GOSTA BEHARI DE Vs. GOSTA BEHARI LUMANTA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the decision of the learned Subordinate Judge of Burdwan, dated the 22nd December 1915. The suit was brought to enforce a mortgage security; so the plaint states; and the way in which the plaintiffs say they got their mortgage security is this; The plaintiffs Nos. 1, 2 and 3 are brothers and the defendant No. 4 and the father of the defendants Nos. 5 and 6 are their half-brothers. The defendant No. 4 was the karta of the family. He brought a suit to recover money on a hatchitta against the defendant No. 1. That suit was compromised and the compromise petition provided that a decree should be passed in favour of the defendant No. 4 but that the amount should be paid by instalments and in default of payment of two instalments, the whole amount would be recoverable; and the defendant No. 1 hypothecated certain immoveable properties by way of security to secure the repayment of the amount decreed by consent. The present plaintiffs, therefore, brought this suit for the purpose of enforcing that charge and for obtaining a 3/5th share of the mortgage money. The learned Judge in the lower Appellate Court held that the mortgage, not having been created in the manner provided by the Transfer of Property Act and the Indian Registration Act, could not be enforced and he relied upon the decision of this Court in the case of Gurdeo Singh v. Chandrika Singh (2); and the view that the learned Judge took was this, that the mortgage given in the suit on the hatchitta was altogether outside the scope of the Suit. It was not one of the matters in dispute and the mortgage in that case was not given by any adjudication of the Court at all. The defendant in that case hypothecated the property to the karta and, therefore, the document required to be executed in the manner provided for by the Transfer of Property Act and to be registered under the provisions of the Indian Registration Act. It seems to me quite clear that if we agree with the decision of Gurdeo Singh v. Chandrika Singh (2) then the view taken by the learned Judge is correct. On the other hand, there is another decision of this Court which has been referred to, namely, the case of Gobinda Chandra Pal v. Dwarka Nath Pal (1). It may be admitted that that decision cannot be reconciled with the decision in Gurdeo Singh v. Chandrika Singh (2). That case of Gobinda Chandra Pal v. Dwarka Nath Pal (1) was followed by Mr. Justice Mitra and Mr. Justice Bell in the case of Smith v. Smith reported in VIII Calcutta Law Journal, (short notes), page 2. The view taken by the learned Judges in that case in VIII Calcutta Law Journal, (short notes), page 2, seems to me not to be right; and the reason is this: In the case of Smith v. Smith, the suit had been brought for restitution of conjugal rights by the husband and the wife, the defendant, agreed to the restitution of conjugal rights on terms that her husband would give her some property. Mr. Justice Mitra and Mr. Justice Ball held, so far as we can gather from the notes, that that arrangement was subject to the provisions of the Indian Registration Act, but that, under Section 17, Clause (i) of that Act, it was a composition deed and, therefore, was excluded from the provisions of the Act requiring registration. Of course, that is not what is meant by a composition deed. It may be that a consent decree composes the differences between the plaintiff and defendant. A composition deed does not mean a deed composing differences but it is a deed by which a debtor compounds with his creditors. If that was the foundation of the decision in Smith v. Smith, all I can say is that this decision does not commend itself to me, and that this document clearly did not come within the terms of Section 17, Clause (i) of the Indian Registration Act, as being a composition deed. I agree with the decision reported as Gurdeo Singh v. Chandrika Singh (2). The mortgage sought to be enforced in the present case was altogether outside the scope of the money suit brought by the karta, the defendant No. 4, on the hatchitta. The mortgage was given by the defendant in that suit not by any judicial decision of the Court and, that being so the document required registration under the provisions of the Indian Registration Act. In that view, the present appeal fails and must be dismissed with costs. Shamsul Huda, J.

(2.) I agree.