Case: Raghunath &amp; Ors Vs. Kedar Nath

Registration Act, 1908."Section 54 of the Transfer of Property Act reads:" Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards or in the case of a reversion or other intangible thing; can be made only by a registered instrument.In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property."Section 17 of the Registration Act state:"17. (1) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864 or the Indian Registration Act, 1866 or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:(a) instruments of gift of immoveable property;(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment limitation or extinction of any such right, title or interest; and(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immoveable property.Section 49 of the Registration Act prior to its amendment in 1929 read:"No document required by Section 17 to be registered shall(a) affect any immoveable property comprised therein, or(b) confer any power to adopt, or(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered."By Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, Section 49 was amended as follows:-"No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-(a) affect any immoveable property comprised therein, or(b) confer any power to adopt, or(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of S. 53-A of the Transfer of Property Act. 1882 or as evidence of any collateral transaction not required to be affected by registered instrument."The inclusion of the words "by any provision of the Transfer of Property Act. 1882" by the Amending Act, 1929 settled the doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but not under Section 17 of the Registration Act were affected by Sec. 49 of the Registration Act. Section 4 of the Transfer of Property Act enacts that "sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908." It was previously supposed that the effect of this section was merely to add to the list of documents of which the registration was compulsory and not to include them in Section 17 so as to bring them within the scope of Section 49. This was the view taken by the Full Bench of the Allahabad High Court in Sohan Lals case. ILR 50 All 986 = (AIR 1928 All 726 (FB)) (supra). The same view was expressed in a Madras Case Rama Sahu v. Gowro Ratho, ILR 44 Mad 55 = (AIR 1921 Mad 337 (FB)) and by MacLeod. C. J. in a Bombay case Dawal v. Dharma. ILR 41 Bom 550 = (AIR 1917 Bom 203 ).We are however absolved in the present case from examining the correctness of these decisions. For these decisions have been superseded by subsequent legislation i. e., by the enactment of Act 21 of 1929 which by inserting in Section 49 of the Registration Act the words or by any provision of the Transfer of Property Act, 1882" has, made it clear that the documents in the supplemental list i. e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such immoveable property. We are accordingly of the opinion that Ex. A-26.being unregistered is not admissible in evidence.In our opinion. Mr. Sinha is unable to make good his argument on this aspect of the case.4. Mr. Sinha contended that in any event the High Court should not have remanded the case to the lower appellate court with a direction that the defendants should be asked to render accounts before they claim any payment from the plaintiff at the time of redemption of the mortgage.It was pointed out that the plaintiff did not file an appeal against the decree of the trial Court and in the absence of such an appeal the High Court was not legally justified in giving further relief to the plaintiff than that granted by the trial Court. In our opinion, there is justification for this argument.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are unable to accept the argument put forward on behalf of the appellant. Exhibit A-26. dated 8th October, 1922 is not a registered document, and is hence not admissible in evidence to prove the nature of the transaction covered by the registered mortgage deed Ex. 4 dated 27th July, 1922. if Ex. 4 is taken by itself there is no doubt that the transaction is one of mortgage. The document Ex. 4 recites that in consideration of money advanced the executants "mortgage the said house Bhog Bhandak bearing No. 64/71 situate Mohalla Gola Dina Nath". Clause 2 provides period of twenty years for redemption of the mortgage. Clause 6 of the document stipulates that the cost of repairs will be borne by the mortgagors. Clause 1the said sum of Rupees Seventeen hundred half of which is Rupees Eight hundred and fifty will carry interest at the rate of twelve annas per cent monthly. The sum of Rupees six will be deducted towards rent monthly from the interest which will accrue. The possession of the house has been delivered to the said mortgagee Mahajan (money lender). The mortgagors will pay the balance of Rupees six annas twelve month by month to the said mortgagee after deducting the rent of Rupees six after giving the possession of the said house andat we will go on paying the said Mahajan the sum of Rupees six twelve annas the balance of the interest monthly. If the whole or part of the interest remains unpaid we will pay at the time of redemption. If this amount of interest is not paid the said house shall not bereading of these terms clearly shows that Ex. 4 was a mortgage deed and not a salewe have already said Ex. A-26 was required to be registered under Section 54 of the Transfer of Property Act. In the absence of such registration this document cannot be received in evidence of any transaction affecting the property in view of Sec. 49 of the Registrationare however absolved in the present case from examining the correctness of these decisions. For these decisions have been superseded by subsequent legislation i. e., by the enactment of Act 21 of 1929 which by inserting in Section 49 of the Registration Act the words or by any provision ofthe Transfer of Property Act, 1882" has, made it clear that the documents in the supplemental list i. e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such immoveable property. We are accordingly of the opinion that Ex. A-26.being unregistered is not admissible in evidence.In our opinion. Mr. Sinha is unable to make good his argument on this aspect of theour opinion, there is justification for this argument. We accordingly set aside that portion of the decree of the High Court remanding the case to the lower appellate Court with a direction that the defendants should be asked to render accounts.Otherwise we affirm the decree of the High Court allowing the plaintiffs appeal with costs and setting aside the judgment and decree of the lower appellate court and restoring judgment and decree of the trial Court dated 31st October, 1956.