The content of the document is important and not the nomenclature assigned by the parties. When a document is sought to be marked to establish the loan transaction, it cannot be rejected on the ground that it is an unregistered mortgage deed.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, praying to set aside the judgment and decree of the learned II Additional Subordinate Court, Villupuram, dated 08.04.2009 in A.S.No.57 of 2006 reversing the judgment and decree of the learned Principal District Munsif Court, Thirukkovilur dated 12.04.2005 in O.S.No.572 of 2004.)

(The case has been heard through video conference)

1. The second appeal against the judgment and decree of the first appellate Court, which has reversed the trial Court judgment and allowed the suit filed for recovery of money.

2. The short point involved in this second appeal is regarding the character of the document Ex.A1 dated 05/10/2001 upon which the suit for recovery of money laid. The trial Court considered the document as an unregistered deed of mortgage, so no cause of action arise from the said document. Whereas the lower appellate Court held it to be a promissory note or agreement of loan/receipt of acknowledge of debt and decreed the suit claim.

3. The short facts of the case leading to the second appeal:

The suit laid for recovery of money by the first respondent herein on the premise that the appellant and the second respondent herein are brothers. They borrowed a sum of Rs.50,000/- promising to repay it with 12% interest p.m. on demand. Ex.A-1 dated 05/10/2001 was executed by them in the presence of witnesses. The scribe, who wrote the document Ex.A-1 had wrongly described the said document as receipt for the mortgage of the borrowers house. In spite of repeated demand, the defendants failed to repay the loan amount with interest as agreed under Ex.A-1. After causing pre-suit notice dated 29/09/2004[Ex.A-2], the suit laid based on Ex.A-1 pleading that the said document to be treated as receipt for the loan.

4. The said suit was resisted by the defendants stating that they borrowed only Rs.25,000/- from the plaintiff for which the plaintiff obtained two stamped blank papers. Later, the plaintiff had fabricated one of the signed paper as a pronote for Rs.50,000/- and filed suit in O.S.No.367/2004. The said suit culminated in a decree against them for Rs.25,000/-. Apart from the said decree amount, they are not liable to pay any other money to the plaintiff. However, the document in which the signatures obtained under threat in the presence of panchayatars, is now fabricated as a receipt for the mortgage loan. The said document Ex.A-1, is an unstamped and unregistered document. Hence, it is not admissible in evidence.

5. The trial Court, after considering the evidence, held that the suit lack cause of action. The plaintiff failed to prove through acceptable evidence that Ex.A-1 is a valid and genuine document.

6. The aggrieved plaintiff filed first appeal before the II Additional Sub Court, Villupuram. After analysing the recital in Ex.A-1, the statements of the appellant herein(1st defendant) in the previous suit in O.S.No.367/2004 between the same parties [Ex.A-6 and Ex.A-7], and the reply notice Ex.A-5 dated 05/10/2001, the first appellate Court held that Ex.A-1 deemed to be a pro-note or in alternate a receipt/acknowledging the debt. Having admitted the signature in the document Ex.A1 and the money transaction with the plaintiff and having accepted the execution of Ex.A-1 in the other suit acknowledging the mortgage loan, the first appellate Court held that the defendants are liable to repay the loan amount as per the recital found in Ex.A-1.

7. The learned counsel appearing for the appellant submitted that the first appellate Court had not considered the evidence properly, which has resulted in miscarriage of justice. Ex.A1 document ought to have been rejected for not being duly stamped and registered. The recital of Ex.A1 would disclose that it is a mortgage deed. Any document in connection with transfer of immovable property value above 100 rupee must be registered under Section 17 of the Registration Act and it should be duly stamped. Any document with ins