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Kuppuswami Goundan Vs. Chinnaswami Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad546
AppellantKuppuswami Goundan
RespondentChinnaswami Goundan and ors.
Cases ReferredHari Keshaw Patil v. Hira Chinna Rant
Excerpt:
- srinivasa aiyangar, j.1. the question for determination in this second appeal has turned out to be one of considerable difficulty. it has reference to and bears upon the terms of section 50, registration act. the facts on the basis of which the question has been raised may be briefly set out. the plaintiff is the appellant in this court. he instituted the suit from which this second appeal has arisen for recovery of possession of certain items of property. he claimed a right to such possession on the title acquired by him under a registered sale-deed, ex. a, in the case bearing date 15th june 1922. the defendants who are the respondents here claim a right to the properties under an unregistered sale-deed, ex. i in the case bearing date 5th june 1917. there was some dispute at some stage.....
Judgment:

Srinivasa Aiyangar, J.

1. The question for determination in this second appeal has turned out to be one of considerable difficulty. It has reference to and bears upon the terms of Section 50, Registration Act. The facts on the basis of which the question has been raised may be briefly set out. The plaintiff is the appellant in this Court. He instituted the suit from which this second appeal has arisen for recovery of possession of certain items of property. He claimed a right to such possession on the title acquired by him under a registered sale-deed, Ex. A, in the case bearing date 15th June 1922. The defendants who are the respondents here claim a right to the properties under an unregistered sale-deed, Ex. I in the case bearing date 5th June 1917. There was some dispute at some stage with regard to the extent of the properties covered by these two deeds of sale, but for the purpose of the present appeal we must take it that both the documents cover and include the properties, the subject-matter of this suit. Both the lower courts have concurred in dismissing the plaintiff's suit and hence this appeal.

2. Mr. T.M. Krishnaswami Ayyar, the learned vakil for the appellant, has based his argument before us entirely on the terms of Section 50, Registration Act. His contention was that there was a registered deed of sale in favour of his client and the defendant was claiming under a deed which was unregistered and therefore the terms of Section 50 applied directly and that, therefore, the lower Courts were wrong in not giving effect to the sale-deed in favour of his client, the plaintiff, and in not granting a decree as prayed for in his favour. He has also relied on a case reported in Mohamed Kasim Ali Saheb v. Mir Gulam Ali Sahib [1914] M.W.N. 55. Undoubtedly that case is a direct authority for the contention on behalf of the appellant. It must, to begin with, be observed that the contention of the appellant, if accepted in its entirety, comes to this that if some transaction in the nature of a transfer of property should have been effected by an unregistered instrument, however valid at the time when it was made and even though such transfer should have been given effect to by all parties concerned, still it is open years afterwards to a party to obtain a transfer from the original transferrer of the property but under a registered instrument and claim to be entitled to dispossess the first transferee. So stated, undoubtedly the proposition would be seen almost to be monstrous and one can understand the unwillingness of many Judges of this Court to put any such construction upon Section 50, Registration Act. But in this case the lower appellate Court has arrived at the finding that the sale to the defendants was not under an unregistered instrument. According to the finding the sale was effected by an oral agreement to sell accompanied by delivery of possession. That, as I read the judgment of the lower appellate Court, is the finding arrived at apparently as a question of fact. If the circumstances were such that we should deem ourselves bound by such a finding of fact duly arrived at by the lower appellate Court, we should really find ourselves in a position where we could not possibly interfere. It, therefore, becomes necessary to see whether this finding of fact has been properly arrived at, especially having regard to the pleadings in the case. If we take the plaint it is an ordinary suit for possession on a sale-deed and there is no reference in the plaint, so far as I am able to see, to the Sale-deed in favour of defendant 1 or any transaction of sale in his favour. But in para. 5 of the written statement it is stated thus:

The suit land originally belonged to defendant 4 but defendant 4 morally sold it to this first defendant in June 1927 for Rs. 30 and received Rs. 5 in cash and got a promissory note executed for Rs. 25 from this defendant and delivered possession of the property to this first defendant. He has also executed a sale-deed on 5th June 1917 in support thereof.

