Moreshwar Balkrishna vs Dattu And Anr. on 26 April, 1888

Bombay High Court
Moreshwar Balkrishna vs Dattu And Anr. on 26 April, 1888
Equivalent citations: (1888) ILR 12 Bom 569
Author: C Sargent
Bench: C Sargent, N Haridas


JUDGMENT

Charles Sargent, C.J.

1. Since the passing of the Registration Act III of 1877 the preference given to an unregistered document accompanied by possession (where registration was optional) as against a registered document by the decision in Balaram Nemchand v. Appa 9 Bom. H.C. Rep., 121 (as explained by Melvill, J., in Sambhubhai v. Shivlaldas I.L.R., 4 Bom., at p. 92), has been taken away by the altered language of section SO of that Act. That section provides that every document of the kind mentioned in clauses a, b, c and d of Section 17, if duly registered, shall take effect, as regards the property comprised in it, against every unregistered document relating to the same property. The defendant’s purchase, therefore, of the 16th April, 1883, is entitled to priority over the earlier, but unregistered, document on which the plaintiff’s title is based, unless indeed the defendant had notice of it, in which case, under the ruling of this Court in Shivram v. Genu I.L.R., 6 Bom., 515 and Dundaya v. Chenbasapa I.L.R., 9 Bom., 428. he would lose his preference. The plaintiff was not in actual possession, but was constructively so for certain purposes through the mortgagor, who remained in possession as his tenant under a kabulayat, which, however, had not been registered. The mortgagor’s possession, however, would afford no notice, either actual or constructive, to the defendant of the plaintiff’s title. Finding his intended vendor in possession, the defendant would have no reason to suppose that he was there otherwise than as owner. The plaintiff might have protected himself by having the kabulayat registered; but not having done so, he cannot now contend that the defendant, in the absence of any special circumstances, had notice of the nature of the mortgagor’s possession. As the plaintiffs pleader refused at the hearing to have an issue raised to try the genuineness of the defendant’s mortgage, this Court in second appeal has no power to rectify his mistake. We must, therefore, confirm the decree, with costs on the appellant.

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