Sen, J.:—
This was a suit brought by the appellant for an injunction against the defendant-respondent restraining him from locking the northern door of the plaintiff's house and for possession of the open space or gabhan and the chowk to the north of the said house. He alleged that the house with the gabhan and the chowk had belonged to one Azamkhan who had sold them on February 22, 1938, to one Husein who had sold them to him on May 4, 1938, both the sale-deeds being registered. The defendant contended that the gabhan and the chowk had been sold to him for Rs. 75 by an unregistered sale-deed dated May 24, 1936, and that he had been in possession as their absolute owner since that date and that since then the northern door of the plaintiff's house had been kept locked by him from outside.
The trial Court held that the plaintiff had failed to prove his predecessor's title at the date of his sale-deed and that the defendant had proved his sale-deed and ownership of the suit properties. Accordingly, it dismissed the suit. Though under s. 54 of the Transfer of Property Act, 1882, the defendant's sale-deed, exhibit 47, should have been a registered document and therefore under s. 49 of the Indian Registration Act, 1908, it was inadmissible as evidence of the sale transaction, the trial Court relied on the fact that s. 54 of the Transfer of Property Act provides for two modes of transfer, one of which was delivery of possession, and it further relied on the proviso to s. 49 of the Indian Registration Act and held that exhibit 47 could be received as evidence of part-performance on the defendant's part of the contract between him and his vendor. In the result it held that the defendant's title was sufficiently proved.
The lower appellate Court held that the evidence showed that the defendant had been in possession since 1936, the date of his sale transaction, and it followed the decision in Gunga Narain Gope v. Kali Churn Goala that if an unregistered sale-deed of a value less than Rs. 100 was accompanied by the delivery of the property, the sale would be effective and not rendered nugatory by the unregistered deed. It held, as the plaintiff had no notice of any defence based on the doctrine of part-performance, that the defendant could not rely on such defence. It further held that under the proviso to s. 49 of the Indian Registration Act the unregistered sale-deed could be used as evidence of a collateral transaction not required to be effected by a registered instrument; and, following Varada Pillai v. Jeevarathnammal it found that the defendant had been in possession since 1936 in his own right and that the evidence sufficed to show that the defendant had purchased the properties in suit in 1936 for Rs. 75 from Azamkhan. Accordingly, it dismissed the appeal.
It is clear that exhibit 47 cannot be used as evidence of the sale of 1936. Section 17 of the Indian Registration Act which mentions the kind of documents which are compulsorily registrable does not mention or include sale-deeds of tangible immoveable properties of a value less than Rs. 100. It is not disputed that in this case the value of the suit properties was less than Rs. 100. But the third paragraph of s. 54 of the Transfer of Property Act says:—
“In the case of tangible immoveable property, of value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.”
Section 4 of the Transfer of Property Act lays down that s. 54 and the other specified sections of that Act shall be read as supplemental to the Indian Registration Act. Section 49 of the Indian Registration Act reads thus:—
“No document required by s. 17, or by any provision of the Transfer of Property Act, to be registered shall—
(a) affect any immoveable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.”
The effect clearly is that exhibit 47, which ought to have been registered under s. 54 of the Transfer of Property Act, cannot affect the properties in suit nor can it be received as evidence of either the sale or the contract for sale though a document embodying a contract for sale is not compulsorily registrable; for, as pointed out in Skinner v. Skinner, (p. 370):—
“An agreement for the sale of immoveable property is a transaction ‘affecting’ the property within the meaning of the section (s. 49), inasmuch as, if carried out, it will bring about a change of ownership.”
Section 54 of the Transfer of Property Act allows the sale of tangible immoveable property of a value less than Rs. 100 to be made either by a registered instrument or by delivery of the property. The question, therefore, arises whether the defendant is entitled to show that in this case he purchased, the properties in suit “by delivery”, i.e by the seller placing him in possession, though there may have been a sale-deed which is inoperative because it is unregistered.
