Decided on March 29,1967

KHETMAL Appellant
CHHAGANRAJ Respondents


- (1.) THIS is a second appeal by the defendant Khetmal against the appellate judgment and decree of the District Judge, Balotra dated 30th April, 1962. confirming the decree of Civil Judge, Balotra dated 29th March, 1981 decreeing the plaintiff-respondent's suit for the recovery of the mortgage money by the sale of the mortgage property.
(2.) IT will be proper to set the material facts at the outset. One Mishrimal son of jeta of Samdari executed a mortgage deed in favour of Chhogalal deceased, chhaganmal, Achalchand and Jugraj on Mah Sudi 13, S. 2005 corresponding to 11-2-1949. The principal amount secured by the mortgage was Rs. 2199/-and the mortgage property consisted of a house at Samdari. The mortgage deed is Ex. 2 which was not registered on 14-2-49. After the mortgage, Mishrimal died and khetmal defendant-appellant is his heir and successor in interest under a proper will. Chhogalal also died some time after the execution of the mortgage deed. After Chhogalal's death, Achalchand, for himself and for his son Jugraj and another son and Chhaganmal son of Chhogalal transferred their mortgagee rights in favour of Bastiram, son of Shivdatt on 5-2-1958, vide Ex. 3. This deed purported to have been executed by both Achalchand and Chhaganmal but it was presented before the Sub-Registrar only by Achalchand. Achalchand alone appeared before the Sub-Registrar and admitted the execution of the deed. Chhaganmal did not appear but the document was registered on admission of Achalchand and nothing was indicated as to the non-appearance of Chhaganmal before the Sub-Registrar. Bastirram transferred the mortgagee rights assigned to him in favour of chhaganraj and Parasmal on 13-6-1958 vide Ex. 1 which was got registered on 14-6-1958. There had been some repayments towards the mortgage debt. Eventually Chhaganraj and Parasmal instituted a suit for the recovery of the mortgage money amounting to Rs. 1970/-by the sale of the mortgage property and impleaded Khetmal, Chhaganmal, Achalchand. Jugraj and Bastiram as defendants. It may be useful to mention at this stage that on 30-4-1958 some creditors of a firm Peerdan Peerchand at Bikaner alleging that Achalchand and Chhaganmal along with others were partners of the firm Peerdan Peerchand applied for declaring them insolvent. Chhaganmal was not declared insolvent but Achalchand and a few others were declared insolvents on 14-1-1961. These facts have been mentioned as the arguments during the course of the hearing of the appeal centered upon these facts. Chhaganmal, Achalchand. Jugrai and Bastiram did not contest the suit. Only Khetmal opposed the plaintiff's suit. He took various pleas but the pleas with which we are concerned in this appeal need only be mentioned. It was alleged that as an insolvency petition had been presented against chhaganmal and Achalchand the transfer by them of their mortgagee rights was not valid. The other plea was that as Chhaganmal did not appear and admit the execution of the deed Ex. 8 the deed was void and did not affect immovable property and was inadmissible in evidence.
(3.) THE trial court framed a number of issues. The issues covering the above pleas of the defendant Khetmal are issues Nos. 8 and 10 and read as follows: 8. Whether the sale deed was not registered only by defendant No. 3 and therefore it is inadmissible in evidence. 9. Whether insolvency proceedings were pending against defendants nos. 2 and 3 and therefore they had no right to sell the mortgagee rights and therefore the suit is incompetent? dealing with issue No. 8 the trial court held that the registration was valid and that absence of admission by Chhaganmal before the Sub-Registrar was only a defect of procedure and was curable under Section 87 of the Registration Act. Dealing with issue No. 10, the trial court observed that the defendant did not lead any evidence and did not press the plea,;

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