TILAKDHARI LAL Vs. KHEDAN LAL

JUDGEMENT

(1.) The main question raised upon this appeal is a pure question of law, and depends upon the true construction to be placed on certain Indian statutes In the earlier stages of the dispute this question was associated with the history of a series of transactions to which detailed reference is now unnecessary, since the chief point that arises for determination is whether the effect of the Registration Act, 1877, and the Transfer of Property Act, 1882, is to provide that the registration of a deed shall by the mere fact of registration become, in the words of Lord Camden (Morecock v. Diekins (1768) Amb. Rep. 678, 680), "presumptive notice to all mankind". Opinion in India has differed Upon the point. Certain decisions in the High Court of Bombay appear to be based upon the view that it is, while in Calcutta the decisions have been so uniformly in the opposite direction that in the present case counsel for the appellants, who contend in favour of the doctrine that registration is notice, found himself unable in the High Court to breast the tide of authority, while reserving the right to renew the struggle if the case should further proceed.

(2.) Although this point is the chief one that now needs determination, eighteen issues were framed by the Subordinate Judge. These were all carefully examined and dealt with in his judgment, which was in favour of the respondents and was affirmed by the High Court at Fort William in Bengal. These issues are either now finally disposed of or they are subordinate to the question of notice. It is unnecessary, therefore, minutely to examine the history of this case or to analyse the transaction out of which the dispute proceeded or the form of the two suits which are now consolidated in this appeal. It is sufficient to say that the controversy arises between two sets of mortgagees claiming through six mortgages granted by the same mortgagor. The holders of the first and second mortgages are the contesting respondents, the third and fourth were in favour of the appellants, and the fifth and sixth were again in favour of the respondents.

(3.) The second mortgage included two decrees obtained by the mortgagor against third parties, namely, No. 509 of 1885 and No. 4 of 1897, and these were also made subject to the subsequent charges. The fourth mortgage also included a one-half share in an estate known as Khagra, and this again was included in the fifth mortgage without any reference being made to the preceding dealing with the estate. At the date of the execution of the fourth mortgage, although the mortgagor had purchased the estate under an execution decree, the sale had not been confirmed and he had obtained no certificate of sale. This he subsequently acquired before the execution of the fifth mortgage. All the transactions were duly registered. The decrees subject to the second mortgage in favour of the respondents were realised by the mortgagor and the respondents and were dealt with by them without reference to the rights possessed by the appellants under the third and fourth mortgages.