Shankar Ramchandra vs Vishnu Anant on 14 December, 1875

Bombay High Court
Shankar Ramchandra vs Vishnu Anant on 14 December, 1875
Equivalent citations: (1877) ILR 1 Bom 67
Author: West
Bench: West, N Haridas


West, J.

1. The appellant urges that the deed of partition, on which he sues, is excluded from the operation of Section 17 of Act XX of 1866 by being amongst those enumerated in Section 18, Article 7,* as optionally registrable. We do not think that an instrument, to which one of the terms in that article may be applicable, is freed by that circumstance from the necessity of registration under Section 17, if such necessity otherwise exists. If the instrument is one properly falling under Section 17, apart from the provisions of Section 18, Article 7, it ranks amongst the documents before provided for; and the specific provision, imposing a necessity for registration, is not superseded by a general provision for optional registration which is satisfied by applying it to instruments such as those affecting only moveable property not included within the scope of Section 17. The more specific rule, regard being had to the purpose of the Act, is that in Section 17 which applies only to some kinds of deeds, while that in Section 18 applies to deeds of partition generally. The provision for optional registration in the latter is not superseded, but supplemented or qualified by that in the former, unless the latter provision is to be read as extending only to cases not already provided for. When enactments are apparently opposed “it is a cardinal principle in the interpretation of a statute” that the one must, if possible, be read as a qualification of the other, so that some effect, furthering the intention of the Legislature, may be given to each–see per James, L.J., in Ebbs v. Boulnois (L.R. 10 Ch. Ap. 479; see p. 484) and per Lush, J., in Beg. v. Hulme (L.R. 5 Q.B. 377; see p. 388); but here when Section 18 says that instruments of partition may be registered, there is nothing really opposed to that provision in another which says that in particular cases they must be registered.

2. It is said, however, that the instrument in this case is not one that can be fairly deemed to fall within the rules of Section 17, taken by themselves. It does not perhaps create an interest in immoveable property. As to that the Hindu lawyers have expressed different views. But, if it does not create an interest, it seems to us that it at least declares an interest in immoveable property, and that is sufficient, if the value of the property exceeds Rs. 100, to make registration indispensable. In England a partition is made effective by mutual conveyances (Williams Real Prop. 129), and it seems impossible to say that an instrument of partition which is sued on, as producing the same results, does not even declare an interest. Here the plaintiff has himself valued his interest under it at more than Rs. 100, and thus the document, not having been Registered, could not be admitted in evidence. Its terms and the relations thence arising are not so admitted in the defendant’s written statement as to have made all proof of the document superfluous, and we must therefore confirm the decree of the Assistant Judge with costs.

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