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Further Civil Appeal No. 18/1 of 1953, decided on 24th October, 1955 in forma pauperis against the order of the Additional Judge Peshawar, dated 6th December, 1949.
S. 149‑Application to appeal in forma pauperis rejected‑Appellant allowed to pay Court‑fee on appeal. Section 149 Civil P. C., gives wide powers to an appellate Court to grant time to the applicant to pay the requisite Court‑fee on the memorandum of appeal, and if such fee is paid within the time fixed by the Court, the, appeal will not be hit by the operation of the rule of limitation.
Nellavadivu Ammal v. Subramania Pillai and others A I R 1918 Mad. 1039 and Mst. Kanwal Shri v. Babu Lai A I R 1937 Lah. 819 rel.
Mst. Shahzadi Begum v. Alakh Nath and others A I R 1933 All. 308 distinguished.
‑Gift‑----Maraz‑ul‑Maut‑Essentials of---‑Gif executed in Maraz‑ul‑Maut treated as a will.
A gift executed in the circumstances detailed below will be taken to have been executed in Maraz‑ul‑Maut and will take effect as a will.
(1) that the donor was suffering at the time of the gift from a disease which was the immediate cause of his death;
(2) that the disease was of such a nature or character as to induce in the person suffering, the belief that death in all probability was very near;
(3) that the illness was of such an intensity that it had incapacitated him from the pursuit of his ordinary avocation. If a person is unable to stand up in order to offer his prayers, the opinion of the Jurists is that it will be presumed that he was not capable of pursuing his ordinary avocation and
(4) that the illness had continued for such a length of time that the sufferer had become accustomed to the malady, and it had no fear for him at all.
If a malady, of old standing, reaches a stage that it rapidly increases, and makes the sufferer conscious of the apprehension of death, then the malady would at once become a death illness, and a gift made at such a time would be hit by the doctrine of Maraz‑ul‑Maut.
Peer Bakhsh for Petitioner.
Abdul Latif Khan for Respondents.
‑On the 6th of December, 1946, Mst., Asmat Begum, a minor daughter of Abdus Salam, instituted a suit in forma pauperis for possession of certain property, situated in Hangu, against her paternal grandmother, her father's sister, and her mother, alleging that the property in suit belonged to her father, in which she was entitled to half share according to the Muslim Law. She alleged in the plaint that Abdus Salam was said to have executed a gift deed on the 5th of September 1946, in favour of his mother Mst. Hussain Jan (defendant 1), but that this gift deed was executed by Abdus Salam at a time when he was not in his proper senses and was unable to understand what was for his good, and also that it was written under the undue influence of defendant No. 1, at the time when he was suffering from Maraz‑ul‑maut.
The plaintiff was permitted to sue in forma pauperis.
Out of the defendants Mst. Hussain Jan and Mst. Amto Jan, the mother and sister respectively of Abdus Salam contested the suit.
The following issues were framed in the case: ‑
(1) Is the gift of the suit property made by Abdus Salam deceased in favour of his mother (defendant No. 1) by registered gift deed dated 5th September, 1946, liable to be set aside: ‑
(a) because the donor when he made it was not in full possession of his senses and could not correctly estimate the consequences of his action
(b) because it was obtained by undue influence over the deceased
(c) because the donor was on death bed when he made it and being in favour of an heir, it can also take effect as a will
So far as (a) is concerned, it was not pressed by the learned counsel for the plaintiff. (b) and (c) were both decided in favour of the defendants, and consequently the plaintiff's suit was dismissed, but the parties were directed to bear their own costs.
An appeal against the above decree was dismissed with costs by the learned Additional Judge, Peshawar.