3. And then defendant 1 goes on to state that since then defendant 1 has himself been enjoying the property with absolute rights and has paid the assessment. Though there is a reference to an oral sale in para. 5 defendant 1 proceeds clearly to indicate that subsequently there was a sale-deed executed obviously embodying the terms of the sale. No doubt there is also reference in the same paragraph to delivery of possession by the vendor. The question in this state of the facts is whether, properly speaking, the sale under which defendant 1 claims should be regarded as a sale by the unregistered instrument or by delivery of property. On a reading of the plaint in this case I am quite satisfied that the sale pleaded by-defendant 1 in his written statement was not a sale by delivery of property. The expression 'sale by delivery of property' should properly be construed only as referring to and comprising a case where the parties agree that the transaction of sale should be effected by delivery of property and only in that way and cannot possibly be construed as to include a case where the parties agree to reduce to the form of a document the terms of the sale. The moment the parties for some reason consider that it is not sufficient to effect the transaction of sale by mere delivery of property, but require that as evidence of such transaction there should be a deed or document, the transaction can scarcely be correctly described as one effected by mere delivery of property. Further in the case of what are called sales effected by delivery of property, there is presumably a reference to the terms having been settled by and between the parties by parol and then the transaction effected and carried out by delivery. But the moment the parties reduce the terms to writing, it is the writing that thereafter must be regarded as containing and setting out the terms of the contract, and it would not be an apt or correct description of the transaction to call it a sale by delivery of property. The learned District Judge, in the Court below, has, even though he has more than once in the course of the judgment referred to this unregistered document, called the transaction merely one of sale by delivery of property.

4. There is also one other aspect of the matter which may conveniently be referred to at the present stage. As there is always an oral agreement arrived at between the parties in the case of every transaction, if the parties reduce the terms, orally agreed to, to writing, then the document becomes under Section 91, Evidence Act, the only means by which the terms could be proved in a Court of law. The moment an oral contract is reduced to writing it is not open to any of the parties thereafter to seek to prove the terms of the contract referring to the original oral agreement and Section 91, Evidence Act, applies not only to cases where the contract is brought about or concluded by the writing, but also where the contract having been originally made by parol is subsequently reduced to writing. When the parties reduce the terms of a contract to writing, it clearly indicates the contemplation of the parties that the terms should be reduced to a form where there could be no question at all as to what the terms were and the undoubted policy of the law is that whenever parties have taken such precaution it is the document itself that must be produced and proved as evidence of the contract subject of course to any rules as to secondary evidence. In this case, having regard to the form of the defence, there seems to be no doubt whatever that defendant 1's claim to be the purchaser of the property was under the unregistered instrument. There is nothing in the written statement which can possibly allow of any other view or construction. If, therefore, the sale under which defendant 1, claims is a sale under an unregistered instrument, then it is clearly a case to which Section 50, Registration Act, applies, because that section cannot apply to a case where the previous transaction was concluded and could be concluded by parol, but is limited only to cases where the previous transaction was brought about by an unregistered instrument. Mr, T. M. Krishnaswami Iyer, therefore, for the appellant contended that as Section 50, Registration Act, clearly applied to the case, on the authority of the decision cited by him, the appeal should be allowed and a decree passed in favour of the plaintiff.

5. The difficulty in the case, however, has arisen from a consideration of the case cited on the other side by the learned vakil for the respondents. He has drawn our attention to several cases both in this Court and in other Courts in this country where questions of a similar nature have come up for decision. Before I proceed to discuss the position with regard to the views taken in the matter by the learned Judges of this Court, it may be useful to refer to some of the cases cited and relied upon for the respondents. The first case that was so referred to and relied upon was K. Narasimha Raju v. Bhupati Raju [1915] 29 M.L.J. 721. No doubt the decision in that case may be regarded as being strongly in favour of the contention put forward by the respondents, but I have personally great difficulty in following the case because in the course of the discussion in that case there is absolutely no reference whatever to the fact that, apart from delivery of possession in that case there was also an unregistered instrument which had the effect of reducing to writing the terms of the transaction of sale and there is no discussion whatever of the question from the point of view of Section 91, Evidence Act. In the absence, therefore, of any such discussion and necessarily in the absence of any decision from that point of view I am unable to regard the decision in that case as binding in the present case before us. The next case that was referred to was the decision of the Full Bench of this Court in Vizagapatam Sugar Development Co. Ltd. v. Muthurama Reddy A.I.R. 1924 Mad. 271. The opinion of the learned Judges who constituted the Full Bench in that case had reference only to the equitable doctrine of part performance being available as a defence. The principle of that decision would be available only in a case where, on the allegation there was a contract which had to be performed, which was performed only in part and which had not been completely performed. It is difficult to see how the principle of such a case can be regarded at all applicable to or available for a case were on the very pleadings in the case there has been a completed transaction of sale years ago,

