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2009 DIGILAW 1132 (MP)

Koushal Kishore v. Krishnakant Chaturvedi

2009-09-15

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2009
ORDER Arun Mishra, J. 1. The short question involved in the writ petition is that whether an unregistered document purporting to extinguish the mortgage deed can be said to be admissible in evidence without being registered and whether it can be used in evidence for collateral purpose. 2. The facts, in short, are that plaintiffs filed a suit for declaration that they are Bhumiswami and in possession of disputed land. Plaintiff No. 1 is owner of 3/4th portion, plaintiff No. 2 is owner of l/4th portion of said land. Prayer for permanent prohibitory injunction restraining the interference in possession at the hands of defendants has also been made. The property is situated at Village Thaukar, Tehsil Hujur, District Rewa. 3. The plaintiffs came with the case that earlier the land was mortgaged with one Koshal Prasad Pandey which was redeemed on 9-6-1961. The sale deed was also executed by plaintiff No. 1 and his uncle Har Prasad, since deceased on 12-5-1966, in favour of Koshal Kishore the land was to be redeemed, in case mortgaged money was paid otherwise the sale would become final. On 23-5-1969 amount was paid to Ugrasen Prasad, thus, conditional sale came to an end, land stood redeemed. 4. The defendants have objected to the demarcation of land and tried to interfere in the possession of plaintiffs, hence, the suit was preferred. The plaintiffs have relied upon unregistered deed (Exh. P-3) dated 23-5-69 which is in the form of receipt. The objection as to its admissibility was before the Trial Court. The Trial Court by the impugned order has held that document being unregistered could not be admitted in evidence and exhibit could not be marked, hence, writ petition has been preferred. 5. Shri S.K. Dubey, learned Counsel for petitioners, has submitted that endorsement of payment of mortgaged money on mortgage deed itself is enough for redemption. Registration of document is not necessary. Petitioner's Counsel has relied upon decision of this Court in Chandra Prakash v. Badrilal 1982 MPWN 32 . Petitioner's Counsel has also submitted that document dated 23-5-1969 simple acknowledgment of redemption of the land, thus, the document dated 23-5-1969 does not require registration under Section 17 of the Registration Act, 1908. He has also relied upon decision of Mohan Singh v. Rajabeti 1982 MPWN Note No. 140. 6. Petitioner's Counsel has also submitted that document dated 23-5-1969 simple acknowledgment of redemption of the land, thus, the document dated 23-5-1969 does not require registration under Section 17 of the Registration Act, 1908. He has also relied upon decision of Mohan Singh v. Rajabeti 1982 MPWN Note No. 140. 6. Shri Pranay Verma, learned Counsel for respondents, has relied upon Section 17(2)(xi) of the Registration Act, 1908 to contend that document purport to extinguish the mortgage deed, is not a receipt simplicitor, thus, document required registration. He has supported the order passed by the Trial Court. He has also referred to the decision of Seth Pratapsingh Moholalbhai and Anr. v. Keshavlal Harilal Setalwad and Anr. AIR 1935 Privy Council 21 and Gurdial Singh Kehar Singh and Ors. v. Kartar Singh and Ors. AIR 1964 P&H 141. 7. First question for consideration is whether the document dated 23-5-1969 purports to extinguish the mortgage deed, for determining the question, contents of document are material. The document dated 23-5-69 has been styled as a receipt. The bare reading of it goes to indicate that in the first part, factum of conditional sale has been mentioned; it has been mentioned that today the balance sum had been received by Ugrasen Prasad and with the receipt of balance consideration which was secured under the deed dated 12-5-1966, the right, title or interest of Ugrasen, has come to an end. 8. Section 17(2)(xi) of the Registration Act, 1908 reads thus: 17. (2)(xi) any endorsement on a mortgage-deed acknowledging the payment receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or When the aforesaid provision is read with Section 17(1)(b) and 17(1)(c) it is apparent that in case receipt purports to extinguish the mortgage then it would require registration. Bare reading of the receipt goes to indicate that it purports to extinguish the mortgage right, title or interest acquired under the document dated 23-5-1969. Consequently, we have no hesitation to come to the conclusion that the document dated 23-5-1969 required to be registered. 9. Shri S.K. Dubey, learned petitioner's Counsel has placed reliance on decision of this Court in Chandra Prakash v. Badrilal (supra). No doubt about it that this Court has laid down in the case of redemption of mortgage the endorsement on the mortgage deed to that effect is sufficient. 9. Shri S.K. Dubey, learned petitioner's Counsel has placed reliance on decision of this Court in Chandra Prakash v. Badrilal (supra). No doubt about it that this Court has laid down in the case of redemption of mortgage the endorsement on the mortgage deed to that effect is sufficient. But the case was of usufructuary mortgage. Reliance was also placed by this Court in Parithi Nath v. Suraj Ahir AIR 1963 SC 1041 , in which it has been laid down that in case of usufructuary mortgage, a mortgagor is entitled to retain possession only upto the time the mortgage money is not paid. Once the mortgage money has been paid up, no question of appropriating the rents and profits occurring from the property towards interest or mortgage money can arise. It is not the submission of Counsel that instant case is that of usufructuary mortgage. With respect to usufructuary mortgage of the land there is provision in MPLRC also. Section 165(2)(c) provides that when any mortgagee in possession of the land mortgaged does not hand over possession of land after the expiry of the period of the mortgage or six years whichever expires first the mortgagee shall be liable to ejectment. The decision in Mohan Singh v. Rajabeti (supra), deals with the acknowledgment of lease deed already existing. It was laid down by this Court that same does not require any registration. The document dated 23-5-1969 cannot be said to be an acknowledgment. Document itself brought about the extinguishment of mortgage. 