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2009 DIGILAW 1501 (PNJ)

Rajbala v. Nepal Singh

2009-08-25

HEMANT GUPTA

body2009
JUDGMENT HEMANT GUPTA, J. (ORAL) - The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for recovery of Rs.1,78,014/-under Order 34 of the Code of Civil Procedure by sale of mortgaged immovable property, was dismissed. 2. As per the plaintiff, Abhay Ram, father of the defendant borrowed a sum of Rs.45,880/-on 8.6.1990 at 2% per month rate of interest, against the collateral security of agricultural land by a simple mortgage deed, duly executed and registered on 8.6.1990. Abhay Ram suffered a civil court decree in favour of defendant on 28.7.1995. 3. Thereafter, the present suit has been filed for sale of the mortgage property in the event of non-payment of the amount due against the defendant. 4. The defendant averred that no amount is due to the plaintiff as the amount stands paid to plaintiff against a receipt. The plaintiff denied her signatures on the said receipt in replication. The learned trial Court decreed the suit holding that the testimony of DW-1 Naresh Kataria, Hand Writing and Finger Print Expert and testimony of PW-2 Puran Lal and DW-2 Jagan Nath, does not prove the document Exs.D-1 and D-2. It was also found that even if the amount has been paid to the plaintiff by the father of the defendant, then it was the duty of the defendant to redeem the mortgage property in the revenue record. 5. In appeal, the learned first appellate Court found that original mortgage deed has not been produced in evidence, but only a photocopy Ex.PW-1/A has been produced and that no permission for secondary evidence was sought. The signatures on receipt Ex.D-2 and power of attorney Ex.D-1 was found to be that of the plaintiff on the basis of report of DW-1 Naresh Kataria, Hand Writing Expert and that of DW-2 Jagan Nath, deed writer. The first Appellate Court has also taken into consideration that the plaintiff has earlier filed suit vide plaint Ex.D-3, but the same was withdrawn on 15.2.2002 vide Ex.P-4. In the said suit, the plaintiff has admitted that defendant No.1 has requested the plaintiff to accompany him for the purpose of receiving the amount of mortgage alongwith interest and plaintiff accompanied defendant No.1 to Tehsil complex. In the said suit, the plaintiff has admitted that defendant No.1 has requested the plaintiff to accompany him for the purpose of receiving the amount of mortgage alongwith interest and plaintiff accompanied defendant No.1 to Tehsil complex. On 20.8.1993, defendant No.1 got certain papers typed, but it is averred in the plaint that the redemption deed could not be executed as Sub Registrar, Nuh was not available in the office. The court found that such facts have been withheld with the Court. It was found that the stand that redemption deed could not be executed on 20.8.1993 is falsified as power of attorney Ex.D-1 was attested by the Assistant Collector on the aforesaid date itself. 6. The argument raised by the learned counsel for the appellant that the receipt Ex.D-2 requires compulsory registration was considered and found that receipt Ex.D-2 is not being claimed as document of either redemption or extinguishment of mortgage. The suit has been filed for recovery of the mortgage amount and the receipt Ex.D-2 is being relied as a proof of the payment of mortgage amount. Thus, receipt Ex.D-2 does not require compulsory registration. 7. Before this Court, learned counsel for the appellant has relied upon a judgment of this Court in Kundan Singh and Others Vs. Fauja Singh and Others 1979 (2) RCR 495, to contend that in terms of Section 17(1)(c) of Registration Act, 1908 a receipt which has the affect of extinguishment of mortgage requires compulsory registration. Therefore, the receipt has been wrongly taken into consideration to dismiss the suit of the plaintiff. 8. The present is a suit for recovery of the amount said to be secured by a mortgage deed. The defendant has led evidence to the effect that the amount secured by mortgage stands paid. The receipt has been relied upon not for the purpose of proving the extinguishment of mortgage, but to assert that the amount secured by simple mortgage stands paid. In view of the said fact, I do not find that the reasoning given by the learned first Appellate Court suffers from any patent illegality or irregularity. 9. The receipt has been relied upon not for the purpose of proving the extinguishment of mortgage, but to assert that the amount secured by simple mortgage stands paid. In view of the said fact, I do not find that the reasoning given by the learned first Appellate Court suffers from any patent illegality or irregularity. 9. The judgment in Kundan Singh's case (supra) is not applicable to the facts of the present case, as in the aforesaid case, it was the mortgagors, who have sought declaration to the effect that they are owners in possession of the property having paid the mortgage amount against the receipt, which has the affect of extinguishing the mortgage. This Court relied upon Section 17(2)(xi) and held that since the receipt purports to extinguish mortgage, it has to be registered. 10. In the present case, the mortgagor is defending suit for recovery, as the mortgage amount is said to have been paid. In terms of Section 49 of the Registration Act, a document, which may require registration can be read into evidence for collateral purposes. The main purpose of the receipt can be said to be to evidence extinguishment of mortgage. Even if, such a receipt is not admissible to prove the extinguishment of mortgage, but such receipt can be read into evidence for collateral purpose i.e. of payment. Proviso to Section 49 contemplates that a document, which requires compulsory registration can be admitted in evidence of any collateral transaction not required to be affected by a registered instrument. Under Section 17(1)(b), the non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, is required to be by way of the registered instrument. Under Section 17(1)(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, assignment, limitation or extinction of any such right, title or interest, also requiring registration. Though the receipt which purport to extinguish the mortgage is required to be by way of a registered instrument, but the payment of the mortgage amount is not required to be effected by a registered instrument. Though the receipt which purport to extinguish the mortgage is required to be by way of a registered instrument, but the payment of the mortgage amount is not required to be effected by a registered instrument. Therefore, in terms of provision to Section 49 of the Act, the factum of such payment can be proved being a collateral transaction. 11. In view of the above, I am of the opinion that the judgment referred to by the learned counsel for the appellant is distinguishable, as the plaintiff in the reported case has claimed extinguishment of mortgage by way of a receipt, whereas in the present case, it is the payment of an amount, which is on account of mortgage and sought to be proved by such receipt. 12. In view of the above, I do not find that any substantial question of law arises for consideration of this Court in second appeal. Appeal Dismissed.