TARACHAND Vs. NOKHE SINGH

JUDGEMENT

(1.) . 1. The plaintiff-appellant, Tarachand sued the defendant-respondent, Nokhe Singh on a mortgage-deed, dated 21st August 1917, in the Court of the Subordinate Judge, First Class, Chhindwara. Under the mortgage-deed, a house and crops situated in occupancy and ordinary fields, as well as certain trees and a well situated in an ordinary field No. 153, were hypothecated. Apart from a plea of the satisfaction of the mortgage-debt, with which I am not now concerned, the only other defence raised was that, under Section 70, Sub-section (3), C.P. Tenancy Act, 1898, the mortgage of the well and trees situated in the ordinary field was invalid and that the whole mortgage-deed was, therefore, void, it having been registered in contravention of Section 70, Sub-section (5), Tenancy Act, 1898. In reply to this allegation, the plaintiff in the first Court gave up his claim against the trees and the well, and claimed that the mortgage-deed was otherwise valid. The Subordinate Judge held that, under the decision in Nilkant v. Ghulya [1917] 13 N.L.R. 165, the defendant was entitled to challenge the mortgage on the grounds stated. He accordingly held that the whole deed was invalid, the personal relief even being barred by time. This latter point as regards the personal relief was admitted in the course of argument in this Court and I am thus only concerned with the question of the validity or invalidity of the mortgage-deed as a whole on the grounds stated.

(2.) THE plaintiff appealed to the Court of the District Judge, Chhindwara, and he took the same view, e.g., that the mortgage could not be enforced for lack of legal registration. In this Court the appellant has urged, on the strength of the decision in Narayan v. Mahadeo A.I.R. 1928 Nag. 41, that it was possible to hypothecate the trees and also the well apart from the ordinary tenancy right contemplated under Section 70, Sub-section (3) of the old Tenancy Act.

(3.) I desire to add that in the present case, oven apart from the trees, there is a further reason why the mortgage-deed was invalid. The well cannot possibly, in my opinion, be regarded as anything else than an integral part of the field. It is possible that other fields may be irrigated therefrom, but prima facie the primary benefit from the well would, in the normal case, be derived by the fields in which it is situated. The well in this connexion stands on a wholly different position from the trees. It is conceivable that there would not be any detraction from the amenity of the holding by the removal of a tree; there might be even benefit to the holding owing to the sustenance which the tree draws from the ground. The position is precisely the reverse as regards the well, and, from every point of view, therefore, it seems to me that the well must be regarded as an integral part of the holding. As I have already pointed out, even as regards the trees, there was no plea in this case by the plaintiff that they were held on a separate title from the rest of the holding, and the very fact that, in the first Court, the claim to the trees and well was expressly given up, implied an admission to the contrary effect. In those circumstances, on the facts of the present case, it seems to me that the mortgagor here professed to mortgage a portion of the holding as contemplated in Section 70, Sub-section (3) of the old Tenancy Act, and it follows ipso facto that the whole mortgage-deed was bad and was invalidly registered.