DRONAMRAJU RAMA RAO Vs. VISSAPRAGADA VEDAYYA

JUDGEMENT

(1.) In this suit it has been found one square yard of house site was included in the mortgage deed merely to give jurisdiction to the Peddapur Sub-Registrar, who registered the document, whereas the property really intended to be mortgaged was situated in Amalapur. Following the decisions in Harendra Lal Roy Choudhri V/s. Haridasi Debt (1914) I.L.R. 41 C. 972: 27 M.L.J. 80 and in Biswanath Prasad. V/s. Chandra Narayan Choudhry (1921) I.L.R. 48 Cal. 509 it has been held that the mortgage deed is invalid as being "in fraud of the registration law.

(2.) The learned Subordinate Judge has, however, found that the personal covenant to repay is not invalid, and has given a decree for that part of the claim that is not barred by limitation, holding that Art. 116 of the Limitation Act is applicable, in accordance with the ruling of Amir Ali, J. in Joginee Mohan Chatterjee V/s. Bhoothnath Ghosal (1902) I.L.R. 29 Cal. 654. In appeal it is contended that that ruling is wrong, and that, as the registration of the mortgage deed is invalid, the document as a whole must be treated as unregistered, and consequently the covenant to repay must also be treated as an unregistered covenant.

(3.) What was held by the Privy Council in Harendra Lal Roy Choudhri V/s. Hari Dan Debt (1914) I.L.R. 41 C. 972: 27 M.L.J. 80 and upheld in Biswanath Prasad V/s. Chandra Narayan Chowdhry (1921) I.L.R. 48 Cal. 509 was that "an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists is a fraud on the registration law, and no registration obtained by means thereof is valid. "The principle which I take to underlie this decision is that no person shall be allowed to take advantage of his own fraud. If that principle be applied to the present case the object attained by the fraud was the registration of the mortgage deed as such, for had the document been merely a covenant to repay, the Peddapur Sub-Registrar would have had jurisdiction under Section 29 of the Registration Act (Act XVI of 1908) for under that section parties are at liberty to choose their own place of registration. In so far then as the document evidenced a mere covenant to repay there was no fraud upon the registration law, and to hold that such registration was invalid would be to extend the principle above mentioned so as to deprive a party of a right which he had not obtained by fraud as well as of the advantage gained by his fraud. To do this appears to me to extend the principle to inequitable length and 1 am supported in this view not only by the direct ruling of Amir Ali, J. in, Joginee Mohan Chatterjee V/s. Bhootnath Ghosal (1902) I.L.R. 29 Cal. 654, but also by the action of the Privy Council in the case reported in Biswanath Prasad V/s. Chandra Narayan Choudhry (1921) I.L.R. 48 Cal. 509, for that case was remitted to the Calcutta High Court for a decision as to whether the plaintiff had a valid alternative claim for a personal judgment for the mortgage, debt. No doubt there was no finding that the claim for a personal decree was based upon a contract in writing registered, but it would appear from a perusal of the argument in the case reported in 25 C.W.N. 985 that a period of limitation of 6 years was contemplated, the argument being that a payment of interest in 1903 would save limitation for the suit brought in 1908. Unless it was the opinion of the Court that the debt was secured by a registered instrument the argument would have been of no avail, for such a payment was not within 3 years of institution of the suit, and the suit would have been barred if based upon the personal covenant. Had that been the case it appears to me improbable that the case would have been remitted for a consideration of the. claim. I am therefore of opinion that the decision in Joginee Mohun Chatterjee V/s. Bhootnath Ghosal (1902) I.L.R. 29 Cal. 654, is right and that the registration of the personal covenant to repay is not procured by fraud and is consequently valid. The other cases cited Amba alias Padmawathi V/s. Shrinivasa Kamathi (1921) 26 C.W.N. 369 and Ramnarayan Singh V/s. Adhindranath Mukerjee (1917) I.L.R. 44 Cal. 388: 32 M.L.J. 39 do not appear to have any bearing on the present case and the facts reported in Shamlal V/s. Thehariya Lakshmichand (1920) 18 A.L.J. 476 are too vague to give that case any value here. The Second appeal is accordingly dismissed with costs. The Memo, of Objections must also be dismissed with costs as the lower Court exercised its discretion in awarding a personal remedy and was entitled in so doing to reduce the rate of interest contracted for in the mortgage deed. Devadoss, J.