1. The plaintiff sued the defendants for possession of certain land alleging that the defendants' father had sold it to the plaintiff's grandfather in 1879.
2. The defendants resisted the claim contending that the alleged sale was a mortgage which had been redeemed in 1894 by payment of Rs. 300 to the plaintiff's uncle Dattopant and that the defendants had since then been in possession as owners.
3. It was found by both the Courts that the defendants had been in possession as tenants of Dattopant, the plaintiff's uncle, prior to 1894, the date of the alleged redemption.
4. The defendants set up a case of possession since 1893. The suit was filed in May 1904; so that upon the defendants' case no question of limitation arises.
5. The Subordinate Judge found that the defendants' story of redemption by payment of Rs. 300 in 1894 was false and that the endorsement appearing upon the sale-deed was not a genuine endorsement, and passed a decree in favour of the plaintiff for possession.
6. An appeal was preferred to the Assistant Judge who held first, that the plaintiff was not entitled to maintain the suit on the ground that he did not prove that he was the exclusive owner of the property claimed, since it was not shown that his father, who was still alive, had lost his interest; therein; secondly, he held that the deed of 1879, though on its face a sale-deed, was really a mortgage, and he came to that conclusion in consequence of the weight he attached to the endorsement upon the sale-deed purporting to be made by Dattopant admitting the receipt of Rs. 300 in 1894 and releasing the property. He, therefore, came to: a different conclusion on the question of fact to that arrived at by the Subordinate Judge and in second appeal we are, so far as his finding upon the facts is material, bound to accept his decision. We will take the two points decided in favour of the defendants in order.
7. The plaintiff claims to be entitled to maintain this suit alone without the co-operation of his father by reason of a release executed by his father in his favour on the 2nd June, 1903, whereby he became the owner of the whole of the property in suit. By that document his father purported to transfer to him all his rights of ownership which he had in his immovable and movable property. The document was presented for registration and was accepted by the Registrar but it was registered not in Book No. 1 but in Book No. 4, that is to say, not in the Book kept for the registration of documents compulsorily registrable under Section 17 of the Registration Act. It is on the ground of the want of registration that the defendants contend that the plaintiff cannot be held to be the sole owner of the property in question assuming that his case is in other respects a true one. The learned Subordinate Judge held that the error of the Sub-Registrar ought not to prejudice members of the public and that the release should be considered to be duly registered upon the authority of Sorabji Edalji v. Ishwardas Jugjivandas (1892) P.J. 5. His decision upon the point was reversed by the Assistant Judge relying upon the case of Baij Nath Tewari v. Sheo Sahoy Bhagut 18 C. 556 and Narasamma v. Subbarayudu 18 M. 365.
8. In our opinion the view taken by the Subordinate Judge should prevail. The property of the plaintiff's father is capable of identification, and the case in so far as it involves a discussion of the applicability of Sections 21 and 22 of the Registration Act is on all fours with that of Narasimha Nayanevaru v. Ramalingama Rao 10 M.L.J. 104 in which it was held that the words 'my family property' were sufficiently precise to entitle the document to registration. The error of the Sub-Registrar in registering the document in Book No. 4 instead of Book No. 1 should not be allowed to prejudice the plaintiff. In this connection the remarks of their Lordships of the Privy Council in Mukhun Lall Panday v. Koondun Lall 2 I.A. 210; 15 B.L.R. 228; 24 W.R. 75 are appropriate. Their Lordships say:
Now, considering that the registration of all conveyances of immovable property of the value of Rs. 100 or upwards is by the Act rendered compulsory, and that proper legal advice is not generally accessible to persons taking conveyances of land of small value, it is scarcely reasonable to suppose that it was the intention of the Legislature that every registration of a decree should be null and void by reason of a non-compliance with the provisions of Sections 19, 21 or 36, or other similar provisions. It is rather to be inferred at the Legislature intended that such errors or defects should he classed under the general words 'defect in procedure' in Section 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer, on whom they would naturally place reliance. If the registering officer refuses to register, the mistake may be rectified upon appeal under Section 83, or upon petition under Section 84, as the case may be; but if he registers where he ought not to register, innocent persons may be misled and may not discover, until it is too late to rectify it, the error by which, if the registration is in consequence of it to be treated as a nulity, they may be deprived of their just rights.
9. We, therefore, hold as was held in the case of Sorabji Edalji v. Ishwardas Jugjivandas (1892) P.J. 5 above referred to, that the document must be considered as having been duly registered. It follows, therefore, that the plaintiff is entitled to maintain this suit alone.
10. The next point to be considered is whether the Assistant Judge was justified in admitting as evidence the endorsement purporting to be made by Dattopant releasing the property in consideration of a payment of Rs. 300 in 1894. It is clear that a release in consideration of a payment of Rs. 300 is a document which requires registration and this endorsement has not been registered. The learned Assistant Judge seems to have been aware of the difficulty; for he says 'the endorsement on Exhibit--49 not being registered the release cannot be strictly proved. But in view of the Dakkhan Agriculturists' Relief Act the point is not important. For, if an account be taken, defendants can prove the payment of the principal and as nothing then remains due they are entitled to possession.' These remarks appear to be irrelevant because it was not proved in the case that the defendants were agriculturists to whom the Dekkhan Agriculturists' Relief Act applied.
11. We, therefore hold, that having regard to the provisions of Section 49 of the Registration Act, the endorsement was not admissible in evidence of either the redemption of the property or the real nature of the original transaction between the parties. That being so, we reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs throughout.