Peari Dai and Others vs Naimish Chandra Mitra and Others

Bucknill, J.—This is a second appeal. The appellants were the plaintiffs in an action which they brought against a number of defendants for a declaration of their (the plaintiffs'') right, title and interest to the extent of two-thirds share in a mahal called Aratghat; they also applied for recovery of khas possession to the extent of their share and they asked for an adjudication that the defendants first party were trespassers and had acquired no title as lessee to the right by virtue of any valid settlement made to them on behalf of the plaintiffs. The facts in the case are extremely simple and the large majority of them are not even in issue. The plaintiffs were the owners of two-thirds share in this mahal; the principal value of this mahal appears to have lain in the fact that there was a ferry and that tolls were levied and collected at the ghat. It was the usual practice to let out the ghat to a lessee, but it is said that sometimes the proprietors kept it in their own hands. Now, there is no doubt that the defendant second party was until some time in 1918 the Naib or manager of this property on behalf of the plaintiffs or some of them. In 1917 this Naib, the defendant second party, whilst in the plaintiff''s employment made a proposal to the plaintiffs with regard to the future letting out of the ghat; a written application or proposal appears to have been made by the Naib to the proprietors saying that he had the opportunity of effecting a lucrative lease with some persons who he knew were anxious to acquire the rights in the ghat. The proposal contained the suggestion that these applicants would give Rs. 200 annually (which was considerably more than what up to that time had been paid) and that the lease should be for five years. The Naib asked for instructions and orders. This seems to have taken place on the 15th July 1917. Now, on the 31st July of that year an order was passed by the proprietors in connexion with this application. It was simply to the effect. "Naib will do the needful." This was followed later by a formal letter from the proprietors to the Naib definitely accepting the offer and telling him to issue a parwana to the new lessee. On the 1st October 1917 it seems that the Naib did give a hukamnama or parwana to the new lessees.

The Munsif found all these circumstances as facts. He found definitely that all these transactions had taken place. He found that the lessees had actually been put into possession: ha found that a quarrel had arisen between the plaintiffs and their Naib and that they had alleged that he had fraudulently granted this lease with their assent. This, however, he did not believe and he would undoubtedly have given judgment for the defendants had it not been that he was led to form an opinion upon a point of law which is the only point which has been seriously argued before this Court. This point was that the defendants relied upon the parwana to which I have already referred. It was urged before the Munsif that the lease or parwana must be registered as it purported to be a lease of immovable property granted for five years and that, as it was not registered, it was impossible for it to be referred to or looked at by the Court and that in consequence the defendants were unable to prove that they had got any title. The Munsif, remarking that he could not see his way to invoke any equity in favour of the defendants, held that there could have been no valid settlement by lease, and in consequence he decided in favour of the plaintiffs and ordered that their suit be decreed with coats.

Now, this decision of the Munsif of Bhagalpur, which was dated the 22nd April 1921, was the subject of an appeal to the Subordinate Judge of that place who by his judgment of the 15th July 1922 affirmed in every respect, save one the decision to which the Munsif came. He, however, was of the opinion that it was not impossible to invoke equity in favour of the defendants and he came to the conclusion that it was necessary and proper to do so.

In consequence, as a matter of course, he had to reverse the judgment of the Munsif: he allowed the appeal and ordered that the plaintiff''s suit be dismissed.

The point which I have referred is the only point which is of any importance in this case. It has been argued very strenuously by the learned Counsel who has appeared for the appellants that it is impossible to invoke equity in favour of the defendant. He bases his argument upon Section 49 of the Indian Registration Act. This section reads;

No document required by Section 17 to be registered, shall

(a) affect any immovable property comprised therein or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.

No, it is admitted here that this lease for five years ought to have been registered. The learned Counsel has suggested that as under the provisions of Section 49, Sub-section (c) a document required to be registered shall not, unless registered, be received as evidence of any transaction affecting such property or conferring, such power, this hukumnama could not be looked at all by the Court nor could any equity be utilized as arising from it in favour of the defendant. He refers in this connexion to an instructive case Sanjib Chandra Sanyal Vs. Santosh Kumar Lahiri and Others, . The learned Judge (Mr. Justice Rankin) who decided that case held that he could not permit a document which was not registered but which ought to have been registered to be received in evidence as evidential of the title_of a plaintiff who was seeking to enforce his right under that unregistered document. On the other hand however a case of equal importance, Mahomed Musa v. Aghore Kumar Ganguli AIR 19141 PC 27, has been brought to our notice. That was a decision of their Lordships of the Privy Council and there it was laid down very specifically that "when the actings and conduct of the parties are founded upon, as in the performance or part-performance of an agreement, the locus penitentiae which exists in a situation where the parties stand upon nothing but an engagement which is not final or complete is excluded. For equity will support a transaction clothed imperfectly in those legal forms to which finality attaches after the bargain has been acted upon."Now it is, of course, difficult to say definitely that equity will override completely the specific provisions of Sections 17 and 49, Indian Registration Act, and in the case of Nilkanth Bhimaji v. Hanmant Eknath AIR 1920 Bom 46, Heaton, J., in referring to the Privy Council case which I have just mentioned draws attention to the necessity of guarding oneself in stating definitely that the decision of their Lordships was intended to affect adversely the proper construction or maintenance of those sections of the Registration Act to which reference has been made. His Lordship says:

"I feel quite certain that their Lordships of the Privy Council in giving judgment in Mahomed Musa v. Aghore Kumar Ganguli AIR 19141 PC 27 did not intend either to modify or to limit that part of the enactment of the Indian Legislature which appears as Sections 17 and 49, Indian Registration Act, nor do I believe that the Privy Council ever have intended by their judgments to modify or limit that which has been enacted by the Legislature in India. So the effect of Sections 17 and 49, Indian Registration Act, remains as totally unaffected as before by anything that is said in the case of Mohamad Musa v. Aghore Kumar Ganguli AIR 19141 PC 27. Now in this case before us it seems to me that it can be dealt with quite unhampered by any question of admissibility of this document. Personally I think that it is admissible and that equity can be invoked from it although it should have been registered and that we could draw an equity in favour of the defendant. But even if it was not admissible there was ample material upon which a Court may come to the same conclusion to which the Subordinate Judge has come, namely, that the equity here is clearly in favour of the defendant and must be given to him in relief. What have we here in coming to the same conclusion from another point of view? We have findings of fact which show clearly that the Naib, that is to say, the manager of the plaintiffs asked for their consent to grant a lease for five years at Rs. 200 per annum to the lessees. He got this permission in a very definite form from the proprietors and ha actually put the lessees into possession. The terms upon which the lease was to be granted appear clearly not only in what he offered in the application for instructions which the Naib made to the proprietors, but in the proprietor''s letter authorizing him to grant the lease, How it can be seriously suggested after that there was not a completed transaction not only on the face of the papers themselves but by a part performance, namely, the induction of the lessees into actual possession, I cannot understand. To allow the plaintiffs to succeed against their own nominees simply because the document which was given by the plaintiffs'' agent to the new lessee did not comply with the provisions of Section 49 of the Registration Act would appear to me most inequitable.

In these circumstances I think that in this case the Subordinate Judge has taken the proper course. Ha has come to the conclusion that there was no ground for allowing the plaintiff to eject the defendants who were their own lessees. They could not take advantage of some flaw in a document which has been produced by the defendant in order to show that their lease did not comply with the terms of the Registration Act nor could it be allowed that the lease which the defendants possessed against their own landlord should be defeated at his application.

I think therefore that this appeal should be dismissed with costs.

Macpherson, J.

I agree to the order proposed: this appeal should be dismissed with coats.