L. NARASIMHA REDDY, J.

( 1 ) IN this appeal the defendants in OS No. 103 of 1978 on the file of the Court of Subordinate Judge, Kavali challenges the judgment and decree passed therein.

( 2 ) THE suit was filed by one Pokuru Radhakrishnalah, the sole respondent herein against Tiruveedhi Narayana, who died during the pendency of the suit. The appellants herein who are legal representatives were brought on record.

( 3 ) THE suit was filed by the respondent pleading that himself and the 1st appellant were having business firms and during the course of their business the 1st appellant became indebted to the tune of about Rs. 12,400. 00 by the end of March 1976 and thereafter at the request of the 1st appellant lie advanced an amount of Rs. 10,000. 00 and to secure his liability of Rs. 22,000. 00 the 1st appellant executed a mortgage deed dated 6-6-1976 mortgaging the suit schedule property. He further pleaded that since the 1st appellant became indebted to several other creditors on the intervention of the mediators, he agreed to cancel the mortgage deed (Ex. A. 3) so as to enable the 1st appellant to sell the house and pay the debts to the creditors including the respondent. An endorsement of cancellation was effected on 9-9-1976 (Ex. A. 6) on the same day. The 1st appellant executed a promissory note covering the liability. However having obtained such endorsement the 1st appellant was evading to pay the amount or to act in accordance with the understanding on the basis of which the endorsement was made. Pleading that the endorsement Ex. A. 6 is not operative in law, since it was not registered in accordance with the provisions of the Registration Act and since it was vitiated by fraud and misrepresentation. The respondent filed the suit for preliminary decree for the amount with a charge over the suit schedule property. In effect, he sought for a decree under Order XXXIV CPC.

( 4 ) THE 1st appellant, during his life time filed written statement, admitting almost all the facts as to the execution of Ex. A. 3, endorsement-Ex. A. 6 and also execution of a pro-note covering the same liability, it was however, his case that it was the respondent, who did not co-operate in effecting the sale of the suit schedule property. It was his further case that since Ex. A. 3 was cancelled the suit was not maintainable. He further contended that as the liability is covered by a pro-note the only course open to the respondent was to enforce the same.

( 5 ) AFTER the death of the 1st appellant, the appellants 2 to 6 who were brought on record as the legal representatives of the 1st appellant, filed additional written statement. They pleaded that the respondent did not have the capacity to lend such huge amounts and that the 1st appellant was addicted to bad habits and the debt so contacted by him was not binding on them. They also pleaded that a partition of the family properties comprising of the appellants was effected in the year 1975 wherein the suit schedule property was allotted to the share of appellants 3 to 6 and in view of the same the mortgage was not binding on them.

( 6 ) ON the basis of the pleadings the trial court framed issues on 10-4-1979. Thereafter additional issues were framed on 2-11-1982 and 20-9-1984. On 17-12-1987 the trial Court, consolidated all the issues as under: 1. Whether the cancellation endorsement dated 9-9-1976 on the suit mortgage deed is not valid in law 2. Whether the plaintiff is entitled to enforce the suit mortgage deed 3. Whether the plaintiff has no capacity to lend amount under the suit mortgage deed 4. Whether the suit mortgage deed is nominal and collusive transaction and not supported by consideration 5. Whether the defendants 2 to 6 are not liable to pay the suit amount 6. Whether there was partition between 1st defendant and defendants 3 to 5 in 1975 7. Whether the suit debt is immoral and hit by Section 23 of Indian Contract Act 8. Whether this suit is not maintainable in view of the filing of OS No. 9 of 1982 on the file of this Court, on the same cause of action 9. Whether the suit debt is not antecedent, debt and not binding on the defendants 2 to 6 10. To what relief

( 7 ) ON behalf of the respondent PWs. 1 to 3 were examined and Exs. A1 to A10 were marked. On behalf of the appellants DWs. 1 to 3 were examined and documents Exs. B1 to B. 3 were marked. In addition to the same Ex. XI was marked through DW3.

( 8 ) ON an appreciation of oral and documentary evidence the trial Court decreed the suit as prayed for through its judgment dated 21-12-1987. Hence this appeal.

( 9 ) SRI V. S. R. Murthy, learned Counsel for the appellants submits that once the mortgage deed Ex. A. 3 was cancelled through endorsement Ex. A. 6, the suit itself was not maintainable and the trial Court erred in entertaining the suit. It is also his contention that the appellants have adduced adequate evidence in support of their contention that the debt incurred on the 1st appellant was not for the family benefit. It is his further contention that since the suit schedule property fell to the share of appellants 3 to 6 and the partition took place prior to the mortgage, any decree passed in the suit would not be binding on appellants 3 to 6. He has addressed arguments as to the maintainability of the suit, in view of the fact that the respondent has already filed O. S. No. 9 of 1982 on the strength of the pro-note.

