1. Regular Second Appeal No. 834 of 1946 was referred to a Bench on the ground that it involved an important question of law which was nude of authority.
2. The land in dispute belonged to one Phindu. He died leaving him surviving a widow Mt. Lachhmi and a daughter Mt. Partapo. Mt. Lachhmi in February 1944 made an oral gift of the land that she inherited from her husband in favour of her daughter Mt Partapo. Before the mutation was sanctioned Mt. Lachhmi died. Mt. Sindhi, plaintiff, who is the widow of a fourth degree collateral of Phindu, appeared before the mutation officer and objected to the mutation being sanctioned on the basis of the gift. The mutation was, however, sanctioned in favour of the donee in spite of her objections. On 9th February 1944 a document was executed by Mt. Sindhi in favour of the donee's husband in the following terms:
Mt. Lachhmi has gifted the land in favour of Mt. Partapo and mutation has been sanctioned in her name. I give my assent to this gift and I will not bring any suit to contest it. I have given up my right in the gifted property.
This document was executed for a certain consideration mentioned in it. On 6th March 1914, Mt. Sindhi brought the present suit to challenge the gift regarding which she had agreed not to bring a suit.
3. It was alleged in the plaint that the land in suit was ancestral and that the gift by Mt. Lachhmi in favour of Mt. Partapo was not binding on her and therefore it should be declared that she is the owner of the property in suit. In the alternative she claimed a decree for possession if it was found that she was out of possession of the disputed land at the time of the suit.
4. The suit was resisted principally on the plea that the plaintiff having consented to the gift was not entitled to impugn the validity thereof and was bound by it. Reliance was placed on the agreement dated 9th February 1944, which is, however, not a registered document. The plaintiff denied the execution of the agreement and also objected to its admissibility on the ground of want of registration.
5. Both the Courts below have held the document to be admissible in evidence and have upheld the defendant's plea. The genuineness of the document was held proved on the evidence which had been placed on the record. In the result the plaintiff's suit was dismissed in the two Courts below. She preferred a second appeal to this Court which was referred by a learned Single Judge to a Division Bench.
6. The learned Counsel for the appellant urged two points before us; (i) that the finding of the Courts below as regards the admissibility of this document was wrong in law and (ii) that even on the question of fact that the document had been executed by Mt. Sindhi on 9th February 1944, the finding could not be sustained as the Courts below had ignored the intrinsic evidence of the document itself in arriving at that conclusion.
7. As regards the second contention of the teamed counsel, in our opinion, it is concluded by a finding of fact. The direct evidence led in the case has been believed and in view of that it is not open in second appeal to re-consider this matter. This contention, therefore, is repelled.
8. As regards the first contention, the learned counsel urged that in substance, and in clear language also the document Ex. D 1 evidenced a transfer of the rights of Mt. Sindhi in favour of the husband of the donee, in immovable property the value of which was over Rs. 100 and required registration.
9. It was contended that at the time when this document was executed Mt. Lachhmi had died and Mt. Sindhi her reversioner was vested with the full title in the property, and had become owner of it, she had also a right to challenge the gift. In this situation whatever she gave up by means of this document was her interest in the land in suit which included within its scope the incident of challenging the alienation that the widow Mt. Lachhmi had made in favour of Mt. Partapo.
10. For this contention reliance was placed on a Single Bench judgment of the Punjab Chief Court reported as Sher Singh v. Sidhu 11 P.R. 1907 and a Bench decision of the Lahore High Court reported as Thakar Singh v. Uttam Kaur . It was held in these decisions that wA.I.R. 1929 Lah. 295here succession has opened out on the death of the widow and the quondum reversioner has become the real owner of the property, though he is still out of possession, there is no bar to his assigning the whole or a part of it to third parties, and consequently the plaintiff-assignees are entitled to bring a suit to challenge the alienation made by the widow. Both these rulings, however, are not relevant to the present enquiry because in none of them was the question of registration of the deed of assignment raised or considered. The sole point for determination before us is whether an agreement by a reversioner after succession has open-ed out to him, agreeing not to bring a suit to challenge an alienation ; or any agreement to the effect that the reversioner consents to the alienation already made, requires registration under Section 17, Registration Act. The matter may be quite different where the reversioner executes conveyance in favour of an alienee of the land regarding which succession has opened out to him after the death of the widow or of a childless proprietor. In Gurbhaj and another v. Lachhman A.I.R. 1925 Lah. 341 it was ruled by a Bench of the Lahore High Court that an agreement by a reversioner to the effect that he has given his assent to the sale and will not challenge it could be used by an alienee even if not registered, for the collateral purpose of showing the assent of that reversioner. A similar view was expressed by another Bench of the Lahore High Court in the case of Gulab v. Mehndi and Ors. A.I.R. 1922 Lah. 95. In this case it was held that a document embodying the undertaking given by N not to contest any alienation did not require registration. Exhibit D 1, which is the document in dispute, in clear terms incorporates an under, taking by Mt. Sindhi that she will not bring any suit to challenge the gift by Mst. Lachhmi in favour of Mst. Partapo, and that she assents to it. The document then proceeds to say that she also relinquishes her right in the land in suit. The document is clearly divisible in two parts. The first part, by which she agreed not to challenge the gift, is severable from the second part wherein she recited that she relinquishes her rights in the property in dispute. The second part would certainly require registration but so far as the first part is concerned, the document does not require to be registered, and the undertaking not to bring the suit can be used by the alinee against her, when she seeks to go against that undertaking.
11. Thus the document can be considered in its two aspects. In the first place, it can be used to prove acquiescence of the plaintiff in the gift made by Mt. Lachhmi In the second place it can be used by the alienee as a document of title. So far as the relinquishment of the plaintiff's right in the land in dispute is concerned, it is significant that the relinquishment is not in favour of the alienee, but it is made in favour of the husband of the alienee, while the undertaking not to bring the suit is clearly in regard to the gift made in favour of Mt. Partapo. The two recitals, therefore, in the document are quite distinct and in these circumstances if the second requires registration it does not follow that the first part of it is not admissible under Section 17, Registration Act. It was urged by the learned Counsel that really the effect of the consent was that the plaintiff gave up her rights in immovable property. For the purposes of the Law of Registration, we are not concerned with the effect of a document, all that has to be seen is what on the face of it it purports to say. In my judgment, therefore, so far as the undertaking of the plaintiff not to challenge the gift in dispute is concerned Ex-D 1 does not require registration and it was rightly held admissible for that purpose.
12. The result, therefore, is that this appeal is void of force and I would accordingly dismiss it with costs.
Teja Singh, J.