KASHI KUNBI Vs. SUMER KUNBI

JUDGEMENT

(1.) WE think that the view of the law expressed by the learned Munsif in his judgment is correct. It appears that the parties were involved in litigation of Court of the Subordinate Judge of Benares. They compromised the suit filling a sulehnama dated the 2 March, 1892. In this sulehnama the rights of the parties in certain immovable property of the value of Rs. 100 and upwards were declared and the document, therefore, was compulsorily registrable in view of the provisions of Section 17 and 49 of the Registration Act. In the sulehnama it was provided that either party sold his share of the property, the subject-matter of the litigation, the other party should have a right to pre-empt. A decree was passed upon the compromise but that decree is silent as to fine existence of any pre- emptive right whatever. The present suit arises out of a claim brought by two of the parties to the former litigation to have a right to pre-empt under the provisions of this sulehnama established. The learned Munsif dismissed the suit on the ground that the document of the 2 March, 1892 not having been registered was not admissible in evidence and that the plaintiff could not, therefore, establish any right to pre-empt thereunder. For the view which he entertained, the learned Munsif referred to the rulings in Biraj Mohini Dassi v. Kedar Nath Karmakar 35 C. 1010 : 12 C.W.N. 854 : 8 C.L.J. 90 and in Patha Muthammal V/s. Esup Rawther 29 M. 365. These decisions support the view of the learned Munsif. On appeal the learned District Judge expressed some doubt upon the correctness of the rulings in question but held that he was bound by those rulings in the absence of any ruling to the contrary by this Court. He, therefore, affirmed the decision of the Court of first instance.

(2.) THE appeal now before us was preferred by the plaintiffs and the only ground of appeal is that the sulehnama (i.e., the agreement of the 2 March, 1892) did not require registration. That document undoubtedly declared the rights of the parties in immovable property of the value of Rs. 100 and upwards and was, therefore, comp(sic) registrable. But it is argued that the provision contained in it as to pre-emption was not required to be registered, and that inasmuch as a decree was passed determining the rights of the parties in the immovable property, the document was admissible in evidence to prove the right of pre- emption claimed, that, in other words, the document may be divided into two parts, one of which required and the other did not require registration within the meaning of the Registration Act. We think there is no force in this contention. Section 49 of the Registration Act provides that no document required by Section 17 to be registered shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property." THE sulehnama, in so far as it purported to create a right of pre-emption, was a transaction affecting property within the meaning of this section and, in our opinion, it was rightly held that as the document was not registered, no evidence of its contents could be given to establish a claim of pre-emption. In the unreported case of Musammnt Fatima Bibi V/s. Mirza Sadr Uddin Beg, First Appeal No. 57 of 1902, which was decided by a Bench of this Court, of which one of us was a member, on the 9 of March 1904, a similar question was dealt with. In that case a contention similar to the one which has been raised before us by the learned Vakil for the appellants was raised. In the judgment we find the following passage dealing with this contention: But turning to the decree of September 17 1892, we find that the only parts of the compromise incorporated in it are those in which consent is given to the passing of a decree for Rs. 24,375 with costs against the property of Tawajjul Husain. THE decree makes no further mention of the compromise and does not purport to incorporate it as part of the decree, or contain any direction that it is to be so incorporated or to be considered as forming part of the decree. It further follows that the portions of the compromise, not incorporated in the decree, must be considered to have no more effect than an agreement between the parties which has not been embodied in a decree. Such an agreement as we have here ought, under Section 17 of the Registration Act of 1877, to have been registered. Admittedly it has not been registered. We, therefore, hold that it is not admissible in evidence against the plaintiffs-appellants and does not bar this suit." This decision supports the judgments appealed from and is we think correct. For these reasons, therefore, we think that both the lower Courts were right in dismissing the plaintiff's claim, and we accordingly dismiss this appeal with costs including fees in this Court on the higher scale.