6. The learned vakil for the respondents also cited V. Mooppan v. K. Padayaahi [1897] 7 M.L.T. 372. There are no facts at all set out in that case and it is difficult to deduce any principle from the short judgment in the report. In Asghar Ali v. Dost Mohamed 44 Ind.Cas. 354 the learned Judge speaks of a title which had become vested by virtue of a deed although unregistered. The case in Jman, Chandre Das v. Rajani Kanta Pal 22 C.W.N. 522, has really no bearing on the present discussion. The learned vakil for the respondents also cited two decisions of the Bombay High Court, Koniiba v. Nana [1903] 27 Bom. 408 and Hari Kashav v. Hira Chima [1900] 2 Bom L.R. 110. On examination, both these cases turn out to be cases which arose at a time and under circumstances when the Transfer of Property Act had no application. The only other case of any other Court to which reference need be made at present is Magu Brahma v. Bholi Das 18 C.W.N. 657. The learned Judges in that case proceeded on the doctrine of notice to which 1 shall presently advert. The main case, however, on which the learned vakil for the respondents had to rely in support of his contention, was the Full Bench decision of this Court in Krishnamma v. Suranna [1893] 16 Mad. 148. That was a decision of five learned Judges. The question that was referred to the Full Bench for opinion it may be useful to bear in mind. It was this: whether when it is proved that a subsequent encumbrancer under a registered conveyance had notice of a valid prior unregistered encumbrance and of possession by such encumbrancer or of such conveyance without possession, the Courts are bound to interpret Section 50, Registration Act, strictly so as to defeat the title of the prior encumbrancer. The opinion of the learned Judges who constituted the Full Bench is set out even in the head-note very succinctly and it is as follows:

When it is proved that a subsequent encumbrancer under a registered conveyance had notice of a valid prior unregistered encumbrance and of possession by such enoumbrancer or of such conveyance without possession, the Courts are not bound to interpret the Registration Act of 1877, Section 50, so as to defeat the title of the prior encumbrancer.

7. The first observation that falls to be made with regard both to the manner in which the question was propounded and was answered is whether the Court is bound to interpret Section 50 in a particular manner. Apparently those who were responsible for framing the question as also for the wording of the answer clearly realized difficulties that there were in their way, having regard to the explicit terms of Section 50, Registration Act, as it was understood. The learned Judges arrived at that conclusion or opinion on a consideration of what really must be regarded as the gross injustice that would result if titles already established and completed should be held to be capable of being defeated by subsequent transactions merely because of the circumstance that the subsequent transaction comes to be embodied in a registered instrument. The whole of the discussion of the question by the learned Judges and the process by which they arrived at the conclusion appear based on considerations of equity on which a person, who with open eyes takes the property with notice of the previous transaction, should not be allowed by the mere circumstance' of obtaining a registered document to defeat the prior holder. It is somewhat remarkable that the learned Judges should have arrived at the conclusion not on a consideration of the terms of Section 50, Registration Act, but on considerations entirely apart from it. If in this case it were necessary for me to bear my final decision on the application of any such doctrine of notice, though I should have felt bound by the opinions of such learned Judges of this Court I should still have had very great difficulty in reconciling myself to the view on which they proceeded. With the greatest respect to the learned Judges I am not at all sure whether the decision can be regarded as not offending against established rules of construction of statutes. I am not at all sure that it can be said of the Indian legislature that it was not aware of bona fide transferees for value or of the necessity that there was of not allowing persons who obtain property with notice of pre-existing claims to de-feat prior holders.

