1. This reference to a Full Bench has been made by me, sitting with Mr. Justice BANERJEE, because we had reason to doubt the correctness of the opinion expressed in Khatu Bibi v. Madhuran Barsick I.L.R. 16 Cal. 622 decided by Mr. Justice Trevelyan and myself. The first question referred, and this is the only question which it is necessary for us to answer, having regard to the opinion at which we have arrived, is:Can the transfer by sale of tangible immoveable property of a valueless than Rs. 100 be effected only by one of the two modes mentioned in Section 54, paragraph 3 of the Transfer of Property Act, i.e., either by a registered instrument or by delivery of possession, and in no other way?
2. In the case of Khatu Bibi v. Madhuram Barsick I.L.R. 16 Cal. 622 it was held that a transfer by sale of tangible immoveable property of a value less than Rs. 100 could be effected by an unregistered instrument not accompanied by delivery of possession. The judgment proceeded on the terms of paragraph 3, Section 54, of the Transfer of Property Act, which, it was held, was not exhaustive, and did not alter the previously existing law expressed in Sections 17 and 49 of the Registration Act, under which transfers of property of such value could be effected by unregistered instruments, registration not being compulsory. Some weight was also given to what has now turned out to be a misapprehension of the law in consequence of the enactment of Act III of 1885. That Act consists of only a few sections, Section 3 of which is alone applicable to the matter now before us, and that section, read by itself, conveys no definite meaning, and even when applied to the Transfer of Property Act, is expressed in terms which are not easily intelligible. That provision of the law, it may be observed, was not cited to the referring Bench in the course of the argument by the pleaders in the case, and was overlooked by Mr. Justice BANERJEE and myself. We endeavoured to reconcile the terms of the Transfer of Property Act arid the Registration Act, and were of opinion that the mode suggested by us afforded the only possible means of reconciliation.
3. Having had the question re-argued and having regard to the terms of the Act of 1885, we do not think there is any conflict between the two Acts. The intention of the Act of 1885, no doubt, was to clear away a difficulty which had arisen and which was referred to in the course of the decision of the Full Bench in Narain Chunder Chuckerbutty v. Dataram Roy I.L.R. 8 Cal. 597.
4. It declares that Section 54 of the Transfer of Property Act shall be read as supplemental to the Registration Act (III of 1877). Its effect, therefore, is to make Section 54, paragraph 3, absolute, in so far as it prescribes that a transfer of ownership by sale of tangible immoveable properties of a value less than Rs. 100 can be made only by a registered instrument or by delivery of the property, and that, if made otherwise, as in the case now before us, by an unregistered instrument unaccompanied by possession, the transfer or sale is inoperative and so it confers no title on the vendee.
5. The plaintiff, in the case before us, states that defendant No. 1, as the proprietor of some land of a value less than Rs. 100, sold it by an unregistered instrument to defendant No. 2 without delivery of possession, and that he purchased from defendant No. 2 by a registered instrument. He now sues to recover possession from defendant No. 1, the vendor of his vendor, who, notwithstanding that he has sold by an unregistered instrument and obtained the purchase-money, still holds possession. The plaintiff's title to sue, therefore, depends upon that of his vendor; and his vendor having, under the law as above expressed, an invalid title, would be unable to enforce that title in a suit for ejectment. The case is, no doubt, one of some hardship, because defendant No. 1, who has obtained the value of the land sold, is thus able to obstruct the possession of his vendee. We think, however, that the plaintiff has placed himself in such a position that the Court can afford him no relief in this suit, as it is now before us in second appeal. In his petition of appeal he merely contends that his conveyance is a valid instrument, and that on it he is entitled to be put in possession. The case, moreover, was tried in both the lower Courts on issues directed solely to this purpose. It is impossible at this stage of the case to change the nature of the suit. The answer to the first question put must, therefore, be in the affirmative. It is unnecessary to answer the second question. The appeal must be dismissed with costs. A.A.C.