Judgement

Appeal from a judgment and two several decrees of the High Court (March 3, 1909) reversing a decree of the Subordinate Judge of Midnapur (May 81, 1906).

The appeal raised questions as to the validity of the registration of a mortgage deed under the Registration Act (III. of 1877), and as to the jurisdiction of the High Court to make a decree to enforce the mortgage, having regard to the situation of the property comprised in the mortgage.

By a mortgage deed dated September 23, 1895, Mani Mohan Roy (the second respondent) purported to mortgage to the appellant various immovable properties specified in the schedule to the deed. The first item in the schedule was a property known as Mahal Gumokpota in the Midnapur district, and was the property to which the suit related. The twenty-eighth, and last, item was described as No. 25, Guru Das Street, Jorasunko, in the town of Calcutta, and was further described by metes and bounds; the full description, as appearing in the schedule, is set out in their Lordships judgment. The deed was registered in the office of the Sub-Registrar for Calcutta, who issued a certificate of registration.

On July 28, 1905, in a suit brought in the High Court by the appellant against the mortgagor Mani Mohan Roy, an ordinary decree for an account and sale of the mortgaged property was made. The validity of the registration and the jurisdiction of the High Court were questioned by the then defendants, but the present respondents, other than Mani Mohan Roy, were not parties to that suit.

On September 16, 1905, the appellant instituted the present suit against Hari Dasi Debi (the first respondent), the wife of Mani Mohan Roy, and against Hem Chandra Bose (the third respondent), to whom Hari Dasi had purported to mortgage an eight anna share in the mahal on May 31, 1905; Mani Mohan Roy (the second respondent) was also joined as a pro forma defendant, but he did not appear in the suit.

The claim in the suit was for a declaration that no right of ownership had accrued to Hari Dasi Debi in the mahal by virtue of an auction purchase made by her on August 14, 1893, and for consequent relief. Among other defences it was pleaded that the decree of the High Court of July 28, 1905, was inoperative and without jurisdiction, as no property within the jurisdiction of the Court was included in the mortgage deed, and further that the deed was not registered according to the Registration Act, 1877. It was established at the trial, and accepted by both Courts in India, that there existed no premises in Calcutta known as No. 25, Guru Das Street; that the description by metes and bounds accurately described premises known as No. 25, Ashutosh Deys Lane, but that Mani Mohan Roy, the mortgagor, never had any title or interest in those premises. There was no evidence at the trial to shew that the property had been included under the belief that the mortgagor had a title thereto or by any other mistake.

The Subordinate Judge delivered judgment on May 81, 1906, in favour of the plaintiff, holding, for reasons not material to this report, that Hari Dasi Debi had acquired no title in the mahal by her auction purchase. Upon the defence raised as to the registration of the mortgage deed, he was of opinion that the Sub-Registrar of Calcutta had jurisdiction to register the deed since it purported to mortgage property situated in Calcutta, and that the registration was valid. Upon the question of the jurisdiction of the High Court under clause 12 of the Letters Patent of 1865, he held that the jurisdiction would not be ousted by the plaintiff failing to establish his title to that part of the property within the ordinary jurisdiction, but that it might be otherwise if the plaintiff fraudulently included the property in his plaint for the purpose of giving jurisdiction. He found, however that there was nothing before him upon which to hold that the plaintiff had been guilty of such a fraud.

The present respondents Hari Dasi Debi a