1. Plaintiff appellant's suit based upon a mortgage, dated 19th May 1909 has been dismissed on the ground that the deed was not duly signed. This question of registration depended upon the decision of two questions (1) whether at the date of the mortgage the mortgagor was the owner of 1 acre of land of mouza Wadali which along with other fields was given as security, and (2) whether the mortgagee was then aware of the want of mortgagor's title. There is no dispute as to the existence of that item of property. It is situate at mouza Wadali in Akot Taluq while the bulk of the other property comprised in the security is situate in Daryapur Taluq. The document was written, signed, attested and registered at Akot on 19th May 1909. The original mortgagor as also the original mortgagee are toth dead. The present suit had been instituted by the original mortgagee's son against the mortgagor's husband's brother who inherited the mortgaged property and against transferees from the mortgagor's husband. The following preliminary issues will give an idea of the pleadings urged by the defendants:—
“(1) Whether the mortgagor had no title to the field survey No. 21, 1 acre.
(2) Whether it was included in the mortgage to practice fraud upon registration.
(3) Whether the mortgagee was aware of the fraud if any.”
2. The findings of the first Court may be summed up as under:—
(1) that Gopi the mortgagor had no title to the said 1 acre of land of survey No. 21 of Wadali on the date of the mortgage in suit;
(2) that Gopi did not really intend to mortgage that 1 acre as she had no title to it, and that the said 1 acre was included in the mortgage merely with a view to have the deed registered at Akot:
(3) that there is no direct evidence to prove that the mortgagee was a party to the fraud, but that there were facts from which inference of fraud can reasonably be drawn, and that the inclusion of the item of property situate at Wadali was intended to be fictitious and that the mortgagee was aware of the inbended fraud at the date of the mortgage.
3. The result was that the plaintiff's suit was dismissed with costs.
4. The appeal to the District Judge was disposed of in a meagre judgment. The findings of the lower appellate Court are as under:—
(1) that the whole field survey No. 21 had been transferred and that nothing remained in possession of Mt. Gopi at the time of the mortgage in suit;
(2) that there is no direct evidence that the mortgagee was aware of the fraud, but the device seemed to be such an obvious one that the Court thought itself bound to hold that the mortgagee knew of it. In other words that both the mortgagor and mortgagee were aware of the fact that Gopi was not in possession of any part of survey No. 21 of Wadali at the date of the execution of the mortgage in suit.
5. Plaintiff has come up in second appeal. I am clearly of opinion that so far as the finding on the question of mortgagor's Gopi's title to the 1 acre of survey No. 21 of mouza Wadali is concerned, it is based on evidence both oral and documentary and I am precluded from interfering with it in second appeal. But the question still remains whether in spite of this she believed that she had a claim to that land and therefore she and her husband dealt with that property as if it was her or his property, and they had subsisting interest therein.
6. As regards (be finding about the mortgagor and mortgagee having intended to practise fraud on the Sab-Registrar, I must at once say that I am not prepared to accept it. There is as admitted by the Courts below absolutely no evidence. Moreover, the mortgagor, the mortgagee and the writer of the mortgage-deed in suit are all dead; there is nothing in the present state of the record to show that the attesting and identifying witnesses who might presumably have thrown some light are still in existence or have not become incapable of giving evidence. In a mortgage suit the mortgagor is not allowed to deny his own bible to the property. He is estopped from pleading that he had no bible to the property at the date of the mortgage. This estoppel is based upon the principle that the mortgagee having, on the faith of the representation of the mortgagor that he had a good transferable interest in the property be purported to mortgage, advanced money on the security of the property he could not be prejudiced by any subsequent plea of want of title by the mortgagor. But if the mortgagee is proved to be well aware of the actual state of facts as regards the mortgagor's title to the property, then the plea of estoppel is not available to him. This itself shows that whoever wants to get out of the estoppel must establish knowledge on the part of the mortgagee of the