A further appeal was preferred in this Court on 2nd March 1950. It was accompanied by an application by Mst. Asmat Begum, that she should be permitted to prosecute the appeal in forma pauperis. This application was dismissed by one of us on 31st October, 1950, on the ground that it was not made within thirty days of the decree appealed from, as was provided by Article 170 of the Limitation Act:
Mst. Asmat Begum has now put in an application under section 149 Civil P. C., praying that she should be permitted to pay the requisite Court‑fee, and allowed to prosecute her further appeal. It is argued on her behalf that section 149 Civil P. C. gives ample power to this Court to permit the petitioner to pay, the requisite Court‑fee at any stage, and proceed on with the further appeal.
Section 149 Civil P. C. runs as under: ‑‑
"Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court‑fees has not been paid, the Court may, in its discretion at any stage, allow the person, by whom such fee is payable, to pay the whole or part as the case may be of such Court‑fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance".
The learned counsel for the respondents, however, con tends that where the application for leave to‑ appeal as a pauper is filed after the period of limitation had expired just as is the case here, the subsequent payment of the Court‑fee would not under any circumstance validate the appeal. In support of his contention he has referred us to a Single judge authority in case Mst. Shahzadi Begum v. Alakh Nath and others (A I R 1933 All. 308). This authority no doubt supports the argument advanced by the learned counsel for the respondents, but then the learned Judge has not made any reference to section 149 Civil P. C., and has only considered the provisions of O. XLIV, rule 1 Civil P. C., and section 5 of the Limitation Act.
Section 149 Civil P. C., which has been quoted above, in our view, gives wide powers to an appellate Court to grant in time to the applicant to pay the requisite Court‑fee on the memorandum of appeal, and if such fee is paid within the time fixed by the Court, the appeal will not be hit by the operation of the limitation rule. This view is supported by Nellavadivu Ammal v. Subramania Pillai and others (A I R 1918 Mad. 1039) and Mst. Kanwal Shri v. Babu Lal (A I R 1937 Lah. 819).
The result is that we allow the plaintiff‑petitioner to pay the requisite Court‑fee by the 20th of March, 1953. If such fee is paid, the case shall then be fixed for full hearing.
Peer Bakhsh Khan for Appellant.
Abdul Latif Khan for Respondents Nos. 1 and 2.
.‑The facts of the case are given in detail in the judgment of the Bench of the Judicial Com missioner's Court N: W. F. P., dated 2nd March, 1953. This order may be read in continuation thereof. The requisite Court‑fee having been paid, the appeal must now be decided on merits.
The only question, which requires determination, is whether the gift of his entire property made by Abdus Salam on 5th September, 1946, in favour of his mother Mst. Hussain Jan defendant No. 1, was invalid under the law of Maraz‑ul- maut. The essentials of this law, which is based upon the Holy Quran, were in the beginning differently enunciated by different Jurists, but the modern Jurists, including the judges of the different High Courts of pre‑partition India and Pakistan, have settled them pretty accurately. Reason for this rule is that the Holy Quran has termed the transaction, which is entered into by a person at the time when death approaches him, as a wassiyat (Chapter II verse 180), and nobody can alter its real nature by calling it something else, for example, a gift. As a will, the transaction is subject to all limitations, conditions and restrictions detailed in the Holy Book itself. It consequently follows that a document executed by a person at the time when he is on the death‑bed, if it transfers all or any part of the property in favour of his heir or heirs, is invalid in Muslim Law. The difficulty, which has arisen with different Jurists at different times is as to when can it be said that death as a matter of fact was approaching a certain person. This, to a large extent, depends on the condition of the mind of the person who executes the document. He may have a subjective apprehension of death in his own mind, or somebody interested in the property may create that apprehension in such person. If the former, the transaction would be void as having been made in Maraz‑ul‑Maut, and if the latter, as having been made under the undue influence of somebody else. Now, it is human nature, if it is not the nature of all things having life in them, not to lose hope about their lives till the last moment. In fact the hope for the maintenance of life is entertained till last, and it is expected that something might happen even if it be a miracle to save a person from the clutches of death. So what has to be seen is whether a person when he executed the document had to a very large extent lost hope of living and had a fear in his mind that life in him might become extinct at any moment. If that stage reaches then according to the Muslim Law the man is as bad as dead, and he cannot be permitted to by‑pass the laws of inheritance or will as laid down in the Holy Quran itself. It is impossible to expect a person to say in