JUDGMENT

Richard Garth, C.J. - In this case we are unable to agree with the learned Judge of this Court. The suit was brought by the plaintiff to recover the rent of a jote from the ryot-defendant, upon the ground, that he had purchased the estate of the defendant's landlord. The plaintiff's purchase, as to which there was no dispute, was effected by a deed of sale dated in Cheit 1282 (March 1876), which was duly registered. It is found as a fact by the lower Court, that for sometime previous to the execution of this deed, the defendant had been the tenant of the property under a kabuliat, which he had given to the father of the plaintiff's vendor, and had since paid rent to the latter in accordance with the kabuliat. The defendant's case was, that, by another deed of sale, dated in Pous 1282 (December 1875), two months prior to the plaintiff's deed, the landlord had conveyed the same estate to him, the defendant; but this bill of sale was not registered.

2. Upon these facts the District Judge held, that the plaintiff's registered deed must prevail against the defendant's deed which was not registered, and he made a decree in the plaintiff's favour for the rent claimed.

3. The learned Judge of this Court considered, that the District Judge was wrong. He says, that Section 50 of Act VIII of 1871 ought not to be construed literally, and that, if the defendant's bill of sale in this case was really executed before the plaintiffs bill of sale, the vendor's right to make a conveyance of the same property to the plaintiff or to any one else, was at an end, and that in that case nothing passed to the plaintiff by his deed, whether it was registered or not.

4. The learned Judge, therefore, remanded the case to the District Judge to determine the question, whether the defendant's deed was genuine, with an intimation that if it was so, the defendant ought to succeed.

5. I cannot agree with the learned Judge in the construction which he has thus put upon Section 50 of Act VIII of 1871, and it appears to me that if that were the right construction, the section would be virtually inoperative.

6. It is perfectly true, that Section 18 of the Act leaves it optional with purchasers, when the value of the property purchased is under Rs. 100, to register their deeds or not; but if they elect not to register, I think that the Act intends, that they shall be subject to the risk (under Section 50) of having their title displaced by a subsequent innocent purchaser without notice, whose conveyance is duly registered.

7. It seems to me that the only reasonable construction of Section 50 is, that where property under the value of Rs. 100 is purchased by two innocent purchasers, the one by a registered, and the other by an unregistered deed, and there is no fraud shown, or other circumstances which in equity would protect the unregistered purchaser against the registered, the title of the latter shall prevail.

8. This appears to have been decided by several cases in this Court, to which our attention has been directed.

9. The first was the case of Gooroo Dass Dan v. Kooshoom Koomaree Dossee (9 W.R. 547), decided u/s 68 of Act XVI of 1864, which contains a similar provision to Section 50 of Act VIII of 1871. In that case it was held, that the defendant's registered deed, though subsequent in date to the unregistered deed of the plaintiff, must have the priority.

10. This ruling was followed in the case of Gobind Chunder Roy v. Poorno Chunder Sein (10 W.R. 36), which is a decision to the same effect under the same Act, and by the case of Soodharam Bhuttacharjee v. Odhoy Chunder Bundopadhya (10 B.L.R. 380), decided u/s 50 of Act XX of 1866, which is similar in terms to Section 50 of the Act of 1871, and the reasoning of the Judges in the case of Shaikh Ryasatulla v. Doorga Churn Pal (15 B.L.R. 296) is also to the same effect.

11. The same point has been decided in the same way under the Act of 1871 by the High Court of Bombay in the case of Panha Khumaji v. Fatta Upa