1. In this case the plaintiff' sued the defendant for specific performance of an agreement to sell the plaintiff certain land and for possession of the land with mesne profits. The defendant admitted having executed this agreement but said that it had been executed under certain circumstances detailed in his written statement, which rendered the agreement ineffective. The first issue in the case was whether the defendant proved that that agreement was passed by him under the circumstances alleged by him. That issue was answered by the Subordinate Judge in the affirmative, and he dismissed the plaintiff's suit with costs. An appeal was made by the plaintiff to the District Court, where the defendant did not appear. We are told that that was due to some mistake or fault of the pleader who was engaged. However that may be, the District Judge heard the appeal ex parte, and decided that, even accepting the story of the defendant, the agreement between the defendant and the plaintiff about the sale of certain land would be capable of enforcement, and that the defendant had failed to show cause why the agreement should not be carried into effect. Accordingly, he passed a decree for the relief prayed for in the plaint and costs of the appeal.
2. The defendant comes in second appeal to this Court. In the memorandum of the appeal the ground (1A) says that the agreement in question is inadmissible for want of registration and is not duly proved. At the hearing of the appeal, Mr. Thakor for the appellant referred to the recent decision of the Privy Council in Dayal Singh v. Indar Singh (1920) 28 Bom. L.R. 1372 where their Lordships laid down that an agreement for sale of immoveable property is compulsorily registrable under the Indian Registration Act, in any case where the intending buyer has paid earnest money of Rs, 100 or over and has not refused to accept delivery of the land and is pressing for specific performance. Accordingly, Mr. Thakor urged that the agreement Exhibit 21, which recites that Rs. 2,000 were paid in advance out of the purchase money of Rs. 4,000, fell under this decision, assuming that the plaintiff's case is correct. Accordingly, he urged that under Section 49 of the Indian Registration Act this agreement could not affect any immoveable property that it purported to cover and is inadmissible in evidence. Mr. Bahadurji for the respondent objected that this was a new point not raised in either of the two lower Courts, and that it could not be urged in second appeal. It has, however, been decided by this Court in Basawa and Gurbasawa v. Kalkapa, Sharbana and Sidoji I.L.R. (1877) 2 Bom. 489 that an objection that a document, which requires registration but is not registered, is not admissible in evidence under Section 49 of the Indian Registration Act, may be taken in the Court of appeal though no objection was taken to its admissibility in the Court of first instance. There West J. in the judgment of the Court says (p. 491) :-
The bulwark against fraud, intended to be constituted by registration, is of as great public importance even as the interests of the revenue, and when we find that the Registration Act VIII. of 1871, Section 49, says not only that a document requiring registration, but unregistered, shall not be received in evidence, but also that it shall not affect any immoveable property, we think that we could not, consistently with the law, allow it to count as a part of the materials on which we have to dispose of this case, supposing that registration was, indeed, indispensable to its validity.
3. That amounts to saying that an objection under Section 49 of the Indian Registration Act is very much on the same footing as an objection that a suit is barred by limitation ; and an appellate Court, even if it be sitting in second appeal, must take notice of an objection of that kind, which does not require any further inquiry to decide whether or not it is a proper objection. There are also similar decisions in Safdar Ali Khan v. Lachman Das I.L.R. (1879) All. 554 and Oomatool Fatima v. Ghunnoo Singh (1872) 19 W.R. 22 Therefore, I think that this objection can be taken and must be considered by this Court. It is not a case of a decision of a High Court in India which, until it is reported in the authorised series of the Indian Law Reports, might not be binding under the provisions of the Indian Law Reports Act of 1875. This is a decision of the Privy Council which binds all the Courts in India, at any rate as soon as that decision is promulgated and comes to the knowledge of a Court in India. In the present case copies of the judgment in question have been sent by the Judicial Committee to this Court, and are on the current file of such judgments. Therefore this is a decision which, in my opinion, must be given effect to in a case like the present, because the ordinary rule is, that judgments of a superior Court, although they do not reopen decided cases, yet decide similar cases pending when the judgments are given : compare Hardcastle on Statutory Law, 3rd Edn., p. 363. At the date of the Privy Council decision, this second appeal was pending before the Court and as already mentioned an objection had been raised in the memorandum of appeal that the document was inadmissible for want of registration. No doubt it is the case that the defendant denies that in fact there was a payment of Rs. 2,000 in advance, as recited in the agreement; but the plaintiff' contends that that payment was made and the point must be decided on the allegation in the plaint that there was this payment and on the recitals in the document to the same effect. The case falls entirely under the Privy Council decision, the plaintiff also not having made any default and pressing for specific performance. It may be that in some future case the Privy Council may reconsider that decision, or it may bo that the legislature may intervene and pass an Act validating documents that have not been registered on account of the previous view of the law that such documents did not require registration. But that cannot affect the decision of the present case, and on the objection I am of opinion that it must be held that the plaintiff's claim, which depends on this document Exhibit 21, fails and that accordingly the decree of the trial Court must be upheld. But, in view of the possibility I have just mentioned, I think it is right that we should give our decision on the various points that have been argued before us, so that (supposing there is any legislation of the kind I have referred to, permitting the plaintiff to have his case considered on the merits, apart from this objection of registration) it should not be necessary to have a further rehearing on these points. [His Lordship after dealing with questions of fact arising in the appeal concluded as follows.-]
4. We think the fairest order to pass in the circumstances, the point of registration not having been raised either in the trial Court or by the respondent in the lower appellate Court, is that each party should bear his own costs of the appeal to the District Judge and the appeal to this Court. The restoration of the decree of the trial Court confirms its order that the plaintiff should bear the costs of the defendant in that suit.
5. I agree.