JADOO CHAUBE Vs. BHAGWAT CHAUBE

JUDGEMENT

(1.) THE learned vakil who appeared in support of this appeal has endeavoured in a long and able argument to persuade me that I ought to deprive a would-be mortgagee, who had lent money to a would-be mortgagor, of the decree which both the lower Courts have given him for the return of the money which he paid in the belief that he was acquiring a mortgage. THE mortgagor after taking the money had refused to fulfil his part of the contract and put the mortgagee into possession of the property; and as the mortgage was unregistered the mortagagee could not enforce it. THE learned vakil's contention was that his client's conduct may have been iniquitous, but. the iniquity was one which the law permitted him to perpetrate. In spite of the able and ingenious manner in which the appeal has been argued, I am glad to be able to say that I remain unconvinced. THE usufructuary mortgage was executed subsequent to an amendment of the transfer of Property Act which makes it necessary for a mortgage of even less than one hundred rupees to be registered, unless there be delivery of possession under the mortgage. THE usufructuary mortagage deed was not registered; possibly the parties were not at the time aware of the alteration in the law; and the mortgagee admittedly did not get possession. THE learned Munsif was of opinion that the mortgagor would not allow" the mortgagee to take possession. THE refusal to give possession compelled the mortgagee to lose his money or go to Court, and when he did go to Court both the lower Courts held that the deed, for want of registration, had failed to effect the mortgage intended. THEy, however, considered that they could look at the deed which both Courts held to be proved, for evidence of the receipt of consideration. THEy accordingly did so and found as a fact that the mortgagor owed Rs. 82 to the mortgagee at the date of suit. Finding this, both the Courts gave the plaintiffs the simple money decree which he had taken the precaution to ask for as an alternative prayer in the plaint. Both Courts, however, very properly refused to decree the damages which had also been claimed under the deed; for to have done so would have involved considering the terms of the document which they had held was inadmissible in evidence as a deed of mortgage. THE learned vakil for the appellant has attacked the decree on two grounds. He first contended that the document ought not to have been looked at, even for the limited purpose of proving the fact that money had been borrowed. He cited Sheo Dyal V/s. Prag Dat 3 A. 229; Martin V/s. Sheo Ram Lal 4 A. 232 and Parsotam Narain V. Taley Singh 26 A. 178 on this point. His argument was that in each of the two first named cases the document had been admitted as evidence of the fact that money had been borrowed because of " Section 49 read with Section 17 of the Registration Act : and that as Section 17 had not been amended (probably by an oversight) so as to include the amendment of 1904 to the Transfer of Property Act, which requires mortgages of sums under one hundred rupees to be registered, the rulings had no application. That this in genious argument is based on a misconception is proved by the very rulings which are appealed to, for in one case the expression used is "although", and in the other case it is "notwithstanding its disabilites in regard to the Registration Law". In my opinion the reasoning of the two first mentioned decisions is against the contention. THE case of Lachrnan Singh V/s. Kesri 4 A. 3 is also against the appellant. THE ruling in Parsolam Narain V/s. Taley Singh 26 A. 178 is in my opinion, not in point. It deals with a Promissory Note, which like a bill of exchange occupies a special and peculiar position in law, which possibly justified the decision in that case. THE next point argued was that granting that the Courts were justified in looking at the document in. question for the limited purpose mentioned above, they ought not to have given the plaintiff a simple money decree when they were unable to give him a decree on the mortgage. In this connection Gopalaswami v. Arunachella 15 M. 304 was cited by the appellant to show that a decree could not be passed in such a case as the present. In my opinion the ruling is not relevantfor there a legal mortgage had been effected. Here the mortgage on the appellant's own showing was never effected for which reason, it was contended. Section 68 of the Transfer of Property Act had no application. THE two contentions are mutually destructive. THE passage cited from Kalha Singh V/s. Paras Ram 22 C. 134 at p. 444 about an express promise to pay a debt in a particular manner has also no relevancy to this case. In my opinion the decree for money passed in this case was a most proper one. THE appeal is dismissed with costs.