John Beaumont, Kt., C.J.
1. This is a second appeal from the decision of the Assistant Judge of Ahmedabad. The facts are that in June 1927 one Mohanlal Mulchand applied to be adjudicated an insolvent, and he was adjudicated on October 22,1927, and on the same date a receiver was appointed. On February 1, 1928, the receiver made an application, out of which this appeal has arisen, under a 4 of the Provincial Insolvency Act, asking that the appellant on this appeal, Bai Mani who is the first wife of the insolvent, be directed to give possession to the receiver of certain immoveable property. Her answer was this: She says that her husband and herself belong to the Visha Shrimali Shravak community of Ahmedabad, and that there is a caste rule of that community that a male person is not to marry a second wife in the lifetime of the first wife without the permission of the community, and the community require on giving their permission that suitable provision be made for the maintenance and residence of the first wife, In the year 1921 Mohanlal wanted to marry a second wife and the present appellant gave her consent to that marriage, and the parties then executed a document, which is Exhibit 18. That document was executed by the husband and wife, and it is addressed to the Sheth of the community. It states that the wife gives permission to the husband to marry a second time and then it provides amongst other things for the wife's residence that the husband is to give for her life his house situate in the city of Ahmedabad which is there described, i.e., the suit property. The learned trial Judge dismissed the application, holding that the wife had acquired a right to possession of the house under the arrangement made in 1921, and he was of opinion that the document Exhibit 18 did not require registration. There was an appeal from that judgment, and the learned Assistant Judge allowed the appeal. He held that the document Exhibit 18 was a mere agreement, and he says:-
The fact that an agreement of transfer is no transfer is self-evident.
And he then holds that in the circumstances of the case the agreement is null and void. On what principle an agreement entered into for valuable consideration and performed by the one party is to be treated as null and void against the creditors of the other party I do not know, and I venture to think that if the learned Assistant Judge had considered the equitable doctrine applied in Walsh v. Lonsdale (1882) 21 Ch. D. 9 and in innumerable other cases that equity regards that as done which ought to be done, he would have come to the conclusion that the difference between an agreement for transfer capable of specific performance and an actual transfer is not very material. What one has hare is an agreement between the husband and wife entered into no doubt in order to be produced before the community. The wife gives her consent to the second marriage, and that consent would no doubt be of Importance to the husband in enabling him to get the consent of the community to the second marriage without which he would have either to forego the prospect of marrying again, or else to run the risk of himself and his wife being outcasted from the community. Therefore it appears to me to be clear that the appellant in this case gave consideration for the agreement, and that which she got in return for the consideration was a right to reside in this house. I am myself rather inclined to think that in those circumstances the document Exhibit 18 did require to be registered under Section 17(1)(b) as being a document creating in present or in future a right or interest in the house. Possibly the right was contingent on the second marriage taking place, but contingent interests come within Section 17(1)(b). I am, however, further of opinion that it was not necessary that the arrangement should be embodied in writing, although it was no doubt convenient for the community to have a document to refer to. I think that the decision of the full bench of the Madras High Court in Madam Pillai v. Badrakali Ammal I.L.R. (1922) Mad. 612 F.B. shows that an arrangement of this sort is one which need not be in writing. That being so, assuming that the document required registration, the appellant puts her case in this way : She says ' I am in possession of this property and the receiver is seeking to oust me from that possession. I give evidence as to the circumstances in which I acquired possession, and I prove that the right to possession is given by my husband in return for my giving him the consent which he was anxious to obtain, and in furnishing that proof I do not require to refer to any document'. It seems to me that that constitutes a perfectly good defence to the receiver's application. The appellant went into the witness box, and I think the effect of her evidence is to state the circumstances in which she came to enter into possession of this house. It is true that she refers to the document Exhibit 18, but I think she really only refers to it as a compendious way of stating the facts. I have no doubt that, if the learned Judge had said that he could not look at the document because it was not registered, she would then have stated the facts which are recited in that document. It seems to me, therefore, that the effect of the arrangement is that she had a right to possession in the circumstances proved, and that it was not necessary to look at this document Exhibit 18 in order to establish her title, That being so, whether the document required registration or not, I think the learned trial Judge was right in dismissing the application of the receiver and that the lower appellate Court was wrong. The appeal must, therefore, be allowed with costs.
Murphy, J.
1. The facts are that one Mohanlal Mulchand, who is an insolvent, had about six years before allotted his house to his first wife for residence during her lifetime in consideration of her consenting to his marrying a second wife-a consent required by the rules of their caste. The arrangement is described in a document, Exhibit 18, addressed to the head of the caste and signed by the husband and wife and by a surety, and the relevant portion is:-
For my (i.e Mani's) residence, my husband is to give me (Mani) forresidence till life my husband's house situate in the city of Ahmedabad.
and then follows the description of the house. On Mohanlal's insolvency the receiver attempted to take possession of this house, but on being resisted by the wife, applied to the Court under a, 4 of the Provincial Insolvency Act to obtain it. The trial Court rejected his application, but the learned Assistant Judge reversed this order and allowed it,
2. The agreement, I think, is really one to execute a settlement of the house on the wife for her lifetime, and if I am correct in my view, it will fall within Section 17(2)(5) of the Indian Registration Act. But it is not a sale, or a gift, and according to the full bench ruling in Madam Pillai v. Badrakali Ammal (1), need not be made in writing and can be proved otherwise. Mr. Divatia, on behalf of the respondent-receiver, has relied on Section 575 of Sir Dinshah Mulla's Hindu Law and the cases there cited, to the effect that a wife cannot assert her right to maintenance against purchasers from her husband, and that all that could possibly avail her in such circumstances would be an actual charge on the -property, But I do not think that these cases apply. This is a case of an agreement arrived at and carried out by putting the wife in possession of a separate portion of the house, and in such circumstances, I think even though specific performance may long since be time-barred, she can resist the application on this ground, I agree, therefore, with the learned Chief Justice that this appeal should be allowed with costs.