MADHAVAN PILLAI PARAMESWARAN PILLAI Vs. NANI SAROJANI
HIGH COURT OF KERALA
MADHAVAN PILLAI PARAMESWARAN PILLAI
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(1.) THE only point taken in this second appeal by the 1st defendant in the suit is that the court below should not have given the plaintiffs a charge on immovable property for the two amounts, each over Rs. 100/-, it found due to them from the 1st and 2nd defendants respectively.
(2.) DEFENDANTS 1 and 2 were the foremen of a chitty governed by the Travancore Chitties Act, while the plaintiffs stand in the shoes of defendants 3 and 4, two non-prized subscribers to whom the amounts in question were due from defendants 1 and 2 under S. 27 of the Act. The charge the plaintiffs sought to enforce was on the immovable property given as security by defendants 1 and 2 by the chitty security bond (presumably registered the bond itself is not in evidence) executed under S. 17 of the Act a charge in no sense a charge created by the court. The assignment deeds, Exts. P3 and P4, executed by defendants 3 and 4 in favour of the plaintiffs' predecessor are unregistered. True, they do not purport to assign the charge, but, doubtless, they operate to do so by reason of S. 8 of the Transfer of property Act and S. 34 of the Chitties Act; and that indeed, must be the very basis of the plaintiffs' claim for a charge. A charge might not amount to an interest in immovable property since it involves no transfer of any such interest If it did the transaction would amount to a mortgage (The last paragraph of S. 54 of the transfer of Property Act is also some indication that a charge on immovable property does not amount to an interest in the property it speaks of an "interest in or charge on" property ). But there can be no doubt that a charge on immovable property amounts to a right to immovable property, and, since Exts. P3 and P4 operate to assign (even though they do not purport to do so) a charge on immovable property for over Rs. 100/-, they falt clearly within s. 17 (i) (b) of the Registration Act, and, by reason of S. 49 thereof cannot affect the property see in this connection Imperial Bank v. Bengal National bank (AIR 1931 Calcutta 223), Rajagopala v. Ranganatha AIR 1934 Madras 615), rangampudi v. Veikateswurlu (AIR. 1934 Madras 713) and Uttamchand Motilalji v. Wasudeo Diorao AIR. 1946 Nagpur 311) to mention only a few of the numerous decisions. on the point.
I allow this appeal in part and modify the decree of the court below by deleting the provisions for a charge but otherwise dismiss this appeal. There will be no order as to costs in this appeal.;
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