1. One Paramasivan Chetti died on the 27th December 1887, leaving him surviving his divided brother, the first plaintiff, his widow, the first defendant, and his daughter, the second defendant. The plaintiffs, Nos. 2 and 4, are the sons of the first plaintiff, who died after the institution of the suit.
2. The case for the plaintiffs is that the late first plaintiff was entitled, according to the custom of the caste, to succeed, to the exclusion of the first defendant, to the properties left by Paramasivan Chetti; that, on his death, disputes arose between the late first plaintiff, and the first defendant respecting his properties; that, through the mediation of certain persons, the disputes were settled and the terms of the settlement were embodied in an agreement executed between the first plaintiff and the first and second defendants on the 28th December 1887; that, according to the said agreement, the first plaintiff became entitled to one-third of the moveable properties and certain immoveable properties left by Paramasivan. This suit is to recover the plaintiffs' one-third share of the moveable properties.
3. It was contended by the first defendant that the agreement sued on was obtained from her by coercion; that there was no consideration for it; and that it was not receivable in evidence. The custom alleged by the plaintiff was also denied and the first defendant claimed the whole estate of Paramasivan as his widow and also under his will.
4. In Original Suit No. 12 of 1887, the late plaintiff sued the first defendant for a declaration that the will set up by her was a forgery. It was held by the Court of First Instance, as well as by the High Court, on appeal, that the document impeached was genuine.
5. This decision, the District Judge held, in the present case, estopped the plaintiffs from questioning the validity of the will. He further held that the instrument of compromise was void for want of registration and was without consideration, He dismissed the suit and the plaintiffs appeal.
6. I shall first deal with the objection that, as the document sued on was not registered, it was void. It was urged tha.t the transaction evidenced by the document was indivisible, and, therefore, the plaintiffs could not be permitted to rely on the document or use it in evidence in respect of any part of the transaction in question. I think this contention is unsustainable. Section 49 of the Registration Act lays down that no document required to be registered by Section 17 shall, unless duly registered, "affect any immoveable property comprised therein," or "be received as evidence of any transaction affecting such property." The object of the law is obviously to prevent documents which ought to be, but are not, registered from affecting immoveable property and immoveable property only. There does not seem to be any warrant for supposing that, if a document relating to both immoveable and moveable property is not registered as required by law, then the document becomes wholly inoperative, not taking effect even as regards the moveable property comprised therein. The words of the section are the very reverse of what one would expect the Legislature to use if it was intended to render an unregistered document falling within the provisions of section 49 inadmissible as evidence for any purpose whatever. On the other hand, the' terms of the section clearly imply that it was not so intended.
7. The decision in Lakshmamma v. Kameswara I.L.R., 13 Mad., 281 relied on for the respondent, when taken with the facts of the case, is, I think, not in conflict with my view. The document A in that case was in reality a deed of gift of moveable and immoveable properties executed in 1886. There was, no doubt, also an arrangement for a partition--not a partition on the footing of a pre-existing right--but a partition to carry out the gift made under the document itself. The Court in that case said " there can be no such thing as a partition apart from this document" and in effect held that the document could not be looked at for any purpose whatever, and that the transaction was void for want of registration.
8. In Mattongeney Dosseev. Ramnarain Sadkhan I.L.R., 4 Cal., 83 the argument of indivisibility was urged and accepted in respect of a hypothecation bond for money lent; but the contrary view was taken in Kristo Lall Ghose v. Bonomalee Roy I.L.R., 5 Cal., 611. In the order referring the question for the decision of the Full Bench in Ulfatunissa Elahijan Bibi v. Hosain Khan I.L.R., 9 Cal., 520 WILSON, J., drew attention to the divergence between the views expressed in the two cases Mattongeney Dossee v. Ramnarain Sadkhan I.L.R., 4 Cal., 83 Kristo hall Ghose v. Bonomalee Roy I.L.R., 5 Cal., 611 just referred to. He explained that, according to the decision in Mattongeney Dossee v. Ramnarain Sadkhan I.L.R., 4 Cal., 83) the word "transaction" in Section 49 meant "the whole bargain;" whereas, according to the opinion of the Judges who decided the case in Krishto Lall Ghose v. Bonomalee Roy I.L.R., 5 Cal., 611 it meant " not the bargain but that term of the bargain which affects land." The Judges who formed the Pull Bench decided that the true construction was that no document should be received in evidence of any transaction so far as it affected land, and that the view they took of the section rendered it unnecessary to consider whether the document of the kind then in question embodied one single transaction or might properly be said to contain more. The same view has been taken by this Court after the Registration Act of 1871 came into force--see Stri Seshathri Ayyengar v. Sankara Ayen 7 M.H.C.R., 296 Jagapypa v. Latchappa I.L.R., 5 Mad., 119. Achoo Bayamah v. Dhany Ram 4 M.H.C.R., 378 cannot be relied on, as that decision proceeded on the clause ' no instrument required by Section 17 to be registered shall be received in evidence in any civil proceeding in any Court unless registered," which existed in section 49 of act xx of 1866; but nothing corresponding to this is to be found in the present Section 49. Now, in dealing with the question of indivisibility of contracts, the rule laid down in the Bishop of Chester v. John Freland (Ley., 79) must be borne' in mind. There Hutton, J., said that "when a good thing and a void thing are put together in the same grant, the law makes such construction that the grant shall be good for that which is good and void for that which is void." For guidance in the practical application of this principle, (adapting the language of a writer of authority), perhaps no better rule can be given than that if the part which is void be in its own nature separable and divisible, and there be no express stipulation or necessary implication which makes that which is void and that which is good absolutely one thing, and that which is void may be regarded not as a condition going to the essence of the contract, in such a case that which is good may be taken as distinot from that which is void. (Parsons on Contracts, 7th Edition, Vol. I, p. 494). Construing the document in question with reference to these principles, I am of opinion that it is admissible in evidence in support of the plaintiffs' claim to the share of the moveable properties comprised therein.
