FAKIRJI ARDESHIR LAVRI Vs. BHAGVATLAL TRICAMLAL DAVE

JUDGEMENT

(1.) The plaint property originally belonged to one Mahomad Isaq who sold it to one Tribjhovan Sakhidas for Rs. 5,600 on April 9, 1869. Tribhovan in his turn sold the property to one Ardeshar Naaarwanji, the father of defendant No. 1, on July 17, 1872, for Rs. 2,275, and on that very day Ardeghar passed a document, Exhibit A, to the sons of the original owner to Mahomad, agreeing to reconvey the property to them or their Bimovatlai. heirs, executors or representatives on payment of Rs. 2,200 within fifty-one years. Ardeshar Nasarwanji gifted the property to his son defendant No. 3 on December 6, 1899. The interest of the sons of Mahomad, the original owner, under the document Exhibit A, was assigned to the plaintiff on October 10, 1921, who brought a suit to enforce the document, Exhibit A. The heirs of Ali and Abhram, the eons of Mahomad, were joined as co plaintiffs. Defendant No. 1 sold the property to defendant No. 3 on May 7, 1919. The plaintiff , finding that defendant No. 3 was a bonafide purchaser for value, gave up his claim for specific performance and possession of the property and restricted his claim for damages for breach of the agreement, Exhibit A.

(2.) The learned Subordinate Judge held that the document, Exhibit A, required registration under Section 17, Clause (2), of Act VIII of 1871, and the exemption in favour of the documents embodied in Section 17, Clause (h), was enacted by Act III of 1877. He, therefore, held that the document, Exhibit A, was not admissible in evidence for want of registration, and dismissed the plaintiff's suit.

(3.) On appeal, the learned District Judge held that the document, Exhibit A, operated to create an interest in immovable property and limited the vendor's interest to that extent, and was compulsorily registrable under the Act of 1871, that the question of admissibility being a matter of procedure was governed by the present law, and that though it was compulsorily registrable when it was executed, it did not require registration under the present law, and, therefore, held that the document, Exhibit A, was admissible in evidence.