BOMBAY HIGH COURT
Dawal Piranshah
Vs.
Dharma Rajaram Manggarudi
Second Appeal No. 312 of 1916
(Beaman and Macleod, JJ.)
14.03.1917
JUDGMENT
Beaman, J.
1.
Speaking for myself I am in agreement with the contention of the learned
pleader for the appellants touching the admissibility of the unregistered
sale-deed of 1899. The point is one of some interest and considerable
importance. Not only has it been the occasion of much discussion in the
Calcutta High Court (see Narain Chander Chuckerhutty v. Dataram Roy1
and Makhan Lal Pal v. Bunku Behari Ghose2 F.B. but I
believe it has already come up for consideration in this High Court on more
than one occasion. Unfortunately I have not been able to come across the
particular appeals in which this may have occurred. The point is this. In 1899
the plaintiffs allege the defendant sold to their father the land in suit by an
unregistered sale-deed for the sum of र 40/- and at the
same time delivered possession. Now, in the Courts below the evidence of the
sale, wherever it was separable from the fact of possession, seems to have been
principally secondary evidence of the missing unregistered sale-deed of 1899.
The learned appellate Judge of the lower Court has accepted the plaintiffs'
story that the original was burnt. It is admitted that the original deed was
unregistered. Before the passing of the Transfer of Property Act of 1882,
questions arising under Section 50 of the old Registration Act, which gives
priority to registered over all unregistered instruments, had often arisen and
caused much difference of opinion in the Calcutta High Court. As the law then
stood, transfers of Immovable property of less value than र 100/- could
have been validly effected by an unregistered sale-deed, or they might have
been effected by delivery of possession, or by delivery of possession
accompanied by an unregistered sale-deed; but the priority given to registered
sale-deeds over unregistered sale-deeds by Section 50 of the Registration Act
was shown to have occasioned very great hardship in many cases and there can be
little doubt that it was in consequence of the judicial pronouncements of the
learned Judges of the Calcutta High Court upon the great injustice, which was
often thus worked by the strict application of Section 50 of the Registration
Act, that Section 54 of the Transfer of Property Act was enacted in the year
1882. That section altered the law to this extent that it declared that no sale
of Immovable property although the value was less
1 I.L.R. (1882) Cal. 597
2 I.L.R. (1892) Cal. 623
than
र 100/- could be effected by an
unregistered writing. Such transfers could thus be effected in one of two ways
only, either by a registered writing or by delivery of possession. That cleared
up some of the doubts and difficulties which had arisen in interpreting Section
50 of the Registration Act along with Section 17(b) and as long as the law
remained in that state, the position was this, that if a sale of Immovable
property of the value of less than र 100/- had been
effected both by an unregistered instrument and by delivery of possession,
although the unregistered instrument, would have no legal effect, that is to
say, would not have transferred the property, it could not have been excluded
from evidence under Section 49 of the Registration Act; because it still stood
entirely outside the category of writings compulsorily registrable under
Section 17(b). It is true that unless such a transfer had been made by delivery
of possession as well as by an unregistered writing, the production of an unregistered
writing in evidence would have been entirely useless. The party relying on it
might have proved, it is true, that the writing was executed and that the
intention was to. convey the property. But inasmuch as after the passing of the
Transfer of Property Act such a writing would not have that legal effect, his
rights would have remained entirely unaffected by leading such evidence. The
case is different where the sale had been effected both by an unregistered
writing and by delivery of possession, for between the years 1882 and 1885, as
I have said, there could have been no objection to tendering the unregistered
writing as evidence of the nature of the transaction under which possession had
been given. Thus, where the Court found possession as a fact and the only
question, was as to the nature of its origin, an unregistered sale-deed, might
very well have been offered in explanation of the transaction pursuant to which
possession had been delivered. In my opinion, however, the law was materially
altered by the amending Act of 1885. That Act inter alia declared that Section
54 of the Transfer of Property Act was thenceforward to be treated as
supplemental to the Registration Act. Judges have before this commented on the
infelicitous use of the language employed, but I can find no other intelligent
meaning in it than that Section 54 is thereafter to be read and applied by all
Courts as supplemental to so much of the Registration Act and to so much only
as that to which in reason it belongs. Again, it appears to me that the only
portion of the Registration Act to which Section 54 can in reason belong is
Section 17, which, declares what instruments are compulsorily registrable.
Before Section 54 of the Transfer of Property Act was passed, sales of
Immovable property of less value than र 100/- might be
effected by instruments which were not registered and were certainly not
compulsorily registrable. Section 54 said that thenceforward no sale of
Immovable property, no matter what its value, could be effected by any
unregistered instrument. Now, annexing that to Section 17, which, as I say, is
in my opinion the only section to which it can properly be annexed, the effect
would be to add to Clause (b) of that section the words, " all deeds of
sale of Immovable property whatever its value.'" If I am right in this
interpretation of the meaning of Act III of 1885, the legal consequences become
apparent, for then. any unregistered deed of sale of Immovable property below
the value of र 100/- would not only not be effectual
to transfer, the property but would also fall within the comprehensive and,
stringent prohibition of Section 49. That section declares in the most
unambiguous language that documents which are made compulsorily registrable and
have not been registered shall not be received in evidence of any transaction
etc. So that if, after the Act of 1885 all sales of Immovable property,
whatever the value of that property might be, were intended to be made
compulsorily registrable under Section 17, it will be seen to follow clearly
that they could not be given in evidence of the transaction, namely the sale,
although that transaction might have been effected and have been quite legal,
complete and valid by mere delivery of possession. If this be true of the
document itself, it necessarily follows that no secondary evidence can be
given. For, I think, it is a self-evident proposition that secondary evidence
may not be given of that which the law declares shall not be given as primary
evidence.