defect in the mortgagor's title, otherwise the estoppel will preclude proof of want of title, in a mortgage suit. The law presumes good faith in every transaction and fraud and collusion are exceptions. The burden therefore of proving invalidating circumstances such as these lies on the party who affirms them. The burden of proof therefore lay on the Defendants to prove that the mortgagor Gopi had communicated her intention to the mortgagee to deceive the Sub-Registrar into admitting the document to registration by mentioning in it an item of property not belonging to her but situate within his jurisdiction, and further that both collusively induced the Sub-Registrar to admit the document to registration. If evidence is wanting to prove this fact I fail to see how a Court of justice can base its decision on mere conjectures. Conjectures do not supply the place of evidence. There may be ground for suspicion and Gopi's conduct in the past may engender doubt, but the Court's decision must rest, not upon suspicion, but upon legal grounds established by legal testimony. Mina Kumari v. Bijoy Singh Dudhisi (1917) 44 Cal. 662 , 44 I.A 172 , 1 Pat. L.W 425 , 5 L.W 711 , 32 M.L.J 425 , 21 C.W.N 585 , 21 M.L.T 344 , 15 A.L.J 382 , 25 C.L.J 608 , 19 Bom. L.R 424 , 40 I.C 242 , (1917) M.W.N 473 (P.C). The Court will not be justified in drawing inferences adverse to the mortgagee and impute to him knowledge of facts which will invalidate his document unless the party relying on such facts has laid any foundation for their application. The law's presumptions cannot be lost sight of. Every man must be presumed to have known the law and to have acted for his benefit. A mortgagee will not deliberately or knowingly take an invalid security or be a party to a collusive or fraudulent arrangement which might recoil on himself. The ordinary course of human conduct is entirely against imputation of such an intention. The mere circumstance that the item of one acre was worth Rs. 25 and therefore did not in itself afford ample security to the mortgagee ought not to make any difference in principle. Merely because the mortgagor may have with a view to deceive a Sub-Registrar adopted a certain device in the year 1900 in connection with certain transactions with certain persons, there is no presumption that she must have necessarily acted in the same manner in connection with another transaction of a different nature with a different individual eight years thereafter. It does not also follow that the other party to the transaction also shared her intention to deceive the Sub-Registrar and thus agreed to lose the benefit of his own valuable security for this purpose of merely avoiding the inconvenience of a journey to a more distant place for registration. It is incompatible with ordinary commonsense and course of human conduct to expect a man to risk his money like this. No one would try to deceive himself however willingly he may become an instrument for deceiving third persons. Under these circumstances, I will presume that the representations contained in the recitals in the mortgage-deed in suit were true, and were believed to be true by the mortgagee, and that he acted upon that belief.
7. The following extracts from the first Court's judgment will show how artificially the facts of the case have been twisted to suit the law laid down by the Privy Council in Harendra Lal Roy Chowdhri v. Haridasi Debi (1914) 41 Cal. 972 , 41 I.A 910 , 1 L.W 1050 , 27 M.L.J 80 , (1914) M.W.N 462 , 16 M.L.T 6 , 18 C.W.N 817 , 19 C.L.J 484 , 16 Bom. L.R 400 , 23 I.C 637 , 12 A.L.J 774 (P.C).
“The above findings show that the case clearly falls within the rule laid down by the Privy Council in Harendra Lal Roy Chowdhri v. Haridasi Debi (1914) 41 Cal. 972 , 41 I.A 910 , 1 L.W 1050 , 27 M.L.J 80 , (1914) M.W.N 462 , 16 M.L.T 6 , 18 C.W.N 817 , 19 C.L.J 484 , 16 Bom. L.R 400 , 23 I.C 637 , 12 A.L.J 774 (P.C) and is on all fours with Orkudya v. Doma (1919) 15 N.L.R 75 , 60 I.C 764. For the plaintiff reliance is placed on Pahladi Lal v. Musammat Laraiti (1919) 41 All. 22 , 48 I.C 200 , 16 A.L.J 871 and on Dirg Pal Singh v. Pahladi Lal (1920) 42 All. 176 , 54 I.C 528 , 18 A.L.J 137, which do indeed show that in order to bring a case within the principle of the Privy Council ruling above referred to it must be shown that the mortgagee was a party to or was cognisant of the fraud. I have however found that this condition too has been fulfilled in the present case. I hold therefore that registration of the mortgage in suit is invalid and consequently the mortgage is invalid. The province of a Judge is first to find facts and then to apply the law to those facts, and not to twist the facts to suit the law.
