1. On the 13th November 1872 the second defendant mortgaged the property in question to plaintiff by an unregistered document. On the 30th September 1876 the second defendant mortgaged the property to first defendant's father by a registered document. On the 20th December 1877 second defendant sold the property to plaintiff by an unregistered instrument. In suit 339 of 1879 first defendant's father obtained a decree against second defendant in respect of the mortgage. Subsequently, first defendant's father having died, first defendant attached the property. ' Plaintiff's petition against the attachment was rejected. Plaintiff then brought this suit.
2. First defendant alleged that his father was placed in possession at the date of the mortgage to him in 1876, and that plaintiff's documents of mortgage and sale had been since concocted. The District Munsif disbelieved the evidence as to plaintiff's documents of mortgage and sale and dismissed his suit. On appeal, the District Judge was of opinion that the evidence established the genuineness of these documents, and, on the authority of Ramu Naicken v. Subbaraya Mudall 7 M.H.C.R. 229 reversed the Munsif's decree and gave a decree for plaintiff for delivery of the property.
3. In this second appeal the respondent was not present at the hearing, either in person or by Vakil. Mr. Dunhill for the appellant urged that, as plaintiff's documents were not, and defendant's mortgage was, registered, plaintiff's documents ire not admissible in evidence. Under Clause a, Section 181 of the present Registration Act, the sale-deed of the 20th December 1877 was optionally registrable, and under Clause 1 Section 18 of Act VIII of 1871 the mortgage of 1872 was also optionally registrable, but both in the Act of 1871 and in that of 1877 Section 50 contains a provision which materially depreciates this option by rendering a title under an unregistered document, though optionally registrable, liable to be defeated by a registered document for the same property. The earlier Act is repealed by the later, but the explanation to Section 50 of the Act of 1877 shows that by the term 'unregistered' in Section 50 are included not only documents executed after the Act of 1877 came into force but also those executed under either of the earlier Acts.
4. There has been a continuous policy, commencing with Act XVI of 1864, to allow registered documents to defeat prior and subsequent unregistered documents, though optionally registrable, relating to the same property, and though Act VIII of 1871, under which first defendant's document is registered, is repealed, the right he had under it to defeat plaintiff's prior document of 1872 and subsequent document of 1877 is unaffected. Simultaneously with the repeal of Act VIII of 1871, Act III of 1877 came into operation, and Section 50 declares that every document of the kind mentioned in Clauses a, b, c, and d of Section 172 shall, if registered, have this privileged operation.
5. As, by the explanation appended to the section, 'unregistered' means not registered according to the particular Act in force at the time of execution, it is left to be inferred that 'registered' means 'registered' according to any such Act, and though the plaintiff's documents are of the kinds mentioned in Clauses a and b of Section 18, they must be held to be defeated by first defendant's registered document. As was decided in Nallappa v. Ibram I.L.R. 5 Mad. 73 the question of notice is immaterial in questions of priority, arising out of the provisions of the Indian Registration Acts.
6. We need not enter upon the very difficult question with which Ramu Naicken v. Subbaraya Mudali 7 M.H.C.R. 229 deals. We will only say that we do not wish to be understood as ready to concur in the decision in that case without further consideration. On the question of registration, we must reverse the decree of the District Judge and dismiss plaintiff's suit with costs throughout.
1 [Documents of which the registration is optional.
[Section 18: Any of the documents next hereinafter mentioned may be registered under this Act (that is to say)
(a) Instruments (other than the instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees to or in immoveable property:
(b) Instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest.]
2 [Documents of which registration is compulsory.
[Section 17: The documents next hereinafter mentioned shall be registered, if the property to which they relate is situate in a District in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or Act No. XX of 1866, or this Act came or; comes into force (that is to say),
(1) Instruments of gifts of immoveable property:
(2) Other instruments (not being wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.
(3) Instruments (not being wills) which acknowledge the receipt or payment of any consideration on account of creation, declaration, assignment, limitation, or extinction of any such right, title or interest-; and
(4) Leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent. Provided that the Local Government may, by order published in the official Gazette, exempt from the operation of the former part of this section any leases executed in any District, or part of a District, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
Exception of composition deeds and of transfers of shares and debentures in Land Companies.
Nothing in Clauses (2) and (3) of this section applies
(a) to composition deed.
(b) to any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consists in whole or in part of immoveable property, or
(c) to any endorsement upon or transfer of any debenture issued by any such company. Authorities to adopt a son, executed after the first day of January 1872 and not conferred by a will, shall also be registered.]