CHANDRASHANKAR PRANSHANKAR Vs. BAI MAGAN

JUDGEMENT

(1.) This suit was filed by the plaintiffs to obtain possession of a certain dwelling house according to the terms of a deed executed on the 21st March 1903 by Bhaidas Rajaram for himself and members of his family. By that document it was recited that it had been resolved at a meeting of creditors that if creditors of the family firm represented by Bhaidas to the extent of a r,22,000 out of the total number of - creditors claiming 1,61,8001 should sign the deed before midnight on the 5th March 1903, Bhaidas should make over to the trustees all the assets of tin: family specified in Schedule B, subject to a special condition regarding the family houses at Kelapith, namely that the trustees should allow the family to live therein up to the 20th of October 1903 in the same manner as it had been living there after getting a lease passed by Bhaidas, and that thereafter the family should take the house and make over the same forthwith into the possession of the trustees. By the 9th clause it was stated that Bhaidas having made over the whole of the trust properties and assets belonging to the family for the benefit of the creditors the family was reduced to a destitute condition, and therefore, the creditors passed a Resolution to the effect that they should be allowed to occupy the dwelling house as aforesaid and that the trustees should pay an allowance of Rs. 40 a month to Bhaidas up to the same date, namely the 20th of October, and the creditors coming in under the deed agreed that after all the goods and properties had been made over to the trustees no other claim whatever with regard to the amounts due to them should remain outstanding against Bhaidas and the minor members of his family, but the whole claim should be understood to be written off against them, and Bhaidas and the minors were to make use of the deed as a release passed by them on their behalf, and by subsequent clauses it was provided that the trustees were to manage the properties for the benefit of all the creditors interested, and the monies realized from time to time were to be distributed amongst such creditors in proportion to their claims. The period during which the occupation of the dwelling house was permitted to Bhaidas and his family has long since expired, but a notice to quit having been served upon them they refused to comply with it and the present suit was, therefore, instituted to eject them.

(2.) The deed was not registered, and objection was taken at the hearing that it was inoperative in respect of the immoveable properties mentioned in Schedule B, and that, therefore, the title plaintiffs to the house in question was not established.

(3.) If the document is a composition deed within the meaning to of the Registration Act it d as not require registration (see Section 17, Clause (e) This very document has twice come before the Previous litigation, on one occasion before a Bench consisting of myself and Mr. Justice Knight and on another occasion before a Bench consisting of Sir Narayan Chandavarkar and my present Colleague Mr. Justice Batchelor. In the first case the deed was held to have passed the property to the trustees so as to defeat an attaching creditor who attached subsequent to the execution of the deed, and in the judgment the deed is referred to as a trust and composition deed. In the second case the trustees sought to recover rent from the tenants of certain immoveable property mentioned in the Schedule to the deed, but it was held that the document was compulsorily registrable, and not having been registered it could not be admitted in evidence. The Court there said: "There is nothing whatever in the language of the deed to show that there was any composition, any settlement with the creditors that the debtor should pay less than he owed to them and that they agreed to accept that composition. The essential test of a composition-deed is that there ought to be a compounding of debts due. Of that there is no trace whatever so far as the language of this document is concerned." Shekh Adam v. Chandrashankar . It does not appear from the record which we have examined that any translation of the deed was supplied to the Court. The Court s opinion appears to have been based upon The Queen v. Cooban (1886) 18 Q.B.D. 269 where the question was whether a cessio bonorum for the benefit of creditors by a document which incorporated a release by the creditors was a composition-deed within the meaning of certain Municipal rules so as to disqualify the debtor from election to a Municipal office.