Bombay High Court
Hurjivan Virji And Anr. vs Jamsetji Nowroji on 19 September, 1884
Equivalent citations: (1885)ILR 9BOM63
JUDGMENT Charles Sargent, C.J.
1. The plaintiffs claim in this case is that the defendants may be ordered to produce the document, dated 17th January, 1884, and lodge it for registration, and do all such acts on their part as may be necessary in order to obtain registration of the same.
2. The document in question is stated in the plaint to be a demise from the defendants to the plaintiff of certain property situated on Kalbadevi Road for a term of throe years from the 1st November, 1883; but it is not disputed by the plaintiff, that, as a fact, it was an agreement or kabulayat, passed by the plaintiff by which he agreed to take the said premises on lease on certain terms. This document was signed by the plaintiff alone, and given to the defendants by the plaintiff. If, therefore, the plaintiff is now entitled to call Upon the defendants to lodge the same for registration, it must be in virtue of some undertaking, express or implied, on the part of the defendants'. It was, indeed, argued for the plaintiff, that the defendant were bound, by the provisions of the Registration Act, to do so, and Section 32 was relied on in support of that view: but that section, while it empowers certain persons to present documents for registration, on the assumption that they are in their possession or under their control at the time, imposes no obligation on any one to produce a document for the purpose of registration.
3. Now, we do not think if was contended that there was any express obligation on the defendants to produce for registration the document in question. The utmost which the plaintiff's evidence could establish on that part of the case was, that when the document was left with the defendants, the metha of the defendants said they would send the plaintiff "a signed copy." It was contended, however, that such an obligation was to be implied from the fact that the document contained the true contract between the parties, and was intended to be the document of title of both of them; and it was further contended, on the authority of the decisions of the Full Bench at Calcutta See 12 Cal. W.R. (F.B.) at pp. 11, 12, 13; that the object of this suit being to compel registration, the document although not registered, could be given in evidence to prove the contract between the parties. In those cases, however, as well as in the hypothetical case put by Sir B. Peacock, C. J., 12 W.R. (F.B.), p. 13 in the course of his judgment which was much relied on the unregistered document was not used in order to establish the contract, but for a collateral purpose, viz., to enable the plaintiff to obtain relief in the shape of damages for the defendant's 'breach of covenant to register contained in the document itself, or in an independent agreement which did not contain all the materials for the assessment of damages. Here, however, the object of giving the document in evidence is to establish the contract of lease for the purpose of drawing an inference from it,
4. In the Full Bench Case of Sheikh Rahmatulla v. Sheikh Sariutulla 1 Bong. L.R. (F.B.) 58, in which Sir B. Peacock, C. J., took part, the plaintiff was not allowed to prove his title by an unregistered document, with a view to compelling registration of it, and that case was followed by the Court in Edun v. Mahomed I.L.R. 9 Cal. 150, where the plaintiff claimed a right to compel registration under circumstances showing, as he alleged, a valid contract between himself and the defendant. Mitter, J., says: "The most formidable objection to the maintenance of a suit of this nature lies in the circumstance that, under the Registration Act, the mokurari patta cannot be received in evidence, because it has not been duly 'registered under its provisions. The patta being, not receivable in evidence the main allegation upon which the plaintiff's suit is based, viz., that mokurari grant was made, is not capable of proof. It was upon this ground that a Full Bench of this Court in the case of Sheikh Rahmatulla v. Sheikh Sarritulla Kagchi 1 Bang. L.R. (F.B.), 58 held that a suit like the present would not lie."
5. We are of opinion, therefore, that the learned Judge in the Division Court, although admitting the document in question originally merely as a piece of paper, was wrong in using it, as he 1884 subsequently did, as establishing the contract between the parties Hurjivan" in which, as such, the plaintiff was interested, and which he was, Virji therefore; entitled to have registered.
6. We must, therefore, reverse the decree, and, dismiss the plaint Nowroji. with, costs throughout.