8. If the policy and principle of Section 50, Registration Act, was regarded by the legislature as being such as to make it necessary for making any such exception or provision, the legislature should have had and, to my mind, would have had no difficulty whatever in expressly providing for it. But it has not been done and, if the reasoning alone of the learned Judges should be regarded, I do not at all feel certain whether their construction of the section would not be open to the criticizm that by such construction they have virtually introduced into the section words and provisions which are not to be found there. However, so far as the present case is concerned, I have even after a very careful and anxious consideration of the point, come to the conclusion that the actual decision arrived at by the learned Judges can be supported not on the line of reasoning adopted by them, but on a proper construction of the terms of Section 50, Registration Act, itself. Now let us see what the decision in that case was. It was merely to the effect that, if there was a prior valid unregistered encumbrance a subsequent encumbrancer under a registered conveyance cannot defeat the title of the prior encumbrancer if the later encumbrancer has notice of the prior encumbrance. This decision no doubt requires as a condition precedent the fact that the subsequent encumbrancer or transferee should have notice of the previous transfer. But at the same time there is another condition referred to in the decision, namely, that the previous encumbrance or transfer should be, though by an unregistered document, a valid transfer. The decision, therefore, of the learned Judges in that case really proceeded on the basis that the prior transfer or encumbrance which comes into conflict with the later registered transfer must have been a transfer valid in law. Now, referring to the terms of Section 50, Registration Act, the provision we find there is that every document of the kind specified in the section shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property.

9. The expression is 'take effect against every unregistered document'; I omit the words in the clause unnecessary for the present discussion. It seems to me that there are necessarily two implications in such an expression as ' shall take effect against another document.' The first implication is necessarily that but for the provision in the section the document is contemplated as capable of taking effect, or in other words that the unregistered document referred to in the section should be such as is otherwise capable of effecting or effectuating the transaction it purports to be. It is impossible to escape from such an implication. If a document should be invalid in itself or ineffectual for the purpose of carrying out the transfer purported to be made by it, no question can possibly arise of its seeking to take effect against another document. The other necessary implication is that the previous unregistrered document is regarded at the relevant point or time, namely, about the time when the later registered document comes to be made, as still seeking to take effect. The expression 'shall take effect against another document' would be apt and proper only in cases where the previous document is still seeking to take effect, or in other words, has not already taken complete effect. If, therefore, the prior transaction was such that it not only took effect legally but was completed, all that was required to be done for the purpose of completing the transaction having been done, there is nothing left for the document to take effect in future and, therefore, no question arises, at the time when the subsequent registered document is executed, of the prior document seeking to take effect and coming in that process in competition with the later registered document. Both the classes of cases contemplated by the learned Judges in the said Full Bench would only be covered by such a view, because, when referring to the previous transaction, they speak of a valid prior unregistered encumbrance or transfer. Their decision, therefore, was to the effect that Section 50 has no application to cases where under the prior unregistered deed of transfer there has been a valid and effectuated transfer of the property. That is the conclusion which, as already observed, we have necessarily to arrive at on a contemplation and consideration of the terms of Section 50, Registration Act.

10. Section 50, however, would apply necessarily to all cases where for some reason or other the transaction under the prior unregistered document has not taken effect and is at the relevant point of time when the subsequent registered document comes to be made seeking to take effect as against the registered document. It is not, for the purpose of the present discussion, necessary to seek to define the expression 'taking effect' or to detail all that may be regarded as included in it. It is possible that if under the previous document something had to be done for the purpose of completing the transaction or the transaction taking effect completely, then if a subsequent registered document should come to be executed by the same person, under the principle and policy enunciated in Section 50 in the competition between the two documents effect is given to the later registered document. Section 50, therefore, must be regarded as merely enunciating some principle or policy of the Registration Act. It must, therefore, as pointed out by Chief Justice Collins in the Full Bench case in Krishnanna v. Suranna [1893] 16 Mad. 148, already referred to, refer only to cases where the previous document, though valid, was only optionally registrable, that is to say, if in respect of a document relating to a transaction a person had the option to register the document or not and if he elects not to register the document and if for some reason the transaction is not completed or does not completely take effect and subsequently another parson comes to purchase the same property under a registered document obviously as stated by the learned Judges without any knowledge or notice of the previous transaction, then in the conflict between these two this provision of the Act provides that effect shall be given to the later registered document.

