants approached Deoki Singh for a loan of that amount. Deoki Singh agreed to lend the money and it is said that he was quite satisfied with 16 annas share in the two villages in the Gaya District. It appears that he already held a usufructuary mortgage of these two villages, but the interest of the mortgagor in the villages far exceed, ed the value of Rs. 10,000. As these two villages were situate in the Gaya District registration would have to be effected either at Gaya or Jehanabad; but according to the defence, there was no time to go to either Gaya or Jehanabad as the presence of defendant 1 at Patna was essential to instruct his counsel, Mr. Hasan Imam.

4. An attempt was made to obtain the money before the deed was registered, but Deoki Singh would not agree to this. On behalf of the defendants it is said that owing to this urgency Deoki Singh agreed that 5 kathas of land in Mera in the Patna District should be inserted in the mortgage in order to enable the deed to be registered in the Patna District and thus avoid the delay in going to Gaya or Jehanabad. It is to be observed that the 5 kathas of land in village Mera are not defined in any way. No boundaries are given and there is nothing in the deed to suggest what kind of land in Mera was mortgaged. Mortgaging a mere 5 kathas of land without any description whatsoever would give the mortgagee no security of any kind. It would be impossible to bring such land to sale because it could not be identified.

5. On behalf of the plaintiffs however, it was alleged that the 5 kathas of land in village Mera were intended to form part of the security. It is said that one Bedman Missir negotiated the loan and that he persuaded Deoki Singh to insist that some property in village Mera should be included. It was alleged that Bedman Missir who lived in Mera had acquired under a deed of gift some land in a village called Puran from his mother-in-law and Bedman Missir persuaded Deoki Singh to obtain a mortgage of some property in Mera so that Bedman Missir could exchange his property in Puran for property in Mera in the event of Deoki Singh enforcing his mortgage and obtaining possession of the Mera property by purchase in execution of his decree.

6. The learned Subordinate Judge declined to accept the plaintiffs' version of this transaction. It is clear that the explanation given by the plaintiffs of the part played by Bedman Missir in this transaction cannot possibly be true, as Bedman Missir did not obtain any property in Puran by deed of gift until 20th May 1922, whereas the mortgage in suit was dated 9th July 1921. Further, it would be extremely difficult to accept the plaintiffs' version that the land in village Mera was intended to form part of the security. As I have stated, the land is not described in any way and could not affectively be brought to sale in execution of a mortgage decree. Chandradip Narain (P.W 2) admitted that he was aware that a full description of property should be given in deeds, and he admitted that when his father saw the draft mortgage bond he did not require the boundaries of the 5 kathas of land to be mentioned. Neither did they require defendant 1 to mention in the kobala the khasra number of the land at Mera nor whether the land was raiyati bafeasht or sikan or waste or cultivated land. From the evidence adduced on behalf of the plaintiffs, it is clear that the land at Mera was never inspected and Deoki Singh appears to have known little or nothing about this village. Yet 5 kathas of land in this village is stated to be part of the security.

7. On behalf of the defendants a number of witnesses were called who stated that the 5 kathas of land in Mera in the Patna District were mentioned in the mortgage deed merely for the purposes of registration. According to these witnesses, it was never the intention of either of the parties to the mortgage deed that this 5 kathas of land should be effectually mortgaged and form part of the mortgage security. Sir Manmatha Nath Mukerji who has appeared on behalf of the plaintiff-respondents has challenge; the finding of fact of the learned Subordinate Judge and has asked the Court to accept the evidence of Baktoo Singh (D.W 5). This witness supported the defendants' story that there was great urgency in the matter. At page 31 in the supplemental paper-book he stated:

He (Deoki Singh) said that he would pay the money after the bond was registered. Ramnandan then said that as the counsel wanted Ramnandan the next morning there was no time for registration of the deed and so he would execute the bond and get it attested by any pleader if Deoki Singh so chose and on that Deoki Singh should advance the loan. But Deoki Singh said that he would not pay the money before the registration of the bond. Ramnandan then said that he could not gb to Jehanabad to register the deed as his counsel wanted him the following morning with the papers. To that Deoki Singh said that there was no necessity to go to Jehanabad to register the bond and that the bond could be registered at Patna if 2 to 4 kathas of land situate at Patna was given as security in the mortgage bond. Ramnandan agreed to this proposal. Ramnandan then asked Lalli Lal to say what 2 to 4 kathas of land in the district of Patna should be mortgaged by the bond and Lalli Lal said that 2 to 4 kathas of village Mera should be given as mortgage. Deoki Singh and Ramnandan agreed to the same.

