Judgement

Consolidated Appeals from a judgment and two decrees of the High Court (June 1, 1915) affirming two judgments and decrees of the Additional Subordinate Judge of Bhagalpur (March 26, 1912).

The principal respondents instituted the first of the two suits giving rise to the present appeals upon four mortgages to them dated September 16, 1896, August 1, 1898, September 21, 1902, and November 10, 1904; they prayed that, after taking an account of what remained due under the mortgages, the properties mortgaged might be sold and the proceeds applied to discharge the mortgage debts. The mortgagors were the first party defendants. The present appellants who had two mortgages dated respectively April 5, 1899, and April 5, 1901, which related to properties included in those mortgaged to the principal respondents, were second party defendants. The appellants by their written statement claimed under their two mortgages priority over the third and fourth of the mortgages above mentioned as made to the principal respondents, and contribution in respect of the proceeds of certain of the properties. All the mortgages in question were duly registered under the Indian Registration Act, 1877. One of the properties—namely, Mauza Khagra—was in a different position to the others. That mauza had been purchased by the mortgagors at an auction sale in execution on March 25, 1901, and was included in the mortgage to the appellants of April 5, 1901, confirmation of the sale not having then taken place. It was also included in the third and fourth mortgages to the principal respondents after the sale had been confirmed.

The second suit was instituted by the appellants against the mortgagors (who did not contest it) and the principal respondents, the claim being to enforce the mortgages of April 5, 1899, and April 5, 1901. This suit raised the same questions as the first suit, and both suits were tried together.

The Subordinate Judge held that the principal respondents had neither actual nor constructive notice of the mortgages to the appellants ; and that with regard to Khagra they were entitled as mortgagees under their later mortgages. He accordingly made two preliminary decrees, specifying the rights of the parties respectively, and allowing the claim of the respondents to sell the properties. The preliminary decree in the first suit was made absolute on January 18, 1913.

The present appellants appealed to the High Court in each of the suits. The appeals were heard together, and were dismissed, the learned judges being of opinion that the respondents had not actual notice of the mortgages to the appellants, and holding (following earlier decisions of the Court) that the respondents had not constructive notice of the mortgages from the mere fact that they were registered.

1920. April 22, 23. Dunne K.C. and H. N. Sen for the appellants. Registration of the mortgages to the appellants was constructive notice of them to the respondents. The High Courts in India have taken different views upon that question. In Bombay it was held in Lakshmandas Sarupchand v. Dasrat (( 1880) I.L.R. 6 B. 168.) in 1880 that registration of a document under the Indian Registration Act, 1877, is constructive notice, and that decision has since been followed there in Dundaya v. Chenbasapa (( 1883) I.L.R. 9 B., 427.); Ramchandra v. Dareppa (( 1890) I.L.R. 14 B. 506.), Narayan Laksman v. Haibatrav (( 1892) I.L.R. 17 B. 741.); and other cases ; and the same view has been adopted at Allahabad Churaman v. Balli (( 1887) I.L.R. 9 A. 591.); Janki Prasad v. Kishen Dat. (( 1894) I.L.R. 16 A. 748.) A contrary view has been taken at Calcutta, the later decisions making the question turn upon the particular facts of the case Preonath v. Ghose (( 1899) I.L.R. 27 C 358.); Debendra Narayan Roy v. Ram Taran Banerjee (( 1903) I.L.R. 30 C. 599.) ; Monindra Chandra Nandy v. Troyluckho Nath Burat (( 1898) I.L.R. 2 Cal. W. N. 750.) ; Bunwari Jha v. Ramjee. (( 1902) I. L. R. 7 Cal. W. N. 11.