PARASHRAM BALAJI DESHMUKH Vs. ASARAM

JUDGEMENT

(1.) The plaintiffs, who are the appellants before their Lordships, seek to enforce a mortgage, which was executed on 7 April 1914, and registered on 8 April 1914. The mortgaged property consisted of six items, two of which were purchased from the mortgagors by defendants 2-4 in 1925. These defendants impeach the registration of the mortgage deed upon a ground, which as set out in para. 6 of their written statement, is in the following terms: . . . that the registration of the mortgage deed covering as it did the mango trees, Jambhul trees, Babul trees and all other kinds of trees situate in occupancy fields Nos. 195, 106 and 207 of Kelod, is void as being in contravention of S. 46, Cl. (5), Tenancy Act, 1898. The mortgage deed is thus not duly registered and being as good as not registered, cannot operate as a mortgage.

(2.) On the issue, which was founded upon this plea, the trial Judge expressed his opinion in favour of the plaintiffs, but, on appeal by the purchasers, his judgment was reversed by the Court of the Judicial Commissioner at Nagpur, who "find it impossible to hold that the mortgage is a valid mortgage or that it was validly registered." They accordingly accepted the appeal, and dismissed the suit as against the purchasers. The mortgagees have appealed to His Majesty in Council, and the question raised by them relates to the validity of the mortgage deed, and of its registration. The answer to the question depends upon the interpretation to be placed upon the following provisions of the Central Provinces Tenancy Act, No. 11 of 1898. S. 46, sub.s. 3, enacts that: No occupancy tenant shall be entitled to sell, make a gift of, mortgage ... or otherwise transfer his right in his holding or in any portion thereof, and every such sale, gift, mortgage . . . or transfer shall be voidable in the manner and to the extent provided by the two next following sections.

(3.) Section 46, sub-s. 5, is in these terms: Notwithstanding anything contained in the Indian Registration Act, 1877, no officer empowered to register documents shall admit to registration any document which purports to transfer the right of an occupancy-tenant in his holding or in any portion thereof, unless the document recites that the transferee is a person who, if he survived the tenant, would inherit the right of occupancy, or is a person in favour of whom as co-sharer the right of occupancy originally arose or who became by succession a co-sharer therein.