2.
I am, therefore, clearly of opinion that neither the original unregistered deed
of sale of 1899 nor secondary evidence of it was admissible in the present case
to support the plaintiffs' allegation that in 1899 there was a complete and
valid sale of the property in suit effectuated by delivery of possession. That,
however, does not in my opinion conclude the case and in what follows I believe
that I may speak for my learned brother as well as for myself. Section 54 still
leaves it open to the parties desirous of doing so to make a valid sale of
Immovable property of less than र 100/- by oral
contract and delivery of possession. In the present case we think that it was
quite open to the learned Judges below to find that the property in suit had
been sold in that manner. Even without adverting in any way to the unregistered
sale-deed of 1899, we think that there is ample evidence on the record to
support the decision to which the Court of first appeal has come. Both the
Courts hav-clearly found as a fact that the plaintiff has had possession of the
land since 1899 up to the year 1911 and they have also held, though here no
doubt they have been influenced by the secondary evidence of the unregistered
sale-deed, that that possession was given pursuant to a sale. There is evidence
dehors the unregistered sale-deed which is amply sufficient in our opinion to
support that conclusion. There is the evidence of Tukaram, for example, who
appears to have been the intermediary in the matter and to have first-hand
knowledge of all the details of the transaction that in 1899 the defendants did
sell the land in suit to the father of the plaintiff and that it was he,
Tukaram, himself who delivered possession of the land' to the plaintiff
pursuant to the sale. That finding of fact would be quite sufficient, standing
alone, to meet the defendants' contentions in this appeal. But there is another
ground' on which the conclusion of the Courts below can be very confidently
supported. The Courts below have found as a fact that the plaintiffs have been
in possession from 1899 till 1911 and looking to the pleadings and the evidence
we cannot doubt that the meaning of the words "till 1911" is that the
defendants in that year entered into possession under the lease given them by
the plaintiffs. We have not the date of the lease but it is common ground that
its currency was at least eleven months and during that period at any rate the
character of the plaintiffs' adverse possession could not have been altered by
the de facto possession of the defendants. So that in any event it is clearly
found that the plaintiff has had more than twelve years adverse possession from
May 1899 till some period very near the end of 1911; and the title thus
acquired by adverse possession would be quite sufficient for all the purposes
of the present suit even had there been no allegation of sale at all.
3. On these grounds, then, we think that the decision of the lower appellate Court ought to be confirmed and this appeal dismissed with all costs.
Macleod, J.
4. I agree that this appeal should be dismissed on the ground that both the Courts below have found as a matter of fact that there was a sale accompanied by delivery of possession and that is a finding of fact which we are not at liberty to disturb.
5.
But I regret that I cannot agree with my learned brother in the conclusion that
the Courts below were wrong in admitting secondary evidence of the deed of
1899, which is said to have been burnt. In my opinion in cases of transfer of
property under the value of र 100/-, if the
transfer is effected by delivery of possession accompanied by an unregistered
document that document can be adduced in evidence in order to show what was the
character of the possession given by the vendor of the land to the purchaser. I
think it must be admitted that it would be so but for Section 4 of the Transfer
of Property Act and I am not prepared to say that the effect of that section is
to make documents purporting to be sale-deeds of immovable property under the
value of र 100/- compulsorily registrable, so that
if they are not registered they cannot be adduced in evidence under Section 49
of the Registration Act. Section 4 of the Transfer of Property Act says that
paragraphs 2 and 3 of Section 54 shall be read as supplemental to the Indian
Registration Act, 1877. The first part of Section 4 says: "The chapters
and sections of this Act which relate to contracts shall be taken as part of
the Indian Contract Act." Therefore, the section makes a distinction
between those sections "which relate to contracts which are to be taken as
part of the Indian Contract Act rind certain sections which relate to
registration which are to be read as supplemental to the Registration Act. Now,
supposing paragraphs 2 and 3 of Section 54 of the Transfer of Property Act were
to be found at the end of the Registration Act, then, in my opinion that would
not have the effect of including transfers or documents which purport to
transfer an interest in property of the value of under र 100/- in
Section 17 so as to make them compulsorily registrable. I confess that I cannot
see what particular effect it would have if paragraphs 2 and 3 of Section 54 of
the Transfer of Property Act were read at the end of the Registration Act. But
there is one thing I am perfectly clear about that it would not have the effect
of introducing instruments relating to transfer of property under the value of र 100/- into Section 17. In my opinion,
therefore, if a contract for sale is made between two parties of property under
the value of र 100/- and possession is given, then a
transfer takes place under Section 54 and if it so happens that at the same
time a sale-deed has been executed and a question arises in future whether as a
matter of fact the sale was effected, then that unregistered document can be
given in evidence in order to prove that possession was given to the person
setting up a right as a purchaser either in pursuance of a contract of sale or
to effect a sale. Therefore, in my opinion the evidence regarding this burnt
sale-deed of 1899 was rightly admitted in the Court below.
.