UMESH CHANDRA HALDAR Vs. UMESH CHANDRA BAG

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff for redemption of a usufructuary mortgage, dated the 20th Ashar 1266, by one Nobin Bag, the predecessor of defendants Nos. 5 and 6 in favour of defendant No. 1 for Rs. 75. The plaintiff is the purchaser of the same land from the heirs of Nobin Bag and his purchase was a registered purchase, dated 14th Ashar 1316, corresponding to 20th June 1909, for Rs. 600, keeping Rs. 75 in hand for payment of the mortgage. The defence was that on the 7 th Chaitra 1283 corresponding to the 19th March 1877, Nobin Bag had sold the equity of redemption to defendant No. 1 for Rs. 130 and, therefore, there was nothing to redeem.

(2.) The first Court held that the alleged sale to defendant No. 1 was not proved. The lower Appellate Court held that the sale is genuine though it was made by an unregistered document and that being before the Transfer of Property Act was enacted, it would not be compulsorily registrable. He also disagrees with the Munsif who held that the redemption by defendant No. 1 was purely gratuitous and the act of a stranger, and he, therefore, obviously held that the defendant had the right to subrogate. He did not go into the question of notice. But on the view we take of the case, it will not be necessary to remand the case for inquiry upon this point as the facts which govern the law are admitted.

(3.) The first point taken in appeal by the plaintiff was that the deed was compulsorily registrable because the defendant admits that he paid Rs. 130. Had the Transfer of Property Act been in force at the time, there can be no doubt that it would have been compulsorily registrable because no transfer of property worth over Rs. 100 could be made except by a registered document. But the Registration Act of 1871, by which this case is governed, merely enacts that a document which purports to convey property of the value of over Rs. 103 must be registered and the parties in this case set out the value of the property in the document as Rs. 99. The document, therefore, on the face of it was not compulsorily registrable and there is, therefore, nothing in the first point.