9. The next question argued was whether the plaintiffs were entitled to question the validity of the will left by Paramasivan Chetti. The District Judge seems to me to be in error in considering that the plaintiffs were estopped by the decison in Original Suit No. 12 of 1887 from raising such a contention. The infringement of right complained of in that suit was that the first defendant put forward a fabricated document as the genuine will of her 'husband; whilst the infraction complained of in connection with the matter under consideration at present, is that Paramasivan himself purported to dispose by his will of property which, according to the alleged custom of the caste, he could not alienate. This latter case was not, in my opinion, matter which ought to have been made a ground of attack in the former suit; Allunni v. Kunjusha I.L.R., 7 Mad., 264, Konerrav v. Gurrav I.L.R., 5 Bom., 594. Therefore no question of estoppel arises.
10. In consequence of the view taken by the District Judge, he excluded the evidence which the parties wore prepared to produce upon the main issues in the case. I would therefore set aside the decree of the lower Court and remand the suit for disposal according to law.
Best, J.
11. I concur in finding that the suit is not barred by the previous suit (Original Suit No. 12 of 1887), and also that the agreement sued on is not inadmissible in consequence of its non-registration as evidence in support of the claim for the moveables, which alone are sought to be recovered in this suit.
12. Section 49 of the present Registration Act renders an unregistered document inadmissible as evidence of any transaction affecting immoveable property, which is the kind of property expressly mentioned in the preceding clause and referred to as " such property " in the clause in which its non-admissibility as evidence is declared--see Stri Seshathri Ayyengar v. Sankara Ayen 7 M.H.C.R., 296 and Guduri Jagannadham v. Rapaka Ramanna 7 M.H.C.R., 348 in the latter of which cases the decision of the majority of the Full Bench in Achoo Bayamah v. Dhany Ram 4 M.H.C.R., 378 is referred to, but not followed because (as is remarked) " the new law has explicitly adopted the doctrine which the late Chief Justice of this Court believed to be derivable from the old, namely, that the object of Section 49 was solely to prevent instruments from being of legal force for any of the purposes which make registration compulsory under Section 17." This last decision was also followed in Jagappa v. Latchappa I.L.R., 5 Mad., 119. None of these cases are noticed in the judgment in Lakshmamma v. Kameswara I.L.R., 13 Mad., 281 which proceeds, moreover, mainly on the ground that the transaction evidenced by the document then in question was "one and indivisible." Such, however, is not the case here. The partition of moveables, now sought to be enforced, can be effected quite independently of the immoveable properties which are also includad in the agreement.
13. The decision of a Full Bench of the Calcutta High Court in Ulfatunissa Elahijan Bibi v. Hosain Khan I.L.R., 9 Cal., 520 is also in accordance with the decisions in Stri Seshathri Ayyengar v. Sankara Ayen 7 M.H.C.R., 296, Achoo Bayamah v. Dhany Ram 4 M.H.C.R., 378 and Jagappa v. Latchappa I.L.R., 5 Mad., 119.
14. I agree therefore in finding that want of registration is no bar to the admissibility of the agreement sued on as evidence for the purposes of this suit
15. As to the question whether the suit is res judicata by the decision in Original Suit No. 12 of 1887, it is to be observed that the object of that suit was merely to get a declaration that the will was not genuine. The property was not then sued for and it cannot be said that plaintiff ought in fchat suit to have questioned the validity of the will in case of its being found to be genuine.
16. I concur, therefore, in setting aside the lower Court's decree and remanding the suit for disposal according to law.
17. The costs hitherto incurred will be provided for in the decree to be passed by the lower Court.