JUDGMENT Piggott and Walsh, JJ.
1. We have come to the conclusion that this appeal must be allowed and the suit sent back for re-trial. The Suit is brought upon two simple mortgage bonds by the plaintiff against the widow of one Bijai Singh, Bijai Singh borrowed two sums--one of Rs. 6,000 and the other of Rs. 1,000 in the month of August, 1902, and by two documents executed respectively on the 26th and 27th of August, hypothecated in respect of those loans certain property set out in the schedule to the bonds. He was in urgent need of money on the 29th or, the 30th of August, for the purpose of lodging it in court in respect of a decree which he had obtained in a pre-emption suit, He had been a member of a joint Hindu family who had partitioned their property by means of an award in the year 1896. That award was carried out by a decree in the same year. The father, Sher Singh, had died in 1897. By the award the property was partitioned between his four sons Bijai Singh, the mortgagor in question, Niranjan Singh, his brother who is still living, Shib Singh, a brother who is dead, and Dirgpal Singh, who is still living and who was at that time a minor. The property hypothecated by Bijai Singh in these two documents in substance consisted of the property which he was awarded under that partition, although it is not clear that it did not include some other property as well, and also included 2 1/2 biswas in a certain mauza named Kachaura, which had in fact been awarded in the decree to the minor Dirgpal Singh. Prima facie it would, therefore, appear to be established, at any rate for the purpose of our decision today, that Bijai Singh had no title to this property and could not hypothecate it to the plaintiff. It is this which has given rise to all the difficulty in the case. If this property had not been included in the bonds, the registration office at Budaun would not have been the proper place under the Registration Act for the registration of the bonds. If, on the other hand, this property was included then Budaun was the proper place for the registration of the bonds, which were in fact registered at Budaun. The learned Subordinate Judge has dismissed the suit on the ground that the registration was invalid, purporting to follow the decision of the Privy Council in Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R. 41 Calc.,972. We say "purporting to follow that decision,"because it is difficult to say what exactly the learned Subordinate Judge meant to find as a question of fact in his judgment, The question which we have to decide as a matter of law is this, whether, when property is admitted to be in existence and has been included in a mortgage-deed, but is shown not to have been the property of the mortgagor, the fact that the document has been registered in the district to which that property belongs is sufficient to invalidate the registration when that property is the only property hypothecated within the registration district, A priori, on reading Section 28 of the Indian Registration Act, No, XVI of 1908, there would appear to be no ground for this contention. The section provides that "the document shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate," Whether or not the mortgagor had a good title to this piece of property does not affect the question whether this property is situated in the district where registration took place and whether the document relates to it. It would be a strange result if it were the law that upon proof that the mortgagee had obtained no title to a small portion of property on account of which the place of registration was selected that he should lose, not only the benefit of his security over that small portion, but the entire benefit of the hypothecated property, particularly when, as might happen in many cases, he had been deceived by the mortgagor. This is the view which has been taken by a two Judge Beach in Calcutta in the case of Brojo Gopal Mukerjee v. Abhilash Chandra Biswas (1910) 14 C.W.N., 582, which is not reported in any authorized report, but, which is to be found in 14C.W.N., 532., We think that decision might be reported in the authorized reports. The Judges refer to a decision of the Privy Council many years ago in which it was held that a small portion of the property covered by the deed was sufficient to give the Sub-Registrar jurisdiction in whose sub-district that portion was situate. We agree with the decision of the Calcutta Bench, and it therefore becomes a question of fact, and it is really a question of fact in every case, whether, as the Privy Council says in its judgment in I.L.R., 41 Calcutta, the parties have intentionally by a mutual collusive arrangement inserted in the deed property which either does not in fact exist or which, while in existence, is not intended by either of them to be a part of the security. Where the parties are colluding for the express purpose of evading the registration law, in such case, applying the Privy Council decision to the words of the section, the result would be that the deed in question does not"relate" to the property, inasmuch as neither party had any intention of dealing