Judgement Appeal (No. 110 of 1932) from a decree of the High Court (August 20, 1930) reversing a decree of the Additional Subordinate Judge of Bezwada (September 20, 1924). In 1910 the appellants father, acting as his guardian, sold to the father of the respondents a quarter share in the village of Somavaram, in the Kistna district, which had been given to the appellant in 1900, when a minor, by the late Maharaja of Venkatagiri. With a view to effecting registration of the sale deed in the Godavari district one yard of a vacant site in the village of Vundoor, in the Godavari district, was included in the sale deed, which was registered on February 14, 1911, by the Sub-Registrar of Samarlakota. Upon a partition after the death of the respondents father the suit property came to the first respondent. On a claim by the appellant to recover possession of the suit property the main question, as set out in the issues framed by the Subordinate Judge, was " whether the vacant site [the one yard] included in the sale deed belongs to the plaintiffs [appellants] father, and whether it was included in the sale deed to give jurisdiction to the Sub-Registrar to register the deed and was not intended to be conveyed, and if so, whether it is a fraud on the registration law, and the deed is void." The facts appear from the judgment of the Judicial Committee. The Subordinate Judge held that the yard of land included in the sale deed belonged neither to the plaintiff nor to his father; that it was included merely to get the document registered at Samarlakota and was never intended to be conveyed; that both parties were fully aware of that; that there was thus a fraud upon the registration law, and that the deed was void. An appeal by the first respondent to the High Court (Wallace and Bardswell JJ.) was allowed. They held that the sale deed was validly registered, and that therefore the appellant could not recover possession of the property without setting aside the conveyance, and that that relief was time barred. The appeal is reported at ( 1931) I. L. R. 54 M. 352. 1935. Nov. 22, 25. De Gruyther K.C. and J. E. Godfrey for the appellant. They held that the sale deed was validly registered, and that therefore the appellant could not recover possession of the property without setting aside the conveyance, and that that relief was time barred. The appeal is reported at ( 1931) I. L. R. 54 M. 352. 1935. Nov. 22, 25. De Gruyther K.C. and J. E. Godfrey for the appellant. "Some portion of the property" in s.28 of the Indian Registration Act, 1908, does not mean a substantial portion, but a portion however small Hari Ram v. Sheodial Ram.(( 1888) L. R. 16 I. A. 12.) The effect of Harendra Lal Roy Chowdhuri v. Hari Dasi Debt (( 1914) L. R. 41 I. A. 110.); Biswanath Prashad v. Chandra Narayan Chowdhuri (( 1921) L. R. 48 I. A. 127.) ; and Collector of Gorakhpur v. Ram Sundar Mal (( 1934) L. R. 61 I. A. 286.), however, is that if there is no real intention to pass the title in the small portion of the registered property there is a fraud on the registration, and it is bad. It has been held that if the deed is void it is not necessary to file a suit to set it aside. It is a nullity. The view taken in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (2) is that previously taken in India, and that case was followed in Biswanath Prashad v. Chandra Narayan Chowdhuri. (3) The first thing to be ascertained is whether the appellants father did in fact own a plot of land which can be identified as part and parcel of the land that was sold. But that is not enough under Collector of Gorakhpur v. Ram Sundar Mal (4) if it is found that this yard of land can be identified as part and parcel of the land that was intended to be sold, but that, after the sale, nobody had the least intention of taking possession of that yard, then obviously it was not intended to be part and parcel of the Law. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao 3 general transaction under which the title in the land passed. [LORD MACMILLAN. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao 3 general transaction under which the title in the land passed. [LORD MACMILLAN. I should have liked to have had the purchaser in the witness-box and asked him " what did you buy this land for?, what have you done with it?, and when did you last see it ? "] The actual language of the Registration Act is that the deed must "relate” to certain property. The principle is contained in Harendra Lal Roy Chowdhuri v. Hari Dasi Debt, (( 1914) L. R. 41 I. A. 110.) In that case the property was fictitious, but the property did exist in Biswanath Prashad v. Chandra Narayan Chowdhuri (( 1921) L. R. 48 I. A. 127.), but the parties to the mortgage never intended that the property should form part of the security. In Collector of Gorakhpur v. Ram Sundar Mal (( 1934) L. R. 61 I. A. 286.) the two last-mentioned cases were considered, and it was said that "the word ‘fictitious used in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (1) is not confined to non-existing properties. It is satisfied if the deed does not relate to a specified property for any effective purpose of enjoyment or use.” There never was any intention to sell this yard of land at all it was not bought for use and enjoyment, and no possession of it was ever taken by the purchaser at any time, and he has not a square foot in this village except for this yard. No value is put on it, and it was inserted in the deed of sale independently of the original transaction, and