Andhra HC (Pre-Telangana)
P. Narayana Rao vs Smt. K. Venu Kumari on 6 February, 1992
Equivalent citations: 1992(1)ALT395
ORDER A. Gopal Rao, J.
1. This Revision is filed by the Plaintiff /Petitioner against the order of the lower court, dismissing the suit filed on the basis of an unregistered mortgage deed dated 1-8-1985, as not maintainable.
2. Plaintiff filed the suit on the basis of two mortgage deeds, one registered and the other dated 1-8-1985 unregistered. The unregistered mortgage document was impounded, as it is not stamped, and sent to the Collector for collection of stamp duty and penalty. The Collector, treating the document as a bond, collected the stamp duty and penalty and returned the same along with his certificate to the Court. When this document was tendered in evidence, an objection was taken, that it is not admissible in evidence as it is an unregistered mortgage deed. When this order was questioned in a revision, viz., C.R.P.No. 436 of 1990, this Court by an Order dated 23-3-1990, disposed of the said revision petition, remitting the matter to the trial court for framing an additional issue regarding the maintainability of the suit on the unregistered mortgage deed, with a direction to decide the said issue as a preliminary issue. The lower Court held that the document, being an unregistered mortgage deed, is not admissible in evidence. Hence, this revision petition.
3. The learned counsel for the Petitioner has made two submissions - (i) the unregistered mortgage deed is admissible in evidence for the purpose of proving the fact of borrowing the money and the personal liability of the defendant to discharge the same; and (ii) the order of the Collector, levying stamp duty and penalty on document in question, trating it as a bond, cannot be reviewed by the Civil Court.
4. The learned counsel for the respondent, however, contends that the recitals in the plaint themselves will disclose beyond any doubt that the document in question is a simple mortgage deed and, therefore, it is not admissible in evidence for want of registration. He further submits that, the correctness of the decision of the Collector with respect to the collection of stamp duty can be canvassed in a Civil Court.
5. The point, therefore, that falls for consideration in this revision petition is - whether the document in question, is admissible in evidence?
6. In support of the first submission made by the learned counsel for the petitioner, he relies upon the decisions rendered in:
Pulaka Vetil Muthalakulangam Kunhu Moidin and Ors. v. Thiruthtpalli Madhava Memon and Ors., 19 MLJ 584 (F.B.), L. Yadava Reddy v. Anasuyamma and Ors., 1977 APHCN 166 and Khantamoni Dassi v. Biswa Nath, AIR 1933 Cal 768.
7. The points that fell for considerations in the Full Bench decision in Pulaka Veti's case, 19 MLJ 584 (F.B.) are -
(i) is a registered mortgage which has not been attested or has only been attested by one witness, admissible as evidence of a personal covenant contained therein? and
(ii) is an unregistered mortgage which has not been attested, or has only been attested by one witness, admissible as evidence of a personal covenant contained therein? The Full Bench answered both the points in the affirmative. It was held in that decision that a document which contains a personal covenant to pay a debt and which purports to mortgage immovable property as a security for the debt is, if attested by two witnesses as required by Section 59 of the Transfer of Property Act, admissible in evidence to prove the personal covenant, notwithstanding the fact that it is not registered.
In L. Yadava Reddy's case (2 supra), the matter for consideration was, the effect of proviso to Section 49 of the Registration Act. In that context, it was held that "the proviso to Section 49 is attracted to the facts and circumstances of the case, and as such an unregistered usufructuary mortgage, executed by the defendant, is admissible in evidence in this suit to prove the collateral transaction, viz., the borrowal by the defendant by which he agreed to pay the amount borrowed."
In Khantamoni Dassi's case (3 supra), it was held that "even though a bond, which ought to be registered, is not registered, the promise can rely on the simple contract contained in the bond for personal covenant to repay; but the suit on such simple covenant cannot affect the immovable property which is the subject-matter of the bond, even though such property can be proceeded against, to satisfy the decree in the suit by reason of the general provisions of law."
