JOGENDRA NATH SUKUL Vs. SAFIUDDIN SHEIKH

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for redemption of a mortgage executed in his favour by the plaintiffs on the 26 February, 1912. The case for the plaintiffs is, that on an adjustment between the parties, it was settled that, after remission, Rs. 200 would be accepted in full satisfaction of the sum due under the mortgage. The plaintiffs-allege that this sum was paid on the 30 May, 1917, and though the defendant-granted a receipt, he has not returned the mortgage-bond. The plaintiffs accordingly ask for redemption and for delivery of the deed. The Courts below have found in favour of the plaintiffs and have decreed the suit. On the present appeal, it has been contended that the receipt could not be admitted in evidence, as it was not registered in accordance with Section 17 of the Indian Registration Act. The contention in substance is that the receipt was an instrument which purported or operated to extinguish an interest in immovable property of the value of more than Rs. 100 and was compulsorily registrable. We are of opinion that this argument is not well-founded.

(2.) The receipt states that the defendant had paid Rs. 200 on account of the mortgage; but it does not recite that this sum, was all that was due under the mortgage and that the effect of the payment was to extinguish the security. It cannot be maintained on these facts that the receipt was compulsorily registrable. Reference has been made to the decision in Jiwan Ali Beg V/s. Basa Mal (1886) 9 All. 108 which was followed by this Court in Kailash Chandra Nath v. Shikh Chhenu (1915) 42 Cal. 546. The decision of the Full Bench in Jiwan Ali Beg V/s. Basa Mal (1886) 9 All. 108 is an authority for the proposition that an instrument to come within Section 17(b) of the Registration Act must in itself purport or operate to create, declare, assign, limit or extinguish some right, title or interest of the value of Rs. 100 or upwards in immovable property, while to come within Section 17(c), it must be, on the face of it, an acknowledgement of the receipt or payment of some consideration on account of the creation, declaration, assignment, limitation or extinguishment of such a right, title or interest. The receipt then before the Court did not fulfil this condition and. was held admissible without registration. On the other hand, in Parashram V/s. Ganpat (1897) 21 Bom. 533 the receipt not only acknowledged payment of money, but also stated that "the mortgagee would have no longer any interest remaining in any way in the mortgaged premises and would execute a new sale-deed on stamp." It was held that this was a receipt which fell within Section 17 of the Registration Act and was compulsorily registrable. The distinction between the two classes of cases was explained in Lakshman V/s. Damodar (1900) 24 Bom. 609 where Ranade, J., set out the law as follows: The receipt was what it professes to be, a settlement of accounts. It does not purport to extinguish the mortgage-debt, and it, therefore, comes under the protection of the exception (n) to Clause (b) of Section 17 of the Registration Act. Even before that clause was added by Ace VII of 1888 this Court had always held that a receipt given by a mortgagee to the mortgagor for sums paid on account of the mortgage are not inadmissible in evidence for want of registration; Shidlingapa V/s. Chenbasapa (1879) 4 Bom. 235, Basawa V/s. Kalkapa (1877) 2 Bom. 489, Annappa V/s. Ganpati (1880) 5 Bom. 181. The Madras and Calcutta High Courts have taken the same view. Venkayyar V/s. Venkatasubbayyar (1881) 3 Mad. 53, Sheikh Gugunfur Ali V/s. Mahomed Yaseen 20 W.R. 334. The Allahabad High Court took a different view in Dalip Singh V/s. Durga Prasad (1878) 1 All. 442, where it held that receipt for sum paid in part satisfaction of a mortgage must be registered, though, at the same time, it held that the payment may be proved by parole evidence. To the same effect was the decision in Imdad Husain V/s. Tasadduk Hosain (1884) 6 All. 335. Subsequently, however, in Jiwan Ali Beg V/s. Basa Mal (1886) 9 All. 108 the Full Bench of that Court has held that endorsements or receipts of payments passed by mortgagees to mortgagors did not fall within Section 17, and unless where they are so framed and worded as to purport expressly to limit or extinguish an interest in immovable property, they did not come within the section and did not require registration.

(3.) The receipt in the case before us falls within the latter category. The receipt by itself would not be sufficient to entitle the plaintiffs to a decree for redemption. The plaintiff had to establish in addition that there was a settlement of accounts between the parties and that they had agreed that the mortgage-debt would be wiped out on payment of Secs.200. The receipt only established a payment of Rs. 200, but not the adjustment and remission. The receipt by itself did not purport or operate to extinguish a debt of the value of Rs. 100 or upwards and was admissible in evidence without registration.