1. In this case the plaintiff purchased certain immoveable property on the 26th Aughran 1280 (10th December 1873), and his conveyance was registered. He alleged in his plaint that he got possession of the property after the execution of his 'conveyance. The Munsif was of opinion that he got possession of part only of the property; but the Subordinate Judge does not support the Munsif's finding, even to this extent. The defendant claims the same property under two unregistered kobalas, dated respectively the 5th and 15th Aughran 1279 (19th and 29th November 1872), and she alleges that she obtained possession of the property upon the execution of these conveyances, and has been in possession ever since. The amount of consideration for each of these instruments is less than Rs. 100. Registration was therefore optional; and the instruments themselves, though not registered, are admissible in evidence to prove the defendant's title.
2. The Judge of the lower Appellate Court has found the following facts, viz., that the defendant's two unregistered conveyances have been satisfactorily proved; and that it has also been proved that she obtained possession of the property upon the execution of, and under, these conveyances. He thinks it very probable that the defendant's vendors, after selling the property to her, got up the subsequent registered conveyance (which purports to convey to the father-in-law of one of the vendors) for the object of committing fraud. He does not, however, find fraud as a fact, nor does he find that the purchaser under the subsequent conveyance had notice of the previous unregistered conveyances. The case does not, therefore, come within the principle that, notwithstanding the stringent provisions of the Registration Act, a person who claims under a registered instrument is estopped in equity from saying that this instrument shall prevail against a prior unregistered instrument, if at the time when he took his registered instrument he knew of the existence of the prior unregistered instrument. See the remarks of Lord Selborne in the case of The Agra Bank, Limited, v. Barry L. E., 7 E. & Ir. Ap., 135. This case was decided upon the Statute 6 Anne c. 2, Ir., the fourth section of which provides, that all registered deeds shall be taken 'as good and effectual in law and equity according to the priority of time of registering' and the fifth section provides, that 'every deed not registered shall be deemed and adjudged as fraudulent and void,' not only as against a registered deed, but as against all creditors. 'Any person,' said Lord Chancellor Cairns, in the case just quoted, 'reading over that Act of Parliament would perhaps, in the first instance, conclude, as has often been said, that it was an Act absolutely decisive of priority under all circumstances; and enacting that, under every circumstances that could be supposed, the deed first registered was to take precedence of a deed which, although it might be executed before, was not registered till afterwards. But by decisions which have now, as it seems to me, well established the law, and which it would not be, I think, expedient in any way now to call in question, it has been settled that, notwithstanding the apparent stringency of the words contained in this Act of Parliament, still if a person in Ireland registers deed, and if, at the time he registers the deed, he himself, or an agent whose knowledge is the knowledge of his principal, has notice of an earlier deed, which though executed is not registered, the registration which he actually effects will not give him priority over that earlier deed. And I take the explanation of those decisions to be that which was given by Lord King in the case of Blades v. Blades upwards of one hundred and fifty-years ago, that, inasmuch as the object of the Statute is to take care, that by the fact of deeds being placed upon a register, those who come to register a subsequent deed shall be informed of the earlier title, the end and object of the Statute is accomplished, if the person coming to register a deed has aliunde, and not by means of the register, notice of a deed affecting the property executed before his own. In that case the notoriety which it was the object of the Statute to secure, is effected in a different way but effected as absolutely in respect of the person who thus comes to register, as if he had found upon the register notice of the earlier deed.' The same principle has been adopted in cases concerned with property in England, see Le Neve v. Le Neve Amb., 436, Davis v. Strathmore 16 Ves., 419, Willis v. Brown 10 Sim., 127, Rolland v. Hart L. R. 6 Chan., 678, and Bradley v. Riches L. R., 9 Chan. Div., 189, and has also been applied to instruments registered under the Indian Registration Act, see Sheikh Rahmatulla v. Sheikh Sariutullah Kagchi 1 B. L. R., F. B., 82, Waman Bam Chandra v. Dhondiba Krishnaji I. L. R., 4 Bom., 127, and Fuzludeen Khan v. Fakir Mahomed Khan I. L. R., 5 Cal. 342. As I have already observed, the present case does not fall within the principle of these decisions, which are nevertheless valuable to show, that however strict the language of Registration Acts may be, they will not be construed so as to enable their provisions to subserve fraud.