so many words that he had lost all hope of life, and, therefore, he is extremely disgusted with everything, and it matters little to him as to what happens to the property after he is no more, but the fact remains that this condition does reach a person when he is approaching death. At this particular moment then it often happens that some people, taking advantage of that condition of the person, make him dispose of his property in a certain way, depriving certain individuals of their legiti mate and legal rights. It is here that the Courts are expected to step in and protect the rights ‑of those individuals. In order to judge, whether a certain person at a certain particular time had developed a condition of mind, losing to a large extent the hope of living, one must take into account the surrounding circumstances, the character of the malady, its intensity, and the duration thereof. One thing should, how ever, be mentioned in particular, that no malady can be termed as Maraz‑ul‑Maut, if it in fact does not result in death. This is what is signified even by the term itself. It has been the opinion of all the Jurists now that the following circum stances, if they exist, prove that the person was approaching death, and, therefore, the gift executed by him would be treated as a will and not as a gift at all: ‑
(1) that the donor was suffering at the time of the gift from a disease which was the immediate cause of his death;
(2) that the disease was of such a nature or character as to induce in the person suffering, the belief that death in all probability was very near ;
(3) that the illness was of such an intensity that it had incapacitated him from the pursuit of his ordinary avocations. If a person is unable to stand up in order to offer his prayers, the opinion of the Jurists is that it will be presumed that he was not capable of pursuing his ordinary avocations ; and
(4) that the illness had continued for such a length of time that the sufferer had become accustomed to the malady, and it had no fear for him at all.
If a malady, which is of old standing, reaches a' stage that it rapidly increases, and makes the sufferer conscious of the apprehension of death, then the malady would at once become a death illness, and a gift made at such a time would be hit by the doctrine of Maraz‑ul‑Maut.
The gift made by Abdus Salam has, thus, got to be seen in the light of the above observations. Abdus Salam was a clerk in the Frontier Constabulary, Hangu. On the recom mendation of the Civil Surgeon Kohat, he was admitted in Tuberculosis Sanitorium Daddar on 22nd July, 1946. According to Dr. Saeed Ahmad, the Superintendent of the Sanatorium, a Abdus Salam was even then in a very advanced stage of the disease. Abdus Salam remained in the Sanitorium until 26th August, 1946. The disease not only not improved during this period, but it further deteriorated and the case became absolutely hopeless. On this last date, Abdus Salam made an application that he should be permitted to return home, and that he would not make any claim for traveling expenses etc. This was the condition of Abdus Salam, when he is alleged to have executed the gift deed in favour of his mother on the 5th of September 1946. Abdus Salam breathed his last thirteen days later i.e., on the 18th of September 1946. It is not denied that he was suffering from phthisis, and it was this malady that he eventually died of. It is also proved from the state ment of Dr. Saeed Ahmad, that the case had become absolutely hopeless. The fact that Abdus Salam himself made the application that he should be allowed to return home proves that he was aware of the fact that the Sanitorium at Daddar, which is the only Institution in this country where the phthisis patients are effectively treated, could not cure his disease, and, therefore, he should live in his own home‑town during the last days of the life and die there. That the disease had completely incapacitated him is proved from the fact that the document was registered in the house of the deceased at about evening time. If the deceased had been able to move then there was no reason why he should not have been taken to the Sub‑Registrar's Office. Apart from that, the fact that a doctor was procured to be present at the time of the registration goes to show that the beneficiary under the gift‑deed enter tained a reasonable fear that the Sub‑Registrar might refuse to register the document on account of the intense illness of the donor. This doctor was Muhammad Arshad Khan (D. W. 1), who deposed in very clear terms that Abdus Salam at the time of the execution and registration of the gift deed was very ill, although he was mentally quite sound. He also affirmed that Abdus Salam was lying ill in his house for some time before he actually left for Daddar, and that after he returned from there his condition had further deteriorated. This doctor further stated that Abdus Salam was very weak during the days when he executed the gift deed, and he was not in a position to move at all, and it was on account of this fact that the Sub‑Registrar was taken to his house for the registration of the document. The statement of Dr. Saeed Ahmad and Dr. Muhammad Arshad, in our view, proves conclusively all the ingredients of Maraz‑ul‑Maut, mentioned elsewhere in the body of this judgment.
