Full Judgment
1. This appeal is by defendants Nos. 3 to 6 against the decree passed by the Subordinate Judge of Cocanada in a suit brought on a mortgage bond Ex. A. dated November 8, 1916, executed by the 1st defendant's father. The appellants-defendants are purchasers of the equity of redemption in execution of a money decree obtained by them after the mortgage. The Subordinate Judge granted a decree.
2. Two points are argued in appeal. The first is that the mortgage bond is not supported by consideration and is merely nominal. The Subordinate Judge discusses the evidence. We see no reason to differ from his estimate of the evidence. The burden of proof is upon the defendants. Not only have they not discharged the burden but there is considerable evidence for the plaintiff to show that consideration was fully paid. It is unnecessary to dwell on the oral and documentary evidence in detail.
3. The second point argued is that there is a charge on the suit land created in 1912 in favour of the Imperial Bank of India and these appellants having paid off the debt due to the Bank, have become subrogated to that charge and therefore they have got a priority over the suit mortgage bond. This point was not raised in the written statement and the document in favour of the Imperial Bank was not even filed in the lower Court. They have now filed an application for admitting fresh evidence. It is merely a letter addressed to the Imperial Bank by the 1st defendant's father undertaking not to alienate certain properties. At the time of the letter no loan was taken from the Imperial Bank though sometime after the letter, moneys were lent by the Bank to the 1st defendant's father. We do not think such a letter amounts to a charge. We agree with the decision in Sitanna v. Venkatakrishna Murtty : (1913)24MLJ474 and with the judgment of Rankin, C.J., in Imperial Bank trf India v. Bengal National Bank, Ltd. : AIR1931 Cal223 which judgment is not touched by the decision of the Privy Council in Imperial Bank, of India v. Bengal National Bank Ltd. on this point. We think that even a charge, though it may not amount to a transfer, creates some interests in immovable preperty and such a document must be registered. The decision in Gobinda v. Dwarkanath 35 C 837 : 7 CLJ 492 : 12 CWN 849 relates to a decree which is exempt from registration. The decision in Janardan v. Anant 32 B 386 relates to three registered instruments and another instrument for less than Rs. 100. In the decision in Jewahir Mal v. Rani Indomati 22 Ind. Cas. 973 : 36 A 201 : 12 ALJ 290 the real question was whether the document was a mortgage and whether the suit was a not barred by limitation. Nobody was interested in arguing that there was no charge, At the most it may be a charge but if it is not a mortgage the suit was barred by limitation. Therefore even if fresh evidence can be admitted, it will not help the appellants.
4. The result is the appeal fails and is dismissed with costs of the plaintiff-1st respondent.