8. It is true that this witness says that 2 to 4 kathas of land were agreed to be given in mortgage but it is clear that no attempt was made to identify this land and that the 2 to 4 kathas of land were only to be inserted in the mortgage to enable it to be registered at Patna. The other witnesses make it clear that the 5 kathas mentioned in the mortgage deed were never intended to form part of the security, and in my view that is the true effect of Raktoo Singh's evidence. The very fact that no attempt whatsoever was made by either of the parties to identify the land, though the plaintiffs well knew that such was essential, establishes to my mind beyond all doubt that 5 kathas of land in Mera in the Patna district were only mentioned in the mortgage deed to enable the document to be registered in Patna. The nature of the property and the urgency support the defendants' contention, and in my view the learned Subordinate Judge was right in holding that the 5 kathas mentioned in the deed were never intended to form part of the mortgage security. It has been urged by Sir Manmatha Nath Mukerji on behalf of the respondents that as the 5 kathas of land exists it must be regarded as having been mortgaged, and that being so the deed could validly be registered in the Patna District. Section 28 of the Registration Act, 1908, deals with the place for registering documents relating to land. The Section is in these terms:

Save as in this part otherwise provided, every document mentioned in S. 17, sub-s. (1), cls. (a), (b), (c) and (d), and S. 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.

9. A mortgage bond for Rs. 10,000 requires registration, and by the terms of S. 28 it can be registered in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which the mortgage relates is situate. The question to be decided in this case is whether this mortgage related to or included any property in the sub-district of the Sub-Registrar who registered it. If the document relates to no such property, then the mortgage bond has not been validly registered. This Section has been considered by their Lordships of the Privy Council in a number of cases. The first case was 41 Cal 972.1 In that case the plaintiffs' (appellants') claim was based on a mortgage decree passed in a suit brought in the High Court at Calcutta on its original side to enforce a mortgage executed in the plaintiffs' favour. The defendants (respondents) were the mortgagor (who did not appear) and two other persons who disputed the mortgagee's title. These defendants (who had not been parties to the suit on the mortgage) alleged that the mortgage deed had not been legally registered, because no portion of the property mortgaged was situated in Calcutta where the deed had been registered and the decree had therefore been made by a Court which had no jurisdiction to entertain a suit on the mortgage, and the plaintiff had no title to maintain the suit.

10. The only portion of the property in the mortgage deed alleged in the suit on the mortgage to be situate in Calcutta, was parcel No. 28 in the schedule, and was described as “25 Guru Das Street;” but the property so described was found to be non-existent, the wrong description being said to be due to a mistake though no evidence of it was given. The Court directed an amendment, and the description was altered to “25 Ashutosh Dey Lane” which was in Calcutta, and was comprised within the same boundaries as those given in parcel No. 28 of the schedule to the mortgage deed. In the present suit no evidence was given either by the mortgagor or the mortgagee to show that there had been any mistake in the description of the property, but it was proved by the defendants that the property contained within the boundaries given in parcel No. 28 was property which did not belong and never had belonged to the mortgagor. Both the Courts below, like the High Court in the suit on the mortgage, found without any evidence that there had been a mistake in the entry of parcel No. 28 and held that part of the property being in Calcutta the deed had been properly registered there, and that the decree in the mortgage suit had been rightly made and with jurisdiction.

11. It was held by their Lordships of the Privy Council, reversing the decision of the High Court, that it was open to the defendants (not having been parties to the mortgage suit) to contest the validity of the decree, and for the same reason the direction of the High Court that the entry in the schedule should be amended did not affect them, and that under the circumstances of the case the onus was on the plaintiff to show that the entry in that parcel was not a fictitious entry, which onus he had not discharged. Further, their Lordships held on the conduct of the parties and the evidence in the case, that parcel was in fact a fictitious entry and represented no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact existed, was a fraud on the registration law and no registration obtained by means thereof was valid. No such fictitious item inserted to give a colour, able appearance to the deed relating to property in Calcutta when in reality such was not the case, could bring the deed within the limited jurisdiction of the Court. The High Court therefore had no jurisdiction to make the decree; and the deed not having been registered in accordance with the Registration Act (3 of 1877), the mortgagee had no title to maintain the suit.

