RAM GHULAM ALIAS FAQIR CHAND Vs. RAM CHANDRA

JUDGEMENT

(1.) This is an appeal in which there is a contest between a purchaser of certain property and a mortgagee. In the year 1897 Jwala Sahai and Behari Lal executed a usufructuary mortgage of two properties in favour of Ram Ghulam for a sum of Rs. 333. The mortgagee entered into possession. The profits of the property were considered to be about equal to the interest on the Rs. 333 and there was a provision that this usufructuary mortgage Could be redeemed in any month of Jeth after the expiration of six years. In the year 1901 a further sum of Rs. 99 was borrowed by the mortgagors upon the security of the same property from the same mortgagee, and in that document they bound themselves, as plainly, as words could bind, that they should not be at liberty to redeem the property unless and until they paid up the Rs. 333 and Rs. 99. In 1919 one of the properties was sold to Ram Chander, the plaintiff, for a sum of Rs. 500. He registered his sale- deed which had contained a stipulation that he should pay over to the mortgagee the sum of Rs. 333. That sum was duly-tendered by him and was refused by the mortgagee on the ground that the effect of the two documents was to entitle him (the mortgagee) to demand not the Rs. 333 alone but the Rs. 333 and the Rs. 99. To this the plaintiff answered that whilst he was bound to pay off the prior registered mortgage of Rs. 333, he was not bound to have any regard whatever to the mortgage of 1901 by virtue of Section 50 of the Registration Act. This matter went to trial. The plaintiff's contention was upheld in the Court of first instance, in the lower appellate Court, and before a single Judge of this Court, and now comes to us under the Letters Patent.

(2.) The question, therefore, is capable of being stated in a very narrow compass and is whether the undoubted right of the mortgagee to recover Rs. 432 as against the mortgagor also prevails as against the vendee, or whether the vendee may not put reliance upon Section 50 and plead that he comes within the protection of the very words of that section. Section 50 says that every document of a certain kind mentioned in various clauses, one of which is a sale "shall if duly registered take effect as regards the property comprised therein against every unregistered document relating to the same property." We, therefore, have the plaintiff coming forward and producing a registered sale-deed of 1919. The defendant comes forward and relies upon an unregistered mortgage of the year 1901. He couples to that unregistered mortgage of 1901 the mortgage of 1897 and says that the two must be regarded as one document. We do not assent to that. What we do assent to is that the two documents must be considered together and their joint effect is to create as between the parties to them a definite obligation, namely that redemption cannot take place as between the parties to these documents except on payment of the two sums mentioned. The question is: does that agreement between the mortgagor and mortgagee go to deprive a subsequent purchaser of his right to insist upon the protection given to him by Section 50. We are of opinion that it does not do so and we proceed very shortly to examine one or two oases that have been cited to us.

(3.) Reliance was placed upon the Full Bench ruling in Har Prasad V/s. Ram Chander A.I.R. 1922 All. 174. The facts of that case are undoubtedly very similar indeed to the one under discussion. There is, however, this vital difference. The report is silent on the question whether the sale deed of Ram Chander was registered, and also whether the second document by which an advance of Rs. 50 was made, was registered or not. Section 50 of the Registration Act was not discussed nor any effect of registration alluded to, and we do not believe that this case in any way touches the authority of such decisions as Ram Lal V/s. Buchha Singh (1912) 10 A.L.J. 114 and Ishri Prasad V/s. Gopi Nath (1912) 34 All. 631 and the further case of Sher Singh V/s. Durga Pal (1913) 18 I.C. 724. The Full Bench case makes no reference whatever to these cases and was obviously directing its attention to the question whether the two documents could be read together so to create one obligation, and whether the second transaction could be held to be a mortgage. They decided that it was a mortgage and that its terms were so precisely drafted as to make the second sum payable at the same time as the first whenever redemption was sought.