10. The decision in Gurdial Singh Kehar Singh and Ors. v. Kartar Singh and Ors. It was laid down by this Court that same does not require any registration. The document dated 23-5-1969 cannot be said to be an acknowledgment. Document itself brought about the extinguishment of mortgage. 10. The decision in Gurdial Singh Kehar Singh and Ors. v. Kartar Singh and Ors. (supra), in turn refers to the decisions of Kaur Chand v. Des Raj] AIR 1960 Punjab 529, Naman v. Hari Singh AIR 1929 Lahore 312, Koti Dharma Lingappa v. S. Nila kantappayya 1938 Madras 533, Muhammad Hussain v. Karm Ilahi AIR 1929 Lahore 312 and Mahamad Kasam v. Ranu Yesji Naik 9 Bom LR 254, the Court has laid down thus: (9) Keeping in view the plain language of Sub-sections (1)(c) and (2)(xi) of Section 17 of the Indian Registration Act and the rule of law as laid down in the authorities cited by the learned Counsel for the appellants, we note that a receipt for payment of money under a mortgage (other than an endorsement on a mortgage deed) issued by a mortgagee mentioning not only the payment of the full mortgage amount but also the extinction of the mortgage requires registration. The reference is answered accordingly. The Privy Council in Seth Pratap Singh Moholalbhai and Anr. v. Keshavlal Harilal Setalwad and Anr. (supra), has also considered the document was stamped as a receipt, but it was more than a receipt and appeared in terms to be a written agreement to vary the terms of the mortgage of 17th October, 1921 considering that the document of 17th October, 1921 was only an agreement give a mortgage and did not itself create any charge over land, so no reason why such an agreement should not be varied by an unregistered agreement. In this view it would appear that the earlier document itself need not have been registered. The Privy Council opined the earlier document created a charge upon immovables, while the later document released the charge upon the property No. 4. It came, therefore, directly within the terms of Section 17(b) required registration and was not admissible in evidence. The Privy Council has laid down thus: It is signed by Krishnalal. The document as stamped as a receipt, but it is more than a receipt and appears in terms to be a written agreement to vary the terms of the mortgage of 17th October, 1921. The Privy Council has laid down thus: It is signed by Krishnalal. The document as stamped as a receipt, but it is more than a receipt and appears in terms to be a written agreement to vary the terms of the mortgage of 17th October, 1921. The last sentence of the document seems to make this evident Nanavati, J., considering that the document of 17th October, 1921 as only an agreement to give a mortgage, and did not itself create any charge over land, saw no reason why such an agreement should not be varied by an unregistered agreement. In this view it would appear that the earlier document itself need not have been registered. But, in Their Lordships' opinion, the earlier document created a charge upon immovables, while the later document released the charge upon the property No. 4. It came, therefore, directly within the terms of Section 17(b), required registration and as not admissible in evidence. If this be so, it would not be open to the respondents to give secondary evidence of the agreement contained in the document of 14th May by producing the entry in the plaintiffs' journal, which as admitted by Nanavati, or by tendering any other evidence. This would be in violation of Section 91, Evidence Act. Nor in Their Lordships' opinion, if the document be inadmissible as between the parties, can it be said to be used in the present suit for a collateral purpose ? It is sought to be used for the express and direct purpose of showing that property No. 4 was in fact released under the varied mortgage constituted by the document in question. The decisions as to collateral use of unregistered documents are, therefore, irrelevant, and are not under consideration in this judgment. 11. The next question for consideration is whether the document can be admitted in evidence for collateral purposes. The proviso of Section 49 is clear. For collateral purposes such unregistered document can be admitted in evidence; the submission raised is not that the document is not properly stamped, there is no objection under the Indian Stamp Act. The Apex Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra (2009) 2 SCC 532 , has considered the question of admissibility of insufficiently stamped or unstamped document/unregistered for collateral purposes. The Apex Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra (2009) 2 SCC 532 , has considered the question of admissibility of insufficiently stamped or unstamped document/unregistered for collateral purposes. The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49. Section 49 has the effect that in spite of non-registration of document, it can be looked into for collateral purposes, however, in case of document not being stamped, it cannot be admitted in evidence. There is no objection under the Stamp Act in the instant case. Thus, we hold that document can be looked into only for collateral purposes under the proviso to Section 49 of the Registration Act. 12. Resultantly, we modify the order passed by the Trial Court to the aforesaid extent. Writ petition is disposed of in terms of the aforesaid order. No costs.