BHONESHWAR RAM Vs. RAM KHELAWAN SAHOO

JUDGEMENT

(1.) The case out of which this appeal arises is a suit on a mortgage, dated the 17 June 1901, whereby the defendants-appellants or their representatives pledged a quantity of kobalas and rehan deeds for a loan of Rs. 19,501. The suit has been decreed by the lower Court against all the appellants exonerating the shares of defendants Nos. 5 and 10, the widows of cousins who are alleged to have been co-sharers in the property but who are not parties to the mortgage-deed. Various points have been raised before us, the first of which is that the subject-matter of the mortgage is too indefinite for the document being capable registration under Section 21 of the Registration Act, and that as registration was necessary the document cannot be admitted on the record as a mortgage. As regards this, cases have been quoted before us Co prove what cannot be doubted that the mortgage must define its subject-matter with distinctness. In the present case the mortgaged property-consists with one exception of deeds relating to land. The deeds are sufficiently described by setting out the sums of money with which they are concerned, the dates of execution and the names of the persons bound by them. These items of properties are, therefore, described with sufficient distinctness to make the document capable of registration. There is the one item, the khund, which is the subject-matter of the mortgage in which the boundaries are set out in the usual way. This we will consider later. But we consider that the point about distinctness in the mortgage-bond is one that cannot be sustained.

(2.) The next point taken is that the mortgagors of properties referred to in the bonds we have mentioned are no parties to the suit, and it is contended that for that reason the suit is improperly framed. Authorities have been quoted before us to show that a sub-mortgagee, which is the character of the present plaintiff, can join the original mortgagors. We have been referred to the cases in Muthu Vijia Raghunatha V/s. Venkatachallam Chetty 20 M. 35; (Shephard on Mortgages, p. 413), Narayan Vithal Maval V/s. Ganoji 15 B. 692; Ganga Prasad v. Chunni Lal 18 A. 113; Ram Shankar Lal V/s. Ganesh Parshad 29 A. 385 at p. 398 : 4 A.L.J. 273 : A.W.N. (1907) 97 : 2 M.L.T. 248. No authority, however, has been produced to show that it is necessary for a sub-mortgagee to join the original mortgagor when suing the mortgagee and on principle there is no reason why he should not have his rights against the mortgagee settled without any reference to the original mortgagor. It may very well be that a suit in which the mortgagor is joined is better adapted than the present one for deciding the rights of all possible parties, but as the mortgagor cannot, in any way, be prejudiced by the present suit, we cannot see any reason for holding that it is otherwise than properly framed.

(3.) We are next confronted with the contention that this deed is invalid because an interpolation was made in it by or on behalf of the plaintiffs. After 45 bonds and other documents have been mentioned we find the mortgage of one khund which, as we have said, is properly described by boundaries. This it is alleged is an interpolation. Looking to the contents of the mortgage we are inclined to think it suspicious that this khund should be mentioned with the documents. The oral evidence on the two sides on the point is conflicting and we do not attach much weight to it but what we do consider of importance is that this bond was presented for execution by one of the appellants. We think it unlikely that he would have presented this bond with an improper interpolation in it. On looking at the bond we have no doubt that this reference to the khund existed at the time of registration. It is not necessary for us to decide how the reference to the khund found place in the mortgage, but it is not unlikely that objection was taken to the want of description of any of the properties affected by the deeds and that the khund was inserted in order that in one case at all events there might be sufficient distinctness of premises described to justify registration. But the document with this addition was admitted by all the executants before the Registrar. In view of these facts we cannot consider that the reference to the khund although it may be strictly speaking an interpolation can be such interpolation as to avoid the bond.