11. Now applying these principles to the present case, what is the position? As already indicated, if the previous transaction of sale should properly be regarded as a sale concluded merely by delivery of property between the parties, then this section has no application whatever; but on a proper construction of the pleadings I have already indicated my conclusion to be that the claim of defendant 1 to have become purchaser was only under the unregistered instrument. Then, on the principle already enunciated, if this unregistered document was sufficient and valid for the purpose of conveying the property to the defendants, then no question of a competition to take effect can possibly arise and, therefore, there is no room for the application of Section 50. But if the document being a contract in writing and required by law to be registered, because under Section 54 a transaction of sale if in writing has to be registered, is not so registered, it is invalid. As Section 50, Indian Registration Act, can only apply to cases where otherwise the prior transaction is valid and could take effect, it follows that in this case there was really no validly completed transaction of sale at all It comes to this then that, apart from any question of adverse possession, the defendants are really in a position where they are not able to prove a legal and valid transfer of the property to them. It then follows that the only transaction which we shall have regard to is the subsequent registered instrument of sale and it must be held that it will take effect and that the property should be deemed to have passed under it. In this view I am satisfied that both the lower Courts were entirely wrong in the conclusion arrived at by them that the prior transaction was one of sale by mete delivery of property. The rest of the judgment of the lower Court is vitiated by this finding. I have no doubt whatever that the learned District Judge was conscious of this and it was apparently for the purpose of enabling him to do what he regarded as equitable justice in the case that in spite of the clear pleadings he persuaded himself to hold that the sale in favour of defendant 1 was by delivery of property and not under the very document set up by them. In the result I would, therefore, allow the second appeal and grant a decree in favour of the plaintiff for possession of the property.

12. One other question has been raised before us, and that has reference to certain improvements alleged to have been made on the property by the defendants during the time the property was in their possession. Mr. T. M. Krishnaswami Ayyar for the plaintiff-appellant- has not contended before us that before recovering possession his client would not be bound to make good those improvements. What there remains is only to ascertain the amount thereof. That has not been ascertained by the lower Court. The case, therefore, would have to be remanded to the lower appellate Court for the disposal of the question with regard to the amount of mesne profits payable to the plaintiff as to which it will allow evidence to be let in and with regard to the amount payable to the defendants for the improvements, if any, effected by them. The respondents will pay the appellant his costs throughout.

Ananthakrishna Ayyar, J.

13. The property in dispute originally belonged to defendant i. The plaintiff purchased the same from defendant 4 on 15th June 1922 for Rs. 500 by means of the registered sale-deed, Ex. A in the ease, and the plaintiff alleged that ho was put in possession of the property. On the allegation that defendants 1, 2 and 3 trespassed on the property while the plaintiff was in possession, the plaintiff filed this suit on 20th March 1923 to recover possession of the property.

14. Defendants 2, 3 and 4 disclaimed all interests in the suit property. It is better to set out the first defendant's plea in the words of the written statement filed by him. In para. 5 of the written statement this is what defendant 1 said:

The suit land originally belonged to defendant 4. He (defendant 4) orally sold it to this defendant in June 1917 for Rs. 30 and received Rs. 5 in cash and got a promissory note executed for Rs. 25 (from this defendant) and delivered possession of the property to this defendant. He has also executed a sale deed on 5th June 1917 in support thereof. Subsequently he gave a statement before the special staff and had the patta also transferred in the name of defendant 1. Since then defendant 1 has been himself enjoying the property with absolute rights and he has paid the assessment.

15. The material issue with which we are now concerned is issue 3:

Whether the sale in favour of defendant 1 is true, valid and binding on the plaintiff.

16. Defendant 1 produced Ex. 1, an unregistered sale-deed, dated 5th June 1917, executed by defendant 4 to defendant 1 for Rs. 30. The District Munsif disposed of this issue as follows:

Defendant 1's case is that the sale-deed Ex. 1 was acted upon and he was given possession under it and that he paid the consideration mentioned in it to defendant 4. Ex. 1 is an unregistered sale-deed but as the property was sold for only Rs. 30 defendant 1 relies upon an oral sale accompanied by delivery of the property. The only point for decision is whether this sale to defendant 1 was completed and acted upon, or whether it was not completed as alleged by defendant 4. It is admitted by the plaintiff and defendant 4 that defendant 1 has been continuously in possession of the property for the past five years.... I find that the sale in favour of defendant 1 is true, valid and binding on the plaintiff.

