NEELAM VENKATARATANAMMA Vs. VINJAMOORI VARAHA NARASIMHA CHARU

JUDGEMENT

(1.) Appeal from the decree in A.S. No. 84 of 1921 on the file of the Court of the Subordinate Judge of Cocanada in O.S. No. 32 of 1920 on the file of the Court of the Principal District Munsif of Cocanada.

(2.) Plaintiff sues for certain portions of a house-site. Both Courts dismissed his suit and plaintiff appeals.

(3.) Issue No. II. Whether plaintiff was in possession within 12 years prior to suit, is a question of fact on which both Courts find against plaintiff; and he only seeks to traverse that finding in this second appeal by urging that the learned Subordinate Judge erred in accepting as evidence the unregistered gift deed Ex. V. There is no doubt that Ex V is a transaction affecting an interest in immoveable property and as such cannot be received in evidence unless it is registered. The Subordinate Judge, however, relying upon Varada Pillai V/s. Jeevarathnammal 53 Ind. Cas 901 : 43 M. 244 : (1919) M.W.N. 724 : 10 L.W. 679 : 24 C.W.N. 346 : 38 M.L.J. 313 : 18 A.L.J. 274 : 43 M. 244 : 46 I.A. 285 : 2 U.P.L.R. (P.C.) 64 : 22 Bom. L.R. 444 (P.C.) has admitted the document for the purpose of proving that possession was adverse. In the reported case it was sought to prove a gift, for which there was no registered deed, by its recital in a petition which also had been registered. The Judicial Committee decided that the petition could not serve as proof of the gift, but turning to another question, what was the nature of Doraisami's possession, the petition could be admitted in evidence. Thus the petition was not evidence of a gift, but evidence that some one had petitioned on the footing of a gift. Care must be taken not to extend this principle too far. For instance, in the present case, the Court cannot receive Ex. V in evidence to prove a gift and then infer that the defendant's possession was adverse; and justify its acceptance of Ex. V on the ground that it confines itself to the inference and is not concerned with the fact of the gift; because the inference is only based upon the fact; and if the fact cannot be proved by the unregistered instrument, nothing can be proved on which to found an inference.