Judgement

Appeal (No. 83 of 1918) by special leave from a judgment and decree of the High Court (March 17, 1915) reversing a decree of the District Judge of Darbhanga.

Mathura Prashad, since deceased and represented by the appellants, sued the respondents to enforce a mortgage bond for Rs. 8000 dated February 27, 1902. The bond, which was registered under the Indian Registration Act, 1877, in the Mozufferpur district only, purported to mortgage a 7-annas share in a village in the Darbhanga district and a one-kauri share in a village in the

Law. Rep. 48 Ind. App. 127 ( 1920- 1921) Biswanath Prashad V. C handra Narayan C howdhuri

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Mozufferpur district. The mortgagor had purchased the one-kauri share shortly before executing the mortgage under circumstances which appear from the judgment of their Lordships.

The trial judge gave the plaintiff a decree, being of opinion that he was the owner of the one-kauri share, and that the registration was valid.

The High Court reversed the decree. The learned judges (Sharfuddin and Coxe JJ.) were of opinion that the one-kauri share was not validly transferred to the mortgagor, and that it was not intended that it should pass under the mortgage.

The Judicial Committee granted special leave to appeal. The appeal was originally argued for the appellants in May, 1920, but was ordered to be reargued.

1921. Feb. 3. De Gruyther K.C. and Abdul Majid for the appellants. The mortgage was validly registered in the Mozufferpur district under the Indian Registration Act, 1877. Sect. 65 provides that the office in which registration is effected shall communicate the registration to each sub-district in which any portion of the property is situate. It is therefore immaterial under s. 27 how small is the property situate in the particular sub-district in which registration takes place Hari Ram v. Dial Ram. (( 1888) L. R. 16 I. A. 12.) The one-kauri share being of a value less than Rs. 100 could be validly transferred under the Transfer of Property Act, 1882, s. 54, without a registered instrument. The execution and delivery of the kobala to the mortgagor was a symbolic delivery of possession to him and satisfied that section. The present case is distinguishable from Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (L. R. 41 I. A. 110.) because in that case the property named was non-existent.

A mere defect in the title of the mortgagor to the property within the district of registration does not invalidate a registration. To so hold would produce grave inconvenience, since an unsuspected defect of title in a small portion of property mortgaged might vitiate the whole mortgage. The evidence did not support the view that the parties did not intend that the one kauri should form part of the mortgage security. The respondents did not appear.

1921. March 1. The judgment of their Lordships was delivered by

VISCOUNT FINLAY. The action to which this appeal relates was brought to enforce a mortgage upon land. Its validity was challenged by the defendants on the ground that it has not been registered in accordance with the Indian Registration Act, 1877, and was, therefore, inoperative. A registration had been effected, but it was alleged for the defence that it was void, as no part of the property to which the mortgage related was situate within the district of the sub-registrar in whose office the mortgage was presented for registration.

The High Court held, reversing the district judge, that the mortgage was invalid, on the ground that it had not been duly registered.

This appeal was brought by the representatives of the mortgagee, praying (1.) that the mortgage should be put in force against the land; and (2.) in the alternative, that under the head of general relief judgment should be given against the defendants personally for payment of the amount of the debt.

There was no appearance on this appeal on behalf of the respondents, and the case was argued before their Lordships Board ex parte.

In 1867 one Bhukhan Lal