A mass of other evidence has been produced by both the parties but no reference was made to it by the learned counsel appearing for them, and we also do not attach any importance to it in view of its partisan character.
The condition of the mind of Abdus Salam that he was extremely disgusted and disappointed, and had no hope of living any more, is proved from this fact also, that he transf erred his entire property in favour of his mother. If he had any hope of living at all, he would have at least kept a house for himself, if not a portion of the landed property. Again, there was no reason for Abdus Salam to transfer the property in favour of his mother a few days before his death. It is said that he transferred the property on account of his love and affection, which he had for his mother, but then as has been stated by the learned counsel, appearing for the res pondents, Jalal Khan, the father of Abdus Salam died on 13th May 1913, why was Abdus Salam not actuated by this love and affection for full 33 years to transfer the property in her favour. It further appears that the plaintiff was born to Abdus Salam, in the house of her maternal‑grand parents, just at the time when either Abdus Salam was in the Sanitorium at Daddar, or back in his paternal house. He was kept absolutely ignorant of the plaintiffs birth to him, because if this fact had been brought to his notice, we cannot understand why he should not have made a mention of her in the gift deed, or had not made a provision for her maintenance and education. It is in the evidence of Dr. Muhammad Arshad, defendants' own witness, that the deceased at the time of the registration of the document had protested that some provision should be made for his sister too, but then he was calmed down by the mother etc., and so he put his signature to the document as it was. If the deceased was so very anxious about his sister, he would have been all the more anxious for his daughter, if he had known ' that he had one living. Incidentally the fact that the deceased at the time of the registration of the document protested as to why his sister was not mentioned in the deed, goes to show that the deed was actually written without his knowledge and dictation. The mother, consequently, in our view, taking advantage of the condition of her son, pursuaded him, by keeping him com pletely ignorant of the birth of his daughter to him, to transfer his entire property to her, and this conduct of the mother clearly amounted to undue influence.
The cumulative effect of all the facts brought upon the record is that the deed of gift was executed by Abdus Salam at the time when he was suffering from Maraz-ul‑Maut, and it consequently had no other value but that of a will, and since the mother is an heir the will in her favour would be completely invalid.
The two Courts below in dismissing the plaintiff's suit have not taken into account all the circumstances attending the case, for example, they did not even touch the question as to why the deceased transferred his entire property to his mother, malting himself an absolute pauper.
This omission of the two Courts below entitles us to upset their concurrent finding.
The result is that we accept this further appeal, set aside the judgment and decrees of the two Courts below, and grant plaintiff a decree for half of the property in dispute with costs throughout.
A. H.
Civil Revision No. 86 of 1954 decided on 14th November 1955 against the judgment and decree of Faizullah Khan, District Judge, Hazara, dated 18th January 1954, whereby the judgment and decree of Allah Bakhsh Khan, Sub‑Judge 4th Class, Abbottabad, dated 8th August 1953, was set aside.
S. 49‑Unregistered deed of relinquishment requiring registration‑Admissible for collateral purpose, e.g., to prove nature and character of possession of party in whose favour property was relinquished.
