CHHAGANLAL SAKHARAM Vs. CHUNILAL JAGMAL

JUDGEMENT

(1.) The question in this appeal is whether an oral charge in favour of the appellants is to have priority over two mortgages by registered deeds in favour of the respondents.

(2.) The appellants contend that their charge being prior in point of time ought to have priority of effect. The argument before us was that Section 100 of the Transfer of Property Act refers to charges as distinct from mortgages; that, by reason of Section 9 of the Act, which provides that "A transfer of property may be made without writing in every case in which a writing is not expressly required by law," and in the absence of any such provision in regard to a charge as is contained in Section 54 of the Act in regard to sale, in Section 59 in regard to mortgages, in Section 107 in regard to leases, in Section 118 in regard to exchanges, and in Section 123 in regard to gifts,-charges may be created without writing; that if a charge can be created without writing, then Section 17 of the Indian Registration Act is inapplicable, and an oral charge may be created by which an interest in immovable property of the value of Rs. 100 and upwards may be vested without a registered document.

(3.) The argument was sought to be supported by reference to some of the cases, notably Kallappa V/s. Balwant (1924) I.L.R. 28 All. 655 and Maina V/s. Bachcki (1906) I.L.R. 28 All. 655, in which charges were referred to as creating interests in the property. In the cases referred to, however, where an interest in the property was held to be created by a charge, the charge had been made either by a registered document or a decree of the Court; and Section 17(2) (V) of the Indian Registration Act exempts decrees of the Courts from the provisions under which registered documents are required for the creation of interests in immoveable property.