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1929 Supreme(SC) 67
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD CARSON, LORD DARLING, SIR LANCELOT SANDERSON, SIR GEORGE LOWNDES, AND SIR BINOD MITTER.
JAMES SKINNER - Appellant
Versus
R. H. SKINNER - Respondents
On Appeal from the High Court at Allahabad.
Decided On : July 16. 1929.
Solicitors for appellant:Chapman-Walker & Shephard. Solicitors for first respondent: T. L. Wilson & Co.
An unregistered document purporting to transfer an interest in immovable property is inadmissible as evidence of any transaction affecting such property under Section 49 of the Indian Registration Act, 1908, and cannot be used as the basis for a suit for specific performance.
Headnote:(A) Indian Registration Act, 1908 - Sections 17 and 49 - Document purporting to transfer interest in immovable property - Requirement of registration - Effect of non-registration - An instrument that purports to create by transfer an interest in immovable property and is not registered cannot be used in legal proceedings to indirectly achieve the effect it would have had if registered - Such a document cannot be received as evidence of any transaction "affecting" the property.
(B) Specific Performance - Unregistered sale deed - A document that creates an interest in immovable property cannot be used as the foundation of a suit for specific performance if it is required to be registered under Section 17 but is not - To allow such a document to be used would be an evasion of the Act - Distinction exists between a document that creates an interest and one that merely creates a right to obtain another document under Section 17, sub-section 2(v).
Facts of the case:
A party executed an unregistered document purporting to sell an inherited share of immovable properties to another party. The document included terms for payment and a promise to execute a registered sale deed if requested. Following the vendor's death, the vendee sought specific performance of the agreement. The trial court dismissed the suit on the grounds that the document was a sale deed and, being unregistered, was inadmissible. The appellate court reversed this decision, treating the document as an agreement for sale and granting a decree for specific performance.
Findings of Court:
The document was determined to be a sale deed transferring interest in immovable property, necessitating registration under Section 17 of the Act. Because the document was not registered, it was inadmissible in evidence under Section 49.
Issues: (1) Whether the document required registration under Section 17 of the Indian Registration Act, 1908; (2) Whether an unregistered document required to be registered could form the basis of a suit for specific performance notwithstanding the provisions of Section 49.
Ratio Decidendi: A document that purports to create an interest in immovable property is a transaction "affecting" the property. Under Section 49, such a document cannot be received as evidence of any transaction affecting the property unless registered. Allowing an unregistered transfer document to be used as the basis for specific performance would be an evasion of the statutory requirements, especially since Section 17, sub-section 2(v) specifically exempts only those documents that do not themselves create an interest but merely create a right to obtain a subsequent document that will do so.
Result: Appeal allowed; decree of the High Court set aside and that of the trial judge restored.
Legal Category Hierarchy
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property law
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registration
- indian registration act
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registration
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practice and procedure
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evidence
- admissibility
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evidence
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contract law
- specific performance
Judgement
Appeal (No. 97 of 1928) from a decree of the High Court (January 22, 1926) reversing a decree of the Additional Subordinate Judge of Meerut (May 19, 1923).
The suit was brought by the first respondent against the administrator of Richard Skinner (represented in the appeal by the second respondent) for specific performance. The plaintiff alleged an agreement dated June 18, 1921, by George C. E. Skinner for the sale to him of properties which George had inherited from his brother Richard. The appellant was the executor of Alice Skinner, a sister of Richard and George ; she was made a defendant as claiming a half-share in Richards estate.
The terms of the document of June 18, 1921, appear fully from the judgment of the Judicial Committee.
Issue No. 9 raised the question whether the document was admissible in evidence.
The trial judge held that the document was a sale deed, and that as it was not registered under the Indian Registration Act, 1908, it was inadmissible in evidence ; accordingly he dismissed the suit.
Upon appeal the decree was reversed and an order made for specific performance of the agreement by the conveyance of Georges interest at the conclusion of the administration. The learned judges (Lindsay and Kanhiya Lal JJ.) were of opinion that the document, having regard to the whole of its terms and the circumstances in which it was executed, ought to be treated as an agreement for sale, and that consequently they had a discretion to decree specific performance although the document was not registered.
1929. June 10, 11, 13. De Gruyther K.C. and Kenworthy Brown for the appellant. The document of June 18, 1921, upon its true construction, was a sale deed transferring the vendors interest in his brothers property; it was therefore within s. 17, sub-s. 1 (b), of the Registration Act. It did not merely create a right to another document so as to be within s, 17, sub-s. 2 (v). Consequently it was inadmissible in evidence having regard to s. 49.
Dunne K.C. and E. B. Raikes for the first respondent. The document was merely an agreement to sell such share as the vendor got upon the administration being concluded; a conveyance was contemplated when that took place. It was not clear until that took place whether immovable property would be transferred. But even if the document operated as a transfer of immovable property it was admissible in evidence in the suit as an agreement and for the purpose of obtaining specific performance Bengal Banking Corporation v. Mackertich (( 1883) I. L. R. 10
C. 315.), following the view of West J. in Burjorji Cursetji Panthakur v. Muncherji Kuverji (( 1880) I.
L. R. 5 B. 143.); Mangamma v. Ramamma (( 1912) I. L. R. 37 M. 480.), following earlier Madras decisions. Certain later decisions in India have taken a different view, but, it is submitted, the construction of the Act adopted by West J. is correct, and the only construction giving consistency to all the provisions of s. 17. In Dayal Singh v. Indar Singh (( 1926) L. R. 53 I. A. 214.), though a similar question was discussed, the Board expressly refrained from deciding that that view was wrong.
Kenworthy Brown in reply. The actual decision in the Bengal Banking Corporation case (( 1883) I. L.
R. 10 C. 315.) does not support the appellant; the remarks of Garth C.J. relied on were obiter. Burjorji Cursetji’s case (( 1880) I. L. R. 5 B. 143.) is inconsistent with Purmanananddas Jiwandas v. Dharsey Virji (( 1885) I. L. R. 10 B. 101.), and with a series of more recent cases in most of the High Courts. [Reference was made to the cases mentioned in their Lordships judgment and others.] The question is also concluded by the judgments of the Board in Hemanta Kumari Debi v. Midnapur Zamindari Co. (( 1919) L. R. 46 I. A. 240.) and Dayal Singh v. Indar Singh . (( 1926) L. R. 53 I. A. 214.) If the document is, as this respondent contends, within s. 17, then by s. 49 (c) it could not "be received as evidence of any transaction affecting"