8. The respondent, however, relied upon the decision rendered by this Court in Bhavanarayana v. Official Receiver, 1971 (II) ALT 39, in which it was held thus:
"Here a deposit was made by a letter in which it was mentioned why the document was deposited. There is nothing but the letter to connect the deposit with the debt. The letter does not show that it is merely evidential of something which either had already been done earlier or to be done in future. Therefore, by Ex.A-7 the bargain was reduced into writing and it embodied the contract of the mortgage itself between the parties. If that is so, Ex.A-7 required registration and not having been registered, it cannot be used in evidence at all and the transaction cannot also be proved by oral evidence either."
9. It may, however, be mentioned here that the above decision relates to a mortgage by deposit of title deeds. The considerations that arise in a case concerning a mortgage by deposit of title deeds are quite different from those pertaining to a simple mortgage. In the case on hand, we are concerned with a simple mortgage. The other decision relied upon by the learned counsel for the respondent is Sanjya v. Chauthmal, . In that decision, it was held that "as the document was not registered as required by Section 59 of the Transfer of Property Act, there was no transaction of mortgage at all and it could not be admitted in evidence even for the limited purpose of proving the receipt of consideration in view of Section 17(I)(c) read with Section 49 of the Registration Act."
10. From a reading of the decisions referred to above, it is clear that, if the document in question contains a covenant, whereby the executant undertakes to discharge the liability personally and without reference to the mortgaged property and if that document is not registered, still it can be admitted in evidence for the purpose of proving the personal liability and the borrowing. It follows that, if the document does not disclose existence of such a covenant, then necessarily, the document cannot be admitted in evidence if it is not registered, Therefore, it is my endeavour to find out whether the document in question contains an independent clause whereby the executant has undertaken to discharge the liability personally, without reference to the mortgaged property under the document.
11. In this context, it is necessary to extract the relevant recitals in the document in question, which run thus:
12. None of the clauses incorporated in the deed (document in question) will disclose that there is any such covenant, undertaking to discharge the liability personally, without reference to the mortgaged property. On the contrary, the executant has categorically stated that, till the discharge of the liability by paying the entire amount due by him. he will not deal with the mortgaged property in any manner and that he will get the property released only after the debt is fully discharged by him. It is also stated by the executant that in case of default committed by him, the mortgage is entitled to proceed as per law for recovery of the amount due. That impliedly postilates the recovery of the money, only by sale of the mortgaged property. From the fact that the mortgagor had imposed upon himself an obligation not to claim the property until the debt is fully satisfied, it could not be taken that he had promised to pay the mortgage money personally. Therefore, the document in question is a mortgage deed, which is compulsorily registerable under Section 17 of the Indian Registration Act and cannot be received in evidence, as laid down in Section 49 of the Registration Act. The borrowing under the document being not independent and separable from the liability fixed on the mortgaged property, the same cannot be construed as a collateral purpose. In that view of the matter also, the document is not admissible in evidence to prove the borrowing.
13. The other point urged by the petitioner, that the Revenue Authorities having impounded the document and collected the required stamp duty and penalty, treating the document as a bond, the court should proceed only on the basis that it is a bond and, therefore, the document is admissible, is also not tenable. For the purpose of impounding, the Revenue Authorities may have considered the mortgage deed as a 'bond'. The decision of the Collector, so far as the collection of stamp duty and penalty on a particular document, cannot be reviewed by a Civil Court. This position is settled in the decisions in -
Y.P. Venkayya v. R.D.O., Guntur, , Venkataramaiah v. Kripavathamma, ILR 1969 A.P. 593 and Vemparla China Ramaswamy v. Garimella Gouri Devi., 1978 APHCN 124. However, the nature of the document will depend upon the recitals in the document and other circumstances in which the document came into existence. Therefore, the decision of the Revenue Authorities with respect to the nature of the document, is not binding on the civil court.
14. I have already held that the document in question is a mortgage deed which is compulsorily registerable under Section 17 of the Indian Registration Act. Therefore, the question of admitting the document in evidence, treating the same as a bond, as contended by the learned counsel for the petitioner, does not arise.
15. For the reasons above stated, I hold that the document in question is not admissible in evidence. The order of the lower court is correct and does not call for interference in this revision. The revision fails and is accordingly dismissed. The trial of the suit regarding the other registered mortgage deed shall be completed expeditiously. No costs.