with the property. On the other hand, where the real fact is that the parties intended to deal with the property the condition of the mortgagor's title does not affect the question of registration. Applying these principles, which we think are clear and well settled, the question which we have to determine in this case is whether it is proved that the mortgagee was aware of the defect in the mortgagor's title and expressly consented to the inclusion of this property in the deed for the purpose merely of complying with the Registration law. In our view nothing short of a finding to that extent would be sufficient, and the finding if arrived at, must be supported by clear evidence. It is suggested in this case that there is in the first place evidence of the fact. That is undoubtedly true; but the evidence on this point is far from satisfactory. On the one hand, the plaintiff himself did not go into the box and has exposed himself to just criticisms on that account; but it is difficult to see what more he could have said than appears from the documents which were presented on behalf of Bijai Singh, unless he was prepared to admit what the defendants allege. Now the documents, the khewat and the revenue records generally, were such as to justify the acceptance by any purchaser or mortgagee of Bijai Singh's title to this piece of property. For reasons of their own, possibly not unconnected with a scheme of this kind, the family had deliberately entered Bijai Singh's name as being in possession of this property, although it had been awarded to his minor brother. A witness named Sham Lal was called on behalf of the plaintiff. He deposed that Bijai Singh, came to the house of the plaintiff with his brother Niranjan Singh, and when asked with reference to this property referred the plaintiff to the khewat, and that the plaintiff saw the khewat and next day asked his servant Pandit Gumani Lal to inspect the registers of the Registration Office. That evidence although not supported by the testimony of the plaintiff himself, might have been contradicted by Niranjan Singh and was not. A pleader who has been practising since 1880 and has acted for the defendants for many years and is now indebted to them in an amount of Rs. 800 or Rs. 900 was called by the defendants, although he had been summoned by the plaintiff, and it is upon his evidence and his evidence alone that it is suggested that it is proved that the plaintiff knew quite well that this was a fictitious entry in the deed. He attested both the documents and identified Bijai Singh at the time of the registration. He knew the actual ownership of the property perfectly well, and was under the impression, according to him, that this fictitious inclusion of the minor's property in the deed was done to avoid the journey to Dataganj, where registration would otherwise have taken place, and to enable Bijai Singh to borrow money for the satisfaction of the pre emption decree. Whatever the profession may have thought before the Privy Council decision, we are of opinion that an act of this kind on the part of a professional gentleman who is said to be a gentleman of respectability was highly questionable. However that may be, we have to consider whether his evidence really proves anything against the plaintiff. He says that all of them, including himself, Bijai Singh and the plaintiff, knew that the property did not belong to Bijai Singh, We do not think that this is evidence that the plaintiff knew. It is merely an expression of opinion on the part of the witness. He does not tell us how the plaintiff is supposed to have known or how he came to know that the plaintiff knew. Nothing would have been easier, if there was any substance in the allegation, than for the witness to have stated in unequivocal terms to the court how the plaintiff became acquainted with the true state of the facts. In the presence of the document, which absolutely contradicted the witness, we think there was no evidence that the plaintiff knew, and therefore no evidence that he was a conscious party to the fictitious entry in the deed. Inasmuch as it was admitted that the property was in existence and was supposed to be in the possession of the mortgagor, the onus was on the defendants to show that both parties intended the entry to be fictitious. We do not think the court below really found that the plaintiff knew. It was prepared to accept the pleader's evidence but it does not expressly find any knowledge at all on the part of the plaintiff. On the other hand, it is said in the judgment that the question is whether, the plaintiff should not have made more careful inquiries at the time. This question would be quite irrelevant if the court below held that the plaintiff knew the real truth. It appears to us that the decision has gone against the plaintiff merely on the finding that the plaintiff ought to have known under all the circumstances that Bijai Singh had no power to transfer mauza Kachaura and that therefore he was not acting in good faith. This is not sufficient, The appeal must be allowed with costs and the case remanded to the court below to be tried out on the merits.