17. The suit having been dismissed by the District Munsif, the plaintiff appealed to the District Judge. The learned District Judge dismissed the appeal; he said:

The only point argued before me and requiring determination in this appeal is whether defendant 4 sold the suit lands to defendant 1 for Rs. 30 and whether the sale is valid and binding on the plaintiff. Defendant 1 relied on an oral sale of the suit lands for Rs. 30, accompanied by possession. Such a sale, if true, is valid under Section 51, T. P. Act. Defendant 1 has also relied on an unregistered sale-deed dated 5th June 1917 Ex 1. It is true that this document is inadmissible in evidence as a sale deed as it was not registered. But it can be used as an agreement of sale....In the present case the sale actually took place on 20th June 1917 that is, 15 days after the execution of Ex. 1 by the delivery of the suit lands to defendant 1. The oral sale took place on the date of delivery. Defendant 1 swore that he paid Rs. 5 in cash to defendant 4, and executed a promissory note for Rs. 25 in defendant 4's favour on the date on which the suit lands were delivered to him. The plaintiff admitted the continuous enjoyment of the suit lands by defendant 1, from the year 1917 up to date. The law is clear that an oral sale accompanied by delivery of possession is as good as a sale by a registered instrument,

19. The District Judge having dismissed the appeal, the plaintiff has preferred this second appeal.

20. On his behalf it is argued by his learned vakil, Mr. T.M. Krishnaswami Ayyar, that the learned District Judge was in error in setting up a new case on behalf of defendant 1. In the written statement the oral sale set up was one prior to 5th June 1917, the date of Ex. 1, whereas the finding of the District Judge was that an oral sale took place on 20th June 1917, that is, 15 days after the execution of Ex. 1. When pressed with this plea this is how the learned District Judge answered the objection:

It is true that the written statement gives some scope for the construction put forward by the appellant's vakil. Pleadings in India cannot be too strictly construed. Besides, the written statement does not give any date for the oral sale. The oral sale cannot be prior to the payment of consideration. Consideration was paid on the date of delivery, namely, 20th June 1917. This was subsequent to Ex. 1. Hence there is no incongruity in construing Ex. 1 to be a prior agreement for the subsequent oral sale.

21. Holding that the law is clear that an oral sale accompanied by delivery of possession is as good as a sale by a registered instrument, he held that there was no competition between the plaintiff and defendant 1. I think that the appellant is right in his contention that the lower appellate Court was wrong in allowing defendant 1 to set up a case of 'oral sale' subsequent to 5th June 1917, contrary to the allegation made in his written statement. (By 'oral sale' the parties evidently meant sale effected not by registered instrument but by mere delivery of possession, as mentioned in Section 54, T. P. Act). It is impossible to construe the written statement as setting up any oral sale subsequent to 5th June 1917. Whether the oral sale set up in para. 5 of the written statement was prior to 5th June 1917 or on 5th June 1927, it is clear that no oral sale subsequent to 5th June 1917 was suggested in the written statement. The writer of Ex. 1, examined as D. W. 2, stated that defendant 1 purchased the suit lands Under Ex. 1. Defendant 1 himself examined as D. W. 1, did not speak to any oral sale after the sale of Ex. 1. He stated:

Defendant 4 executed a sale-deed Ex. 1, in my favour. I did not pay Rs. 30 on the date of Ex. 1 as the sale-deed was not registered. The deed was not registered as the Sub-Registrar said that there was a mistake in the sale-deed. I did not care to get the sale-deed registered as defendant 4 got the patta for the suit land transferred in my name and I paid Rs. 5 to defendant 4 on the date of the patta transfer and executed a promissory note for Rs. 25. The correction in the sale-deed was made after the Sub-Registrar said that there were mistakes in the sale-deed.

22. Thus there is no evidence of any oral sale by delivery of possession after the date of Ex. 1. On the other hand, as D. W. 2 the writer of Ex. 1 specifically said: ' defendant 1 purchased the suit land under Ex. 1, ' the conclusion is inevitable that the transaction of sale relied on by defendant 1 is evidenced by Ex. 1, and as that document has not been registered, as required by Section 54, T. P. Act, there has been no valid sale on which defendant 1 could rely in this case, though defendant 1 got possession of the property.

