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Gungaram Ghose Sirdar Vs. Kalipodo Ghose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal661
AppellantGungaram Ghose Sirdar
RespondentKalipodo Ghose
Cases ReferredShib Chandra Chuckerbutty v. Joha Bux I.L.R.
Excerpt:
registration act (iii of 1677, section 50) - registration act (xvi of 1864)--registration, optional and compulsory--unregistered document of which registration was optional under act xvi of 1864. - .....must take effect against the conditional bill of sale of the month of september 1865 which is unregistered.7. it has been held by a pull bench of the allahabad high court in lachman das v. dip chand i.l.r. 2 all. 851 that 'in the case of a document executed while act viii of 1871 was in force, the registration of which under that act was optional, and which was not registered thereunder, and of a document executed after act iii of 1877 had come into force, the registration of which under that act was compulsory, and which was registered thereunder, both documents relating to the same property, under the provisions of section 50 of act iii of 1877, the registered document took effect as regards such property against the unregistered document, the provisions of section 6 of act i of.....
Judgment:

Mitter and Norris, JJ.

1. The plaintiff brought this suit to recover possession of the property in dispute under a bill of sale executed by defendant No. 6 on the 3rd Bhadro 1281. He was evicted by the defendant No. 1, who claimed a right in the property in dispute under a conditional bill of sale by the defendant No. 2 in the month of September 1865.

2. It is not disputed that the property in suit became the property of one Kasamuddi by purchase on the 27th May 1865. Kasamuddi sold it to defendant No. 2 in the month of August of the same year and, a few months later, that is to say, in the month of September, defendant No. 2 executed the conditional bill of sale in favour of the defendant No. 1, the respondent before us.

3. After having executed this conditional bill of sale, defendant No. 2, in the month of June 1867, sold the property in dispute to defendants Nos. 3, 4, and 5, and these defendants, in August 1874, sold it to the defendant No. 6, the immediate vendor of the plaintiff appellant.

4. The Munsif decreed the plaintiff's suit being of opinion that the conditional bill of sale of September 1865 upon which the defendant, respondent, relied, was not a genuine instrument. The Munsif found that the plaintiff's title as set out above was established to his satisfaction.

5. On appeal the Subordinate Judge has upheld the finding of the Munsif as regards the plaintiff's title; but he has come to a conclusion different from that of the Munsif as regards the conditional bill of sale in favour of the defendant, respondent. The Subordinate Judge is of opinion that the aforesaid document has been proved to his satisfaction. Having come to these conclusions he has dismissed the plaintiff's suit, inasmuch as the conditional bill of sale of the defendant No. 1 is of prior date to the conveyance in favour of the defendants 3, 4 and 5.

6. In this second appeal the only point that has been urged before us is that under Section 50 of the Registration Act of 1877, the plaintiff's conveyance must take effect against the conditional bill of sale of the month of September 1865 which is unregistered.

7. It has been held by a Pull Bench of the Allahabad High Court in Lachman Das v. Dip Chand I.L.R. 2 All. 851 that 'in the case of a document executed while Act VIII of 1871 was in force, the registration of which under that Act was optional, and which was not registered thereunder, and of a document executed after Act III of 1877 had come into force, the registration of which under that Act was compulsory, and which was registered thereunder, both documents relating to the same property, under the provisions of Section 50 of Act III of 1877, the registered document took effect as regards such property against the unregistered document, the provisions of Section 6 of Act I of 1868 notwithstanding.'

8. This case has been followed by this Court in Shib Chandra Chuckerbutty v. Joha Bux I.L.R. 7 Cal. 570 : 9 C.L.R. 224. Now, the only difference between the case before us and the case before the Allahabad High Court is, that in the former the unregistered document was executed at a time when the Registration Act of 1871 was in force; while in the case before us the unregistered document was executed when Act XVI of 1864 was in operation. But that is a non-essential difference because, according to the explanation to Section 50 of Act III of 1877, 'cases where Act XVI of 1864 or Act XX of 1866 was in force in the place and at the time in and at which such unregistered document was executed, 'unregistered' means not registered according to such Act, and, where the document is executed after the first day of July 1871, not registered under Act VIII of 1871 or this Act.' In this case therefore the defendant's mortgage deed having been executed when Act XVI of 1864 was in operation, the document in question is an 'unregistered document' within the meaning of Section 50 of Act III of 1877. No doubt, the words, 'if duly registered' means registered under the Act of 1877; and, in this case, the plaintiff's document was registered under that Act. It is therefore quite clear that under Section 50, the plaintiff's kobala must take effect against the unregistered document of the defendant No. 1.

9. In the course of the argument a doubt arose in our minds whether Section 50 would entitle the plaintiff to a decree in this case against the defendant No. 1, because the plaintiff is not claiming directly from the same vendor. From the facts of the case given at the outset of the judgment, it is clear that the plaintiff is claiming directly from defendant No. 6 who was the purchaser of this property from defendants Nos. 3, 4 and 5, and they purchased it from defendant No. 2. The document in favour of defendant No. 1 was executed by defendant No. 2.

10. But we do not think that under Section 50 it is necessary for a person who seeks the benefit of it to show that he is claiming from a common vendor. The section does not say so. All that it says is, that 'every document of the kind 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.' All that a person seeking the benefit of this section is required to prove is that his document is a document of the kind mentioned in the clause aforesaid; that it has been duly registered under the Act of 1877; and that it covers the same property as that covered by any unregistered document against which it is contended that his document shall take effect.

11. We therefore set-aside the judgment of the lower Appellate Court, and restore that of the Court of First Instance with costs in all the Courts.


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