JOGINI MOHAN CHATTERJI Vs. BHOOT NATH GHOSAL

JUDGEMENT

(1.) This is a very short matter. The suit is one to enforce a mortgage. The defendant who was a young man at the date lie gave it, set up various defences of fraud and so forth, all of which have been found against him. The only point for our decision is this. In the Schedule (A) to the mortgage deed, item (I) is described as." The undivided one cottah four chittacks of land more or less, comprising premises No. 251-2, Upper, Circular Road, Holding 49, Subdivision XIV, Division II, Mouzah Manicktollah, Thanah Manicktollah, Sub-Registry Sealdah," and so forth; and the earlier part of the deed contains this statement: "Out of the properties" mentioned in Schedule (A) below the property mentioned in item (I) of the said schedule is the land purchased with my self-acquired money." This mortgage which also comprised certain property in Calcutta was registered in the Sealdah Registry, which would be quite right, assuming that the mortgage comprised any property in the Sealdah district But now, when the, plaintiff seeks to enforce his mortgage, the defendant cays that there is no such property in the Sealdah district as that to which I have referred, and which is mentioned in the mortgage, and consequently, under the Registration Act, the registration of the mortgage in the Sealdah Sub-Registry was bad, and the deed as a mortgage has no efficacy in law.

(2.) The Court below has taken this view: hence the present appeal by the mortgagor. Two questions arise upon this defence: the first is whether the defendant has in fact substantiated that there was no such property in the Sealdah district as that which is described in the mortgage and purports to be comprised in it; and, secondly if there were no such property, whether it lies in the mouth of the defendant to raise this objection, or, in other words, whether he is not estopped by his own declaration and by his own conduct from doing so.

(3.) Upon the question of fact, to enable him to succeed, the defendant ought to show with every clearness that no property in the Sealdah district was comprised in the mortgage. What is his evidence? The witness Nobin Chunder Mookerjee, who is a clerk in the Calcutta Municipality--one of the assessment clerks-is asked, this question: Q. By looking into this book can you say if there is any property at No. 152-2, Upper Circular Road?. A. No. There is none. I have seen entries from 1892 to 1900.