RAMRAO Vs. GULABRAO

JUDGEMENT

(1.) I need not repeat in detail the facts of the present case, which are clearly given in the judgments of the two lower Courts. The plaintiff Ramrao has now come up on appeal to this Court against the decree of the Lower appellate Court, affirming that of the first Court dismissing his suit.

(2.) THE first point urged on behalf of the plaintiff-appellant is that the unregistered deed of gift (I. D. 5) was wholly inadmissible in evidence, having regard to the provisions of Section 123, T.P. Act, and Sections 17 and 49, Indian Registration Act, and it has been urged on the strength of the observations made by Stanyon, A.J.C., in Dinanath v. Manbodh [1916] 12 N.L.R. 139, that, as the deed of gift in question was compulsorily registrable, it must be wholly excluded from consideration in the present case and is not, indeed, admissible in evidence at all.

(3.) IT has next been urged that the doctrine of part performance was not applicable in the circumstances of the present case,; as there was in existence no provable and enforceable agreement. The circumstances of the decision in Sanjib Chandra v. Santosh Kumar A.I.R. 1922 Cal. 436 were somewhat special. The suit there was for specific performance of an agreement to lease certain property. The document, although compulsorily registrable, was unregistered and Rankin, J., held that, in the circumstances, it was inadmissible in evidence for the purpose of proving the agreement sought to be specifically performed. A view opposed to that offered by the appellant has been taken by a Bench of this Court in S.A. No. 473 of 1923, decided by Hallifax and Prideaux, A. J. Cs., on 13th January 1927 : cf. also Mahomed Musa v. Aghore Kumar Ganguli A.I.R. 1914 P.C. 27, Vizagapatam Sugar Co. v. Muthuramareddi A.I.R. 1924 Mad. 271, Sandu Walji v. Bhikchand Surajmal A.I.R. 1923 Bom. 473, and Maung Ok Kyi v. Ma Pu A.I.R. 1927 Rang. 33. Here, on the pleadings of the parties, even if the gift, as such, was invalid, the lower appellate Court has held that they have changed their position and, from this point of view, I find myself in full agreement with the learned District Judge, that, in the circumstances of the present case, the doctrine of part performance applies. Their Lordships of the Privy Council's decision in Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44, above quoted, seems, in short, to me to apply with full force in the circumstances of the present case and I am of opinion that the District Judge was correct in the view he took in this connexion.