Mr. Shah for the appellant has contended (1) that it is not the defendant's case that his purchase was by delivery, as he relied on the sale-deed as the basis of his title; (2) that even if that be taken to be his case or part of his case, then the fact that the parties reduced the terms of the transaction to writing precludes the defendant from relying on delivery as the mode in which the sale was effected; and (3) that if the last argument be held untenable, mere delivery would not amount to sale, as the defendant would still have to prove (a) that there was a transfer of ownership and (b) that a price was paid, which could not be allowed to be proved in view of the provisions of s. 91 of the Indian Evidence Act. For his second contention Mr. Shah has relied on Kuppuswami v. Chinnaswami.
As to what the defendant's case was, his written statement no doubt shows prima facie that he based the sale of 1936 on exhibit 47. In paragraph 4 of his written statement it is said:
“The said Azamkhan Fatekhan, the original owner of the suit house, took from me Rs. 75 in cash and in consideration thereof sold to me by a document dated May 24, 1936, the gabhan and the chowk to the north of the suit house and the side-wall to its west.”
This is repeated in the latter part of the same paragraph. Again, in paragraph 5 it is stated:
“Since the date of the document, the possession of the northern door of the said house and the gabhan and the chowk pertaining there to is mine.”
This is repeated in paragraph 7. It appears to me, however, that as the defendant has not pleaded and could not plead that the sale had been effected by a registered instrument, he cannot be held precluded from basing his case on the transfer in his favour having taken place by delivery of the properties. In Gunga Narain Gope v. Kali Churn Goala the defendants had purchased a share in a bank, the consideration being less than Rs. 100, and the deed of sale was unregistered. Under the law that then existed it was held that the registration was optional; but it was also held that the possession, obtained by the defendants was a sufficient “delivery of the property” within the meaning of s. 54 of the Transfer of Property Act. Therefore, in that case, though there was an unregistered deed of sale, the defendants were not held precluded from proving that there had been such delivery of the property.
In Keshwar v. Sheonandan the lands in dispute were sold to the defendants in three parcels for a consideration, in each of the sale-deeds, which were unregistered, of less than Rs. 100. It was held that the defendants were not precluded from proving delivery of possession as the means of conveying the properties. In Mohammad Yaquoob Ally v. Chhotey Lal, which was decided by a single Judge, there had been a sale of immoveable property for not more than Rs. 100 by means of an unregistered sale-deed, and it was remarked (p. 281):—
“… I do not see why, if such a sale-deed is executed to-day in respect of an immoveable property worth not more than Rs. 100 and the property is delivered to the purchaser some days after this ill pursuance of the sale-deed, which would have taken no effect by itself, the sale should not stand.”
As against these cases, Mr. Shah has relied on Kuppuswami v. Chinnaswami, where it was held:
“The expression ‘sale by delivery of property’ should properly be construed only as referring to and comprising a case where the parties agree that the transaction of sale should be effected by delivery of property and only in that way and cannot possibly be construed as to include a case where the parties agree to reduce to the form of a document the terms of the sale. The moment the parties for some reason consider that it is not sufficient to effect the transaction of sale by mere delivery of property, but require that, as evidence of such transaction, there should be a deed or document, the transaction can scarcely be correctly described as one effected by mere delivery of property. Further in the case of what are called sales effected by delivery of property, there is presumably a reference to the terms having been settled by and between the parties by parol and then the transaction effected and carried out by delivery. But the moment the parties reduce the terms to writing, it is the writing that thereafter must be regarded as containing and setting out the terms of the contract, and it would not be an apt or correct description of the transaction to call it a sale by delivery of property.”
