SAILENDRA NATH SINGHA Vs. KESHAB CHANDRA CHOUDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiff under Section 15, Letters Patent, against the decision of Manmatha Nath Mukerji, J., by which his suit for recovery of a certain sum of money on a personal covenant contained in a deed purporting to be a mortgage deed has been dismissed. It is not necessary to state the facts as they have been stated with sufficient fulness in the judgment of Mukerji, J. The question of law which falls for determination in this Letters Patent appeal is one which concerns limitation. It appears that the suit which was instituted by the plaintiff was one in which he sought for a decree for sale upon a mortgage bond. The mortgage bond is dated 2nd Pous 1327 B.S. corresponding to December 1920. It contained a personal covenant to pay the consideration money on the mortgage. It has been found by the Court of first instance which finding has not been displaced by Mukerji, J.-that the registration of the mortgage deed was obtained by fraud seeing that it was represented to the registering officer who registered the deed in question that there were certain properties within the jurisdiction of the said registering officer in order to give the officer jurisdiction to register. It has been found that property was a fictitious property and had no existence in fact. The registration was obtained, therefore, by practising fraud on the law of registration. The deed, therefore, as a mortgage deed was invalid.

(2.) There is no dispute with regard to the principle which should guide the Courts in cases of such description where the registration of a particular deed was obtained by representation that a certain property was within the jurisdiction of the registering officer in order to entitle him or to give him jurisdiction to register the said deed. The question was considered by their Lordships of the Judicial Committee in a case which went on appeal from this Court, namely, the case in Harendra Lal Roy V/s. Hari Dasi Debi AIR 1914 P C 67. In that case it appeared that a property had been wrongly included in the mortgage and there was no evidence that such inclusion was made through mistake. In such circumstances their Lordships of the Judicial Committee made certain observations which are pertinent to the controversy now before us. Their Lordships said: Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists is a fraud on the registration law, and no registration obtained by means thereof is valid.

(3.) It has been contended before us on behalf of the appellants that these observations of their Lordships must refer to the question of the validity of the deed as a mortgage and that their Lordships did not intend to lay down that the document would not be treated as valid for the other purpose, namely, so far as the personal covenant to pay was concerned in other words, it is said on behalf of the appellants that it is not invalid for all purposes. This argument was advanced on behalf of the appellants before Mukerji, J. and, in my view, was rightly negatived. In a subsequent case it appears that in somewhat similar circumstances their Lordships of the Judicial Committee used language which would go to support the view that the document was to be treated as an unregistered document for all purposes where registration was obtained by perpetrating fraud on the registration law. I am referring to a later decision of the Judicial Committee in Dottie Karan V/s. Lachmi Prasad Sinha where the registration was obtained by contravention of the express provisions of the Registration Act. Sir Lancelot Sanderson in delivering the judgment of the Judicial Committee said this at p. 67: Their Lordships are of opinion that the mortgage bond in suit was not registered in accordance with the provisions of the Indian Registration Act; accordingly it was not a registered instrument and no mortgage was effected thereby.