SOHAN RAJ Vs. AMAR CHAND

JUDGEMENT

(1.) THIS revision petition has been filed against the order of the learned Additional District Judge No. l, Jodhpur dated October 5,1991 by which he has held that the document in question did not require registration. The facts of the case giving rise to this revision petition may be summarised thus.

(2.) THE Central Bank of India, Jalorigate, Jodhpur (plaintiff-non-petitioner no. 5) has filed a suit for the recovery of Rs. 10,40,000/- against the petitioners and non-petitioners no. l to 4 (defendants) with the allegations, in short, that the latter have obtained loan from it on the basis of equitable mortgage of their properties by depositing their title-deeds. During the evidence, the disputed document was tendered in evidence by the plaintiff. THE defendants raised objection against it to the effect that it cannot be tendered in evidence for want of registration. After hearing the learned counsel for the parties, the learned trial court held that the disputed document is not a mortgage deed, it is simply a document reciting that mortgage has been effected by deposit of title-deeds and it is a memorandum of past transaction. Accordingly, it repelled the defendants-objection by its order under challenge.

(3.) THE documents which were subject matter in Deb Dutt Seal vs. Ramanlal Phurma (supra) and Radha Kishan vs. M/s Jwala Prasad Shiv Prasad (supra), are similar to the disputed document and it has been held that they did not require either registration or stamp duty. Hari Shanker Paul vs. Kedar Nath Saha (supra), has duly been considered in both these cases. It has been observed in Para 10 of Deb Dutt Seal vs. Raman Lal Phurma, (supra), that if such document is not an operative instrument and is merely evidential, it requires registration, the decision of (AIR 1939 PC 167) (supra) cannot be approved. In para no. 22, the following observations of the AIR 1939 PC 167 (supra) have been quoted : - "the memorandum does not merely evidence a transaction already completed: its language is operative. It is contractual in form, and it embodies an agreement that the title deeds in question are to be held as security for the advance made, and it speaks of the moneys "hereby secured. " In Ishar Dass vs. Dhanwant Singh (supra), it has been held that the disputed document was contemporaneously written and gave particulars of the bargain of the contract between the parties. In Bihari Lal Lahoti vs. Harendra Nath Sharma (supra), the disputed document was executed for repayment for mortgaged dues and payment of interest thereon and as such it was held inadmissible for want of registration. In Parkash Dev vs. New Bank of India (supra), the disputed letters were written after the title deeds were deposited with the Bank, no terms of mortgage were embodied in them and the parties did not intend that the letters to be the depository a transaction of equitable mortgage. Similar is the case here. Kakoo Shah vs. Kamla Wati (supra), does not help the petitioner. On the contrary, it helps the non-petitioner Bank. It has been observed in V. G. Rao vs. Andhra Bank (8), as follows : - "therefore, the crucial question is : Did the parties intend to reduce their bargain regarding the deposit of the title-deeds to the form of a document? If so, the document requires registration. If on the other hand, its proper construction and the surrounding circumstances led to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document being merely evidential does not require registration. "