Bapna, J. - (1.) THIS a is second appeal by the defendants in a suit for recovery of money on the basis of a mortgage bond.
(2.) THE respondent, who is not present, instituted a suit against Mohanlal and his son Shri Bhagwan appellant on the allegations that the defendants were the owners of 300 bighas of land as Barhdars, and were on friendly terms with the plaintiff. Mohanlal appellant wanted a loan in connection with the marriage of his daughter, and obtained Rs. 1035/- in various amounts on various dates. It was alleged that on the 1st of July, 1939, a document of loan of Rs. 1000/- after adjusting accounts was executed by Mohan Lal with agreement to pay interest at Re. 1/- p. m. , and as security for the loan the 300 bighas of land was handed over to the plaintiff, and a Navisht was obtained from the cultivators in favour of the plaintiff. It was alleged that thereafter the defendants told the plaintiff that if the latter collected the rents, the former would be disgraced, and they agreed that they may be allowed to collect the rent themselves, and they will pay over the same to the plaintiff. It was alleged that upto Smt. 2002 (later said to be Pos Sudi 15 Smt. 2002) previous accounts were made up, and the defendants agreed to accept their liability on the mortgage bond at Rs. 666/8/ -. It was then alleged that the Bahi in which the acknowledgment was made was handed over by the plaintiff to Babu Ghanshyam Chandra Vakil, who tried to have the dispute amicably settled, but the Bahi was taken away by Mohanlal, and thereafter a false notice was given to the plaintiff that the said defendant Mohanlal was a creditor of the plaintiff to the tune of Rs. 409/ -. THE plaintiff stated that he was, therefore, compelled to file a suit for the recovery of Rs. 666/8/-principal and Rs. 193/12/- interest at 1% p. m. , the total claim being Rs. 860/4/ -. THE prayer was for grant of a personal decree against the defendants, and further for a charge being kept on the income of the 300 bighas of land. Mohanlal filed a reply denying the obtaining of the loan or executing the mortgage deed in question. He stated that the plaintiff on the other hand had obtained money from the defendant for the purpose of some joint adventure in business, and out of this Rs. 699/- were lying as deposit with the plaintiff. He then referred to certain other loan taken by the plaintiff, and its repayment, and said that on that dealing Rs. 409/- further remained payable by the plaintiff to the defendant. The mortgage deed produced by the plaintiff was said to be a forgery. He denied having made up any accounts in the Bahi in the month of Pas Smt. 2002, and denied the allegation of the committing of theft of the said Bahi in the possession of Ghanshyam Chandra. A plea of limitation was also raised. The trial court, after evidence, came to the conclusion that the mortgage deed Ex. p. 3 had been executed by Mohanlal. It, however, held that the registration of the said deed was done according to certain rules promulgated by the Rao Raja of Sikar, who was not empowered to legislate as held by the various decisions of the Jaipur High Court. It, therefore, took the mortgage bond as an unregistered one, for which a period of three years limitation was calculated according to Art. 115 of the Limitation Act. It held that the defendant had acknowledged his liability in the Bahi at Rs. 666/8/- as deposed to by Ghanshyam Chandra Vakil, and that the said sum with interest amounted to Rs. 860/4/-as claimed. On the question of limitation it, however, applied Art. 115, and the starting point of limitation to be 1st July, 1939. The suit, which was instituted on 1st May, 1948, was held to be beyond limitation. The counter claim of Rs. 409/- made by the defendant was held not proved. The suit and the counterclaim were accordingly dismissed. Both the parties filed appeals. These were appeals Nos. 31/1951 by the plaintiff and 33/1951 by the defendant. The learned District Judge, Sikar, dismissed the appeal of the defendant. In regard to the appeal by the plaintiff he held that although the Rao Raja of Sikar had no power to legislate and to enforce certain registration rules, yet whatever had been done for the purpose of registration of the document was in accordance with law promulgated by the Jaipur State, and, therefore, the mortgage bond had been properly registered. He agreed with the finding of the lower court on the acknowledgment made by the defendant with respect to Rs. 666/8/- in the Bahi of the plaintiff. He did not say what Article of the Limitation Act was applicable, but he said that the document Ex. P. 3 created a charge on the income of the land, and, therefore, the suit was within limitation. He obviously had Art. 132 in his mind when he said so. The operative portion of the judgment was that "the finding of the lower court dismissing the suit is therefore hereby set aside and that for disallowing the set off claimed is upheld, and it is decreed in view of the observations that the defendant shall pay to the plaintiff Rs. 860/4/- along with costs of the suit throughout, and the appeal filed by the plaintiff is thus allowed and that filed by the defendant is dismissed". The document Ex. P. 3 purports to have been executed by Mohanlal alone, and the learned District Judge also speaks of the decree against the single defendant. As it happens, the decree was prepared as having been passed against Mohanlal as also his son Shri Bhagwan. Both Mohanlal and his son Shri Bhagwan have come in second appeal. It was argued by learned counsel for the appellants that the document was not registered in accordance with the rules that were in force in the Jaipur State at the time. It was contended that the registration of a mortgage bond had to be done in the manner of Khatchhapi, and that, therefore, the mortgage had not been properly created. We do not propose to decide what was or was not the procedure in Jaipur. Any defect in registration is curable under sec. 87 of the Registration Act which is now in force. That section lays down. "nothing done in good faith pursuant to this Act or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure". It was contended that there was some difference in procedure with respect to simple registration and registration by Khatchhapi. The defect in procedure is curable as stated above, under sec. 87 of the Registration Act. The document purports to have been presented before Sub-Registrar on 12th September, 1939, and the Sub-Registrar took proper steps for the admission of the document by the executant and by recording the statements of identifying witnesses. There is a note by the Sub-Registrar himself that he personally knew the executant also. He registered the document on the same day, that is, 12th September, 1939. Mr. Nemichand Sub-Registrar, has entered witness box, as also other persons and the two courts have rightly held that the document Ex. P. 3 had been proved to have been executed by the defendant Mohanlal. The subject of the security is a grant by the Sikar Thikana, and according to the admitted case of the parties was not transferable or sailable. The tenor of the document is that the income of the land was to be the security for the loan. The transaction amounts to the creation of a charge on the income of the land, whatever may have been said in the document. Under Art. 132 of the Limitation Act, the limitation to enforce payment of money charged upon immovable property is 12 years from the date when the money sued for becomes due. Even if the date of the bond is taken to be the date for starting of limitation, the suit is within time. The cause of action as alleged by the plaintiff, however arose after Smt. 2002, when the defendants entered into possession, and did not pay the rents collected by them. The corresponding English year would be 1945, and the suit, which was filed in 1948, was again within limitation. Judged from any point of view, the suit was within limitation. The lower court was certainly in error when it purported to pass a decree against both Mohanlal and his son Shri Bhagwan by saying that the appeal of the plaintiff which was against both the defendants, was allowed. The judgment and the decree in this respect are very slipshod. It should have been made clear that the suit of the plaintiff was being decreed against Mohanlal only, and not against both, for in the judgment the liability of Shri Bhagwan has not been dealt with at any place. As a result, the appeal of Mohanlal is dismissed. The appeal of Shri Bhagwan is allowed. The suit against him shall stand dismissed. Shri Bhagwan will get his costs from the plaintiff in all the three courts. As the expenses incurred by him are common with Mohanlal, he will get half the costs incurred by the two defendants. The respondent is not present in this court, and, therefore, no costs are to be borne by Mohanlal of this Court. .;