Judgement

Appeal (No. 92 of 1928) from a decree of the High Court (August 9, 1927) reversing a decree of the Subordinate Judge of Monghyr (December 20, 1923).

The respondents brought a suit against defendants represented by the appellants to enforce a mortgage dated October 4, 1910.

The question arising upon the appeal was whether the mortgage was duly registered under the Indian Registration Act, 1908, and if not whether any estoppel arose which cured that defect.

The High Court (Das and Kulwant Sahay JJ.), reversing the trial judge decreed the suit.

The facts of the case, the material statutory provisions, and the grounds of the decisions appear from the judgment of the Judicial Committee.

1930. Nov. 25. Dube for the appellants. Subba Bow for respondent No. 1.

Dec. 16. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal against a judgment and decree dated August 9, 1927, of the High Court of Judicature at Patna, setting aside a judgment and decree dated December 20, 1923, of the Court of the Subordinate Judge of Monghyr.

The suit was brought on September 12, 1922, by Lachmi Prasad Sinha and his co-plaintiffs, who are members of a Hindu joint family, against Christiana Benshaw and her daughter, Dottie Karan, claiming to recover Rs.21,770-6-3 in respect of principal and interest alleged to be due on a mortgage dated October 4, 1910, and to enforce the said mortgage by sale of the mortgaged property. The Subordinate Judge dismissed the plaintiffs suit with costs.

The plaintiffs appealed to the High Court, which allowed the appeal and made a decree for sale of the mortgaged property in favour of the plaintiffs. Christiana Benshaw died while the appeal was pending in the High Court, and her husband, Samuel Benshaw, and his daughter, Mercia Benshaw, were added as legal representatives of the said Christiana Benshaw.

Dottie Karan, Mercia Benshaw and Samuel Benshaw have appealed against the decision of the High Court to His Majesty in Council.

Christiana Benshaw first married Rai Bahadur Duraj Karan, an Indian Christian. . By him she had a daughter, Dottie Karan, who is the first appellant, and a son, David Karan, who died before this litigation began. After the death of her first husband, Christiana married the above mentioned Samuel Benshaw, by whom she had a daughter, the above mentioned Mercia Benshaw. These two persons are the other appellants. Rai Bahadur Dhiraj Karan died on December 13, 1895, leaving him surviving his widow,. Christiana, his son, David, and his daughter, Dottie.

The plaintiffs case was that after her marriage to Samuel Benshaw, Christiana appointed him her agent, and gave him a general power of attorney, dated April 6, 1898, that on or about May 6, 1909, Christiana Benshaw borrowed Rs.500 from Lachmi Prasad Sinha on a note of hand ; that as she required a further advance she arranged with Lachmi Prasad Sinha through her husband and agent, Samuel Benshaw, that he should advance a further sum of Rs.2500, and that her first husbands share in Mahal Kamarpar should be mortgaged by her and her two children, David and Dottie Karan, as security for the two sums of Rs.2500 and Rs.500, making a total of Rs.3000 and interest thereon.

It was alleged on behalf of the plaintiffs that on October 4, 1910, Christiana Benshaw, Dottie Karan and David Karan executed a mortgage deed in favour of Lachmi Prasad Sinha at Monghyr in the presence of attesting witnesses, and that at that time the sum of Rs.2500 was paid by him to Christiana Benshaw. It was alleged that the month of February had been inserted as the date at the end of the mortgage deed, and that at the time of execution the word 11 February" was crossed or blotted out, and the date October 4, 1910, was inserted. This was done, it was alleged, with the consent of the executants and the alteration was initialled by Samuel Benshaw.

There is no doubt that a date in the mortgage has been crossed out, and it was alleged on behalf of the