1. The suit was brought by the plaintiffs to recover three plots of land which originally belonged to the plaintiffs Nos, 1 and 2 and the predecessor of the other plaintiffs. The defendants are in possession and the principal question is whether they obtained possession as usufructuary mortgagees for a term which has expired or in the character of purchasers. The defendants produced two unregistered conveyances executed by some of the plaintiffs or their predecessors one relating to plots Nos. 1 and 2 and the other to plot No. 3 Neither plots Nos. 1 and 2 nor plot No. 3 exceeds Rs. 100 in value. Relying upon the unregistered documents the Courts below have found that the transaction in each case was a sale, and not a mortgage, and that the sales were completed by the possession duly delivered by the vendors to the vendees. To the extent, therefore, of the title so acquired and so found the plaintiff's suit has been wholly dismissed.
2. The plaintiffs have appealed and it has been contended on their behalf that the documents on which the Courts below have relied are not admissible in evidence for want of registration. The point is one upon which there appears to be no express authority, at least none was cited in the argument.
3. Under the third Clause of Section 54 of the Transfer of Property Act in the case of immoveable property of a value less than Rs. 100' a sale 'may be made either by a registered instrument or by delivery of the property.' It is clear, therefore, that in such cases an unregistered instrument unaccompanied by possession is of no avail and confers no title Makhan Lal Pal v. Bunku Behari Ghose 19 C. 628 : 9 Ind. Dec (N.S.) 858. Under the Registration Act, to which by Section 4 of the Trar***2er of Property: Act the second and third clauses of Section 54 of the latter Act are to be read as supplemental, the unregistered instrument would not be admissible in evidence. But when the property sold is less than Rs. 100 in value and the sale is effectuated or completed by delivery of possession, there is no reason whys the transaction should not be evidenced by a writing in the terms of a conveyance, even though the document has not been registered. The sale can be effected in two ways either by a registered instrument or by delivery, Registration is not necessary except as an alternative to delivery. Exhypothesi there is delivery. Where there is delivery there need not be a registered instrument and if an instrument is executed but not registered there is no reason why it should not be admitted as evidence of the nature of the transaction, because neither the Transfer of Property Act nor the Registration Act requires its registration. The title passes by the delivery and does not depend on the unregistered document which is merely a piece of evidence.
4. It may be that in the case supposed the unregistered document is the only admissible evidence of the nature of the transaction. Under Section 91 of the Evidence Act, where the terms of a grant have been reduced to the form of a document,' 'no evidence shall be given in proof of the terms' of the grant, 'except the document itself' or secondary evidence of its contents when secondary evidence is admissible. This provision, of course, does not exclude proof of the fact of delivery of possession. That fact may be proved whether there is a document or not and whether if there is a document, it does or does not require registration. But where there is a grant and a writing to support it, oral evidence of the terms of the grant is excluded. That would seem to be so even when the grant is made not by the document but by the delivery of possession which accompanies it. Though the document does not confer title and is merely evidentiary, it still seems to be the only, admissible evidence of the nature and terms of the transaction.
5. For the reasons indicated, I am of opinion that the documents produced by the defendants were rightly admitted in evidence. On this part of the case, therefore, the appeal fails, The defendants' vendors purported to sell the entirety of the disputed plots to the defendants but as those vendors did not represent all the co-sharer proprietors, the plaintiffs or some of them are entitled to the share or shares which the vendors had no right to sell. As, however, the lower Appellate Court has found that under some informal arrangement the defendants' vendors were in separate possession of properties sold, I agree with the learned Subordinate Judge that the plaintiffs are not entitled to a decree for joint possession to the extent of the unsold shares and that their remedy lies in a suit for partition. The true rights of the parties for instance, the right of the defendants as against the vendor plaintiffs, can only be worked out in such a suit.
6. In my opinion the appeal fails and should be dismissed with costs.
7. I agree.