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Pirozshah Dajibhoi Malaowalla Vs. Najamai Rustomji - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 67 of 1942
Judge
Reported inAIR1947Bom464; (1947)49BOMLR303
AppellantPirozshah Dajibhoi Malaowalla
RespondentNajamai Rustomji
Excerpt:
.....residence under agreement-effect of non-registration of agreement-whether agreement can be used in evidence of claim for maintenance.;a testator bequeathed his property to his brothers, and to his widow only a right of maintenance out of the property. an agreement was arrived at between the brothers and the widow by which the will was affirmed and it was agreed that in order to save disputes the widow should receive an enhanced maintenance and a right of residence in houses belonging to the family. the agreement was not registered. in a suit by the widow claiming maintenance and residence under the agreement, the question arose whether the document as a whole could be received in evidence of the agreement which it contained :-;that the agreement could be used in evidence of the widow's..........separated so as to attach part of it to the maintenance clause and the other part to the residence clause; so the document as a whole cannot be received in evidence of any agreement which it contains, even that part of it which provides merely for the plaintiff's maintenance. for this contention reliance is placed upon a decision of this court in nemtulla v. safiabu (1934) 37 bom. l.r. 82 and a decision of the high court of lahore in bisheshar lal v. musst. bhuri. i.l.r.(1920) 1 lah. 436 in each decision the separability of the document into a clause requiring registration and a clause not requiring registration was treated as dependant upon separability of the consideration. but our attention has been directed to an earlier decision of this court which is not referred to in the later.....
Judgment:

Macklin, J.

1. [After stating the facts and dealing with one of defendant No. 1's contentions the judgment proceeded:]

2. But a further contention against the plaintiff's suit is that the document as a whole required registration, since the consideration for the document cannot be separated so as to attach part of it to the maintenance clause and the other part to the residence clause; so the document as a whole cannot be received in evidence of any agreement which it contains, even that part of it which provides merely for the plaintiff's maintenance. For this contention reliance is placed upon a decision of this Court in Nemtulla v. Safiabu (1934) 37 Bom. L.R. 82 and a decision of the High Court of Lahore in Bisheshar Lal v. Musst. Bhuri. I.L.R.(1920) 1 Lah. 436 In each decision the separability of the document into a clause requiring registration and a clause not requiring registration was treated as dependant upon separability of the consideration. But our attention has been directed to an earlier decision of this Court which is not referred to in the later decision and where the test is apparently treated as being nothing more than the separability of the two provisions in the document. The case is Hanmant v. Ramabai (1910) 21 Bom. L.R. 716 and the litigation arose on a compromise with regard to both moveable and immoveable property. The Court said that the document might be looked at for the purposes of the claim to a share in respect of a cash allowance, which they treated as moveable property. But though there is no clear statement that the document could be taken into evidence not because the consideration was separable but because the claim itself was separable and the suit related only to a part of the claim, it is clear that this was the basis of the decision; and I may mention that this ease has been followed with approval in a later decision of the Lahore High Court, Mohammad Qasim v. Mst. Ruqia Begum I.L.R.(1935) Lah. 1105 A clear authority for our refusing to accept the contention of defendant No. 1 in this case is the decision of the Privy Council in Vyravan Chetti v. Subramanian Chetti 22 Bom. L.R. 1357 P.C. That as a case where an agreement had to be enforced with respect to money realized under two mortgages. The agreement was not altogether easy of interpretation and there were two distinct ways in which it could be interpreted; but their Lordships said that whichever interpretation were accepted there could be no objection to the lack of registration in such proceedings as those out of which the appeal had arisen, for, 'if the whole effect of the agreement is to provide merely that the realized money is to be divided in equal shares, then there is nothing in this agreement which requires to be registered, and if, on the other hand, there are two distinct provisions, the one relating to rights of property and the other with regard to the division of the realization moneys, then, as these proceedings relate merely to the question of the realized money, it need not be registered for the purpose of being given in evidence in this suit, although it may be that it would require to be registered for the purpose of being given in evidence in a suit relating to the regulation of the rights against the estate itself.' In other words without any possibility of doubt their Lordships treated the test as being not the divisibility of the consideration money but the divisibility of the claim. In this case it cannot be held that the claim for maintenance and the claim to residence in any way depend upon each other. Bach is mentioned in the agreement, it is true; but the agreement does not connect them together in any way except in so faras it provides one consideration for the agreements as a whole, and we think that in view of the decision of the Privy Council in the case which I have cited the authority upon which defendant No. l's learned advocate relies cannot any longer be considered as good law. The result is that the agreement can be used in evidence of the plaintiff's claim for maintenance at Rs. 50 per month.


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