M & A relinquished their rights in three houses and some landed property, value of which far exceeded Rs. 100 in favour of Z in return for some immovable property. The deed of relinquishment was not registered. In spite of the relinquishment of their rights, M & A instituted a suit for possession of the property relinquished, in reply to which the defendants (Z and another) set up the deed of relinquishment. M & A (the plaintiffs) objected that the deed being unregistered was not admissible under section 49, Registration Act.
that though the deed was not admissible so as to affect the property in question, it was admissible for a collateral purpose viz., to prove the nature and character of the possession of defendants as from the date of the deed though the character and nature of possession cannot be separated from the main transaction evidenced by the docu ment.
Further, that irrespective of the fact whether a person has matured his title by adverse possession or not, he is entitled to show by the production of an unregistered document that with effect from a certain date his posses sion of a certain property had a certain character and nature.
‑Plea not raised in issues‑Not allowed to be raised in revision.
‑Document, held, inadmissible because of non‑registration in former case‑Decision not res‑judicata in so far as document in later suit was sought to be admitted for a collateral purpose.
Kazi Abdur Rashid for Petitioners.
Peer Bakhsh Khan for Respondents.
‑The facts of this case, in order to indicate and intelligently follow the questions of law, which require determination in this revision petition, may be recapi tulated 'as under: ‑
One Muhammad Sharif was an owner of 1/3rd share in 594 kanals of culturable land, three houses and some village shamilat land, situated in Bakot village, of Hazara District. He died issueless leaving behind a widow by the name of Mst. Afsar Jan, who under the Hanafi system of Muslim Law, which governed the parties, inherited 1/4th of his property. The balance went to his only other heir Muhammad Zaman, his paternal‑uncle, who also held the remaining 2/3rd share of the property. By a registered deed, dated 21st October 1943, Mst. Afsar Jan sold away the entire property inherited by her from the husband in favour of Muhammad Khan and Subedar Muhammad Akbar Khan for Rs. 1,500. This sale gave rise to two pre‑emp tion suits, one by the said Muhammad Zairian and the other by the mother of the vendor. Both suits were with drawn because during their pendency the vendees executed a deed on 8th April 1945, according to which, amongst other conditions which are not relevant for the purpose of the decision of this case, they in return for some im movable property, relinquished their rights in three houses and some landed property, the total value of which was admittedly more than Rs. 100, in favour of Muhammad Zaman. In spite of this deed, the vendees on the 10th of January 1953, instituted a suit No. 281/1 of 1953, for pos session by partition of 1/12th share in the said three houses, citing Muhammad Zaman and one Abdul Aziz, in whose favour it was alleged the former had gifted the property, as defendants. In reply, the defendants, who were admittedly in possession of the suit houses, to the complete exclusion of the plaintiffs, set up the above deed in defence, and at the same time raised several other technical and factual objections, as a result of which the following issues were framed by the learned trial Court: ‑
(1) Whether plaintiffs are the owners of the suit -property
(2) Whether suit is properly valued for Court‑fee and jurisdiction
(3) If issue No. 1 is proved, whether plaintiffs have relinquished their rights
(4) Whether suit is within time
(5) Whether plaintiffs are estopped from bringing the suit
(6) Whether defendants have made improvement to the suit‑property, and are entitled to its compensation ; if so to what amount
(7) Relief.
The learned trial Court decreed the suit, holding that the plaintiffs continued to be the owners of the property, which they had purchased from Mst. Afsar Jan, and that the deed dated 8th April 1945 was completely inadmissible in evidence, because it purported to extinguish the vested rights in an immovable property, which was of the value of more than Rs. 100.
On appeal the learned District Judge Hazara reversed the trial Court's judgment, and dismissing the plaintiffs' suit, held that the deed, though it could not be produced to affect the immovable property comprised therein, could be received into evidence to show the character and nature of Muhammad Zairian's possession.
As against this judgment the plaintiff's have come up in revision to this Court, and since the question of law of vital importance was involved in it, Hon'ble the then judicial Commissioner referred the decision of this question to the Bench of the Judicial Commissioner's Court, which has now become the Bench of the West Pakistan High Court.
