LexKASHINATH BHASKAR DATAR versus BHASKAR VISHWESHWAR KARVE
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
• • - - ,.. .• S.C.R. SUPREME COURT REPORTS 491 KASHINATH BHASKAR DATAR ti. BHASKAR VISHWESHW AR KARVE [SAIYID FAzL ALI and VMAN BosE JJ.] Indian Registration Act (XVI of 1908), s. 17(l)(b)-Subsequent document varying terms of previous document-Limiting and extin- guishing "interest" in immoveable property-Equitable doctrine of part performancc-W hether applicable. A suit to recover money based on two mortgages was resisted by the defendant on the plea that the mortgages were satisfied as the assignor of the mortgages to the plaintiff had executed an agreement in favour of the defendant which proved satisfaction. This agreement was not registered and the question for determin- ation was whether it required registration and whether if it did, it could not be used for the collateral purpose of proving full payment of the mortgage amount. The agreement contained, inter alia, the following terms: "(i) I am settling and formulating new terms and I am confirming some very terms which were declared before; (ii) Although the rate of interest mentioned in the mortgage deeds is 14 annas still the actual rate is to be received at the rate of 8 annas and so it is settled between the original parties; (iii) It was agreed that if you pay me Rs. 1,800 in a lump it will be understood that the transaction has been wholly completed and paid up. As you have no sufficiency of funds ................ it is settled that you are to pay me Rs. 80 per month; (iv) As mentioned above no interest of any nature whatever has remained claimable by me ..... . and in like manner I understand whole of the principal has been fully paid; ( v) If you so wish or if necessity may arise then at any time you may ask for it I shall give you this agreement written out on stamp paper and on being registered." Held, that the agreement was not exempt from registration because the document itself limited and extinguishecl an "in- terest" in immoveable property in the present within the meaning of s. 17( 1 )(b) of the Indian Registration Act, and it was not exempt under s. 17(2)(v). Held, also that the document could not be used under the pro- viso to s. 49 of the Registration Act as the suit was not for speci- fic performance and no question of part performance arose in the case and also no question of using the document for a collateral transaction arose because the document was to be used to prove the very agreement which it created itself . ., U. Po Thin v. Official Assignee (A.I.R. 1938 Rang. 285) and Tik_aram v. Deputy Commissioner of Bara Banki (26 I.A. 97), ..,. ~ Mahim Chandra Dey v. Ram Dayal Dutta (A.I.R. 1926 Cal. 170), 2-6 S.C. India/71 1952 Feb. 22. 19)2 Kashinatk Bhaskar Datar v. Bhaskar Vishweshwar Karve. 492 SUPREME COURT REPORTS [1952] Ram Rar.f~n v .. fayantilal (A.LR. 1926 Cal. 906) and Collector of Etan v. Kr.<hon Lal (A.I.R. 1930 All. 721) referred to. C!V!L APPELLATE Ju&1so1CTI0N : Civil Appeal No. 140 of 1951. Appeal from a Judgment and Decree dated 22nd September, 1947, of the High Court of Judi- cature at Bombay (Sen and Bavdekar JJ.) in Appeal No. 41 of 1943 arising out of decree dated 4th Septem- ber, 1942, of the Court of the First Class Subordinate Judge at Poona in Civil Suit No. 808 of 1941. Roshan Lal and B. S. Shastri for the appellant. Hardyal Hardy for the respondent. 1952. Februray 22. The Judgment of the Court was delivered by BosE J.-This is a defendant's appeal in a suit Oil two mortgages. The first was executed on the 7th of April, 1931, by the defendant and his father. The second was dated the 17th of December, 1935, and was executed by the defendant alone. The first was for a sum of Rs. 9,500, the second for Rs. 3,500. The same property was mortgaged each time. The claim on the two deeds together was for Rs. 20,774-3-0. These mortagages were in favour of one Narayan Gopal Sathe. On the 28th of March, 1940, the mort- gagee assigned them both to the plaintiff who now sues on them. The defence was that both mortgages were satisfied. The main evidence on which the defendant relied to prove satisfaction was an agreement dated the 17th of October, 1937, executed by the mortgagee Narayan Gopal Sathe in favour of the defendant. The document has been excluded from evidence by the trial Court as well as by the High Court on appeal on the ground that it required registration. If this document is excluded
Excerpt shown. Read the full judgment & AI analysis in Lexace.