RATTAN CHAND Vs. BHAGIRATH RAM

JUDGEMENT

(1.) ON the 26th of February 1946 defendants Nos. 1 and 3 sold certain land for Rs. 3,000/- to the plaintiffs. Rs. 200/- were paid to the vendors in advance and it is stated that a report with regard to the sale was made to the Patwari (Exhibit pw1/1 ). On the same date a document was executed. Exhibit P. 5. It was stated, inter alia, in this document, which was in the form of a receipt, that the possession had been given to the vendees after a sale having been effected in their favour and that a sum of Rs. 200/- had been paid by way of earnest money out of the sale consideration and the balance of Rs. 2,800/- would be paid at the time of mutation. Later on the vendors got a better offer and wanted to sell the same land to defendant No. 4. In March 1946 the plaintiffs actually sent notices to the vendors as well as to defendant No. 4 apprising them of the agreement in their favour. On the 20th of March 1946 the land was sold for Rs. 4,500/- Exhibit D. 1, to defendant No. 4. On 1st March 1948 the suit for possession was filed by the plaintiffs on the basis of the sale and in the alternative for a decree for Rs. 1,000/- as damages and Rs. 200/- by way of refund of the earnest money. The trial Court decreed the suit for Rs. 1,200/-, but the lower appellate Court came to the conclusion that the document, Exhibit P. 5, was compulsorily registrable and therefore inadmissible in evidence. For that reason the damages in the sum of Rs. 1,000/- were disallowed, but the decree for refund of earnest money to the extent of Rs. 200/- was maintained. The plaintiffs have come up to this Court being aggrieved by the decision of the lower appellate Court.

(2.) IT seems to me that the document in question has not been correctly read and construed by the lower appellate Court. The sale was an oral one and the document, Exhibit P. 5, contained recital of the factum of sale and of possession having been given in pursuance thereof on that day. Viewed in that light it would not require registration if it contained recital of a past transaction. But even if it does not contain recital of a past transaction, the document would be admissible for a collateral purpose under Section 49 of the Indian Registration Act with regard to the plaintiff's claim for damages. The execution of this document was admitted by the counsel for the defendants on 10-8-1948. It is true that Jai Lal, J. in Bahawal v. Amrik Singh, AIR 1932 Lah 655 (A), has held that a suit to recover damages for breach of an agreement relating to immovable property, which agreement is compulsorily registrable, is a suit which affects immovable property and is not covered by the exception. Such a document cannot be used for collateral purposes because a collateral purpose means purpose which excludes all reference to the contract relating to the immovable property. In this judgment the learned Judge dissented from a decision of the Full Bench of the Madras High Court in Raja of Venkatagiri v. Narayana, ILR 17 Mad 456 (B), and followed the observations of a single Judge of the Calcutta high Court in Ramjoo Mahomed v. Hari Das Mullick, AIR 1925 Cal. 1087 (C ). He further observed that in a subsequent decision of the Madras High Court in narayanan Chetty v. Subbaya Servai, ILR 35 Mad 63 (D), that Court had expressed some doubt with regard to the correctness of the view expressed by the previous Full Bench. With all respect, it seems to me that the view adopted by the full Bench in ILR 17 Mad 456 (B) is correct. In this matter I am fortified by the decision of their Lordships of the Privy Council in Official Liquidator v. Burjorjee, air 1932 PC 118 (E ). The ratio of this decision is that an unregistered document admitted in proceedings relating to a personal claim and not affecting immovable property may he taken into consideration. It was observed by their Lordships that there was nothing in section 49 of the Indian Registration Act which compelled the Court to take notice of the non-registration of an admitted document unless at any rate such document must, if treated as effective, be the foundation of a judgment affecting immovable property comprised in such document. In the Privy Council case also the agreement had been admitted as in the present case, and the question was of damages for breach of a contract. In view of all this, where the unregistered document does not affect, in any way, the immovable property comprised in it, there is no bar to founding a claim for damages on such an admitted document.

(3.) IN the result this appeal succeeds and is allowed, and the judgment of the lower appellate Court set aside and that of the trial Court restored, As there is no appearance on behalf of the opposite party, there will be no order as to costs in this Court.