12. It will be noted in this case that the property inserted in the deed was a fictitious property which did not belong to the mortgagor. The mortgage deed, therefore, did not relate to any property in Calcutta and could not be registered there so as to give the High Court of Calcutta jurisdiction in the matter.

13. This case was followed in 48 Cal 509.2 In that case a mortgage bond for Rs. 8000 which purported to mortgage a 7 anna share in a village in the Darbhanga District and 1 kauri share in the Muzaffarpur District was registered only in the Muzaffarpur District. The mortgagor had purchased the 1 kauri share shortly before the execution of the mortgage and in order that he might register in Muzaffarpur. He paid Rs. 50 for the 1 kauri share, but there was no registered instrument or delivery of possession as required by Section 54 of the Transfer Property Act, 1882. Their Lordships found that none of the parties intended that the 1 kauri share should vest in the mortgagor, or pass under the mortgage and subsequently, held that the mortgage was invalid under Section 54 of the Transfer Property Act, under which a mortgage for over Rs. 100 can be made only by a registered instrument. In this case the property inserted in the mortgage actually existed, though the mortgagor's title to it was defective. It was not fictitious property in the sense that it did not exist, but as the property had not vested, in the mortgagor and was never intended to pass under the mortgage it was held that the document did not relate to any property situate in the Muzaffarpur District, and therefore the mortgage could not be validly registered in that district.

14. The matter was again considered by their Lordships of the Privy Council in 56 All 468.3 In that case a sale deed comprised four villages within the D sub-district for registration purposes and also a one-third share in a garden, room within the G subdistrict. The deed gave the purchasers no access to the garden-room, and one of the purchasers admitted that it was of no value to them. The deed was registered in the G sub-district. It was held that the deed was not validly registered under the Registration Act, 1908, S. 28, as the evidence showed that the parties did not intend that the share in the garden-room should really be sold, its inclusion in the deed being a mere device to evade the Act. It was further held that the word “fictitious” used in 41 Cal 972, is not confined to non-existing property; it is satisfied if the deed does not relate to a specified property for any effective purpose of enjoyment or use. At p. 495 Lord Blanesburgh, who delivered the judgment of the Board, observed as follows:

In reaching that conclusion however they failed to refer to or take into account all the circumstances which their Lordships have detailed, and it becomes the duty of the Board to consider the question afresh in their light.

They have done so and, having regard specially although not exclusively, to the facts that this, undivided share in this sitting room was agreed by one of the purchasers to be of no value, that both in respect of the interest taken in it and in respect of its complete inaccessibility it was incapable either of being utilized or enjoyed by the purchaser, that the vendor refused to include in the sale any subject in Gorakhpur to which these disadvantages did not attach, they think that one of two inferences alone is possible: either that it was never intended by either party that the sitting room should for any purpose other than that of registration be subject of sale at all, or that the vendor only included it because he knew that it never could become an effective subject of enjoyment or occupation by the purchasers. The word ‘fictitious’ used in 41 Cal 972 is not confined to non-existing properties. It is satisfied if the dead does not ‘relate’ to the specified property for any effective purpose of enjoyment or use.

15. The last case decided by their Lordships of the Privy Council is the case in 59 Mad 539.4 In that case in a sale of land situated in one registration district there was in eluded a yard of land situated in another registration district in which the purchaser neither resided nor owned property. There was no explanation of the use to which he could put it. The title of the vendor to it was doubtful, the purchaser made no attempt to take possession of it and it was built over by the owner of adjacent property. In those circumstances, their Lordships held that there was no intention to convey the square yard of land and the registration of the sale deed in the district in which the yard of land was situated was a device to evade the law of registration. There was therefore no effective registration and the deed was invalid.