3. Upon the findings of fact abovementioned, the Subordinate Judge held, that the defendant had acquired a good and valid title in the property by her unregistered conveyance, which was accompanied by possession, and that the plaintiff's registered conveyance cannot prevail against this title. It is now contended in appeal, that this decision is wrong, and that, under the provisions of Section 50 of the Registration Act (III of 1877), the plaintiff is entitled to succeed upon the strength of his registered conveyance.
4. Section 50 is as follows:-'Every document of the kinds mentioned in Clauses (a), (b). (c). and (d) of Section 17, and Clauses (a) and (b) of Section 18, shall, if duly registered, take effect, as regards the property comprised therein, against every unregistered document relating to the same property.' What is the meaning of the words take effect' in this section? Do they moan 'have effect to pass the property and give a good title to it,' even although the vendor had neither property nor title when he executed the registered conveyance, or that which is more reasonable, take effect in those cases in which effect can lie given by reason of the property being still in the hands of the vendor
5. If A, pretending to be the owner of property which really belongs to B. and in which A never had any interest, convoy that property by a registered document to X, it, will scarcely he contended that X, by this registered conveyance, acquires any title to such property. Now, if A sells the same property to C on the 1st January 1880 by an instrument which the law does not require to be registered, and which, therefore, although unregistered, is admissible in evidence to prove the transfer and the title of the transferree; and if this legal conveyance, made in legal form, is further followed immediately by delivers of the possession of the property, to C, upon what principle can it be reasonably contended that A has, on the 1st February of the same year, any right which ho can convey to X. If A has no interest to convey, the fact of this second conveyance being registered ought not to give X any title to the property in the case last put any more than in the case first put. But if is contended that there are decisions of this Court wince leave the question no longer an open one, and that, upon these decision. X has a good title, a title which will prevail against C. If the question is concluded by decision, there is an end of the matter, but I apprehend that an examination of all the cases will show that the result is in favour of, not X. but C. Before proceeding to examine the cases, it will he well to define exactly the case with which we have to deal
6. (a) It is not a case in Which it is contended that the subsequent registered purchases is estopped, because he had notice of the prior unregistered conveyance.
7. (b) It is a case in which the vendor first sold by an unregistered conveyance and gave the first vendee possession, and had no possession to give to the second vendee.
8. (c) Registration of the prior conveyance was optional, not compulsory, and therefore the prior vendee can produce and use his unregistered conveyance to prove this title.
9. (d) It is in fact a case of possession and a prior unregistered conveyance, registration of which was optional, versus a subsequent registered conveyance and nothing more.
10. 1. The first case is that of Girija Singh v. Giridhari Singh 1 B. L. H., A. C., 14. Here the plaintiff claimed under a registered kobala, dated the 29th October 1866. The defendant claimed under an unregistered kobala of May 1855, alleging that he had been in possession since the execution of this prior unregistered kobala. This possession was found as a fact, and it was held that possession under an unregistered kobala created a title which could not be defeated by a subsequent registered instrument. Macpherson, J., remarked, that the transfer of the property to the defendant was complete, and nothing was wanting to perfect it according to the law then in force; and that Section 50 of the then Registration Act could not be construed as vitiating all titles acquired prior to the passing of this Act. Now this is a distinct authority that a registered conveyance and possession taken thereunder are a complete transfer of the vendor's interest so as to leave him nothing which he can subsequently convey. But it is not exactly on all fours with the present case, because the prior unregistered instrument was executed before the new Registration Act came into operation. The Madras High Court have decided to the same effect in Tirumala v. Lakshmi I. L. R., 2 Mad., 147.
