MUHAMMAD ABDUL HASAN Vs. FIDA HUSAIN

JUDGEMENT

(1.) This was a suit for sale and on its dismissal the plaintiff has appealed. The mortgagee is the plaintiff Abdul Hasan. The defendants are one mortgagor the representatives-in-interest of two deceased mortgagors and two other defendants Nos. 10 and 11 who are subsequent mortgagees. One plea raised by the subsequent mortgagees was that the registration was a fraud on the registration law and, therefore, invalid. This plea was accepted by the learned Subordinate Judge who held the document to be invalid for want of registration. We do not agree with this finding of the lower Court. The property, a grove situated within the jurisdiction of the Sub-Registrar of Budaun, did exist, and mortgagor and mortgagee had reason to believe that it belonged to one of the mortgagors, Baqar Husain. There was no collusion between the mortgagor and the mortgagee and a fictitious property was not entered with a view to obtain registration in a registration office where it would not otherwise have been possible. In Pahladi Lal V/s. Musammat Laraiti 48 Ind. Cas. 200 : 16 A.L.J. 871 : 41 A. 22 a Bench of this Court considered the Privy Council judgment reported as Harendra Lal Roy Chowdhry V/s. Haridasi Debi 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.). As in that case, the facts here are that the parties intended to deal with the property, that is, the grove situated in Ujhani; so, the condition of the mortgagor's real title does not affect the question of registration.

(2.) The appeal, however, must fail on the point of limitation. This plea was not taken in the first Court but it is one which may be taken by the defendants at any stage of the litigation. The learned Counsel for the plaintiff-appellant submitted that we should not permit this plea to be taken in appeal. We, however, see no reason to disallow it. Obviously the legal advisers of the defendants made a mistake in not raising it in the first Court, and there is no bar to the defendants raising it here of course, the question of costs will be considered when we come to deal with it.

(3.) The document was executed, on 30 October 1905. The translation of the document given at page 42 is fairly correct. The relevant portion may be quoted: We agree to pay the aforesaid amount in nine years, with interest at 12 annas per cent. per month. We shall pay the amount of interest annually. Should we fail to pay the interest annually, the unpaid amount of interest shall be added to the principal and the total shall carry interest at the aforesaid rate. This stipulation shall continue till the payment of the entire amount due under this bond. The mortgagee shall, in case of default, be competent to recover from us the amount due to him within the period stipulated.