23. As defendant's possession from 1917 to 1923 (the date of suit) is not long enough to give him a title by adverse possession, it seems to me that the plaintiff who has acquired a legal title to the property by a registered sale-deed from defendant 4 is entitled to recover possession in this suit. We have not here to consider any case of an oral sale of property for less than Rs. 100 effected by mere delivery of possession which would be a valid sale under Section 54, T. P. Act. Before any case of conflict could arise under Section 50, Registration Act, there must be two valid transactions, the earlier evidenced by an unregistered document the later by a registered one. Unless the earlier document was valid in law there could be no question of competition between the two documents; if the earlier deed was invalid, then there is only one valid deed, the later registered one. When the prior transaction evidenced by a valid, though unregistered, document was completed and fully took effect and possession also passed under the same, the Full Bench held in Krishnana v. Suranna [1893] 16 Mad. 148 that the Courts were not bound to interpret Section 50, Registration Act, so as to defeat the title of the prior holder, when it was proved that the subsequent holder under a registered deed had notice of the prior transaction. But, so far as the present case is concerned, it seems to me clear that the sale in favour of defendant 1 evidenced by Ex. 1 being invalid on the ground that Ex. 1 was not registered, the defendant is not in law the owner of the properties. So the case before us is a simple case of an invalid sale set up by defendant 1 as against a valid sale set up by plaintiff, it being clear that in such a case there being only one valid sale, that must be given effect to. Defendant 1 is not entitled to claim any relief by way of specific performance as against defendant 4 by way of executing a sale-deed of the properties in defendant 1's favour; for defendant 4 did execute a sale-deed, Ex. 1, and the same was handed over to defendant 1. Defendant 1 did tender it for registration. According to his own case, the corrections in the sale-deed were made after the Sub-Registrar said that there were some mistakes in the sale-deed. Defendant 1 ought to have got Ex. 1 registered by presenting it again for registration. Having failed to do so he is not entitled again to call upon defendant 4 to execute and register a fresh sale-deed: see Venkataswami v. Krishtayya [1893] 16 Mad. 341, where it was held that where a vendee failed to present for registration in time a sale-deed executed to him by the vendor, he was not entitled to call upon his vendor to execute and register a fresh sale-deed, though the vendor was prepared to meet the expenses in connexion with the same.

24. It was argued by the learned vakil for the respondent that Ex. 1 may be treated as evidencing merely an agreement to sell in the sense that defendant 4 could be called upon to execute another proper sale-deed in favour of defendant 1, but I cannot agree to the suggestion that Ex. 1 could be treated as merely an agreement to sell. It purports to be an operative sale-deed. The agreement to sell was carried out in that the deed of sale was executed by defendant 4 to defendant 1, and, as observed by Muthuswamy Ayyar and Handley, JJ., at p. 344 (of 16 Mad.):

The only act wanting on his vendor's part to complete the contract was to register the deed of transfer and this act he could only be compelled to do by the proper proceeding under the Registration Act, followed by suit under Section 77, if the vendee failed to obtain his right by such proceedings.

25. The learned vakil for the respondents quoted some decisions where it was held that a subsequent registered holder was not entitled to claim priority over a person claiming under an unregistered document but who had possession delivered to him in pursuance of the unregistered document. On examination it was found that these decisions related to cases of mortgages executed prior to 1904, since, under Section 59, T. P. Act (before it was amended by Act 6, 1904) where the principal money secured was less than Rs. 100 a mortgage may be effected by an unregistered instrument or by delivery of possession, and registration was not compulsory in the case of mortgage instruments for less than Rs. 100. One case of sale was, however, quoted, Hari Keshaw Patil v. Hira Chinna Rant [1900] 2 Bom L.R. 110, but that was a case of sale prior to 1893-the Transfer of Property Act was extended to the Presidency of Bombay only from 1st January 1893-vide notification in the Bombay Government Gazette 1892, Part 1, p. 1071, referred to at p. 634, footnote of Vol. 2 of Ghose on Mortgages' edn. 4, and at p. 18, Vol. 1 of the Law of Transfer in British India by Sir H.S. Gour, 5th edn.

26. It, therefore, seems to me that the sale-deed, Ex. 1, under which defendant 1 purchased the property is invalid not being registered and is ineffectual to confer any title on him. Farther no oral evidence is admissible to prove the sale-S. 91, Evidence Act. Defendant 1's possession not having continued for 12 years, he has not acquired any title by adverse possession either. The defendant's position is realiy that of a trespasser without any legal title and the plaintiff having taken a registered sale-deed from the owner, defendant 4, is entitled to have a decree for possession in the present suit.

27. The result is that the second appeal is allowed and the decree of the lower appellate Court reversed and the appeal remanded to it for fresh disposal as mentioned in the judgment of my learned brother. I also agree with the order as regards the costs referred by him in his judgment.


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