In this Court, the learned counsel appearing for the plaintiffs, while attacking the judgment of the learned lower appellate Court on the Question of the admissibility in evidence of the document, dated 8th April 1945, contended in addition, that the judgment was erroneous also, on the ground that it did not take into account the decision in Muhammad Zaman's suit No. 50/1 of 1952, that this very document was inadmissible in evidence. This finding, accord ing to the learned counsel, amounted to res‑judicata.
The disputed document is admittedly inoperative under section 49 of the Registration Act, in so far as it affects the immovable property, including the three houses in dispute, because the value of such property is very much more than Rs. 100. Muhammad Zaman, however, does not wish to rely upon this document to get the property contained therein ; all that he wishes to prove by its production is that his possession over these three houses, from the date on which this document was executed, was not that of a tres passer, or a wrong‑doer, or as a co‑owner with the plaintiffs, but was that of an exclusive owner. This, in our opinion, he is perfectly within his right to do.
When two‑ parties enter into an agreement, according to which one party in lieu of certain consideration, creates, declares, assigns, limits or extinguishes any right, title or interest in an immovable property, then the specific and particular purpose of the agreement is the creation, decla ration, assignment, limitation or extinction of such right, title‑ or interest, in return for the named consideration. In order to furnish proof or evidence of such an agreement, the parties or one of them, who creates declares, assigns, limits or extinguishes his right, title or interest, executes a formal legal instrument, which in order, to be operative, when it relates to immovable property, of the value of Rs. 100 or upwards, must be registered according' to' the procedure laid down in the Registration Act XVI of 1908. There are, however, certain incidents of the transaction contained in the instrument, which though they necessarily, follow and run parallel to the transaction are quite inde pendent of it. These incidents have come to be known in the legal terminology as collateral purpose of the transactions or the instrument containing the transactions. For example, in the case of sale of an immovable property, if a party extinguishes his right in such property and creates it in somebody else, then all that he has got to do is to reduce this fact into writing, and if that is done the sale is complete. The necessary incident of such a sale, even though it is not mentioned in the deed, is the parting with the possession of the property by the vendor, and handing it over to the vendee. The deed if not registered shall not be received in evidence to prove the factum of sale, but this disability will not affect the production of such deed to prove the incidents of sale viz., that the vendee who was let into possession of the property after such sale is in possession in his own right and not in any other capacity. Similarly, if A is in possession of a certain property, which belongs to B, who by an unregistered deed gives up his right in that property in favour of A, then the deed, if this property is immovable and is worth more than Rs. 100 cannot be given into evidence to prove the extinction of the right, but it can legitimately be looked into to show that the possession of A with effect from a certain date was that of an owner and not that of a subordinate to B. In both these cases though the character and nature of possession of the person in possession cannot be separated from the main transaction evidenced by the unregistered document, yet they stand quite aloof therefrom. Sections 17 and 49 of the Registration Act are disabling enactments. According to the well settled principles of law, governing the interpretation of the Statutes, both these sections must receive a strict consideration. Nothing should be imported within the purview of these two sections, if the legislature has not specifically done so. The creation, declaration, assignment, limitation or extinction of any right, title or interest in an immovable property worth more than Rs. 100 (section 17 (b)) or the consideration thereof (section 17 (c)) cannot be proved by the production of an unregistered document, but this disability in the absence of a specific provision will not come in the way of the production of such a document to prove the incidents of the document or collateral purpose, viz., the nature and character of the possession of a certain person on a specified , date. This is the position of law, which is now well established and any view contrary to it expressed in any authority will not be considered a good law at all. If any authority is needed in support of the above enunciation of law, then a few cases may be quoted as under: ‑
Mst. Basi Devi v. Muslim Bank of India (A I R 1943 Pesh. 70). Although a document may not be admissible for want of registration, it can be used for the collateral purpose of showing the nature of the possession of the person who holds the possession. This principle applied even in the case of a plain tiff seeking a declaration of his title. Discussing the facts of the case their Lordships held that the plaintiff had been in adverse possession of this house for more than 12 years before the institution of the suit on the basis of an unregistered gift deed.
