BALA KHANDAPA VAZIRDE Vs. SADASHIV HARI CHIVATE

JUDGEMENT

(1.) The plaintiff sued to recover possession of certain property on the basis of a sale-deed and a karar, namely, an agreement to reoonvey, passed on one and the same date. The sale-deed was registered, the karar was not. Both Courts have held that want of registration is fatal to the plaintiff's case. The two documents, Exh. 22, which is the deed of sale, and Exh. 23, the karar, must have been drafted to gether and executed at or about the same time. It does not make much difference whether cue was executed before the other. But it seems to me inevitable that these two documents must be considered as the evidence of one transaction. Still if the one document is evidence of a transaction complete in itself, it may be registered without the other. Therefore the first, which made the defendant the owner of the property, being registered, the defendant's title as owner is good.

(2.) Then the plaintiff lias to prove that he is entitled to get a reconveyance from the defendant, and he could only prove that by evidence, and unless Exh. 23 can be exhibited he must fail. He can only succeed if he can satisfy the Court that Exh. 23 was an entirely separate transaction from Exh. 22, since it will be conceded that if the defendant as owner of the property had, after the sale had been executed, agreed to re-convey the property to the plaintiff after a certain date, that might be a document which need not be registered. That was the view taken by this Court in Sayad Mir Gazi V/s. Miya Ali (1914) I.L.R. 38 Bom. 703; 10 Bom. L.R. 682. though in that case the two documents were simultaneously executed, and the Court came to the conclusion that the two must be treated as separate, ?o that the second document was nothing more than an ordinary agreement to sell. I should consider myself that that was a very extreme case, and that it should not be the policy of the Courts to recognise transactions of this kind, which are in effect mortgages, unless they are carried into effect by proper documents. If a party wishes to mortgage his property then he should do so by a deed of mortgage. If a document of sale is executed, and then at the same time or almost at the same time another document is taken from the purchaser, which gives rights to the vendor, contrary to the rights parted with in the sale-deed, then I think the second is a document which requires registration, because its effect is really to change the sale-deed into a mortgage, and such a transaction must be effected in the case of property of over Rs. 99 by a registered document. The difficulty is obvious when a party, many years after the sale-deed has been executed, seeks to enforce a document similar to the one in this case. In my opinion the decision of the lower Courts that this document Exh. 23 cannot be treated as a separate document entirely apart from the sale-deed, and, therefore, required registration was right. The appeal, therefore, will be dismissed with costs. Shah, J.

(3.) I agree.