Sreemutty Matonginy Dossee v. Ramnarain Sadkhan

Reference under Act IX of 1850, section 55, from the Judge of the Court of Small Causes at Calcutta.

The plaintiff in this case sued for “money due on a Khat with interest on mortgage.” She claimed Rs. 203-14. The “Khat referred to, after setting out a list of properties belonging to the defendant, proceeds as follows: “I borrow the sum of Rs. 100 from you on mortgage thereof [of the land before mentioned with interest at the rate of 24 per cent, per annum, which interest I shall pay monthly, and shall re-pay the whole amount with within the 23rd of Chytro of this year (April 5th, 1875). In default of my paying the debt within the term aforesaid, you shall have to get the mortgaged property sold by instituting legal proceed. Should the sale thereof not cover the whole amount, you shall have to realise the balance by having my other landed properties disposed of. On the above condition I do hereby executed mortgage deed, having mortgaged the above piece of land there with the title deeds thereof.” Dated 23rd Assin 1281 8th of October 1874).

It was objected that the instrument above set out, not being registered, was not admissible as evidence of the transaction in respect of which the money was claimed, and the Judge of the Small Cause Court upheld the objection, on the provisions of sections 17 and 49 of Act VIII of 1871, and of Act III of 1877, contingent upon the opinion of the High Court.

Bonnerjee, for the Plaintiff.

The document ought to have been admitted, not for the purpose of affecting the immovable property mentioned in it, but for showing that the plaintiff had lent money to the defendant, and that the defendant had promised to re-pay it. Section 49 of Act VIII of 1871, which governs this case, is far less stringent than section 49 of the Registration Act of 1866, and yet under this latter Act an unregistered mortgage bond was allowed in as evidence of the defendant's indebtedness. — Woodoy Chand Jana v. Nitya Mundul, 9 W.R, 111; and this case was approved of in Nilmadhub Sing Dass v. Futteh Chand Sahu, 3 B.L.R, A.C, 310. In Shibprasad Das v. Anna Purna Dayi, 3 B.L.R, A.C, 451, an unregistered bill of sale was admitted in evidence for the same purpose; and in Lutchmiput Singh Dugar v. Mirza Khairat Ali, 4 B.L.R, 18 F.B, the Full Bench decided that an un-registered bond was admissible in evidence to bind the obligor personally, though not to prove that the obligee was entitled to the security of the land.

[Garth, C.J:— In the cases you have cited the documents were separable. The present document is not so.]

Bonnerjee.—The mere absence of a covenant to pay makes no difference — Jogeswar Dutt v. Nilsi Chund Chuckerbutty, 4 B.L.R, App., 48. In that case the terms of the bond were substantially the same as those of the bond in the present case, yet a decree was given against the defendant's movable property.

Counsel also referred to Stri Seshathri Ayyengar v. Sandara Ayen, 7 Mad., 296; Guduri Jagamadhan v. Rapada Armanna, 7 Mad. 348.

The judgment of the High Court (1) is as follows:—

We think that the Judge is quite right in holding that the document in question is not admissible in evidence.

It has been argued by Mr. Bonnerjee, on behalf of the appellant, that we are concluded here by the authority of the Full Bench case of Luchmiput Singh Dugar v. Mirza Khairat Ali, 4 B.L.R, F.B, 18, which was decided under the provisions of Act, XX of 1866, section 49. The words of that section run as follows: “No instrument required by section 17 to be registered shall be received in evidence in any civil proceeding in any Court, or shall affect any property comprised therein, unless it shall have been registered in accordance with the provision of this Act;” and it was held by the Full Bench that, where a document was divisible in its nature, and consisted partly of a bond for Rs. 2,000 and partly of a mortgage of certain property to secure payment of the money, the document was receivable in evidence, without registration, for the purpose of recovering the bond debt, though it was not so admissible for the purpose of enforcing the security. The Court seems to have considered that the general words, “No document shall be received in any Civil Court,” ought not to be read in their widest sense, but only as rendering the document inadmissible in evidence, for the purpose of affecting the mortgaged property.

The words of the present Act are different. Section 49 says that “no document required by section 17 to be registered shall, without being registered, be received as evidence of any transaction affecting” any immovable property comprised there in. Now in this case the document is not divisible. It discloses one transaction only, and that the transaction which the plaintiff must necessarily prove for the purpose of making out her case.

It may be doubtful, indeed, whether, having regard to the terms of the loan, the defendant is personally liable for the money, and whether the only remedy of the plaintiff is not against the mortgaged property. But, whether this was so not, the transaction was single and indivisible, and we think it is impossible to say, having regard to the words of section ??? that the instrument was admissible in evidence for the purpose of proving that transaction.