SANDU VALJI Vs. BHIKCHAND SURAJMAL

JUDGEMENT

(1.) The point on the appeal is whether the plaintiff-appellants are entitled to treat Survey No. 76 as still subject to the mortgage of January 24, 1906. The respondents contend that as the result of a contract arrived at in 1908 it was agreed that they should acquire the equity of redemption in Survey No. 76 but should re-convey the other property originally comprised in the mortgage, viz., Survey No. 894.

(2.) The controversy has mainly turned on the document of March 23, 1908, Exhibit No 34, which is alleged to evidence this agreement. The appellants contend that it is inadmissible in evidence for want of registration, and alternatively, that, on the true construction of it, it only amounted to putting the defendants in possession of one of the plots whereas up to that date they had not obtained possession of either plot.

(3.) As to its admissibility in evidence, one main question is whether the document amounts to a transfer of the equity of redemption, or whether on its true construction it only amounts to a contract to transfer the equity. The Full Bench decision in Bapu V/s. Kashinath (1916) 19 Bom. L.R. 100 F.B. establishes that in this Court a contract for sale which is capable of specific performance may be set up in answer to a claim for possession by a vendor. And Venkatesh V/s. Mallappa (1921) 24 Bom. L.R. 242 shows that where a purchaser has obtained possession, it is immaterial that more than three years have elapsed since the date for completion of the original contract. Further, the Indian Registration Act itself draws a clear distinction between what I will f call conveyances, which require registration, and mere agreements which do not. Broadly speaking, this may be described J as the difference between Sub-section (1)(b) and Sub-section (2)(v) of Section 17 of the Indian Registration Act. Accordingly it was decided by Sir Charles Sargent and Mr. Justice Telang in Shridhar Ballal Kelkar V/s. Chintaman Sadashiv Mehendale (1893) I.L.R. 18 Bom. 396 that an agreement to sell an equity of redemption need not be registered.