TRIBHOVAN HARGOVAN Vs. SHANKAR DESAI

JUDGEMENT

(1.) This was a suit brought by the appellant for an injunction against the defendant- respondent restraining him from locking the northern door of the plaintiff's house and for possession of the open space or gabhan and the chowk to the north of the said house. He alleged that the house with the gabhan and the chowk had belonged to one Azamkhan who had sold them on February 22, 1938, to one Husein who had sold them to him on May 4, 1938, both the sale-deeds being registered. The defendant contended that the gabhan and the chowk had been sold to him for Rs. 75 by an unregistered sale-deed dated May 24, 1936, and that he had been in possession as their absolute owner since that date and that since then the northern door of the plaintiff's house had been kept locked by him from outside.

(2.) The trial Court held that the plaintiff had failed to prove his predecessor's title at the date of his sale-deed and that the defendant had proved his sale-deed and ownership of the suit properties. Accordingly, it dismissed the suit. Though under Section 54 of the Transfer of Property Act, 1882, the defendant's sale-deed, exhibit 47, should have been a registered document and therefore under Section 49 of the Indian Registration Act, 1908, it was inadmissible as evidence of the sale transaction, the trial Court relied on the fact that Section 54 of the Transfer of Property Act provides for two modes of transfer, one of which was delivery of possession, and it further relied on the proviso to Section 49 of the Indian Registration Act and held that exhibit 47 could be received as evidence of part-performance on the defendant's part of the contract between him and his vendor. In the result it held that the defendant's title was sufficiently proved.

(3.) The lower appellate Court held that the evidence showed that the defendant had been in possession since 1936, the date of his sale transaction, and it followed the decision in Gunga Narain Gope V/s. Kali Churn Goalu (1894) I.L.R. 22 Cal. 179 that if an unregistered sale-deed of a value less than Rs. 100 was accompanied by the delivery of the property, the sale would be effective and not rendered nugatory by the unregistered deed. It held, as the plaintiff had no notice of any defence based on the doctrine of part-performance, that the defendant could not rely on such defence. It further held that under the proviso to Sec. 49 of the Indian Registration Act the unregistered sale-deed could be used as evidence of a collateral transaction not required to be effected by a registered instrument; and, following Varada Pillai V/s. Jeevarathnammal (1919) I.L.R. 43 Mad. 244 it found that the defendant had been in possession since 1936 in his own right and that the evidence sufficed to show that the defendant had purchased the properties in suit in 1936 for Rs. 75 from Azamkhan. Accordingly, it dismissed the appeal.