16. In my view these cases lay down that there is no effective registration unless the deed of mortgage or sale relates to land situate in the sub-district in which the deed is registered. It is not sufficient that the land mentioned in the sale or the mortgage deed exists. The document cannot be said to relate to land in a registration district unless it was the intention of the parties that such land, even if it exists, should in a sale deed be transferred or in a mortgage deed form part of the security. In the present case 5 kathas of land certainly exist in village Mera; but the insertion of these 5 kathas in the mortgage deed gave the mortgagee no security whatsoever. The land being undefined could not effectually form part of the security, and on the evidence it is clear that it was never intended to form part of such security. It follows therefore that if the defendants can raise this question the registration of this mortgage deed must be held to be invalid.

17. The learned Subordinate Judge, as I have already stated, came to the conclusion that as the defendants were a party to this fraud on the registration law, they could not now allege that the document had not been validly registered. The learned Judge relied upon the case in 55 Mad 5075 in which it was held that a vendor of immovable property cannot be allowed to plead or to take advantage of the invalidity of the registration of his sale deed on the ground that by the inclusion of a particular item of property in the document and getting the document so registered in an office where otherwise it could not have been registered a fraud on the registration law was committed, in which he participated. Their Lordships laid down that as a general rule a plaintiff cannot plead his own fraud or illegal act as a basis of his claim or as a necessary step towards the success of his claim. His position in that matter was not made better by showing that the defendant had joined him in the fraud or illegal act or by the fraud or illegal act not being pleaded but coming to light in the course of the trial of the suit or even in the hearing of an appeal. The rule applied even where the fraud or illegality disclosed was in contravention of some rule of public policy embodied in a statute. In this case Reilly J. relied on a number of English authorities and did not refer to the decisions of their Lordships of the Privy Council to which reference has already been made in this judgment. Anantakrishna Ayyar J. also referred to a large number of English cases and at the end of his judgment stated:

The Privy Council decisions in 41 Cal 972 and 48 Cal 509 are not really applicable to the exact point that we are now considering. The question there was not whether the plain tiff could be allowed to set up his own fraud, but whether registration was properly and validly effected when the question arose with reference to third parties.

18. In my judgment, this Madras case is no authority for the proposition that a mortgagor defendant cannot raise this question of want of valid registration though he may be a party to the fraud on the registration laws. In 48 Cal 509 a mortgagor defendant raised the same question; and their Lordships of the Privy Council held that the deed had not been validly registered. That was a case in which the executant of the mortgage deed were sued and where they, who were parties to the fraud, successfully pleaded want of valid registration. The question did not arise with reference to third parties, as stated by Anantakrishna Ayyar J. but arose in a suit between the mortgagees and the mortgagors. Again in the most recent case, namely 59 Mad 539, the plaintiff was allowed to put forward the fraud of his father who had acted as his guardian when the property in question was sold. It appears to me that the Court is bound to hold that the defendants are entitled to raise this plea having regard, in particular, to the decision of their Lordships of the Privy Council in 48 Cal 509. In my view the learned Subordinate Judge was wrong in holding that the mortgagor defendants in this case could not raise the question of want of valid registration. It was further urged by Sir Manmatha Nath Mukerji on behalf of the respondents that the learned Subordinate Judge was wrong in admitting evidence as to the intention of the parties to this mortgage. He relied upon Section 92 of the Evidence Act. That Section is in these terms:

When the terms of any such contract, grant or other disposition of property, or any matterrequired by law to be reduced to the form of a document, have been proved according to the last Section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.

19. To this Section there are a number of provisos, and by proviso (1):

Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.

20. Sir Manmatha Nath Mukerji has relied upon a number of cases, the first of which is AIR 1927 All 4226 in which Ashworth J. appears to have held that evidence as to intention was not admissible in considering the question of registration. The point was again expressly considered by Mukerji J. in AIR 1929 All 578.7 The learned Judge held that it was not open to a party to a registered sale deed to prove an oral agreement by evidence either, oral or documentary contemporaneous with the sale deed, that in spite of a certain property, belonging to the vendor, being entered in the sale deed, title to it would not pass to the vendee. He further held that where the parties intended to hoodwink the Sub-Registrar by entering a piece of property within his jurisdiction in the sale deed, in order to give that officer juris, diction, the parties contemplated a fraud on the law of registration and so should not be granted any relief in a Court of Justice. A similar view was taken by the Bombay High Court in 49 Bom 821.8 At p. 825 Macleod C.J stated:

