Chhatranath Das and Others vs Kashinath Das and Others

Agarwala, J.—This is an appeal by the plaintiffs from a decision of the District Judge of Purnea reversing a decision of the Munsif. The appeal arises out of a suit for recovery of possession of khewats 13 and 14 of village Maranga. The principal question in the suit was whether there had been an award by arbitrators in 1913 by which these khewats had been allotted to the plaintiffs or whether, as alleged by the defendants, there was no award in 1913 but that there was an award in 1919 by which the land in dispute was allotted to the defendants. The plaintiffs relied on Ex. 1 which purported to be an award made on 1st January 1913. The defendants relied oh a similar document relating to an award purporting to be made in 1919. The trial Court refused to take in evidence the document tendered by the defendants on the ground that it was unregistered and found that the award of 1913 was genuine.

The Appellate Court has rejected Ex. 1 also on the ground that it was not registered and has omitted to consider much of the evidence that was adduced by the plaintiffs.

The first point that arises in this appeal is whether the two awards of 1913 and 1919 should have been admitted in evidence and considered by the Court below. It has been contended in support of the judgment of the Court below that Section 49, Registration Act of 1908 is a bar to the admissibility of either of the awards. That Section provides that no document required by Section 17 to be registered shall be received as evidence of any transaction affecting any immovable property or conferring any power to adopt, unless it has been registered. There is no dispute that the two documents were of a nature which Section 17, Registration Act, as amended in 1929, re-quires to be registered or that such documents were not compulsorily registrable u/s 17 as the Act stood before the amendment of 1929. The question therefore resolves into this, whether the amendment of Section 17 in 1929 requires documents executed before that Act came into operation to be registered.

A similar question was raised in Desai Motilal Manga]ji v. Desai Parashotam Nandlal, (1894) 18 Bom 92 in which it was held that Section 17, Registration Act of 1877, should not be construed as requiring a document to be registered which would not have required registration when it was executed. The learned Judges who decided that case followed the earlier decision of the Calcutta High Court in Ram Coomar Singh v. Kishari,(1883) 9 Cal 68 in which it was held that neither Section 17 of the Act of 1877 nor the corresponding sections of the preceding Acts had the effect of rendering a document, which was not" compulsorily registrable under the Act of 1864, inadmissible in evidence under the succeeding Acts, without registration. Learned Counsel for the respondents referred to the recent decision of the Bombay High Court in Datto Shivram v. Babasaheb Malhar, AIR (1934) Bom 194 in which a question arose regarding the admissibility of a rentnote executed in 1865. Such a note was not compulsorily registrable at the time when it Was executed but it was compulsorily Registrable u/s 17 of the Act of 1908.

The Act of 1866 had also rendered such documents compulsorily registrable and it contained a provision in Section 100 that documents which had not been compulsorily registrable before 1865 but were then declared to be so registrable might be registered within one year from the date from which the new Act came into Operation. The bolder of the rent-note had not taken the precaution of availing himself of the benefit of this provision of the Act of 1866 and in those circumstances it was held that the document was rendered inadmissible in evidence by Section 49 of the Act of 1908. That case is clearly distinguishable from the present case. The Amending Act of. 1929 does not contain any provision similar to that of Section 100 of the Act of 1866 and the T.P. Amendment (Supplementary) Act (Act 21 of 1929), Section 15, clearly supports the principle of the earlier Bombay decision. Section 15(1)(b) provides that: "Nothing in this Act shall be deemed to affect the validity, invalidity, effect or consequences of anything already done or suffered before 1st April 1930" when the Supplementary Act came into operation.

The decree of the Court below must be .set aside and the case be reheard. The Appellate Court will afford the defence an opportunity of giving formal proof of the award of 1919 but no other fresh evidence will be admitted. The Court will also take into consideration, in determining the questions which arise before it, the documentary and oral evidence in the case. The particular documents which the appellants complained had not been referred to by the Court below are Ex. 11 [(a rent decree obtained by the plaintiffs against certain tenants) and rent receipts produced by the plaintiffs (Ex. 4 series)].

It has also been a matter of grievance that the Court below has omitted to consider the fact that the rent receipts produced by the defendants were receipts granted by zamindari servants who had been dismissed for misappropriation and that it was the plaintiffs who produced all the documents of title relevant to the property in dispute. These matters will now be considered by the Court below and given their proper weight. The costs of this appeal will abide the result.

Rowland, J.

I agree.