formed no part of the consideration. No value is put on it, and it was inserted in the deed of sale independently of the original transaction, and formed no part of the consideration. Bards well J. in the judgment of the High Court went through the whole series of decisions, and came to the conclusion that the test to be applied was "that to establish fraud on the registration law there must be a collusion between parties to practise a fraud upon the registering officer, and that, as a test of whether the parties had an intention to practise such a fraud, it has primarily to be considered whether there was a property that could be conveyed by the party executant or as to which a genuine belief existed, that he could convey it." The judges of the High Court had not the benefit of Collector of Gorakhpur v. Ram Sunday Mal (( 1934) L. R. 61 I. A. 286.), and were really relying on Venkata Lakshmikantaraju Garu v. Peda Venkata Jagannatha Raju Garu (( 1924) 46 Mad. L. J. 12,), and on Marina Ammayi v. Sundayya.(( 1929) A. I. R. (Mad.) 432.) That is the wrong test. The whole question is whether the Board is satisfied that there was a real intention to sell the yard of land. Dunne K.C., and Subba Row for the respondents. Even if it be held that the appellant is entitled to have the sale set aside the respondents are entitled to have returned the purchase money which was paid for the property before the appellant can recover from them, because the appellants father acted as his guardian when a minor and there is no proof that the appellant did not get the benefit of the sale. Here is a perfectly real transaction in regard to all the main portion of the land, it is equally quite a real transaction in regard to that small portion which may or may not have been capable of enjoyment. In every case where there is a document which relates to a piece of land that document has got to be registered in the district in which that land is situaed. There were plenty of effective purposes for which this yard of land could be enjoyed, though it is probable that there never was any effective purpose in view. In every case where there is a document which relates to a piece of land that document has got to be registered in the district in which that land is situaed. There were plenty of effective purposes for which this yard of land could be enjoyed, though it is probable that there never was any effective purpose in view. If the yard is limited so as not to be a square yard that gets rid of my useful purposes submission—there are many things for which a square yard could be used. This case is outside Harendra Lal Roy Chowdhuri v. Hari Dasi Debt (4) because the yard of land is not fictitious land, but existing land, and there was therefore no fraud upon the Registration Act at all. Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (( 1914) L. R. 41 I. A. 110,) goes on the hypothesis that “fictitious” means non-existent land, and it was never meant to say, and did not say, anything else, and “fictitious" cannot mean anything but that. [Lord Macmillan. This Board has said that "fictitious" is not confined to non-existing properties [Collector of Gorakhpur v. Ram Sunday Mal, (( 1934) L. R. 61 I. A. 286.)] Here every attendant circumstance appears to suggest that the square yard was put in without any Law. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao 4 intention that it should be transferred, and the question is do the circumstances here, taken individually and cumulatively, justify a finding that there was no real intention to sell ?] It was put in, and intentionally put in, as being a piece of land which it was intended to convey, and the deed did in terms convey it. It was included deliberately and intentionally for the purpose of the deed being registered there. This case does not come within the principle in Collector of Gorakhpur v. Ram Sundar Mal. (i) The High Court were right in their view that the yard of land was intended to be sold. It would be straining the Act against the respondents in regard to a perfectly bona fide transaction to say that there has been a fraud upon the Act. It was land within s. 28 of the Act, and it was a deed relating to that piece of land. It would be straining the Act against the respondents in regard to a perfectly bona fide transaction to say that there has been a fraud upon the Act. It was land within s. 28 of the Act, and it was a deed relating to that piece of land. Biswanath Prashad v. Chandra Narayan Chowdhuri (( 1921) L. R. 48 I. A. 127.) follows Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (( 1914) L. R. 41 I. A. 110.), but in the former the piece of land was never acquired, so the present case does not come within that. Lastly, this is a case in which the appellants father should be put into the box to prove that the appellant has got the benefit of the sale. Subba Row followed. De Gruyther K.C. was not called upon to reply. 