( 10 ) SRI T. S. Anand, learned Counsel for the respondent on the other hand, submits that the endorsement-Ex. A. 6 is not operative in law, in view of the fact that it was not registered as required under the provisions of the Registration Act. According to him, once Ex. A6 cannot be said to be inconformity with law, the mortgage deed Ex. A3 continues to be operative and the suit was maintainable.

( 11 ) AS regards other pleas raised by the learned Counsel for the appellants he submits that in a suit for mortgage simpliciter, the legal representatives were not entitled to take a plea different from the one taken by the mortgagor and at any rate there was no convincing evidence in support of the plea taken by the appellants.

( 12 ) IN view of the submissions of the learned Counsel for the appellants and the respondent, the questions that fall for consideration in this appeal are :1. Whether the endorsement in Ex. A. 6 has the effect of canceling the mortgage deed Ex. A. 3 2. Whether the appellants 2 to 6 were entitled to take pleas different from and inconsistent with those taken by the 1st appellant And 3. Whether the appellants have established their plea as to the partition and illegality of the debt incurred by the 1st appellant

( 13 ) THE execution of Ex. A3 by the 1st appellant is not in dispute either as regards the quantum of amount covered by it or as to the property that was mortgaged. The respondent himself has stated extensively in the plaint as to the circumstances under which the endorsement Ex. A. 6 came to be made. The 1st appellant has virtually reiterated these statements of facts as to the circumstances under which Ex. A. 6 endorsement came to be made, Once there is no factual controversy it needs to be seen as to whether the endorsement has the legal effect of cancelling the mortgage deed. Under Ex. A6 the mortgage is sought to be cancelled or extinguished. Section 17 (1) (b) of the Registration Act requires such documents or endorsements to be registered, Section 17 of the Registration Act reads as under: the following documents shall be registered: (i) Instrument of gift (ii) Registration and operation of gift; Immovable property; if the property to which they relate is situate in a district in which, and if they have been executed on or after the dare on which Act No. XVI of 1864, or the Indian Registration Act, 1866 or the Indian Registration Act, 1871 or the Indian Registration Act, 187, or this Act came or comes into force, namely: (a) Instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property;

( 14 ) AN exception is carved out to the requirement as to the registration under Sub-section (2 ). The exception, which is relevant for the purpose of this case, is: any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest;"

( 15 ) FROM a reading of Ex. A6, it is evident that it by itself seeks to cancel Ex. A3. Therefore it docs not fall within the exceptions enumerated in Sub-section (2) of Section 17. Hence the document was required to be registered. Under Section 49 of the Act, any document, which is required to be registered shall not affect any rights of the parties as regards any immovable property comprised therein, unless it is so registered.

( 16 ) THE learned Counsel for the appellants is not able to convince this Court as to how the endorsement Ex. A6 can be relieved from the rigor of Sections 17 and 49 of the Registration Act.

( 17 ) THE trial Court had discussed this issue extensively with reference to the decided case law. It has relied upon the judgments reported in Doraiswamy v. Vachani, AIR 1955 Madras 601, Kimdan Singh v. Fauja Singh, AIR 1979 PandH 212, and Hazura Singh v. Jaggar Singh, AIR 1965 Punjab 479.

( 18 ) IN my view the finding recorded by the trial Court is not only correct but also is based on sound principles of settled law. The same does not call for any interference.

( 19 ) THE second question is as to whether it was open to the appellants 2 to 6 to take pleas inconsistent with those taken by the 1st appellant, it is a simple suit for mortgage and no right or claim is made against any individual, The relief in a suit for mortgage is always in relation to the mortgaged property. The important aspect in mailers like this is as to whether the person who created the mortgage was competent to do so, it was nowhere pleaded that the 1st appellant lacked capacity or competence in executing Ex. A. 3. In his written statement, the 1st appellant did not take a plea as to the lack of capacity. In the additional written statement filed by appellants 2 to 6, they have taken certain pleas, which were totally inconsistent with those taken by the 1st appellant. Reliance upon the principle laid down by this Court reported in Sivaiah v. Tekchand, AIR 1966 AP 305 [LQ/TelHC/1964/134] , by the trial Court is correct and justified.

( 20 ) A reading of the additional written statement has only demonstrated the endeavor of appellants 2 to 6 to some how to wriggle them out of the suit liability and to frustrate the mortgage both from the point of view of law as well as of facts. It is evident that appellants 2 to 6 were not entitled to take the pleas as they did in their additional written statement.

( 21 ) COMING to the last question as to the plea of partition prior to the mortgage taken by appellants 2 to 6, it only needs to be observed there was absolutely nothing on record to show that the so called partition has ever taken place. The evidence of PW2 was absolutely of no help. Inasmuch as the suit liability was not transferred against anyone and since it was a charge against the property, not only the persons who gets that property in partition but anyone who gets the same in any mode of transfer takes the property along with its liability. I do not sec any merit in the plea of the appellants on this issue.

( 22 ) IN view of the fore going discussion 1 do not see any ground to interfere with the judgment and decree of the trial Court. The appeal is accordingly dismissed. There shall be no order as to costs.