RADHA KISHAN Vs. FIRM JWALA PRASAD SHIV PRASAD

JUDGEMENT

(1.) JAGAT NARAYAN, J. This is a revision application by the objectors against an order of the Senior Civil Judge, Sikar, holding that a document on which they rely is inadmissible in evidence for want of registration and for want of being stamped. The revision application has been contested on behalf of the decree-holders.

(2.) IN execution of a decree of the decree-holders against Kishan Lal respondent No. 6 an undivided half share of a Haveli situated at Fatehpur in Sikar District was attached on 21. 8. 60. On 1. 10. 60 the applicants filed an objection claiming that the undivided half share of Kishan Lal in the Haveli in question was mortgaged in their favour on 4. 5. 56 by the deposit of title deeds. IN support of this allegation they filed a document which runs as follows : "no. 7, Banstalla Gulli, Calcutta. Dated 4th May, 1956. M/s Ghanshyamdas Radhakishan, 89, Cross Street, Calcutta. Dear Sirs, This is to place on record that I have on 4th day of May 1956, deposited with you at No. 89, Cross Street, Calcutta, the documents of title mentioned hereunder relating to undivided one half share belonging to me in a haveli (Dwelling House) situated at Fatehpur in the District of Sikar in the State of Rajasthan (particulars whereof are written in the schedule hereunder written) by way of security for due re-payment of a loan of Rs. 15,000/- advanced by you under a promissory note executed by me in your favour. Particulars of the documents deposited: 1. Original Patta No. 247 dated Magh Badi 13, S. Y. 1955. The schedule above referred to: All that undivided half share belonging to me in a haveli (Dwelling house) situated at Fatehpur in the District of Sikar in Rajasthan butted and bounded as follows: On the North by a public passage leading to canal. . On the South by the land of Jankidas Brij Mohan Sharaff. On the West by public passage. On the East by canal of Fort. Explained by me to the signatory. Kishanlal Sharaff Sd/- Ram Prasad Dass Advocate 4. 5. 56" Yours faithfully Sd/- Kishanlal Sharaff The trial court held on the basis of the authority of their Lordships of the Privy Council in Hari Shankar vs. Kedar Nath (1) that the document created a mortgage and required registration. I have heard the learned counsel for the parties and I am satisfied that the above document does not require registration. The following decisions were referred to by the learned counsel for the parties, Sundarachariar vs. Narayana Ayyar (2), Hari Shankar vs. Kedar Nath (l), Rachpal vs. Bhagwandas (3), United Bank of INdia vs. Lekhram S. & Co. (4 ). A perusal of those decisions goes to show that a document would only require registration if independently of the provisions of sec. 58 (f) of the Transfer of Property Act it creates a mortgage. Applying this test in the present case I find that if the provisions of sec. 58 (f) are ignored then the document does not create a mortgage. IN Hari Shankar vs. Kedar Nath (1) the document created a mortgage independently of sec. 58 (f ). The memorandum there did not merely evidence a transaction already completed. Its language was operative. It was contractual in form and had embodied an agreement that if the money was not paid the mortgagee would sell the properties the title deeds of which had been deposited. That case is distinguishable.