1994 PLP 1687 (CLC)

‑‑‑‑S. 49‑‑‑[as amended by Registration (Amendment) Ordinance (XLV of 1962)]‑‑‑Non‑registration of document‑‑‑Effect‑‑‑Provision of S. 49, Registration Act, 1908 (as amended) does not provide that any document which was not registered was inadmissible in evidence‑‑‑Receipt evidencing payment of mortgage amount in question, could be used as evidence in support of redemption of mortgage. Bhan Singh v. Narinjan Singh and others AIR 1940 Lah. 68 ref. CA. Rehman for Appellants. Nemo for Respondent. Date of hearing: 12th February, 1994. The only law point requiring determination in this second appeal is whether concurrent findings of facts recorded by the two Courts below that mortgage‑money had been paid and mortgage stood redeemed suffers from any illegality.

2. The appellants filed a suit that entry in the Jamabandi regarding the land which had earlier been mortgaged with them stood redeemed was unauthorisedly made and they were still the mortgagees of the said land which had not yet been redeemed.

3. The respondent in evidence produced a receipt Exh. Dl evidencing payment of an amount of Rs.500 to appellants which was the mortgage money. This receipt has been proved by examining its marginal witnesses namely Muhammad Sharif D.W.1 Muhammad Ali D.W.2 and Bashir Ahmed D.W.3. All of them stated that Muhammad Nazir appellant had executed the said receipt in favour of the respondent after receiving an amount of Rs.500. According to the evidence this receipt was in the hand writing of appellant No.l. In order to rebut the said evidence the appellants did not get the writing on the said receipt compared with the specimen hand writing of appellant No.l by an expert witness. The two Courts below believed the evidence of. the said three witnesses in order to arrive at conclusion that the said amount of Rs.500 as mortgage money had been received by the appellants.

4. In support of this finding another circumstance was available i.e. it was admitted by the appellant that for the last 4/5 years they had not been paid the share of the produce of the land. The receipt was executed on 23‑10‑1985 whereas the suit was filed on 30‑4‑1970. If the appellants had not been paid the share of the produce and their case was that they were still the mortgagees entitled to receive the share of produce as they did in the past they would not have waited for about 5 years to file the suit. The entry in the Jamabandi was changed in the year 1967‑68, regarding redemption of the mortgage.

5. The concurrent finding of facts that the appellants received mortgage money and mortgage stood redeemed has not been shown to have suffered from misreading, misconstruction or non‑reading of any material piece of evidence.

6. Learned counsel for the appellants on the strength of judgment reported as Haranath Deb Nath and others v. Baishnab Charan Das and another (AIR 1937 Calcutta. 178), argued that the legal effect of Exh. Dl is that the mortgagee rights in the land stood extinguished as the said document in not simply a receipt but also contains recitals as regards extinguishment of the mortgage rights therefore the same required registration as provided by Section 17 of the Registration Act. I am afraid, the argument has no force because when questioned, learned counsel admitted that provisions of the Transfer of Property Act which required that mortgage could only be effected through registered document, were not made applicable to Punjab with the consequence that in the rural areas in Punjab the land can be mortgaged through oral transaction evidenced by mutation like sales, therefore, it could not be urged that mortgagee rights which were not themselves created through registered mortgage deed nor the same were in fact required to be created through such document, the same could not be extinguished otherwise than registered document. The judgment relied upon also lays down the same principle that where the mortgage itself was not required to be created through registered document the same could be redeemed through a simple receipt evidencing payment of mortgage money.

7. Learned counsel for the appellants then argued relying upon judgment reported as Bhan Singh v. Narinjan Singh and others (AIR 1940 Lahore. 68) that the receipt Exh. Dl since had the effect of extinguishment of mortgagee rights in the land was not admissible as the same was not a registered document and no evidence could be produced to establish redemption of mortgage against the terms of Exh. Dl. This argument is also repelled on the same reasons. Section 49 as it stands after amendment in 1962 does not provide that any document which is not registered is inadmissible in evidence. The Exh. Dl the receipt could be used to establish payment of amount of Rs.500 i.e. the mortgage money. Since I have already held neither the mortgage was required to be effected through registered document therefore the extinguishment of mortgagee rights could also be hroved to have been effected by payment of mortgage money and that having been done as such, merely because Exh. Dl also spoke of redemption or extinguishment of the mortgagee rights would not detract from the legality of the evidence that the mortgage stood otherwise redeemed in accordance with law.

7. The two Courts below have not committed any illegality therefore the appeal has no force which is accordingly dismissed with no order as to costs. AA./M‑1550/L Appeal dismissed.