SATINDRA NATH CHOUDHURY Vs. JATINDRA NATH CHOUDHURY

JUDGEMENT

(1.) ON February 17, 1915, one Rai Hari Charan Choudhury,,. a rich land-owner of Nakipur in the Presidency of Bengal, died leaving him surviving a widow Katyayani Debi, and two sons Rai Satindra Nath Choudhury and Rai Jatindra Nath Choudhury. For about six years the sons with their mother lived together amicably, and jointly managed and owned the estate left by the deceased. In March, 1921, they effected partition of the joint estate ; and, while the immovable property was divided equally between the sons, the mother agreed to receive, in lieu of her share in the inheritance, an annuity of Rs. 12,000 from each of her sons during her life-time. The deed of partition, which was executed and registered on March 18, 1921, contained, inter alia, a promise by the sons to pay the annuity in two instalments, and interest thereon at one per cent, per mensem, in the event of failure to pay the money on the due date. As a security for the regular payment of the money, each son created in favour of the mother a charge for the annuity on one of the properties allotted to him on partition and specified in the deed ; and authorised her to realise the amount due to her from that property, if he committed a default in payment.

(2.) IT appears that the elder son did not make any payment to the lady, with the result that in July, 1922, he owed to her a large sum of money in respect of three instalments and interest thereon. On July 22, 1922, she transferred to the younger son her claim to recover the money, which amounted to Rs. 19,288, with " all the right, title and interest" in respect of that debt, and with the right to recover interest thereon. The deed of transfer was registered on July; 26, 1922 ; and it was on the strength of that document that the transferee commenced, on June 13, 1927, the action which has given rise to the present appeal. He claimed to recover from his elder brother the aforesaid sum and interest at twelve per cent, per annum amounting to Rs. 10,596. He sought to enforce the claim against the property which was specifically charged with the payment of the annuity, and to realise the deficiency, if any, from the other properties of the defendant.

(3.) THIS finding cannot be seriously contested ; but it is urged that, as the deed of gift was entered, not in Book 1 which, as prescribed by Section 51 of the Indian Registration Act, XVI of 1908, is a register of non-testamentary documents relating to immovable property, but in Book 4 which is a miscellaneous register for entering documents which do not relate to immovable property, its registration is invalid in so far as the transfer of the security-is concerned. In support of his contention the learned counsel for the appellant has referred to the judgment of the Calcutta High Court in Indra Bibi v. Jam Sirdar Ahiri (1907) I. L. R. 35 Cal. 845; but the contrary view has been expressed by the Bombay High Court in Parasharampant v. Rama (1909) I. L. R. 34 Bom. 202 : S. C 11 Bom. L. R. 1321 and by the Madras High Court in Subbalakshmi Ammal v. Narasimiah (1927) 52 M. L. J. 482.