Srimati Peari Dai Debitors v. Naimish Chandra Mitra

Bucknill, J.:— (After stating the facts as set out above, proceeded as follows): It has been argued very strenuously by the learned Counsel who has appeared for the appellants that it is impossible to invoke equity in favour of the defendant. He bases his argument upon section 49 of the Indian Registration Act. This section reads:

“No document required by section 17 to be registered, shall

(a) affect any immoveable property comprised therein, or

(b) be received as evidence of any transaction affecting such property conferring such power,

unless it has been registered.”

Now, it is admitted here that this lease for five years ought to have been registered. The learned Counsel has suggested that as under the provisions of section 49, sub-section (c), a document required to be registered shall not, unless registered, be received as evidence of any transaction affecting such property or confirming such power, this hukumnama could not be looked at that all by the Court nor could any equity be utilized as arising from it in favour of the defendant. He refers in this connection to Sanjib Chandra Sanyal v. Santosh Chandra Lahiri. The learned Judge (Rankin, J.), who decided that case held that he could not permit a document which was not registered but which ought to have been registered to be received in evidence as evidential of the title of a plaintiff who was seeking to enforce his rights under that unregistered document. On the other hand, however, a case of equal importance [Mahomed, Musa v. Aghore Kumar Ganguli] has been brought to our notice. That was a decision of their Lordships of the Privy Council and there it was laid down very specifically that “when the actings and conduct of the parties are founded upon, as in the performance or part-performance of an agreement, the locus penitentiæ which exists in a situation where the parties stand upon nothing but an engagement which is not final or complete is excluded. For equity will support a transaction clothed imperfectly in those legal forms to which finality attaches after the bargain has been acted upon”. Now, it is of course difficult to say definitely that equity will override completely the specific provisions of sections 17 and 49 of the Indian Registration Act and in the case of Nilkanth Bhimaji v. Hanmanti Eknath, Heaton J., in referring to the Privy Council case which I have just mentioned, draws attention to the necessity of guarding one self in stating definitely that the decision of their. Lordships was intended to affect adversely the proper construction or maintenance of those sections of the Registration Act to which reference has been made. His Lordship says:

I feel quite certain that their Lordships of the Privy Council in giving judgment in Mahomed Musa's case did not intend either to modify or to limit that part of the enactment of the Indian Legislature which appears as section 17 and 49 of the Indian Registration Act; nor do I believe that the Privy Council ever intended by their judgment to modify or limit that which has been enacted by the Legislature in India. So the effect of sections 17 and 49 of the Registration Act remains as totally unaffected by anything that is said in the case of Mahomed Musa.

Now in this case before us it seems to me that it can be dealt with quite unhampered by any question of admissibility of this document. Personally I think that it is admissible and that equity can be invoke from it although it should have been registered and that we could draw an equity in favour of the defendant. But even if it was not admissible there was ample material upon which a Court may come to the same conclusion to which the Sub-ordinate Judge has come, namely, that the equity here is clearly in favour of the Refendant and must be given to him in relief. What have we here in coming to the same conclusion from another point of view? We have findings of fact which show clearly that the naib, that is to say, the manager of the plaintiffs asked for their consent to grant a lease for five years at Rs. 200 per annum to the lessees. He got this permission in a very definite form from the proprietors and he actually put the lessee into possession. The terms upon which the lease was to be granted appear clearly not only in what he offered in the application for instructions which the naib made to the proprietors but in the proprietors' letter authofizing him to grant the lease. How it can be seriously suggested after that there was not a completed transaction not only on the face of the papers themselves but by a part performance, namely, the induction of the lessees into actual possession, I cannot understand. To allow the plaintiffs to succeed against their own nominees simply because the document which was given by the plaintiffs' agent to the new lessee did not comply with the provisions of section 49 of the Registration Act, would appear to me most inequitable. In these circumstances I think that in this case the Sub-ordinate Judge has taken the proper course. He has come to the conclusion that there was no ground for allowing the plaintiff to eject the defendants who were their own lessees. They could not take advantage of some flaw in a document, which has been produced by the defendants, in order to show that their lease did not comply with the terms of the Registration Act nor could it be allowed that the lease which the defendants possessed against their own landlord should be defeated at his application.

I think therefore that this appeal should be dismissed with costs.

Macpherson, J.:— I agree to the order proposed. This appeal should be dismissed with costs.

Appeal dismissed.