Decided on March 16,1960

SHRI LAL Appellant

Referred Judgements :-



Sarjoo Prosad, C. J. - (1.)THE plaintiffs have preferred this appeal It arises out of a suit instituted by them claiming pre-emption in respect of a room which is alleged to have been sold to defendant No. 1 by defendants Nos. 3 and 4, and also for a permanent injunction against the said defendant preventing him from opening a door in the western wall of the room with a view to enable the inmates of his house to use the court-yard of the plaintiffs' house.
(2.)THE disputed small room appears to be a part of the plaintiffs' house and lies on the western side of the house ; but admittedly on the case in the plaint, the said room was owned and occupied by defendants 3 and 4. How they came to own it is not explained, but that is immaterial. This small room opens on the eastern side towards the common court-yard of the house, and it is also the admitted case of the plaintiffs that the court-yard was being used jointly by the plaintiffs and defendants 3 and 4, who were in occupation of the room, for their convenience. THE plaintiffs further alleged that some six days before the institution of this suit on 6th of August, 1948, they noticed that defendant No. l, who has his house adjoining the disputed Kotari on the western side was making certain constructions on the Kotari, and was opening a door towards the west connecting the Kotari with his own house. It was then that- the plaintiffs say they learnt that the Kotari in question had been sold to defendant No. 1 by defendants 3 and 4. THEy accordingly filed the suit making the prayers aforesaid.
The suit has been resisted by the defendant No. l alone. The defendants Nos. 2 and 3 appear to have accepted the claim of the plaintiffs, while the defendant No. 4 did not appear in the litigation at all. The defendant No. 1 claimed that the room in question had been sold to him by defendants 3 and 4 on the 15th of May, 1943, for a sum of Rs. 81/-, and in pursuance of the sale he obtained delivery of possession. " He accordingly claimed that he was entitled to make the constructions in question, and that the suit was barred by limitation.

The courts below have dismissed the plaintiffs' suit. They held that although the plaintiffs may have a right of pre-emption in respect of Kotari in question, the right was clearly barred. They further found that the defendant No. 1 was entitled to open a door in the western wall of the room, and to use the court-yard in question which was a common court-yard for the use of both the plaintiffs and the vendors, defendants 3 and 4. Mr. Jain on behalf of the appellants contends that the contesting defendant relied upon an unregistered sale deed for the purpose of proving transfer in his favour, and the sale deed in question being inadmissible in evidence, the terms of the sale could not be proved by evidence aliunde. He, therefore, contends that the defendant No. 1 acquired no title to the disputed room by virtue of the transfer in his favour made by the defendants Nos. 3 and 4

Strictly speaking this question of transfer in favour of defendant No. 1 does not arise having regard to the frame of the suit itself. The suit is on the basis that there had been a completed transfer in favour of his defendant, and that consequently the plaintiffs were entitled to pre-empt in respect of this property. But that apart, we do not think there is any substance in the contention of the learned counsel. It is true that the document being unregistered could not be admitted in evidence for the purpose of proving the transaction of sale; but the transfer in favour of the defendant No. 1 could be proved by oral evidence in the case. The transferee has said that the property had been sold to him for a sum of Rs. 81/-, and that he accordingly obtained delivery of possession. Khichchu, one of the vendors, has been examined in the case. He also admitted that the room in question had been sold to the defendant No. 1, and the courts below appear to have accepted the evidence of the defendant that he obtained delivery of possession of the property sold on the 15th of May, 1943. They disbelieved the plaintiffs' case that there was no delivery of possession on that date, but that the defendant No. 1 obtained delivery of possession only some 5 or 6 days before the institution of the suit. In our opinion, the appeal is concluded by those findings, and even assuming that the sale deed could not be admitted in evidence for the purpose of proving the transaction of sale, it could certainly be taken in evidence under sec. 49 of the Registration Act, as proving part performance of a contract of sale within the meaning of sec. 53-A of the Transfer of Property Act.

Mr. Jain has drawn our attention to a decision of a Single Judge of the Bombay High Court in Tribhovan Hargovan vs. Shankar Desai (1), in which it was held by the learned Judge that in the case of a sale of property for less than Rs. 100/-, where the sale deed is unregistered, the vendee cannot be said to have proved his title merely by proving delivery of possession of the property. It is not necessary to discuss that judgment. There the learned Judge appears to have observed that the document could not be received as evidence of either the sale or the contract for sale, because in his opinion according to the view of the Privy Council as expressed in Skinner vs. Skinner (2), a document embodying a contract for sale required registration. It is, however, clear now that a contract for sale does not require registration, as mentioned in the Explanation to sec. 17 of the Registration Act. The explanation is retrospective inasmuch as it says that a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration. Besides, the proviso to sec. 49 also makes it clear that an unregistered document affecting immovable property could be taken as evidence of part performance of a contract as contemplated by sec. 53-A of the Transfer of Property Act. The learned Judge himself was of the opinion that "where there is an unregistered sale-deed which cannot be used for proving title, the party in question is not precluded from proving the sale by the delivery of the property; but in the circumstances of the case be took the view that the nature of the transaction itself had not been proved and that, therefore, the defendant could not succeed. Here on the contrary, it is admitted that there was a sale in favour of defendant No. 1 and the finding of fact, which is based upon evidence, is also to that effect, namely, that there was a sale of the room in question in favour of the defendant No. 1 for a consideration of Rs. 81/- and in pursuance of that sale there was delivery of possession. That finding concludes the matter.

The learned counsel further contends that in any case the defendant No. 1 by virtue of his purchase cannot use the court-yard in any manner so as to cause inconvenience to the plaintiffs. He submits that the very fact that a door has been opened in the room in question connecting the room with the house of defendant No. 1 shows that the other inmates of the house also would be using the court-yard for the purposes of ingress and egress. Even so, we are unable at this stage to come to any conclusion that the use of the court-yard would be so unreasonable as to interfere with the rights of the plaintiffs. A joint owner is entitled to make reasonable use of joint property so as to not cause any inconvenience to any other joint owner; but if the plaintiffs have any case on that point, they would be entitled to bring a regular suit for that purpose, if so advised. In this case we find no material on which we can hold that the defendant No. 1 has been using the court-yard in any unjustifiable manner.

The appeal is without any substance and must be dismissed ; but we make no order as to costs of the appeal, since it has not been opposed by the respondent. .


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