11. 2. In the case of Syud Furzund Ally v. Syud Abdool Ruhim 4 W. R., 30 it was decided that a kobala registered under the 'provisions of Act XIX of 1843 has no priority over an unregistered kobala under which enjoyment has actually taken place. Section 2, Act XIX of 1843 enacted as follows:---'Every deed of sale or gift of lands, houses, or other real property, a memorial of which has been or shall be duly registered according to law, shall, provided its authenticity is established to the satisfaction of the Court, invalidate any other deed of sale or gift for the same property which has not been registered, and whether such second or other deed shall have been executed prior or subsequent to the registered deed.' Observation may be made upon the distinction between the terms 'shall invalidate' used in this section, and the words of the present law 'shall take effect against.' In connection with this Act the case of Maharaja Maheswar Bax Sing Bahadur v. Bhikha Chowdry B. L. R., F. B. Rule, 403 may be noticed, in which it was decided, in accordance with the previous decisions of the Sadr Court, that a registered deed of sale had no priority over an unregistered mortgage-deed of an earlier date; and see the remarks upon this case in Prahlad Misser v. Udit Narayan Singh 1 B. L. R., A. C., 197.
12. 3. In the case of Ram Chand Koomar v. Modhoo Soodun Muzoomdar 7 W. R., Civ. Rule, 119 the plaintiff claimed under a registered deed of sale, dated the 13th Assar 1272, that is, 24th June 1865. The defendant claimed under a subsequent unregistered deed, dated the 3rd Pous 1272, that is, 19th December 1865. Both the instruments were for a sum less than rupees one hundred; no question of possession was here raised, and the sole question was, whether the registered deed was fraudulently registered. This case is not in point, more especially as the registered deed was prior in point of time.
13. 4. In the case of Gooroo Dass Dan v. Kooshoom Koomaree 9 W. R., 547 the plaintiff's (appellant's) deed was not registered, but was prior in date to the defendant's registered deed. The value of the property conveyed by each was less than one hundred rupees. The possession of the plaintiff (appellant) under his unregistered deed was not found by the lower Appellate Court: see the judgment of Kemp, J. This case is also not in point, not being a case of possession under a prior unregistered deed versus a subsequent registered deed.
14. 5. In Gobind Chunder Boy v. Poorno Chunder Sein 10 W. R., 36, the plaintiff purchased on the 4th Pous 1272, but did not register. The defendant claimed under a prior registered lease from the same person, and dated the 17th Aughran 1272; nothing was said as to the values of the property or as to possession. Effect was given to the prior registered lease. This case also is not in point.
15. 6. In the case of Soodharam Bhuttacharjee v. Odhoy Chunder Bundopadhya 10 B. L. R., 380 the plaintiff sued to recover 99 rupees due to him under an unregistered mortgage-bond, dated the 11th Jeyt 1266 (23rd May 1859), by which a tank was pledged as security for the repayment of the loan. Another person intervened in the suit, claiming to be in possession of the tank under a subsequent registered deed of sale, dated the 5th Srabun 1274 (19th July 1867) from the same person. Section 50 of the Registration Act, XX of 1856, was held applicable, and the subsequent registered instrument was held to prevail. Here the possession accompanied the registered instrument; so that this case also is not in point.
16. 7. In the case of Salim Shaikh v. Boidonath Ghuttuck 12 W. R., 217; s.c., 3 B. L. R., 312, the plaintiff claimed under a registered patta, dated the 16th of Bysack 1275) 12th April 1867). The defendants claimed under a verbal grant. This case also is-not in point, but the observations of Markby, J., as to the effect of possession are important.
17. 8. In the case of Gouree Kant Roy v. Gridhur Roy 12 W. R., 456 the plaintiff's kobala was dated the 6th Pous 1272, and was registered. The defendants claimed under a prior unregistered instrument of the 25th Bhadro 1272; the value of the property does not appear. The question of possession was not decided. The only point which appears to have been taken was, whether the subsequent purchaser had knowledge of the previous sale. Reference was made to the last case, and the Judge below was authorized to re-try the whole question. This case is also not in point, as it appears to have been decided with reference to the principle of notice to which I have already alluded.
18. 9. In the case of Nursingh Poorkaet v. Bikrum Majee 14 W. R., 250 the plaintiff sought to recover possession under a patta granted by a female and registered. The defendant claimed under a prior lease granted by the female's husband. The defendant's lease was one which, under the Registration Act, should have been, but was not, registered. The defendant alleged possession. The last case was referred to, and the case' was remanded for re-trial of the question whether the defendant had got a lease from the husband of the widow, and possession under it. In this case the defendant's patta was not an instrument of which the registration was optional, but an instrument which should have been registered, but was not so registered. It would, therefore, have been inadmissible in evidence to prove the defendant's title.
