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TMI Blog1953 (7) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... dant. The court of the first instance, on these pleadings, framed certain issues and parties led their evidence. On the evidence, the court decreed the Plaintiff's suit. 4. Defendant went in appeal which was allowed. Hence this second appeal on behalf of the Plaintiff. In this appeal it is urged before me first that the registration is valid and the appellate court has erred in holding otherwise. The second contention is that unless the Defendant establishes; fraud which he has not, he cannot deprive the Plaintiff ' of the benefit of the mortgage. Reliance is placed on the following cases: Lakshmikantaraju v. Jagannatharaju AIR 1924 Mad. 281 (A), Ramanathsn Chetti v. Delhi Badaha Tevar AIR 1931 Mad. 335 (B), Venkata Sastru-lu v. Veefabhadrudu AIR 1935 Mad. 26 (C), Govindan Nayar v. K. Ammed AIR 1921 Mad. 92 (D), Gnanaprakasam Pilial v. Parasakthy Ammal AIR 1941 Mad 179 (E), Mohammed Yakub v. Abdul Mannan AIR 1943 Pat. 48 (P), Rukhama Bai v. Krishna Rao AIR 1952 Nag. 145 (PB) (G), and Chandi Prosad. v. Hrishikesh Shah AIR 1946 Cal. 465 (H). 5. Thirdly, it is argued that since both the courts on the evidence have, held the execution of the document as proved, it is not nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of ₹ 100/- or more the transfer must be by a registered instrument. Thus, it would follow that according to Section 28, Registration Act, "every registrable document has to be presented for registration in the office of the Sub-Registrar within whose sub-district the whole or-some portion of the property to which such document relates is situate." 8. It would follow, therefore, that if no part of the property is situate in the sub-district, the registration would be void. In other words, the Sub-Registrar gets the jurisdiction to register the document provided the property is situate within his jurisdiction. In order to prove the validity of the document, the Plaintiff will have to establish the existence of the property itself. The contention of the Plaintiff is that the burden of proof is on the Defendant to show why the document is invalid. l do not agree with the contention of the learned advocate for the Plaintiff. 9. The Defendant has denied the execution of the document. Had the Defendant admitted the execution of the document and raised the plea that he has-no-interest in the house at Rangampet, or that the said house was included in the sale-deed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly made use of by the parties for the purpose of obtaining registration in a Sub-District where no part of the property charged or intended to be charged exists, is a fraud on the Registration Law and no registration obtained by means thereof is valid. 11. Their Lordships also pointed out that apart from the question of fraud on the Law of Registration the Registration is invalid as no portion of the property, mortgaged was situated within the jurisdiction of the Sub-Registrar as required by Section 28 of the Act.(11) The second case on the point is that of-AIR 1921 P. C. 8 (J)'. In this case, the property to be mortgaged was situated at Dharbanga. But in order to get it registered at Muzafarpur, the mortgagor made a, pretence of purchasing one 'cowri' share in a village in Muzafarpur and included it in the mortgage-deed. No possession was given to the mortgagor of the 'Cowri' share. The mortgagor had, in fact, no interest in it nor did the mortgagor ever intend that it should form part of the security. It was held by their Lordships that the case stood on the same basis as that of - 'Herenderlal's (I) for the purpose of the Registration Act. 12. The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties, it is contended that both the courts have held the execution of the document to be proved which is sufficient to hold that the mortgagor did intend to transfer the said property. So far as the question of the existence of the property is concerned, I do not agree with the contention of the learned Advocate for the Appellant that the Defendant has admitted the existence of the house at Rangampet. The Defendant in para (1) of the written statement has clearly denied, that he owns any house at Rangampet. The learned District & Sessions Judge has held that the Plaintiff has not produced any evidence to show that the Defendant is the owner of the house at Rangampet. The learned advocate for the Appellant drew my attention to the depositions of Ahmed Hussain and Abdul Ghani and urged that from the statements the fact of the Defendant owning a house at Rangampet can be proved. I went through their statements. Ahmed Hussain who is the scribe of the document, has deposed that the Defendant has transferred one house and one land. The house was at Rangampet and the land was of Shahpur. This is all what he has said. It is not clear from his statement that the Defendant was the owner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mortgagee to include a land not belonging to the mortgagors and registration is not vitiated by the fact that property, not in existence, was included in the deed to effect registration at a particular place. It was further held that in the case the evidence is that the mortgagor himself verbally mentioned this (one acre) when the mortgage-deed Was being drawn up and that, as a matter of fact, it is a mistake for 548 which admittedly belongs to the family of the Defendant Nos. 1 and 2 in suit No. 25 of 1910. This was a clear case where the mortgagor represented to the mortgagee that he owned the property and the property actually existed and there was no collusion of the mortgagee in Including the property. It was rightly held that the, registration is not vitiated. It is not so in the present case. 18. AIR 1935 Mad 26 (C) was a case where the Plaintiff said that the sale-deed comprised an item of a small house which did not belong to the widow Gangammal and that therefore the parties committed a fraud on the Registration Law. The Plaintiff alleged in the plaint that, plot did not belong to Gangammal but to Defendant No. 1. When the plea is that the vendor is not the owner o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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