VE RM V RAMANATHAN CHETTIAR Vs. MUTHUKUMARU

JUDGEMENT

(1.) This is an appeal preferred by the 2nd plaintiff, who is also the legal representative of the 1st plaintiff, against the decree of the Subordinate Judge in a suit on a mortgage. The Subordinate Judge has given a simple money-decree holding that the hypothecation-bond was not duly registered and, therefore, was invalid in law. The 1st and fourth defendants executed the mortgage. The 2nd defendant is the undivided son of the 1st defendant, the 3rd defendant is the son of the 1st defendant s brother. But it is found that he was divided and, therefore, the mortgage will not bind him, and Mr. Venkatachariar, the learned Vakil for the appellant, has now sought to impeach that finding. Therefore, so far as that defendant is concerned, the decree will not bind him and his share in the property. The lower Court found that the consideration for the mortgage had been satisfactorily proved, although that appears to have been questioned as the main defence in the suit, and no argument has been addressed to us on behalf of the respondents against this finding of the lower Court.

(2.) The Subordinate Judge also found that the document was duly attested as required by law : that is to say, the attesting witnesses saw the execution of the document and subscribed their names as attesting witnesses. That finding has been sought to be re-opened before us by the learned Vakil for the respondents, but we have no hesitation in accepting the finding as correct. In our opinion the evidence of plaintiff s 2nd witness on the point is quite clear.

(3.) The Subordinate Judge, however, refused to give a mortgage-decree on the ground that a portion of the property, that is, 39 cents of land in Sittubotti village within the jurisdiction of the Sub-Registrar of Peraiyur, was inserted in the mortgage-deed with the intention of having the document registered at Peraiyur as it was not convenient to the parties to go to the Waltrap Sub-Registrar s office on account of the weather and distance. He seems to be under the impression that, if parties to a mortgage-deed include certain properties as security for the money advanced but, primarily, in order to have the document registered by the Sub-Registrar within whose jurisdiction the property is situate, according to the law of registration the document must be held not to be duly registered, in accordance with the ruling of the Privy Council referred to in Harendra Lal Roy v. Hari Dasi Dabi 23 Ind. Cas. 637 : 41 C. 972 : 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 : 12 A.L.J. 774 : 1 L.W. 1050 : 41 I.A. 110 (P.C.). All that the Privy Council, however, decided in that case was that, if the parties to a document have entered certain properties which did not belong to the mortgagor and which they never intended to use as security, then such a fictitious entry would not validate registration by the officer in whose jurisdiction the property, as entered, is alleged to be situate. They do not lay down that if a certain property is included in the deed, mainly with the object of giving jurisdiction to the officer in whose jurisdiction it is situate, although the value of such properties may be very small, that would not satisfy the requirements of the law of registration. In fact the ruling of the Judicial Committee in Hari Ram v. Sheodyal Mal 11 A 136 : 16 I.A. 12 : 5 Sar. P.C.J. 281 : 6 Ind. Dec. (N.S.) 515 shows that registration in such circumstances would be entirely in accord once with law. They point out, that the smallness of the value of any item of property can make no difference in this connection, because the Act says that the parties can have the document registered within the jurisdiction of any Registrar where any portion of the property is situate. The recent ruling of this Court, to which one of us was a party, in Sankaran Nambiar v. Narayanan Thirumumpu 55 Ind. Cas 86 : 38 M.L.J. 251 : 11 L.W. 192 : (1920) M.W.N. 205 : 48 M. 405 also bears out this proposition.