19. 10. In the case of Narain Doss v. Gungaram Dhara 20 W. R., 287 the plaintiff claimed under' a registered kobala dated Cheit 1277, and the defendant claimed under a prior unregistered kobola dated Srabun 1276, the the registration of which was not compulsory, alleging that he had obtained possession thereunder. Glover, J., sitting alone, remanded the case to have this allegation of possession tried, remarking that Section 50 of Act XX of 1856 referred to cases where the purchase had not 'been completed by possession. In support of this view, he quoted the last case, but this appears to have been done under a misconception of the facts of that case.
20. 11. In the case of Shaikh Ryasutalla v. Doorga Churn Pal 15 B. L. R., 294 the plaintiff sued to enforce his lien under an unregistered mortgage-bond for Rs. 95, dated the 19th August 1870. One defendant resisted as to part of the land, claiming it under a subsequent registered kobala for Rs. 300, dated the 18th June 1872. The registration of this latter kobala was compulsory, and the only point decided in the case was that Section 50(sic) Act XX cf 1866, applied not to the case of a registered instrument of which the registration was compulsory as against an unregistered instrument of which the registration was optional, but only to the case of a registered instrument of which registration was optional as against an unregistered instrument of which registration was also optional. This anomaly in the law was removed in the next Registration Act. This case is also not in point.
21. 12. In the unreported case of Indro Narain Bed v. Foolmani Bewah Sp. Ap., No. 1122 of 1876 the plaintiff claimed under a registered kobala, dated the 23rd Bysakh 1280, which included several plots. The defendant alleged title to two of these plots by a prior unregistered kobala, dated the 11th Jeyt 1276, alleging that possession had been given and held thereunder. This allegation of possession was found to be true by the lower Appellate Court. Registration of both kobalas was optional. Markby and Prinsep, JJ., held, that the plaintiff's registered kobala could not give him a title against the defendant's unregistered kobala and possession thereunder. Markby, J., said:---'The Act which governs the question as between these parties is Act VIII of 1871. Upon the previous Act XX of 1866, as also upon Act XVI of 1864, and Act XIX of 1843, it had, in my opinion, been held by, at any rate, a preponderance of authority, that the provisions of these Acts, so far as they invalidate title not duly registered, had no application where the-party who had purchased had been put into possession.' This is a case directly in point. I am bound, however, to say that the learned Judge refers to his judgment in case No. 7 above as containing the authorities, but all the cases there cited, as far as I have been able to test them, were decided upon Act XIX of 1843; and I have been unable to find that in any of these cases both instruments were governed by any of the new Registration Acts.
22. 13. In the case of Fuzluddeen Khan v. Fakir Mahomed Khan I. L. R. 5 Cal., 336, a certain person, whom I shall call A, was a tenant of a jote under another person X. A purchased from X by an unregistered kobala, dated the 2nd Pous 1282 (16th December 1875). B purchased from X by a registered kobala of subsequent date, 12th March 1876. The value of the property was less than one hundred rupees. A kabuliat had been executed by A in favour of X's father, and A had paid rent under this kabuliat to X. As to this kabuliat, Pontifex, J., says:---'The defendant (respondent) sets up his possession as sufficient notice to the plaintiff of the defendant's alleged prior purchase. No other equity in his own favour, or fraud on the part of the plaintiff is alleged or proved. In many cases possession not properly accounted for may be a very material fact. But in the present case, the defendant had originally been a tenant of the jotedar, the common vendor of both parties, and his possession was equally consistent with the continuance of such tenancy as with his alleged purchase. Moreover, it has been found as a fact by the Officiating Judge of the Court below, that the defendant left the kabuliat of his tenancy in the hands of the Common vendor. He ought, if and when he made his alleged purchase, to have insisted upon the kabuliat being given up to him. By not having done so, he in fact helped the vendor to commit a fraud upon the plaintiff, for the production of this kabuliat to the plaintiff would be sufficient to satisfy him that the defendant's occupation was merely that of a tenant.' This was a very important feature in this case, which, but for this essential difference, would be on all fours with the case now before us. That a person who allows the indicia of ownership to remain in the hands of another person will be estopped by such conduct from afterwards saying, as against an innocent purchaser for valuable consideration without notice, that such person could not dispose .of the property, is a preposition established by numerous cases: see for example the remarks of their Lordships of the Privy Council in Ram Coomar Koondoo v. McQueen 11 B. L. R., 53, and see the case of Bhugwan Doss v. Upooch Singh 10 W. R., 185. But for this point of difference, in all probability this case would have been referred to a Full Bench, regard being had to case No. 12, which is referred to and dissented from.
