GYANJI POMAJI MARWADI Vs. NINGAPPA MARBASAPPA ARLESHWAR

JUDGEMENT

(1.) This application arises out of the judgment of this Court passed on September 2, 1926. In that judgment it was held that the document sued upon required registration in view of the Privy Council decision in Dayal Singh V/s. Indar Singh That decision was contrary to the general view of the law that had been previously held in India, and at the time of the hearing" of the appeal, there was a possibility that the Legislature might intervene and pass an Act validating documents that had not been registered on account of the previous view of the law. That possibility was referred to in my judgment, but I remarked that it could not affect the decision of the present case, and accordingly held that the objection was a good one, sufficient to require the plaintiff's suit to be dismissed as it had been in the trial Court. On the other hand, I said (29 Bom. L.E. 272):- In view of the possibility I have just mentioned, I think it is right that we should give oar decision on the various paints that have been argued before us, so that (supposing there is any legislation of the kind I have referred to, permitting the plaintiff to have hit cage considered on the merits, apart from this objection of registration) it should not be necessary to have a further re-hearing cm these points.

(2.) They were, therefore, gone into and an indication was given as to what our further proceedings or decision would be, supposing the objection about registration had not succeeded. The decree, however that was actually passed, in view of the objection about registration, was one setting aside the decree of the lower appellate Court and restoring the decree of the trial Court dismissing the plaintiff's suit. Each party was ordered to bear his own costs of the appeal to the District Judge and the appeal to this Court; and under the confirmation of the order of the trial Court, the plaintiff had to bear the costs of the defendant in the suit.

(3.) Subsequently, Act No. II of 1.927 was passed, and Section 2 of this Act added the following explanation in Sub-section (2) of Section 17 of the Indian Registration Act, 1908, namely:- Explanation.- A document purporting or operating to effect a contract for the sale of immoveable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.