Karoi Mal, Jamma Dass vs Parmanand L. Ram Sarup and Others

Kapur, J.—The defendant, in this appeal against the Senior Subordinate Judge''s decree dated the 6-11-1950, modifying the decree of the trial Court, has challenged the finding of the learned Senior Subordinate Judge as to the applicability of the doctrine of part performance in regard to the rights of plaintiff under S. 49, Registration Act, and S. 53A, T.P. Act. The property in dispute and other properties belonged to one Gunia and were inherited by Lachman and Har Dat. There was a partition of the properties including the property in dispute. On 11-7-1936 a document. Exhibit P. 4. was executed It recites as under:

I, Shiv Ji Ram...... in equal shares......, one-fifth; Badri, son of Tulsi Rain one-fifth; Lachman Das, son of Pars Ram one fifth; Kirori Mal son of Hira Lal etc. one fifth; Shiv Nath etc., sons of Channu Mal one-tenth; Ju Lal, etc. sons of Musseddi Lal one-tenth.....

That in houses which are mentioned below the parties are owners and in possession: (1) House of Gunia son of Daulat Ram, etc. which has come to the share of Lachman Das Rs. 40/- have been paid because the value of the property was more than the share of the said person.....

Towards the end in regard to the other portions the words used are:

Maqbuza ho gai hain aur ropai dive gal hai........

The property in dispute was sold by the widow of one and the daughter of mother, as heirs, to the plaintiff who brought a suit for declaration and injunction and in the alternative for possession.

The question decision is whether this document required registration. The appellate Court has held that the document did require registration but it applied the principle of part performance are held in favour of the plaintiff.

The doctrine of part performance, as was held by the Privy Council in AIR 1940 1 (Privy Council) is available only to the defendant to protect his possession. Their Lordships at page 2 agreed with the view expressed by Mitter J. that "the right conferred by S. 53A is a right available only to the defendant to protect his possession." This was the view which was taken by Sir Dinshah Mulla in his second edition of the Transfer of Property Act at page 262 and their Lordships observed:

The section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed, any other reading of it would make a serious Inroad on the whole scheme of the Transfer of Property Act.

In my opinion the doctrine of part performance was not available to the plaintiff and the learned Senior Subordinate Judge was in error in applying that principle to the rights of the plaintiff.

But that by itself does not solve the problem. The question still arises whether the document, Ex. P. 4, required registration. In the first part of the document the shares of the parties are given and then some vague language, is used which is capable of meaning that the parties are in joint possession or are in possession of their respective shares. It is further on that the language becomes clearer, and particularly in regard to the property in dispute, that the house of Gunia has fallen to the share of the person named and that Rs. 40/- have been paid by that person because the value of the property in dispute is more than the share claimed by him.

Mr. Roop Chand Chaudhry submits that even if it was to be read in the manner that the plaintiff would like it to be read, it would be a device to defeat the provisions of S. 49, Registration Act, and he relies on a judgment of the Lahore High Court in ''Ram Kishan v. Hirde Ram,'' AIR 1923 Lah 135 (B), in which the language used was held to be, a device to save the expenses of registration and stamp. The language used in that is not quite clear from the judgment and it appears that Sir Shadi Lal C.J. who gave a concurrent judgment, was careful not to allude to that part of the case. All that the learned Chief Justice said was that he was of the opinion that Harbans Raj was not the manager of the family and had no authority to acknowledge debt on behalf of Hirde Ram and his sons. In my opinion this case does not help us in determining the question now before us. Two cases have almost become historical in regard to the law of registration. The first Is ''Sakharm Krishnaji v. Madan Krishnaji,'' 5 Bom 232 (C), decided by West J., and the other is '' AIR 1932 55 (Privy Council) In the former the words were:

Our eldest brother M, has built houses and is building new houses on property appertaining to his share....... to the same we three per sons and our heirs and representatives have no interest of any kind whatever If we or the should prefer any claim, then the same is to be null. This release paper we have duly passed in writing jointly and severally and in sound mind.

In the latter (Privy Council) case there was a petition presented in the following terms:

That in view of the petition filed by Takar Jado Sharan Singh, your petitioner begs to file the original deed of gift and prays that your, honour may be pleased to sanction the same or order a fresh grant on the same terms to be executed.

Their Lordships approved of the decision of West J. in the following words:

Their Lordships have no doubt that this track of decision is right. Though the word ''declare'' might be given a wider meaning, they are satisfied that the view originally taken by West, J. is right. The distinction is between a mere recital of a fact and something which in itself creates a title.

The question to be decided is does the document in dispute, Ex. P. 4, create any right in the vendor of the plaintiff or is it merely acknowledgment of a fact that such a right was his. If it is the latter, there is no necessity for registration and in my opinion it is the latter. The document is not very artistically drafted but the purport of it seems to be that in the first portion the executants have described their shares in the properties in dispute and it becomes clearer when properties are described i.e., where it is stated that particular properties have come to the share of particular co-sharers and moneys have been paid.

This in my opinion is a mere acknowledgment of a fact that the right is in the persons rather that the document which passes the right itself I would therefore hold that this document did not require registration. The plaintiff has paid Rs. 1,000/- for the properties to persons who were heirs and this fact was not challenged in the Court of the Senior Subordinate Judge. I would therefore dismiss the appeal though for different reasons. I am of the opinion that this is a fit case in which the parties should bear their own costs throughout and I would order accordingly.