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Allahabad High Court
Khiali Ram vs Himmata And Ors. on 13 March, 1908
Equivalent citations: (1908) ILR 30 All 238
Author: G Knox
Bench: G Knox


JUDGMENT

George Knox, J.

1. This second appeal arises out of a suit brought by Khiali Ram. Khiali Ram is a holder of an unregistered mortgage-deed, dated the 27th of January 1895. The deed was one the registration of which was not compulsory under the Indian Registration Act. He sued the obligors of the deed to recover the money due under his deed and in default to bring to sale the property hypothecated in the deed. He also added to the suit as a party one Bhoja, who had purchased the same property under a sale-deed; dated the 8th of February 1905, but not registered until the 7th of April 1905. The Court of first instance dismissed the claim and the lower appellate Court on appeal arrived at the same finding. It held that there was no evidence to show that the respondent Bhoja had any knowledge of the plaintiff’s mortgage on the date of the sale, but it further found that a notice was served on Bhoja after the execution of the sale-deed, but before its registration. The lower appellate Court observed further that as there was no evidence to show that the respondent Bhoja had notice on the date he got the sale-deed executed, he was not bound to pay the amount of the mortgage. In appeal it is contended before me that the respondent Bhoja having received notice of the plaintiff’s mortgage before the registration of the sale-deed in his favour the said respondent is bound by the same.

2. The learned vakil for the respondents takes his stand upon the provisions contained in
Sections 47 and 50 of the Indian Registration Act, and he cites in support of his position the principle laid down in Hasha v. Ragho Ambo Gondhali (1881) I.L.R. 6 Bom. 165. He further drew attention to the case of Santaya Mangarsaya v. Narayan (1883) I.L.R. 8 Bom. 182, likewise to the case of Abdul Majid v. Muhammad Faizullah (1890) I.L.R. 13 All. 89 and Baldeo Prasad v. Baldeo Weekly Notes 1901, p. 112. None of these cases cited are exactly in point or on all fours with the present case.

3. On the other hand the principle laid down by my brother Aikman in Diwan Singh v. Jadho Singh (1896) I.L.R. 19 All. 145. which was afterwards restated and affirmed in Bhikha Rai v. Udit Narain Singh (1903) I.L.R. 25 All. 366 is a principle which can without difficulty be extended to the circumstances of the present case. It is true that in neither of these the facts are exactly the same as the facts in the present case, but the principle that Section 50 of the Indian Registration Act will not avail to the holder of- a subsequently registered deed over an earlier deed not compulsorily registrable, if the holder of the registered deed at the time of the registration bad notice of the earlier unregistered deed, is one, as I have already said, which can easily be extended to and covers the position of the parties in the case before me. At the time when Bhoja was informed by letter of the plaintiff’s mortgage he bad ample time to reconsider his position and to refuse to register the deed. He had notice of the previous transaction sufficient to put him on enquiry, and could have ascertained whether in taking the sale-deed he was or was not taking it subject to the incumbrance of 1895. The plea taken in appeal prevails. The appeal is decreed, the decrees of the Courts below are get aside, and as this decision is upon a preliminary point, upon which the Courts below have erred, the case will be returned to the Court below under Section 562 of the Code of Civil Procedure with directions to re-admit it on its file of pending cases and dispose of it according to law. Costs here and hitherto will abide the event. [cf. also Tejpal v. Girdhari Lal, supra p. 130–Ed.]


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