In that case the plaintiff had claimed a right to recover possession of certain properties on the title acquired by him under a registered sale-deed and the defendants had claimed the properties under an unregistered sale-deed, the consideration for the latter being less than Rs. 100; and it was held that the defendants' claim to be the purchasers of the properties was under the said unregistered instrument. That being so, they were regarded as relying on an invalid instrument and they could not, therefore, prove their title. The remarks, therefore, referred to above must be regarded as obiter. No other case similar to this case has been, cited before me; and it is to be noted that s. 54 of the Transfer of Property Act does not speak of “mere delivery of property.” With respect, I prefer the ratio of the other cases that where there is an unregistered sale-deed which cannot be used for proving the title, the party in question is not precluded from proving the sale by the delivery of the property. In this case the lower appellate Court has found that the delivery has been proved by the evidence, which is a finding of fact that cannot be disturbed, in second appeal. But if there has been delivery of the property to the defendant, the question of the nature of the transaction still remains, as such delivery may also take place, for instance, in the case of a usufructuary mortgage or a lease. The lower appellate Court has relied on the proviso to s. 49 of the Indian Registration Act relating to the use of an unregistered document as evidence of a collateral transaction, and on Varada Pillai v. Jeevarathnammal.
In Skinner v. Skinner it was held that a document which upon its true construction, is a sale-deed, purporting to transfer an interest in immoveable property of the value of Rs. 100 and upwards, is precluded by s. 49 of the Indian. Registration Act from being admitted in evidence in a suit for specific performance of the agreement to transfer said to be contained therein unless it is registered in accordance with the Act. At page 370, their Lordships remarked:—
“If an instrument winch comes Within s. 17 as purporting to create by transfer an interest in immovable property is not registered, it cannot be used in any legal proceeding to bring about indirectly the effect which it would have had if registered. It is not to ‘affect’ the property, and it is not to be received as evidence of any transaction ‘affecting’ the property.”
At the date of this decision there was no proviso to s. 49 of the Indian Registration Act. But what, according to the defendant, is the collateral transaction here? It is to be noted that the words used in the proviso are “collateral transaction” and not “collateral purpose”. It is clearly not necessary for the defendant to rely on the delivery of the property as a collateral transaction, which expression would mean a transaction other than “creating, declaring, assigning, limiting or extinguishing” a right to immoveable property, to use the language of s. 17 (1)(b) of the Indian Registration Act. Apart from the delivery of possession (which has been held proved) it is difficult to see what collateral transaction of which exhibit 47 may be regarded as evidence which the defendant can rely on. The lower appellate Court has relied on exhibit 47 for a collateral purpose, i.e as showing the character of the possession, following the Privy Council decision in Varada Pillai v. Jeevarathnammal (supra). In that case a dispute in mutation proceedings was settled by an oral gift of the immoveable property. Petitions were filed in the Court of the Collector reciting the fact of the gift. The gift was invalid because under s. 123 of the Transfer of Property Act the gift could only have been effected by a registered instrument. Their Lordships held that under s. 91 of the Indian Evidence Act the petition could not be used as evidence of the gift, but they said (p. 251):
“Although the petitions … are not admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Duraisani (the donee).”
There Lordships held, on the facts of that case, that Duraisani having taken possession in her own right retained such possession until her death, which took place more than twelve years later, so that the plaintiff's claim was barred by more than twelve years' adverse possession. Thus their Lordships did not decide that Duraisani's title was proved apart from, the fact of the adverse possession; they merely held that her possession, was in her own right, which is a different thing. In this case the defendant has not been in possession for more than twelve years. It is, therefore, necessary for him to prove title: and this he could do only by proving the sale; and “sale” is defined in s. 54 of the Transfer of Property Act as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
The defendant's case is that there has been a transfer of ownership for Rs. 75; and it seems to me that the proof of the said transfer means or involves the proof of the terms of exhibit 47. The terms of the sale transaction having been reduced to a form of document, it would appear that under s. 91 of the Indian Evidence Act no evidence can be given in proof of those terms except the document itself, which is inadmissible under s. 49 of the Indian Registration Act. It does not appear to be the intention of the Legislature, in enacting the proviso to the said section, to enable a document which is compulsorily registrable and is not registered to be used in any legal proceeding to bring about indirectly the effect which it would have if registered. [Skinner v. Skinner (supra), p. 370]. It seems to me that merely from the findings (1) that there was delivery of the properties in suit by Azamkhan to the defendant in 1936, and (2) that since then the defendant was in possession in his own right, it is not a necessary inference that the defendant became the owner of the suit properties in 1936. If it is proved in addition that there was a contract for sale prior to the delivery of the properties, that might suffice to establish the sale; but, as already pointed out, if exhibit 47 cannot be used as evidence for the sale, it cannot also be used as evidence for a contract for the sale. [Skinner v. Skinner (supra).]