Jana v. Saida (P L D 1952 Pesh. 68 (S. J.)). A document, which is not registered can be produced and admitted into evidence in order to prove the collateral purpose, for example the nature of possession of a certain person over a certain property. A person who has been put in possession of the property as a result of an unregistered document can protect his possession by the production of that document and non‑suit the person who has executed it, and has actually put him in possession of the property. The instrument of transfer in this case was dated 21st May 1946, while the suit was brought on 20th July 1950. The authority followed was Mst. Shankari and others v. Milkha Singh (A I R 1941 Lah. 407).
A I R 1941 Lah. 407 (F. B.). Section 53‑A of the Transfer of Property Act embodies general rule of equity, which would prevail in India apart from the provisions of the Transfer of Property Act. The principle embodied in section 55 (6) (b) of the Transfer of Property Act can be applied as being a general rule in accordance with justice, equity and good conscience. The position of a purchaser who has been let into possession by his vendor under an unregistered and consequently an inoperative sale deed after there has first been an oral agreement to sell and after the whole of the consideration has been made good under the mistaken belief on both sides that the transaction is complete whereas in fact it has remained incomplete for want of registration of the instrument purporting to effect the transfer, must be regarded as that of a purchaser under a contract for sale, which has not yet been completed, or rescinded with the consent of both the parties, and the purchaser cannot claim any title as owner in the property, whether as legal or as equitable owner. Though the unregistered instrument is not admissible to prove transfer of title it can be used in evidence for the purpose of showing that the purchaser entered upon the property under a contract of sale.
Nagar Singh v. Bela Singh (A I R 1935 Lah. 955 (F. B.)). The principle embodied in section 53‑A of the Transfer of Property Act applied to the case, and even if the document required registration the defect was cured as soon as it was acted upon by the parties, that D being in possession of the land, the document could be used for the collateral purpose of showing D's possession.
Kartar Singh and others v. Mst. Mehr Nishan and another (A I R 1934 Lah. 885). Relying upon A I R 1923 Lah. 495 and A I R 1925 Lah. 491 it was held that unregistered document can be used for determining the nature of the claimant's possession. A I R 1923 Lah, 495 is a Division Bench ruling, and A I R 1925 Lah. 491 is also a Division Bench ruling. Both these authorities followed 1919 P C 45.
Asa Nand v. Dona Ram (A I R 1925 Lah. 500 (S. J.)). An unregistered lease can be referred to in order to .see the nature and the character of the possession held by the tenant‑defendants, and their purchasers as also the title of the landlord‑plaintiffs:
Sahib Singh and others v. Daleep Singh (A I R 1933 Lah. 422). An un registered deed of partition though inadmissible to prove the partition is admissible for the collateral purpose of proving the nature of possession.
Wazira v. Bakhshi and others (A I R 1930 Lah. 45 (S. J.)). Although a. document surrendering a widow's estate in all her property being unregistered is inadmissible in evidence as registration in such cases is necessary, still it can be consulted to learn the nature of the possession of the transferee. Here the deed of surrender was dated 21st February 1911, and the suit was brought some time after November 1925.
Hari Ram v. Sheo Karan (A I R 1927 Lah. 841 (S. J.)). Although the details of a partition cannot be proved being embodied in an inadmissible deed, still the fact that the plaintiff is in possession of the suit property or built any portion of it can be proved by oral evidence, and the partition deed can then be relied upon to determine the nature of the possession.