8. As pointed out in Pahladi Lal v. Musammat Laraiti (1919) 41 All. 22 , 48 I.C 200 , 16 A.L.J 871 and Mt. Ram Dai v. Ram Chandrabali Debi (1919) 4 Pat. L.J 493 , 32 I.C 446 the requirements of section 28 of the Registration Act are all that have to be complied with if any portion of the property to which the document relates is situate within the jurisdiction of the Sub-Registrar where the deed is registered, that is sufficient to give him jurisdiction. It is not the province of the Sub-Registrar to enquire or investigate into the title of the mortgagor or vendors or of others presenting documents to registration and to refuse admitting documents to registration on the ground of want of title of the executants. In the Privy Council case the item of property was non-existent within the jurisdiction of the Sub-Registrar who registered the deed and that circumstance was treated as an index of the intention of both the parties to deceive the Sub-Registrar. Such is not however the case here. That case is easily distinguishable from the present one, firstly because the one acre of Survey No. 21 of Wadali is situate within the jurisdiction of the Sub-Registrar of Akot and secondly because the executant, although she may have no title or her title may have become extinct, still she presumably believing that she had a subsisting title to that item of property, actually represented to her transferee that she had it, and induced the latter to advance money on the faith of that title, and the latter in his turn, acting upon that belief permitted its inclusion in the property sought to be transferred by the instrument. If the recital in the deed had been false in the sense that it falsely described certain property as existent within the jurisdiction of the Sub-Registrar whereas as a matter of fact it did not so exist or was not situate within his jurisdiction, that recital might have been a fraudulent recital as against the Sub-Registrar, because, but for that representation through the medium of that recital the Sub-Registrar would not have been induced to accept the deed for registration. Can it be argued with any show of reason that, if a person who lays claim to a certain item of property which is in the possession of trespassers, but who having no funds to fight out his case, executes a sale-deed in favour of a financer and inserts in the deed to be registered words to the effect that his title to one of the items of the property is disputed and was denied by the trespassers in possession within 12 years and therefore he is in a hurry to file the suit within 12 years of such denial, the Sub-Registrar will be in a position to refuse to admit the deed for registration although the requirements of the provisions of section 28 of the Indian Registration Act, are duly complied with. I am clearly of opinion that the Sub-Registrar will have no jurisdiction to refuse registration on the ground. Toth the parties enter into the transaction with full knowledge of the fact that the title of the vendor to one of several items of property situate within the jurisdiction of the Sub-Registrar is likely to be the subject of a very serious litigation and may turn out to be of no avail to the vendee and therefore he may have to ran a great risk in taking a conveyance regarding it, but that is no ground for holding that because the parties are aware of such defect in the title of the executant the validity or otherwise of the deed should in any way be affected thereby. The document must operate against such interest as the executant may then have in the property covered by the deed. I am fortified in this view by the rulings of the Allahabad, Calcutta, Madras and Patna High Courts reported in Pahladi Lal v. Musammat Laraiti (1919) 41 All. 22 , 48 I.C 200 , 16 A.L.J 871, Dirgpal Singh v. Pahladi Lal (1920) 42 All. 176 , 54 I.C 528 , 18 A.L.J 137 Kunnhi Sankaran Nambiar v. Narayanan Tirumunpu (1920) 43 Mad. 405 , 38 M.L.J 251 , 11 L.W 192 , 55 I.C 86 , (1920) M.W.N 205, Brojo Gopal Mukerjee v. Abhilash Chandra Biswas (1910) 14 C.W.N 532 , 5 I.C 127 and Mt. Ram Dai v. Ram Chandrabali Debi (1919) 4 Pat. L.J 493 , 32 I.C 446.
9. The case of Urkudya v. Doma (15 N.L.R 75) is easily distinguishable from the present case. In that case the mortgagee was examined as a witness and the Court gave a clear finding based on evidence that the mortgagee knew the mortgagor's intention to practise fraud. In view of the finding that even though Gopi's intention in including the item of 1 acre of Wadali in the mortgage-deed may have been to practise deception still that intention was not shown to have been shared by the mortgagee, the case does not fall within the purview of the Privy Council ruling on which the case in Urkudya v. Doma (1919) 41 All. 22 , 48 I.C 200 , 16 A.L.J 871 is based.
10. For these reasons I set aside the dismissal of the suit and remand the case for trial on the merits.
11. The appellant will get costs of this appeal from the respondents who will bear their own. All the costs of the lower appellate Court and of the Court of first instance hither to incurred other than Court-fee on the plaint shall be paid by the defendants-respondents who will bear their own. The Court-fee on the plaint shall abide the event.
12. Case remanded.