The appellant relies for his argument that there was a fraud on registration on two cases, 41 Cal 972, in which it was held that none of the properties appearing in the document to be registered was within the jurisdiction of the Registrar, and therefore registration was invalid, and 48 Cal 509 in which it was proved that the transferor had no title to the property mentioned in the transfer deed which would bring it within the jurisdiction of the Registrar. Neither of those cases is applicable to the facts in the present case. But the appellant wishes us to extend those decisions to the facts before us. We are concerned at present with the registration of the sale deed. The Registrar had jurisdiction to register that document, because a portion of the property mentioned. In the deed was within his jurisdiction. Clearly, if no property belonging to the transferor appearing in the document to be registered is within the jurisdiction of the Registrar, registration by such Registrar of that document would be invalid. But we are not prepared to go further and say that evidence can be led with regard to the intention of the parties at the time the principal document was registered to deal again with the portion of the property which was within the jurisdiction of the Registrar and which rendered its registration valid.

21. These cases certainly afford support for the contention that evidence as to the intention of the parties is not admissible; but in my view such evidence has been clearly admitted by their Lordships of the Privy Council in the cases to which I have referred. In the Calcutta cases, evidence was adduced to show that the property was fictitious in 41 Cal 972, and that the mortgagor's title to it was imperfect in 48 Cal 509. Further evidence was admitted in the latter case with a view to showing that the property was never intended to-form part of security. In 56 All 468 their Lordships at page 494 made the following, observation:

In the High Court the learned Judges were of opinion, and their Lordships think rightly so, that they were bound to go into this question of intention, and having done so they arrived at the conclusion that the entry of the sitting room in the deed was not a fictitious entry within the meaning of the decision of the Board already cited.

22. Here they expressly approved of the view of the learned Judges of the Allahabad High Court that the Court was bound to go into the question of intention. In the judgment of Lord Blanesburgh reference is made to the evidence. At p. 494 there appears this observation:

And this conclusion is assisted by some evidence of Shiam Rathi, the scribe who prepared it. He asked his principal, Ram Ghulam, why a third, share of the room was being entered in the deed, as it would be of no me whatever. The answer given in no way disputes that statement of Shiam Rathi's who was an ingenuous witness. He knew, he said, that if he agreed that the room was mentioned in the deed merely to enable its being registered at Gorakhpur the suit would fail on the ground of invalid registration. Yet both Courts held that the registration was valid.

23. In this case their Lordships dealt at length with the question of intention and the evidence relating to it. In the most recent case, 59 Mad 539, their Lordships again considered the question of the intention of the parties. It appears to me that if the question, which has to be decided, is the intention of the parties, evidence must be admissible though it may tend to show that property ostensibly mortgaged was not in fact intended to be mortgaged. In my view there is nothing in Section 92 of the Evidence Act, to render such evidence inadmissible. It is not evidence which varies the terms of the written document as between the parties and their representatives. It is evidence which goes to show that the document did not relate to land within the jurisdiction of the Sub-Registrar who registered it. Further, it may well be said that evidence of this kind is evidence which tends to render the document invalid and such is admissible under Proviso 1 to Section 92 of the Evidence Act. In my judgment, the evidence as to the intention of the parties in this case was admissible and was rightly admitted by the learned Judge. Lastly, it was contended by the appellants that the Sub-Registrar had no jurisdiction whatsoever to register this mortgage by reason of the fact that the property situate in Mera village was not sufficiently described. It was accordingly urged that this provided another ground for dismissing the plaintiffs' claim. This point does not appear to have been urged in the Court below. Section 21 of the Registration Act, provides:

No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.

