Judgement

Appeal (No. 102 of 1928) from a decree of the High Court (July 15, 1927) modifying a decree of the District Judge of Magwe.

The suit was instituted by the appellants to enforce a mortgage dated March 13, 1924.

The questions arising upon the appeal were (1.) whether the mortgage was invalid under s. 53 of the Transfer of Property Act, 1882 ; and (2.) whether the registration of the mortgage was invalid, because when registered it was not duly stamped, as required by the Indian Stamp Act, 1899, s. 35.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

Both Courts in India held that the registration having been effected in good faith it was valid under s. 87 of the Indian Registration Act, 1908, although the instrument was not duly stamped at that time.

The District Judge decreed the suit holding that though the mortgage was a preference of the mortgagees over other creditors of the mortgagors it was not invalid under s. 53 of the Transfer of Property Act.

Upon appeal to the High Court the learned judges (Heald and Mya Bu JJ.) were of the contrary opinion; accordingly they varied the decree to a simple money decree.

1929. June 27, 28. De Gruyther K.C. and Pennell for the appellants. The mortgage was not invalid under s. 53 of the Transfer of Property Act, even if its intention and effect were to prefer the mortgagees over other creditors Musahar Sahu v. Hakim Lal. (( 1915) L. R. 43 I. A. 104.) Both Courts in India held, following Sarada Nath Bhattacharya v. Gobinda Chandra Das (( 1919) 23 Cal.

W. N. 534.), that the registration was valid under s. 87 of the Registration Act.

Dunne K.C. and E. B. Raikes for the respondents. Upon the facts the High Court was justified in holding that the mortgage was not only a preference of one creditor, but a scheme for the purpose of defeating the other creditors, and therefore void under s. 53. But in any case the mortgage was not validly registered, and consequently could not be received in evidence. Sect. 35 of the Stamp Act, 1899, imperatively forbids the registration of an instrument which is not duly stamped. The registering officer therefore had no jurisdiction to register it, and s. 87 of the Registration Act cannot be invoked Mujibunnissa v. Abdul Rahim (( 1900) L. R. 28 I. A. 15.); Jambu Parshad v. Muhammad Aftab Ali Khan (( 1914) L. R. 42 I. A. 22.); Ma Shwe Mya v. Maung Ho Hnaung. (( 1922) L. R. 49 I. A. 395.) The decision in Sarada Naths case (( 1919) 23 Cal. W. N. 534.) was erroneous. The stamp used was not merely a stamp " of improper description" within the meaning of s. 38 of the Stamp Act Reference under s. 57 of Act II. of 1899. (( 1901) I. L. R. 23 A. 213.) The Stamp Act has been amended twice since that decision without any alteration in the section.

De Gruyther K.C. in reply. The amount of the stamp was sufficient, the only defect being that the revenue stamp used had been surcharged for use for the payment of court fees. That being so the instrument was duly stamped within the meaning of s. 35 of the Stamp Act, since that Act recognizes only two descriptions of stamps—namely, adhesive stamps and impressed stamps Annapurnabai v.

Lakshman Bhikaji Vakharkar. (( 1894) I. L. R. 19 B. 145.) But in any case the requirement of s. 35 of the Stamp Act is a matter of procedure, and s. 87 of the Registration Act prevents an error made in good faith from vitiating the registration. The considerations in Sah Mukhun Lall Panday v. Sah Koondun Lall (( 1875) L. R. 2 I. A. 210, 216.) affirmed in Mohammed Ewaz v. Birj Lall (( 1877) L.

R. 4 I. A. 166, 176.) apply. The decisions of the Board relied on by the appellants all related to presentation by an authorized person, and different considerations apply to cases of that kind.

July 25. The judgment of their Lordships was delivered by

LORD ATKIN. This is an appeal from a decree of the High Court of Judicature at Rangoon. The plaintiffs are the mortgagees under a mortgage dated March 13,