23. 14. In the case of Panha Khumaji v. Fatta Upaji 12 Bom. H. C. Rep., 179 the plaintiff claimed under an unregistered sale-certificate. The defendant claimed under a subsequent registered sale-certificate, and was in possession. The Registration of both was optional, and it was held that the defendant had a better title. But here again possession accompanied the registered and not the unregistered instrument. So that this ease also is not in point.
24. 15. In Balaram Nem Chand v. Appavalad Dulu, & c. 9 Bom. H. C. Rep., 121 it was held, upon Clause 1, Section 6 of the Bombay Regulation IX of 1827, that possession and an unregistered deed of sale left nothing in the vendor which he could afterwards sell or mortgage, and that a person claiming under a subsequent registered mortgage-deed could not succeed. This agrees with the state of the old law on this side of India.
25. 16. The case of Manmalvalad Suratmal and Dasrathvalad Narayan (9 Bom. H. C. Rep., 147) is directly in point, and was decided on the new Registration Acts. The Bombay High Court here decided that a prior unregistered deed of sale, registration of which was optional, followed by possession, created a good title, which could not be defeated by a subsequent registered sale-certificate.
26. 17. In Sheo Dyal Aheer v. Gool Mahomed Khan 2 N. W. P. H. C. Rep., 296 a person claiming under a registered deed of sale executed in 1867 was held not to have a better title than a conditional mortgagee in possession under an unregistered deed of 1853,---i.e., executed before the new Registration Acts.
27. The result of the examination of these seventeen cases is then as follows:---Nine, viz., Nos. 3, 4, 5, 6, 7, 8, 9, 11, and 14, are not in point, and any argument based on them fails; four, viz., Nos. 1, 2, 15, and 17, are indirectly in support of the unregistered instrument followed by possession, inasmuch as, on both sides of India, it has been decided that it was not the policy of the old Registration Acts to allow such a title to be defeated by a bare registered instrument. Three cases, viz., Nos. 10, 12, and 16, are directly in support of the unregistered instrument of which registration could have been effected under the new Acts, But was not compulsory, such instrument being followed by possession. One case, No. 13, is indirectly against the unregistered instrument and possession, and in favour of the registered instrument, while in no single instance has it been held, that a person claiming under a later registered conveyance has a better title than a person claiming under a prior unregistered conveyance, the registration of which was optional, and which was followed by undoubted delivery of possession.
28. There is an argument based upon the existence of the words 'unless where the agreement or declaration has been accompanied or followed by delivery of possession' in Section 48, which gives registered documents priority over oral agreements; and the non-existence of these words in Section 50. I venture to think that there is a very simple solution of the difficulty raised by this argument. These words did not exist in either section, as these sections stood in the Act XX of 1866. Notwithstanding their absence, when Section 48 [Section 48:---All documents, not testamentary, duly registered under this Act, and relating to any property whether moveable or immoveable, shall take effect against any oral agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possession.] came to be construed in the case of Salim Shaikh v. Boidonath Ghuttuck 12 W. R., 217; S. C., 3 B. L. R., 212, decided in July 1869, it was held that the provisions of this section had no application when possession had been given. The Legislature, when amending the Act in 1871, adopted this construction, and added the above words in Section 48 of Act VIII of 1871. No similar question had been raised up to that time upon Section 50. Case No. 10 was decided in July 1873; case No. 12 in August 1877, and was never reported; and case No. 16 in May 1872. It may be said that the Legislature had Nos. 10 and 16 in the published reports when the Act III of 1877 was passed, and yet the words abovementioned were not inserted in the section of this Act. To this it may be replied that case No. 10 was the decision of a single Judge only, and No. 16 may have escaped observation; that the legislature had in 1871 ratified and approved the construction put upon Section 48; and a similar construction is therefore rightly put upon Section 50.
