MAHAMAD KASAM Vs. RANU YESJI NAIK

JUDGEMENT

(1.) The question in this appeal is whether Ex. 22 was compulsorily registrable or not and whether, if compulsorily registrable, it was admissible in evidence under Section 49 Of the Registration Act, III of 1877. The decisions relied on by the lower appellate Court no doubt indicate that mere recitals of past transactions, if not operative in themselves, would not be compulsorily registrable under Section 17, Clause (b) and it is not now disputed that instruments acknowledging receipt of money paid in satisfaction of such a right as is referred to in Clause (b) and not acknowledging receipt of moneys paid as the consideration for the extinction of such a right by a new act of will, would not be compulsorily registrable. Similarly endorsements or receipts acknowledging satisfaction of a mortgage by the payment of the whole mortgage money, would not be compulsorily registr able under Clause (n) of the same section. But that Clause indicates that an operative instrument which not merely evidences the satisfaction of a mortgage, but which is a transaction annulling an interest by a new act of will between the parties, is compulsorily registrable as ruled in Uppalakandi V/s. Kunnam (1896) I.L.R. 19 Mad. 288. The distinction more explicitly stated appears to be as follows. A payment made in discharge of an existing obligation, as in paying off a mortgage debt according to its tenour, is a payment made in satisfaction of that obligation-and is not technically "consideration" paid in order to obtain the extinction of that obligation. In other words the extinction of an obligation, when it is effected by the performance or satisfaction of the obligation according to its terms, follows from the terms of that obligation and is not induced by any new consideration. And neither Clause (b) nor (n) requires registration in respect of the mere satisfaction or performance of the pre-existing obligation. Those clauses require registration only when money or other value is paid or passed as consideration for a novation or new agreement by a fresh act of the parties, the effect of which is to do away with the old obligation, not by accepting performance thereof, but on receiving a sum paid for the benefit of the new agreement. Now we think that Ex. 22 cannot be regarded as anything else than an acknowledgment of consideration paid to the mortgagee as consideration, that is in return, for his consenting to extinguish the mortgage ; it does not acknowledge moneys paid merely in satisfaction of a mortgagee, but moneys which purport to have been paid as the price of the mortgagee's consenting to extinguish the mortgage in terms of a new agreement. We are unable therefore to see how it could be admitted as evidence of a transaction affecting immoveable property under Section 49 of the Indian Registration Act. How far the admission of this piece of evidence may have weighed with the lower appellate Court in inducing it to attach credence to the oral testimony we are unable to determine.

(2.) We cannot deal with questions of fact in second appeal. We must now therefore in deciding that Ex. 22 was improperly admitted in evidence, send back the case for a finding of fact by the lower Court. We reverse the decree and remand the case for a decision on the merits, Ex. 22 being excluded from consideration as evidence of a transaction affecting the immoveable property in question.

(3.) Costs to abide result.