JNAN CHANDRA DAS Vs. RAJANI KANTA PAL

JUDGEMENT

(1.) The suit oat of which this appeal arises was one to recover possession of the lands in dispute under the following circumstances. The lands belonged originally to the plaintiff. They were sold in execution of a decree for money against him and purchased by on Debendra in March 1905, and symbolical possession was taken by him in March 1906. Debendra agreed to convey the lands to the plaintiff in consideration of a sum of Rs. 232 and actually executed a conveyance on the 27th March 1906, but it was not registered as plaintiff paid only Rs. 200 out of the consideration. The plaintiff, however, was allowed to remain in possession. On the 17th July 1907 the lands were sold in execution of another money decree against the plaintiff, and were purchased by the defendant No. 1, who obtained possession of the lands. The plaintiff on the 29th November 1907 obtained a second kobala from Debendra which was duly registered. It is upon the strength of this second kobala that the plaintiff brought the present suit for declaration of his title by purchase from Debendra and for possession against the defendant No. 1, on the ground that at the time of the purchase by the latter, he, the plaintiff, had not acquired any interest which could be purchased by the defendant No. 1, the title to the lands being still then with Debendra as no registered conveyance had been executed until the 29th November 1907, i,e., after the purchase by the defendant No. 1.

(2.) As there was no clear finding whether the balance of the purchase money had been paid to Debendra before the purchase at the execution sale by the defendant No. 1, and also upon the question whether the plaintiff was in possession at the date of the said purchase, we sent back the case to the lower Appellate Court for findings on those points. The Court has found that the whole of the purchase money had been paid by the plaintiff to Debendra before the purchase by the defendant No. 1, and that the plaintiff was in possession at the date of the auction purchase by the defendant No. 1.

(3.) Upon the findings the position appears to be this. At the date of the purchase by the defendant No. 1 at the execution sale (17th July 1907), the plaintiff had paid the entire consideration money (Rs. 232) to Debendra who had purchased his rights at a previous execution sale, and who had agreed to convey the property to him, and the plaintiffs was allowed to remain in possession of the property. In the circumstances stated above, plaintiff undoubtedly could have sued Debendra for specific performance, and he could have successfully resisted a suit by Debendra if the latter sued the plaintiff for possession of the property, although there was no registered conveyance executed by him. The argument founded upon Section 54 of the Transfer of Property Act that in the absence of a registered instrument the transaction was a nullity was relied on by Cox, J., in the case of Puchha Lai v. Kunj Behary Lal 20 Ind. Cas. 803 : 18 C. W. N. 445 : 19 C. L. J. 213. but was overruled by the Court of Appeal (Jenkins, C. J., and Mookerjee, J.) relying upon the principle laid down in Walsh v. Lonsdale (1882) 21 Ch. D. 9 : 52 L. J. Ch. 2 : 46 L. T. 858 : 31 W. R. 109. Jenkins, C. J. observed in that case, There is no invasion or evasion of the Registration Act, It is merely securing to a party those rights to which he is entitled apart from the Acts---rights to which he has a good title in Courts to which the abiding direction has been given to proceed in all cases according to equity and good conscience." The principle was followed in the case of Khagendra Nath Chatterjee v. Sonatan Guha 31 Ind. Cas. 987 : 20 C. W. N. 149. in which the decision of the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 42 I. A. 1 : 19 C. W. N. 250 : 17 Bom. L. R. 420 : 42 C. 801 : 21 C. L. J. 231 : 28 M. L. J. 548 : 13 A. L. J. 229 : 17 M. L. T. 143 : 2 L. W. 258 : (1915) M. W. N. 621 (P. C.). was also relied upon Having regard to those decisions we think that the plaintiff at the date of the purchase by the defendant No. 1 had acquired a right to the property and that as Debendra could not, at that date, enforce any right against the plaintiff, the plaintiff cannot contend that he had no interest in the property which could be purchased by the defendant No. 1.