CHUNDOORU LAKSHMANA SETTI Vs. DUGGISETTY CHENCHURAMAYYA

JUDGEMENT

(1.) The only question that we have to deal with in this second appeal is whether Ex. V, which is in these words : "Now if you will pay Rs. 3,000 towards the debt due by you on the two documents we shall receive the money and return the documents," is admissible in evidence having regard to the provisions of Section 17 of the Registration Act.

(2.) On the date of Ex. V. more than Rs. 3000 was due, and the balance which the plaintiff agreed to relinquish under Ex. V. amounted much more than Rs. 100. We do not think, though the question under consideration has been argued very elaborately before us, that the matter admits of any real doubt. Section 17, Clause (b) says that other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property" must be registered. The exception which it is argued, applies to Ex. V is dealt with in Clause (11) of Sub-section 2, which lays down that " any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage" need not be registered. It seems to me that an agreement by which the mortgagee agrees to relinquish a portion of the debt is one which "purports to limit or extinguish interest in immoveable property." It was argued by the learned vakil for the respondent that in considering what the interest is we are not to take into consideration the amount of money payable under the mortgage, but only the security apart from the amount due. Such a construction seems to be opposed to the language of the section for in Clause (b) the legislature says that an instrument has to be registered if the interest or right affected by it is of the value of one hundred rupees or upwards. Now that would indicate that the interest of a mortgagee cannot be computed without taking into consideration the amount for which the property is made security. Then Clause 11 of Sub-section 2, in exempting from the operation of that clause receipts purporting to extinguish the mortgage, tends to support the same view. Though Clause (c) was also referred to in the course of the argument I do not think that it has any application to this case. It seems to me, also, that the question is concluded by authority, In Abdullah Khan v. Basharat Hussain (1912) I.L.R. 85 A. 48 (P.C.) the question arose with reference to an agreement come to between the mortgagee and the mortgagor as to the mode in which the profits of the property which was usufructuarily mortgaged were to be dealt with : and their Lordships of the Privy Council held that a document like that was inadmissible by reason of the provision of the Registration Act.

(3.) It is difficult to see how that case can be distinguished from the present case. I take it that the rukkee which introduced a new mode of paying off the mortgage money were held to be inadmissible, on the ground that it was an instrument purporting to limit or extinguish interest in immoveable property within the meaning of Clause (b) of Section 17. In Durga Prasad Singh v. Rajendra Narain Bagshi (1913) I.L.R. 41 C. 493 their Lordships affirmed the judgment of the Calcutta High Court in Durga Prasad Singh v. Rajendra Narain Bahshi (1906) I.L.R. 37 C. 293 in which it was held that a subsequent unregistered agreement for reduction of rent payable under a registered lease was inadmissible for want of registration, In Tika Ram v. The Deputy Commissioner of Bara Banhi (1899) I.L.R 26 C. 707. (P.C.) the agreement which was held by the Judicial Committee to be inadmissible was on the part of the mortgagee to pay a higher rate of interest. It is difficult to understand how agreements of the above character could be substantially distinguished from the agreement in question in this case.