JUDGMENT
Charles A. Turner, Kt., C.J.
1. The learned Counsel for the appellant argues that the judgment of the Lower Appellate Court is defective in that that Court has not expressed an opinion on the issue as to whether possession lay with the third defendant, and we have first to determine whether that issue was material.
2. In Rajah Sahib Perhlad Sein v. Baboo Budhoo Sing 12 M.I.A. 275 the Judicial Committee expressed strong doubt whether the execution of a Bill of Sale by a Hindu vendor would pass an estate irrespectively of actual delivery of possession.
3. The learned Judges of the Bombay High Court have held that a sale is incomplete without delivery of possession–Lalubhai Surchand v. Bai Amrit I.L.R. 2 Bom. 299.
4. On the other hand, in Narain Chunder Chuckerbutty v. Dataram Roy I.L.R. 8 Cal. 597, the learned Chief Justice and Judges of the Calcutta High Court have held that delivery of possession is not under Hindu Law essential to complete the title of a purchaser for value, and that, according to the universal practice in that Presidency, title passes on the execution of a proper deed of conveyance.
5. This Court reviewing the Hindu authorities held that possession was not necessary to complete title on a partition–Lakshmy Venkama Bow v. Naraaimha Bow Bahadur 3 M.H.C.R. 40, affirmed in 13 M.I.A. 113. In that case, the learned Judges considered the question generally, and their opinion is in accordance with a decision of the Sadr Court, Velayuda Mudali v. Sivararna Sastri M.S.D. 1860, p. 277, and with decisions which have since been passed by this Court. In practice, we believe we are correct in saying that for many years the execution of a sale-deed has been regarded as conveying a title to the property and that delivery of possession is not necessary to complete it.
6. It appears to us that whatever may be the true view of the Hindu Law, we are bound to give effect to usage and judicial decision, especially seeing that the question is now set at rest by the provisions of the Transfer of Property Act. We must, there-fore, hold that under the law administered in this Presidency before the Transfer of Property Act came into force, where all was done that the parties contemplated to complete the sale, the title of the first purchaser would not be defeated in favour of the second purchaser merely by reason that the latter obtained and the former did not obtain possession.
7. The appeal fails and is dismissed with costs.
