RAM LAL Vs. TAMKIN BANO

JUDGEMENT

(1.) THIS appeal arises out of a suit brought on foot of two hypothecation documents. One was a mortgage pure and simple, The other was a security bond by which the executant undertook to guarantee the due payment of the amount of the mortgage and interest, to secure which he hypothecated certain property. The deeds are of even date. The court below granted a decree for the sale of the property mortgaged, but dismissed the suit in so far as it sought the sale of the property which had been mortgaged by way of security. The defendants who are interested in this last mentioned property consist of subsequent transferees and the heirs of the deceased executant. The court below awarded three sots of costs to these defendants. The court below found that one item of property which did not belong to the executant of the security bond was intentionally entered in order to enable the document to be registered at Budaun, The court was of opinion that the executant had no interest in this property and that the mortgagee knew quite well that it was not intended that it should form any portion of the security. We see no reason to differ from the finding of the court below on this question of fact. It seems to us highly probable that the object of entering this particular item of property was to enable the document to be registered at the Budaun Sub-district Registration Office. The principal mortgage which, we have already said, was of even date had to be registered in this office because the property comprised in it was situate in that division. The property mortgaged by way of security was not situate in the same district. THIS item of property consists of a small strip of land, about twenty-nine square yards, either adjoining or near the executant s house. It is significant that the property is not mortgaged as an appurtenance to the house, because the house was not mortgaged at all, and the probabilities are that this small piece of land was miles away from the villages shares in which were being hypothecated. The court below considered under these circumstances that the security bond had not boon duly registered, and for this reason dismissed the suit so far as it related to the property comprised in this bond, It is unnecessary to state that it was necessary that this document in order to affect the property should be duly registered. Section 28 of the Registration Act provides that "every document mentioned in the section shall be presented for registration in the office of a Sub-Registrar within whose sub district the whole or some portion of the property to which such document relates is situate." No portion of the property to which the document in question related was situated in the Budaun Sub district, except the piece of land to which we have already referred. It is contended that the inclusion of this piece of land, quite irrespective of the want of title of the mortgagor and the intention of the parties, made the deed "relate" to this 29 square yards. We think that this contention is not sound. If neither the mortgagor, nor the mortgagee, intended that the piece of land should be mortgaged or form any portion of the security, then it seems to us impossible to contend that the document "related" to this little piece of land. In the case of Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R., 41 Calc., 972, where the facts were very much the same as they are in the present case, their Lordships of the Privy Council say at page 989 of the report: "But the point may be put in another way upon broader grounds. Their Lordships hold that this parcel is in fact a fictitious entry, and represents no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district whore 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." In our opinion in the present case this 29 square yards represents no property that the executant possessed, or intended to charge, or that the mortgagee intended should form part of the security. A decision of this Court in Mangali Lal v. Abid Yar Khan (1917) I.L.R., 39 All, 523 is to the same effect. The only question which remains is the question of costs. The subsequent transferees, we think, are entitled to their costs. Under the usual practice of this Court costs follow the result, With regard to the heirs of the cxecutant the case stands on a somewhat different basis. We are perfectly satisfied that their predecessor in title was fully aware of what was being done and deliberately allowed the 29 square yards of land to be included in the security bond. Under the circumstances we think that the heirs of the executant of the security bond should bear their own costs here and in the court below. The result is that we vary the decree of the court below by directing that the defendants 2 and 3 shall pay their own costs. In all other respects we confirm the decree of the court below and dismiss the appeal. The respondents other than defendants 2 and 3 will have costs of this appeal, each having a separate set of costs. The defendants 2 and 3 will Lear their own costs of this appeal.