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1905 DIGILAW 62 (ALL)

Damodar Das v. Girdhari Das

1905-03-10

BANERJI, STANLEY

body1905
JUDGMENT : Stanley, J.:— The suit which has given rise to this appeal was brought by the plaintiff to recover from the heirs of one Gauri Singh, deceased lambardar, and from Girdhari Singh, respondent, who succeeded Gauri Singh in the office of lambardar, profits for the year 1306 Fasli. Those profits were due to the defendants Nos. 7 and 8, who, by a sale-deed, dated the 13th of June, 1900, conveyed the profits so due to the plaintiff. As assignee from those co-sharers the plaintiff brought the present suit. The Court of first instance decreed a part of the claim. The Lower Appellate Court has dismissed the suit upon two grounds, first, that there was a misjoinder of parties, and, secondly, that the sale-deed on the basis of which the plaintiff brought the suit required registration, and not being registered, conveyed no title to the plaintiff. On both points we think the Court below was wrong. The plaintiff in his plaint sought to recover the amount, claimed from all the defendants. Under section 28 of the Code, of Civil Procedure, all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, in respect of the same matter, and judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment. 2. In this case, as we have said, the plaintiff alleged his right to relief to exist jointly against the defendants. Whether that allegation is right or wrong is a question which the Court had to determine, It is very probable that Girdhari Singh, respondent, who is the successor in office of the first lambardar, Gauri Singh, did not collect the whole of the profits for the year 1306 Fasli. Indeed, it is not alleged that he did collect the whole of the profits. If it be found that he only collected a part of the profits, his liability should, in the decree to be passed in the suit, be limited to the amount of the plaintiff's share which he collected and not to the whole amount due to the plaintiff. That, however, would be no reason for dismissing the suit on the ground of misjoinder of parties. That, however, would be no reason for dismissing the suit on the ground of misjoinder of parties. In fact, upon the allegations in the plaint, and having regard to the relief asked for, it could not be said that there was a misjoinder of parties. The first ground, therefore on which the claim has been dismissed, cannot be sustained. The second ground is equally devoid of force. The learned Judge says:— ” The sale-deed in question is as regard this suit so much waste paper. It is a transfer of the profits of one year for Rs. 260 under section 54 of the Transfer of Property Act : it is a sale of intangible property, and therefore ought to be registered. Similarly, under section 17 of the Registration Act, it ought to be registered.” It is manifest that section 17 of the Registration Act has no application whatever. The sale deed in favour of the plaintiff did not purport or operate to create, declare or assign any right, title or interest to or in any immoveable property. What was assigned to the plaintiff was the profits for the year 1306 Fasli, which on the date of the assignment had been collected by the lambardar and had accrued due to the plaintiff's vendors from the lambardar. It was in reality a debt due to the plaintiff's vendors by the lambardar. No right to or interest in immoveable property was conveyed to the plaintiff. Section 54 of the Transfer of Property Act is equally inapplicable, That section requires that in the case of tangible immoveable property of the value of Rs. 100 and upwards or in the case of a reversion or other intangible thing, a sale can be made only by a registered instrument, Intangible thing in that section means things in the nature of a reversion, not a debt which has already become due to the vendor by a third person. The learned Judge is clearly wrong upholding that section 54 required the sale-deed in this case to be registered, Both the grounds therefore upon which the suit has been dismissed must be repelled. The learned Judge is clearly wrong upholding that section 54 required the sale-deed in this case to be registered, Both the grounds therefore upon which the suit has been dismissed must be repelled. We accordingly allow the appeal, set aside the decree of the court below, remand the case to that Court under the provisions of section 562 of the Code of Civil Procedure with directions to re-admit the appeal under its original number in the register and dispose of it on the merits. Costs here and hither to will follow the event.