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TMI Blog1914 (3) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... iff to those lands as being lands charged under his mortgage and subject to the decree free from any prior right of the female defendant. 2. The transactions between the parties to the suit and the tigation arising therefrom are of the most complex character, and raise questions of considerable difficulty, both in fact and But the respondents, at the hearing of the appeal, raised a preliminary point which goes to the root of the action, namely that the plaintiff shows no title enabling him to bring such an action. They submit that the mortgage of the 23rd September 1895 was not duly registered, and further that the Court which granted the mortgage decree of the 28th July 1905 had no jurisdiction to entertain the suit in which that decree was granted. If these contentions of the respondents can be sustained, it is clear that the plaintiff's action must fail, and that the decision of the High Court dismissing this action must be affirmed. 3. The facts of the case, so far as they are relevant to this preliminary point, are as follows: On 23rd September 1895 Mani Mohan Roy purported to mortgage to the plaintiff various properties set out in a Schedule to the mortgage deed for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that suit) cannot affect the present defendants, whose title is of earlier date, or render valid the registration if they can maintain their contentions relating thereto. It is difficult, indeed, to see how the direction to amend the description of the parcel which formed part of the decree came within the scope of the suit, which was in no respect a suit for rectification. 6. The defendant Mani Mohan Roy did not appear in the present suit. The female defendant Hari Dasi Debi, and the third defendant Hem Chandra Bose (who was interested in the suit as claiming an interest in the property through her), appeared and filed written statements clearly putting in issue the existence of the property No. 28 above set forth, and alleging that no portion of the property mortgaged by the mortgage bond lay within the jurisdiction of the High Court of Judicature at Fort William in Bengal in its original jurisdiction or within the jurisdiction of the. Sub-Registrar of the Calcutta Registry. Accordingly they contended that the alleged mortgage was not legally registered, and that the decree was given by a Court which had no jurisdiction to entertain a suit on the mortgage bond in question. 7. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the case of the mortgagee be considered, there is similarly no ground whatever for thinking that there was any mistake. The only witness whose evidence as any bearing on the point is Harakumar Chakravarti. He was clerk to Messrs. Sen and Co., who were the plaintiffs attorneys at the time, and drew up the mortgage, and he witnessed its execution by Mani Mohan and the admission of that execution before the Sub-Registrar. He does not refer to the matter in his examination-in-chief, but in cross-examination he says that he did not himself enquire about the house No. 25, Raja Guru Das Street, but sent the broker to ascertain the boundaries of the house which shows that it was the above description of the house that he relied on, and that it was a house so described that was intended by the parties to be included in the mortgage. But with regard to this house he makes some very serious admissions. He says :- I do not know whether there is such a, house as No. 2j, Raja Guru Das Street. I did not keep any original title deed respecting this property. I did not see any original title deed regarding 25, Raja Guru Das Street, before or after the mortgage. 10. Considering that he was act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n principles of our law a decision that there is no evidence to support a finding is a decision of law. The issue is that the existing description of the parcels was inserted by mistake. A mistake means that parties intending to do one thing have by unintentional error done something else. There is no evidence whatever here that the error was unintentional or indeed that there was any error at all, and their Lordships are therefore free to set aside the finding without in any way departing from their practice regarding concurren findings of fact. 13. It is perhaps necessary in this connection to point out that the document upon which the Subordinate Judge based his finding of mistake was not evidence between the parties nor relevant to the issue. In some other mortgage deed of later date and to other mortgagees Mani Mohan had apparently purported to mortgage the same property by the same description, and had been compelled by the mortgagees to consent to rectification. Such a fact was wholly irrelevant, and it is extraordinary that it should have been allowed to be proved at the trial. 14. It remains to consider the effect of their Lordships' finding. It may be looked at in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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