29. The object of the new Registration Acts is to prevent fraud. It ought to be construed so as to promote this object. If we decide that a person who has sold land by a legal conveyance and has parted with the possession, can again sell, and by registering the second conveyance carl destroy the first title and give a good title to the second purchaser, we enable the law to be used for the promotion, not the prevention, of fraud. Until the purchaser under the unregistered instrument has been twelve years in possession, his vendor may defraud him of that which he has honestly bought and paid for.
30. In giving effect to the prior unregistered conveyance and possession, there is no real hardship done to the later registered purchaser, who, if he has used ordinary precaution and had not been misled by the conduct of the first purchaser as in case No. 13, would have been able to discover that his vendor had no possession to give him.
31. Whether a bare conveyance by a person not in possession, and who cannot therefore put his vendee in possession, confers any title in this country, is a question as to which there has been some difference of opinion and some discussion. See the following cases:---Raja Sahib Perhlad Sein v. Baboo Budhoo Singh 12 Moore's I. A., 275, Ranee Bhobo Soondree Dasseah v. Issur Chunder Dutt 11 B. L. R., 36 S. C. 18; W. R. 140, Tarn Soondaree Chowdhrain v. The Collector of Mymensingh 13 B. L. R., 501; S. C. 20 W. R., 446, Ram Khelawan Singh v. Mussmmat Audh Koer (21 W. R., 101), Kuchu Bayaji v. Kachoba Vithola 10 Bom. H. C. R. 491, Gunga Hurry Nundee v. Raghub Ram Nundee 14 B. L. 309; S. C. 23 W. R., 131, and Lalubhai Surchand v. Bai Amrit I. L. R., 2 Bom. 301. The result of these cases appears to be that delivery of possession of the property sold is essential to complete the title of the vendee; and that a bill of sale by a person out of possession does not take effect as a conveyance in presenti, and is merely evidence of a contract to be performed in future.
32. The effect of applying this principle is, that the unregistered purchaser obtained a complete title when possession was delivered to him; but the registered purchaser never obtained a complete title, and has in fact no title to enforce. It may well be that, in view of these cases, the Legislature thought it unnecessary to and the words already referred to in Section 50 of Act III of 1877.
33. It may be observed, although it cannot be used as an argument for the decision of this case, that, in the revised draft of The Transfer of Property Bill, published in the Gazette of India of the 26th March last, 'sale' is denned as 'the transfer of ownership, &c.;,' and such transfer, in the case of tangible immoveable property of a value less than one hundred rupees, may be made either by a registered assurance or by delivery of the property, such delivery being said to take place when the seller places the buyer in possession (Section 54). This is practically the state of the law at the present moment.
34. The conclusion to which I am led by authority and by my own examination of the subject is, that a bare conveyance, though registered, does not give the person claiming under it a better title than a person in possession under an unregistered conveyance, such possession having been delivered in order to complete the title created by the unregistered conveyance, and such unregistered conveyance being admissible in evidence to prove that title.
35. I think, therefore, that this appeal must be dismissed with costs.
36. It appears to me that this case is on all fours with Indro Narain Bal v. Foolmani Bewah Sp. Ap., No. 1122 of 1876 decided by Mr. Justice Markby and myself on the 20th August 1877, the decision of which has not been reported. Since the decision of that case, I have had another opportunity of considering this point in a case which was heard by me and two other learned Judges of this Court last week, and I am confirmed in the opinion which I then entertained, that one who holds under an unregistered deed of sale the registration of which is not compulsory, and is in possession of the property conveyed, has a superior title to one who sets up a registered conveyance of a later date unaccompanied by possession. The second purchaser presumedly has notice of the title of the first purchaser from the fact of possession having been given. I therefore concur in dismissing this appeal with costs.