Ramlaxmi Rancholdlal v. The Bank of Baroda, Ltd. (A I R 1953 Bom. 50 (D. B.)). The expression collateral transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a main transaction. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose; the fulfilment of the collateral purpose would bring into existence a collateral transaction, a transac tion which may be said to be a part and parcel of the transaction, but nonetheless a transaction which runs together with or on parallel lines with the same. The partition of immovable property belonging to the joint family, which requires to be effected by a registered instrument would be inadmissible in evidence under the main proviso of section 49, but the partition i.e., the severance of joint status, which is not required to be effected by a registered instrument would be a collateral transaction, evidence of which would certainly be admissible under the proviso to that section and the memo of partition which is inadmissible for want of registration would certainly be admissible to prove the fact of such partition.
Dhyaneshwar Krishna Sambhus v. Anant Vasudeo Avochat (A I R 1936 Bom. 290). A sale deed required to be registered when not registered s not admissible as evidence of title, but may be looked at toexplain the nature of the possession of the vendee obtained in consequence of it, or for any other collateral. purpose but it cannot be acted upon to validate it as a conveyance.
Vishvanath Haibatrao Deshpande v. Ranganath Dhondo Deshpande and others (A I R 1942 Bom. 268). Collateral purpose referred to in section 49, Proviso, is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. A lease deed which was compulsorily registrable and not registered is not admissible as evidence of transaction, but it can be properly admitted for a collateral purpose, namely, of ascertaining the nature and character of the plaintiff's possession.
Jit Singh v. Shah Munir (A I R 1935 All. 155 (S. J.)). An unregistered mortgage deed is admissible in evidence to prove the nature of posses sion. This case followed A I R 1924 All. 837.
Umar Haji Karim Shop v. Badri Dass Ram Rai Shop (A I R 1941 Nag. 72). Though an unregistered deed of sale is ineffective to pass title, it can be used to explain the nature of possession taken under it. It may operate as a starting point for adverse possession of a vendee, if he has set up independent title in himself.
The theory of law upon which this rule proceeds is sufficiently general to comprehend cases in which the person is let into possession as a result of ineffective instrument or cases in which the person is already in possession, when such an instrument is written. Similarly this rule of law will be available to all persons in possession of a certain property to protect such possession irrespective of the fact whether they are plaintiffs in the case or defendants (A I R 1943 Pesh. 70).
Learned counsel appealing for the petitioners further argued that such a document could be used only by a person who has completed his adverse possession in order to show, the date from which his adverse possession started. The discussion of the law point, in our view, is a complete answer to this argument. Irrespective of the fact whether a person has matured his title by adverse possession or not, he is entitled to show by the production of an unregistered document that with effect from a certain date his possession on a certain property had a certain character and nature The second argument addressed to us by the learned counsel appearing for the petitioners was on the question of res‑judicata, mentioned in the earlier part of this judgment. This objection has been raised for the first time in this Court, and in the absence of any issue on it, the learned counsel has no legal right to urge it. In any case, in the previous suit instituted on 8th December 1952, Muhammad Zaman had demanded a declaration that on the basis of this deed he was the full owner of Khasra No. 1594, but if for some reason or another he was not found to be the owner of this Khasra number; then he might be given the possession of 11/12th share of Khasra No. 1595. The learned Court in that case refused the first relief to Muhammad Zaman on the ground that the deed was not admissible in evidence at all. There was no decision given by that Court that the deed was equally inadmissible to prove the nature and the character of Muhammad Zaman's possession over Khasra No. 1594. The question whether the impugned document could not be produced to prove the nature and character of Muhammad Zaman's possession was never raised in the previous suit, and was, therefore, not decided one way or the other. The principle of res‑judicata consequently would not come in at all.
No other point has been argued before us.
We consequently hold that Muhammad Zaman has established by the production of the unregistered compromise deed, that his possession over the property in dispute was that of an exclusive owner, and not as subordinate to the plaintiffs or as a wrong‑doer, or as a co‑owner with them. In this view of the case, the revision petition fails and is hereby dismissed with costs. Pleader's fee Rs. 40.
A. H.
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