Decided on November 27,1968

JAWANMAL Respondents

Referred Judgements :-



JAGAT NARAYAN, J. - (1.)THIS is a revision application by the defendants against an order of the trial court holding that the Khata dated 2-2-61 which is unregistered is admissible in evidence.
(2.)THE case of the plaintiff is that Jethmal deceased the predecessor in, interest of the present defendants mortgaged a house and Nohra in his favour by means of a registered deed dated 24-2-56 for Rs. 2000/ -. It was recited in the deed that possession had been given over both the properties to the mortgage and that the mortgagor would not pay any interest on the loan and the mortgagee would not pay any rent for the mortgaged property. THEre was also a personal covenant to pay the loan after two years. THE plaintiff's further case is that Jethmal did not actually deliver possession over the properties to him and on 2-2-61 he executed a Khata for Rs. 2620-12-0 in respect of the sum of Rs. 2000/- advanced under the mortgage. This included interest at 6 percent, simple on the sum of Rs. 2000/- from 24-2-56 to 2-2-61. THEre was also a stipulation to pay future interest at 6 percent, per annum simple on the sum of Rs. 2620-12-0.
When the plaintiff sought to prove this Khata an objection was raised on behalf of the defendants that as the Khata was unregistered and as it varied the terms of the mortgage it was inadmissible in evidence being compulsory registrable under sec. 17 (1) (b) of the Registration Act. This objection was overruled by the trial court on the ground that the plaintiff has only brought a simple money suit and it was not intended to affect the transaction relating to immovable property.

On behalf of the defendants it is contended before me on the authority of the decision of their Lordships of the Supreme Court in Kashinath Bhaskar vs. Bhashkarvishweshwar (l) that the Khata is inadmissible in evidence. On behalf of the plaintiff it is contended that it is admissible.

In my opinion the Khata is not admissible in evidence to prove that Jethmal agreed to pay Rs. 2620-12-0 together with interest at 6% simple on it on 2-2-61. The consideration for the Khata is said to be the amount due on the mortgage bond dated 24-2-56 together with interest at 6 percent, which was not provided for under the mortgage. If that is the consideration for the Khata then this Khata novates the mortgage contract. It cannot do so without being registered. If on the other hand it is argued that this is a fresh contract not connected with the mortgage then it is without consideration and unenforceable.

The learned counsel for the plaintiff contends that it is admissible to prove the acknowledgment of Jethmal with regard to the mortgage dated 24-2-56. This question is left open.

It will be open to the plaintiff to amend his suit so as the base his claim on the personal covenant contained in the mortgage deed dated 24-2-56.

The revision application is allowed as indicated above. In the circumstances of the case, I leave the parties to bear their own costs of it. .


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