P L D 1962 Dacca 490 (PLP)

Where, in a document, the interest involved is nothing more than a mere spes succession is, or where the document goes no further than merely reciting a fact or other legal effect of a transaction, which is already a fiat accompli and is found to stand even in the absence of such a recital, registration of such ‑a document is not compulsory under the Registration Act, 1908. B. C. Das for Appellants, S. A. Chowdhury for the Deputy Registrar, This appeal arises out of a suit instituted by the plaintiffs for recovery of possession of certain properties on establishment of their title thereto, and the plaintiffs are the appellants.

2. The disputed properties originally belonged to one Sanatan Mondal who died leaving behind him his widow, Maharani Bewa, and one daughter Hara Sundari, who was married to Jogeswar, predeceased her mother Maharani, and left behind her two sons, Armada and Profulla. Thereafter Annada also died leaving behind him his father Jogeswar as his heir. Thus by succession and inheritance Profulla and Jogeswar became sole owners of the estate of deceased Sanatan and are defendant Nos. 3 and 4 in this suit. The plaintiffs claim the suit lands on the basis of purchase from these two defendants under a registered kabala dated 6‑6‑45 impeaching an earlier kabala purchase dated 6‑5‑41 of defendants Nos. 1 and 2 from Maharani as being vitiated by undue influence and absence of legal necessity. There was also the complaint of .forcible dispossession by the said defendants barring one plot of which the plaintiff claimed to be in possession. The suit was contested by defendant No.

1. His substantive defence, in short, was that Maharani sold the disputed lands to them for bona fide legal necessity and that this was also subsequently rati fied by the two reversioners of Sanatan, i.e., his grandsons Profulla and Armada. It appears that sometime after the death Maharani, the said reversioners, one of them on his own and the other who wag a minor through his father Jogeswar, filed a case for grant of Letter of Administration on the basis of a will said to have been executed by Sanatan. Subsequently, there appears to have been an amicable settlement as a result of which. the said applicants abandoned the case filed by them and in consideration of Rs: 500, actually paid and received, ratified the aforesaid transfer made by Maharani in favour of the defendants by executing a Nadabi patra and also admitting therein that the said transfer by Maharani was made for actual legal necessity. It is mainly on these pleadings that the contending parties went into trial and adduced evidence in support of their respective cases.

3. Ultimately the learned Munsif held that the defendants acquired good title by their purchase from Maharani which was justified by legal necessity so that the plaintiffs got nothing under their kabala and, accordingly, dismissed the suit. On appeal this decision of the trial Court was reversed by the Appellate Court which held, inter alia, that the defendants' 'purchase from Maharani did not confer any title on them and that the plaintiffs acquired good title by their purchase front the real reversioners, Against this there was a second appeal, as a result of which the said decision of the lower Appellate Court was set aside and the appeal remanded for re‑Bearing. In the order making the remand the points to be considered were clearly indicated and these were (1) the date of Maharani's death and (2) legal effect of the Nadabi deed dated 23‑3‑43 construed in the light of the other relevant documents on record.

4. The appeal has accordingly been reheard and the learned Additional Judge, who heard the case, has found that Maharani died sometime in Kartick/Agrahayan, 1350 B: S., i.e., after the execution of the aforesaid Nadabi deed, that the transfer made by Maharani in favour of the defendants was fully justified .by legal necessity that the Nadabipatra in question was actually executed, as alleged, and that the reversioners concerned are bound by the same. He, therefore, upheld the decision of the trial Court and dismissed the appeal "I It is against this decision that the plaintiffs have now come up to this Court in second appeal.

5. Mr. B. C. Das, Advocate appearing on behalf of the appellants, has shot challenged the finding with regard to the date of the death of Maharani or the finding that the transfer made by Maharani in favour of the defendants was actually made far bona fide legal necessity. He has, on the other hand, frankly conceded that he finds it difficult to challenge these findings of fact which appear to have been arrived at on a proper consideration of the relevant evidence. He has, however, attacked the judgment of the learned lower Appellate Court on the ground that the said Court has based its decision on inadmissible evidence viz., the aforesaid Nadabipatra. It may be mentioned here that there were actually two Nadabi deeds on record, one executed during the life time of Maharani, i.e., before the succession had opened in favour of the reversioners (Armada are Profulla), and the other executed after these reversioners had actually succeeded to the estate of Sanatan on the death of his widow. The learned Judge has not taken the latter one into consideration at all as that was, in his opinion, not fully and properly executed. So, the aforesaid argument advanced on behalf of the appellant need be considered only in connection with the first Nadabi deed executed during the life‑time of Maharani.

6. According to Mr. Das, by Nadabi deed taken into con sideration by the 1 earned Court below, the‑above‑mentioned Letter of Administration case was compromised and since such cases, according to him, cannot be legally compromised the Nadabi deed, which is the basis of that compromise, must also fail through as illegal. In support of this view, he has relied upon the case of Monmohini Guha v. Banga Chandra Das (I L R 31 Cal. 357) wherein it has been held that unless a will is proved in some form no grant of probate can be made merely on the consent of the parties and hence an agreement or compromise as regards the genuineness and due execution of a will, if its effect is to exclude evidence in proof of the will, is not lawful within the meaning of section 375 of the Code of Civil Procedure." Apparently there is nothing therein to support the proposition sought to be propounded, i.e., that even if an applicant abandons, or withdraws from the prosecution of, an sis application filed by him for grant of a Letter of Administration, the Court is still bound to proceed with the same and bring it to a pr, conclusion on judicial determination of the points involved or that an instrument executed by the applicants as consideration for M such abandonment or withdrawal and acknowledging therein either the factum or the validity of a transfer by an agent (such as guardian) or limited owner of some interest to which they are entitled or have a right to succeed in future is illegal. On the other hand it appears to be well settled that although both the transfer and the agreement to transfer a reversionary interest are void, yet a reversioner may be estopped from claiming the reversion by his conduct if he has consented to an alienation by a widow or other limited heir. The learned Advocate also realise Id this difficulty and accordingly turned to attack the document on a different ground, namely, lack of registration. This point appears to have been mooted before the Court below as well and the view taken by the learned Additional Judge appears to be that the interest involved being nothing more than a mere spes succession is this document does not come within the category of such instru ments as required registration under section 17 (2) (v) read with section 49 of the Registration Act. In my opinion, registration is not necessary not only because the interest to which the docu ment related was a mere spes succession is but also because the document went no further than merely recite a fact; or the legal effect of a transaction, which is already a fiat accompli and is found to stand even in the absence of such a recital. Registra tion of such a document is not compulsory under the Registration Act just as a document in which the executant declares that the land never belonged to him as he is only a benamdar or like one of ratification by a minor with respect to the sale of some of his lands during his minority by his legal guardian. There is, therefore, no force in the contention urged by Mr. Das that the said document, being unregistered, was not legally admissible in evidence. That being so, there can be no question that the executants of the said deed as well as those claiming through or under them are bound thereby and can have no escape either from the admissions made by them therein, or from its effect. In other words, it is not open to them to question the legality of the purchase made by the defendants from Maharani. Again even apart from, and independently of, this, the above‑mentioned finding that the transfer made by Maharani was justified by legal necessity is by itself sufficient to support the finding arrived at by the Courts below, viz., that the plaintiffs acquired nothing by their so‑called purchase from defendants Nos. 1 and 2 as the property involved already passed on to defendants Nos. 1 and 2 on the basis of the valid transfer thereof made earlier in their favour by Maharani. The appeal has thus no substance and must fail. In the result, the appeal is dismissed and the judgments and decree of the learned Courts below are affirmed. K. B, A. Appeal dismissed.