Mr. Thakor has relied on Narmadabai v. Rupsing and Vishvanath Haibatrao Deshpande v. Ranganath Dhondo Deshpande. In the first of these cases, it was held that an unregistered deed of partition is inadmissible in evidence in view of ss. 17 and 49 of the Indian Registration Act to prove the terms of the partition, but that it was admissible in evidence to prove the fact of partition in the legal sense of the term, and that in such a case it was not open to the party to give any oral evidence as regards the terms of the partition. It was possible there to distinguish between evidence of the terms of the partition and evidence of the fact of the partition. I do not think that this line of reasoning can apply to a sale where the proof of the fact of the sale involves the proof at least of some of the terms of the sale. In Vishvanath Haibatrao Deshpande v. Ranganath Dhondo Deshpande it was held that, though a document evidencing permanent tenancy was unregistered, it could still be received in evidence under the proviso to s. 49 of the Indian Registration. Act for the collateral purpose of showing the character of the possession taken by the plaintiffs; and it was further held that there was sufficient evidence to prove that the plaintiffs had acquired a permanent tenancy of the land by prescription. There the plaintiffs, having shown that their possession was in their own right to begin, with, had to prove more than twelve years' adverse possession in order to establish that they had acquired permanent tenancy, i.e their possession of title was independent of the document. This case also, therefore, cannot help the defendant.
In Gunga Narain Gope v. Kali Churn Goala (supra) it was held that the deed of sale had no operation to transfer the property, though it might show the payment or promise of a price, which, plus, the transfer of ownership (which had been, held proved), constituted a sale. This conclusion, was arrived at in view of the then existing provisions of s. 49 of the Indian Registration. Act, it being held that the registration of that document was optional under s. 17 of the Indian Registration Act. Since then the amendment has followed the stricter interpretation put on s. 49 by Beaman, J. in Dawal Piranshah v. Dharma Rajaram (p. 556):—
“…any unregistered deed of sale of immoveable property below the value of Rs. 100 Would not only not be effectual to transfer the property, but would also fall within the comprehensive and stringent prohibition of s. 49…. So that if after the Act of 1885 all sales of immoveable property, whatever the value of that property might be, were intended to be made compulsorily registrable under s. 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.”
It has next been contended on behalf of the respondent that it is possible in this case to apply the doctrine of part-performance as enunciated in s. 53A of the Transfer of Property Act. It is contended that this being a legal point, the fact that no issue regarding it has been framed, or tried is not a serious objection, particularly as the defendant has been in possession since 1936; and the contention that the plaintiff is a bona fide purchaser for value without notice is hardly open to him. The application of the provisions of s. 53A, however, depends on there having been, a contract to transfer for consideration an immoveable property by writing; but, as I have already pointed out, under s. 49 of the Indian Registration Act exhibit 47 cannot be regarded, as evidence of a contract for sale, nor does it appear possible, to regard that document itself as a contract for sale; and that being so, and there being no other contract for sale in writing, it is clear that the first condition necessary for the application of s. 53A is non-existent in this case. This contention of Mr. Thakor, therefore, also fails in my opinion. I must, accordingly, hold that the lower Courts have, wrongly decided in favour of the defendant-respondent.
The appeal succeeds, and there will be a decree in favour of the plaintiff as prayed for in the plaint. The appellant to get his costs throughout.
Appeal allowed.
Y.V.D