24. It is urged that the land in Mera contains no description sufficient to identify it. What was said to be mortgaged was 5 kathas of land in Mera with no other description of any kind. The description is clearly inadequate to identify the property, and the question arises whether the Sub-Registrar had jurisdiction to register the same. Reliance has been placed by the appellants upon a number of cases. In 18 Cal 5569 certain property was described in a mortgage bond as bearing touzi No. 10, as paying a sadr jama of Rs. 719, and as lying within the jurisdiction of thana kotwali, Sub-District Bhagalpur, Colleotorate Bhagalpur. This description was so far erroneous, in that the property was in reality situated in thana Amarpur, Sub-District Banka, and bore a sadr jama of Rs. 919-15-0. Banka was however within the area of the District of Bhagalpur. The mortgage bond was registered by the Sub-Registrar of Bhagalpur, who was, under Section 7 of the Registration Act, authorized, in addition to his own duties, to exercise and perform the duties and powers of the Registrar of Bhagalpur. It was held by a majority of the Full Bench that the provisions of S. 21 of the Act, had not been complied with; that the description of the property was misleading and insufficient for the purposes of identification, and that therefore no registration of the document had been effected within the provisions of the Registration Act. The Registration Act referred to in this case is the Act of 1877. S. 21 of that Act was however in the same terms as-S. 21 of the present Act. A similar view was taken by a Bench of the Calcutta High Court in 32 CWN 241.10 It was held that when several immovable properties are mortgaged by the same deed, defect of description in respect of any one of them is sufficient to invalidate the registration of the whole deed. In that case a katha of land in Arrah was misdescribed and the description was not sufficient to identify the same. The Court held that the registration was invalid. A Bench of the Allahabad High Court in 31 All 523,11 expressed a similar view and held that where a letter purported to transfer immovable property and was presented, as a non-testamentary document for registration but was refused on the ground that it contained no description of the property, “sufficient to identify the same,” such refusal was under the circumstances proper. The effect of breaches of certain provision of the Registration Act was considered by their Lordships of the Privy Council in 7 Rang 624.12 Their Lordships were not called upon directly to express an opinion on the point which I am now considering; but Lord Atkin, who delivered the judgment of the Board, expressly approved of a dictum’ of Sir Barnes Peacook in 2 IA 210.13 At p. 216 of that report Sir Barnes Peacock observed:

In considering the effect to be given to S. 49 that Section must be read in conjunction with S. 88 and with the words of the heading of part 10, “of the Effects of Registration and Non-Registration.” Now, considering that the registration of all conveyances of immovable property of the value of Rs. 100 or upward is by the Act rendered compulsory, and that proper legal advice is not generally accessible to persons taking conveyances of land of small value, it is scarcely reasonable to suppose that it was the intention of the Legislature that every registration of a deed should be null and void by reason of a non-compliance with the provision of Ss. 19, 21 or 36, or other similar pro-visions. It in rather to be inferred that the Legislature intended that such errors or defects should be classed under the general words ‘defect in procedure’ in S. 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of & public officer, on whom they would naturally place reliance.

25. Sections 21 and 88, Registration Act, 1866, referred to by Sir Barnes Peacock have now been replaced by Ss. 21 and 87, Registration Act, 1908; but it is to be observed that the sections are in the same terms. As I have stated, this dictum of Sir Barnes Peacock is expressly approved by Lord Atkin in the Rangoon case and therefore I am extremely doubtful whether the cases of the Calcutta High Court and the Allahabad High Court, to which I have referred, can now be regarded as good law. I am therefore unable to hold that the Registrar had no jurisdiction to register this sale deed by reason of the insufficiency of the description of the land situate in Mera. For the reasons which I have given, I am satisfied that the parties in this case committed a fraud on the registration law and that the registration of the document was consequently invalid. The mortgage therefore cannot be enforced and the plaintiffs' claim must fail. The appellants also relied on Section 7 of the Bihar Money-lenders (Regulation of Transactions) Act, 1939, and contended that in any event a decree could not be passed for more than Rs. 20,000. That contention appears to be well-founded; but it is unnecessary to consider it as I hold that the claim fails in its entirety. I would therefore allow this appeal, set aside the decree of the Court below and dismiss the plaintiffs' claim. The defendants unsuccessfully raised a number of issues in the Court below and have not challenged the findings in this Court. I would therefore give the defendant-appellants their costs in this Court and direct the parties to pay their own costs in the trial Court.

Manohar Lall, J.:— I agree.

D.S/R.K

26. Appeal allowed.