RAM GOPAL Vs. AMBAPRASAD

JUDGEMENT

(1.) FINDLAY , J.C. 1. It is unnecessary to repeat the facts of this case, which are sufficiently clear from the lower Court's, judgments. The defendant has now come up on second appeal to this Court. The first point raised is with regard to the inclusion of field 9 in the mortgage. That field is admittedly occupancy and the finding of the District Judge is that it was by mistake, described as khudkasht in the mortgage-deed. I am not here, therefore, concerned with any question of fraud and the decision in Vyankatesh v Annasa A.I.R. 1928 Nag. 1 is not, therefore, to the point. The question for decision in this connexion is whether when a field like the one we are concerned with was, by mistake of the parties, shown as, and believed to be, khudkasht and was included in a mortgage in spite of its actually being an occupancy one, the registration of the mortgage was invalid under Section 46, Sub-section (5), Tenancy Act of 1898. The corresponding point was considered by Hallifax and Mitchell, A.J.Cs., in First Appeal No. 95 of 1924, decided on the 23rd September 1926, as well as as by Kotval, A.J.C. in his judgment in Misc. Appeal No. 5 of 1923 dated 4th February 1924, and I am so far in agreement with these decisions. Drake Brockman, J.C. in Second Appeal No. 481 of 1918, dated 7th April 1919, decided that the language of Section 46, Sub-section (5), indicates that the Eegistration Officer is not expected by the legislature to decide as to the soundness of the recitals in a deed presented for registration. From this point of view, therefore, the present defendant would have no case in this connexion, for the mortgage-deed in suit does not purport to transfer any rights in occupancy land. The case of genuine and bona fide mistake on the part of both parties to a mortgage like the present is, however, in my opinion, radically different from that of a case where fraud exists, or where an attempt is made deliberately to mortgage occupancy land. Here, very obviously a mistake occurred and the inclusion, by inadvertence, of what was in reality an occupancy field seems to me a matter to be treated merely as a surplusage. The plaintiff-respondents do not claim any rights with reference to the field in question and, in those circumstances, I am wholly unable to accept the defendant appellant's contention that the inadvertent inclusion of. an occupancy number [amongst the field mortgaged vitiates the registration of the deed and strikes at the root of the whole transaction.

(2.) AN analogous question has been raised with reference to the trees in suit. It has been urged on behalf of the appellant on the strength of the decision in Fakira v. Ramkisan A.I.R. 1925 Nag. 277, that the trees are an integral portion of the holding and that, therefore, as the sir land on which these stood could not be mortgaged, these trees fell under the same bar, and the whole deed was again invalid for this reason as a. mortgage, It seems to me, however, that, in the circumstances of the present case, there is clear evidence on record that the ownership and possession on the trees, had been divorced from the " sir land in question. I do not, for one moment, accept the dictum of the learned District Judge that any proprietor is as a matter of course, entitled to mortgage the trees standing on his occupancy holding, but, in the present instance, we have the following facts. The mortgage-deed expressly states that sir rights are excluded, the sir land, on which the trees in question stood, admittedly does not belong to the mortgagor, and the entries in Exs. like D-2 and D-3 go to suggest that, owing to special circumstances, the property in the trees was separate from that in the field in which they stood. The case is one, in my opinion, in which undoubtedly existed the exceptional incident of the ownership of the trees having been separated from that land on which they stood. Very clearly in the present case the cultivating and other rights in sir were expressly excluded from the security and, in those circumstances, I am wholly unable to see that there was anything illegal in these trees having been included in the mortgage-deed.

(3.) IT has also been suggested that there has been no sufficient proof of attestation in the present case. The plaintiffs examined not only the scribe of the bond, Sheikh Ibrahim (P.W. 4), but also one of the attesting witnesses, Kisan (P.W. 5). The evidence of these witnesses goes to show that the bond was duly attested by another man Ramkrishna and clearly, in the circumstances, there is prima facie evidence on record of a perfectly satisfactory nature as to the due execution and attestation of the mortgage-deed in suit. The burden of proving the opposite clearly had shifted to the defendant and he made no attempt to discharge that burden.