Prinsep and Trevelyan, JJ.
1. The District Judge in appeal has found that plaintiff has bought the right, title and interest which Mahabat Ali had in an eight-anna share of a certain howla, This was conveyed to the plaintiff by an unregistered document, registration not being compulsory within the terms of Section 17 of the Registration Act, because the value of the property conveyed was less than Rs. 100. The vendors were out of possession when the sale took place, and the plaintiff seeks to obtain possession on this title as against certain defendants who have been found to have no title at all.
2. The question raised before us on second appeal is whether, having regard to the terms of Section 64, Clause 3, of the Transfer of Property Act, the sale to the plaintiff has conferred any valid title, inasmuch as it has not been completed either by a registered document or by delivery of possession of the property sold. As an authority for this, we have been referred to some observations made by the late Chief Justice, Sir E. Garth, in the case of Narain Chunder Chucker butty v. Dataram Roy I.L.R. 8 Cal. 597, at p. 612. These observations were only obiter dicta without any argument at the bar, and are therefore not binding on us, but, as coming from so high an authority, are entitled to every respect and consideration.
3. The conveyance on which the plaintiff's title depends is one, registration of which, under Section 18 of the Registration Act 1877, is not compulsory, but optional with the parties.
4. There is no question, in this case, of competition between this document and another executed by the same person and duly registered, so that Section 50 of the Registration Act does not apply. The conveyance therefore is a valid document, receivable in evidence of the transaction affecting the immoveable property with which it professes to deal, and is not affected by the Registration Act. It would convey a good title under which the vendee could sue to obtain the rights conveyed to him as against trespassers who may have unlawfully dispossessed his vendor unless such title be restricted by some special law.
5. The Transfer of Property Act, Section 54, defines a sale of immoveable property, and declares how it may be made. A sale is defined to be 'a transfer of ownership in exchange for a price paid or promised, or part paid and part promised.'
6. In declaring how transfers may be made, the section draws a distinction between transfers of tangible immoveable property of the value of Rs. 100 and upwards, and of the value of less than Rs. 100. Of the former it declares that transfer 'can be made only by a registered instrument;' of the latter it declares that 'transfer may be made either by a registered instrument or by delivery of the property.' But the law does not state that such transfer can be made only by one of these means. Nor is it anywhere provided that a person out of possession shall not sell to another his right, title and interest in any property, nor is it declared that in such a case the transfer can be made only through a registered instrument. The actual rights may, in our opinion, be conveyed through an unregistered instrument, for that, by the Registration Act, is receivable in evidence of the transaction, because the value of the property conveyed is less than Rs. 100. It surely could never have been intended that one who has been found to have no title as the defendant appellant, should on such a plea succeed as against the purchaser of the right, title and interest of the lawful owner who has been unlawfully put out of possession. Such an owner cannot complete the transfer of his property by delivery of possession. Was it necessary that the conveyance should have been by a registered instrument so as to confer a valid title? We think not.
7. Section 18 of the Registration Act expressly declares that an instrument, such as that before us, may be registered as distinguished from instruments specified in Section 17, which the law declares shall be registered.
8. Section 49 declares that 'no document required by Section 17 to be registered shall affect any immoveable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered under the provisions of the Act,' but there is no prohibition in respect to other documents. It is only when a registered document comes into competition with an unregistered document of the same nature, and relating to the same property, that the former takes effect, although registration of the latter may have been optional and not compulsory. We apprehend that it could not have been the intention of the Legislature to allow the law, as expressed in the Registration Act, to remain unrepealed and indirectly to nullify the effect that it has always received by the enactment of Section 54 of the Transfer of Property Act, which has been quoted.
9. We are not inclined to adopt such a rigid construction of the law as that pressed on us and held by the late Chief Justice, Sir E. Garth, when it would seem that another construction would reconcile the Registration Act with the Transfer of Property Act, so as to prevent what, in this case, would amount to a denial of justice. If such an alteration of the law, amounting to a confiscation of previously existing rights, were contemplated, we apprehend that it would have been expressed in other and clearer terms.
10. We are therefore of opinion that Section 54, Clause 3, of the Transfer of Property Act is not exhaustive or imperative in requiring that the transfer of immoveable property sold, and of small value, should be made only under one of these conditions so as to confer a valid title. In Clause (ii) the law is clear that a transfer of immoveable property of a particular description can be made only by a registered instrument, but Clause 3 uses the expression may be made. It does not declare that it may be made only and thus repeat an expression first used in the preceding clause. We therefore hold that, on his unregistered conveyance, the plaintiff is entitled to obtain possession of an eight-anna share, and we dismiss this appeal with costs.