HARKISANDAS BHAGVANDAS Vs. BAI DHANU

JUDGEMENT

(1.) The main question in this appeal is whether the lower Courts have erred in holding that the document, Exhibit 39, is inadmissible in evidence for want of registration. The sale-deed, Exhibit 38, was passed on the same day, November 1, 1898, and both documents were written by the same writer, Nathabhai Jayachand, One of the attesting witnesses to Exhibit 38, Rajaram Narbheram, signed Exhibit 39 for the executant, Bai Jivi. It, therefore, seems clear that the two documents evidence one transaction, and that the second document; Exhibit 39, was not an independent transaction arranged, as an afterthought, subsequent to the execution of Exhibit 38. The plaintiffs also treated the two documents as one transaction by their allegation that they evidenced a mortgage. The lower Court's view that Exhibit 39 cannot be treated as a separate document entirely apart from the sale-deed, Exhibit 38, is, in my opinion, clearly correct.

(2.) Also I agree with the view of both the lower Courts that the transaction is not shown to have been one of mortgage, as alleged by the plaintiffs. The Subordinate Judge has considered all the circumstances and found that the transaction was one of sale and not of mortgage (p. 14, line 32). The Assistant Judge has come to the same conclusion : see his Issue No. 3 and remarks thereon. It is true he has considered the question on the basis of Exhibit 39 being inadmissible in evidence; but this does not make any material difference, apart from a contention that Mr. Jayakar for respondent put before us. This is that the provision in Exhibit 39 for interest being added to the purchase-money, and for finding the amount due at the time of payment and reconveyance, shows that the transaction was intended to be a mortgage. In support of this, reference was made to the judgment in the leading case of Alderson V/s. White [1858] 2 De.G. & J. 97, followed by the Privy Council in Bhagwan Sahai V/s. Bhagwan Din [1890] 12 All. 387. No doubt, the Lord Chancellor there lays stress on the second instrument giving a right of a re-purchase on payment not of what should be due but of the actual amount of the purchase-money, but this cannot be taken as intending to lay down that, in every case where the payment for re-purchase is to include some interest, the transaction must be treated as a mortgage. It can undoubtedly be an important circumstance in favour of its being a mortgage-transaction, but it may be outweighed by other circumstances. In the present case,, on the facts found, the weight of the evidence is clearly against the transaction being really a mortgage; and it is not unnatural, in view of no time- limit being fixed within which the option of repurchase was to be exercised, that provision should be made for the payment of interest.

(3.) The question, whether in a case of this kind the second document requires registration, was fully considered by this Bench in Vaman V/s. Changi 27 Bom. L.R. 1261. We held that we were bound by the current of decisions of this Court to hold that in the case of a transaction which is not a mortgage, an agreement to reconvey, even though it may be argued to limit the right of the purchaser, is not compulsorily registrable. Otherwise we were disposed to refer the question to a Pull Bench. Since that decision, however, our attention has been drawn to the contrary ruling of the First Division Bench in Gajanan V/s. Jivangiri 27 Bom. L.R. 1465 given about a month later. In his judgment the learned Chief Justice says (p. 1467): From the evidence in that case it was shown how Exhibit 30 came to be executed. Although the sale-deed is dated March 2, 1897, it was really executed after Exhibit 30. The chelas would not execute the sale-deed until they obtained the agreement from their creditors. It is obvious, therefore, that these documents evidence one transaction, and therefore the principle which was laid down in Bala V/s. Sadashiv after a consideration of the decision in Sayad Mir Gazi V/s. Miya Ali [1914] 38 Bom. 703 would be applicable. Each case must stand on its own facts. If the agreement to reconvey can be treated as a separate transaction, as it was in the case last cited, then under Section 54 of the Transfer of Property Act, it vests no interest in the property and need not be registered. But if the document which has not been registered, is really a part and parcel of the transaction, which is only partly evidenced by the registered document, then it is clear that the other document also requires to be registered. In other words, when a transaction is evidenced by a document, which is in effect divided into two parts, one of which is registered and the other is not, then the law looks to what is the real transaction between the parties, and demands that the whole document evidencing that transaction must be registered, whether it consists of one part or two.