1936. Jan. 13. The judgment of their Lordships was delivered by SIR GEORGE LOWNDES. The issue between the parties to this appeal is as to the validity of a conveyance, made to the father of the first and second respondents, of a quarter shares in the village of Somavaram, in the Kistna district, of which the appellant seeks to recover possession with mesne profits. The property in dispute had been the subject of a gift (the validity of which is not disputed) in July, 1900, by the late Maharaja of Venkatagiri, to the appellant, who was then a minor. It was sold by the appellants father, purporting to act as his guardian, to the father of the respondents on October 14, 1910, and upon a partition after his death came to the first respondent, who alone appears before the Board to contest the appellants claim. It is common ground between the parties that if the conveyance was effective the appellants suit must fail; for if it were necessary for him to ask that the conveyance should be set aside as not binding on him, his suit was out of time; if, on the other hand, it could be regarded as a nullity, there would be no bar of limitation to his recovering possession, and he would be entitled to his decree. The conveyance in question was duly executed, the consideration of Rs.27, 000 being paid to the appellants father. The only attack upon it is as to the validity of its registration. The conveyance in question was duly executed, the consideration of Rs.27, 000 being paid to the appellants father. The only attack upon it is as to the validity of its registration. The Somavaram property was situated in the Kistna district, but registration was effected at Samarlakota, in the Godavari district, and if the matter rested there the registration would be clearly invalid, the conveyance would be unregistered and ineffective, and the respondents could not resist the appellants claim. The deed was undoubtedly prepared as a conveyance of the Somavaram property only, purporting to be sold by the father of the appellant as his natural guardian, and appears to have been executed and attested on October 14, 1910. It was not, however, presented for registration till February 14, 1911, and by that time an additional sheet had been inserted in the document purporting to include in the sale one yard of land in the village of Vundoor, which was in the Godavari registration district. If the deed in truth “related" to a piece of land in Vundoor, the registration would, by the terms of s.28 of the Registration Act (XVI. Of 1908), be effective; if it did not, it would be ineffective, and no title to the Somavaram property passed under it. This is the question upon which their Lordships judgment is sought. Law. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao 5 The suit was tried by the Subordinate Judge of Bezwada. He accepted the contentions of the appellant, and passed a decree in his favour, dated September 20, 1924, assessing the mesne profits at Rs.1000 per annum. On appeal, the High Court took the opposite view. They held the registration to be valid, and that, therefore, the appellant could not recover possession of the property without setting aside the conveyance, and that this relief was time barred. The appellants suit was accordingly dismissed by their decree of August 20, 1930. The learned judges of the High Court also held that the mesne profits to which the appellant would be entitled if he had succeeded in his suit, would be at the rate of only Rs.600 a year, instead of the Rs.1000 allowed by the Subordinate Judge. Their finding upon this point has not been contested before the Board. The learned judges of the High Court also held that the mesne profits to which the appellant would be entitled if he had succeeded in his suit, would be at the rate of only Rs.600 a year, instead of the Rs.1000 allowed by the Subordinate Judge. Their finding upon this point has not been contested before the Board. Before their Lordships it is asserted on the one side that the deed was a real conveyance of one yard of land in Vundoor (as the High Court held), and that although the motive of its inclusion was no doubt to allow of registration in a place convenient to the vendor, this did not affect the validity of the transaction. It is, on the other hand, contended for the appellant that the Vundoor land was a fictitious item which was never intended by either party to the transaction to pass under the deed and (translating this into the language of the Act) that the document did not in reality “relate" to any land in the Godavari registration area. Similar questions have come before the Board in three cases subsequent to the date of the transaction now impugned, the most recent decision being in June, 1934, after the judgment of the High Court in the present case. In the first, Harendra Lal Roy Chowdhuri v. Hari Dasi Debt (( 1914) L. R. 41 I. A. 110.), there had been included in a mortgage deed of certain mofussil properties a plot of land described as No. 25, Guru Das Street, in Calcutta, where the deed was registered. This was found to be a non-existent property, and the registration was, therefore, held to be invalid. Lord Moulton in delivering the judgment of the Board said (Ibid. 120,) " Their Lordships hold that this parcel is in fact a fictitious entry, and represents no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. Lord Moulton in delivering the judgment of the Board said (Ibid. 120,) " Their Lordships hold that this parcel is in fact a fictitious entry, and represents no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists is a fraud on the registration law, and no registration obtained by means thereof is valid." In Biswanath Prashad v. Chandra Narayan Chowdhuri (( 1921) L. R. 48 I. A. 127, 133.) a mortgage deed had been registered in the Mozaffarpur district on the strength of the inclusion of a one-kauri share in the village of Kolhua, situated in that district. It was not suggested in this case that the property was non-existent, but only that the mortgagors title to it was imperfect. The appeal was heard by seven members of the Judicial Committee (including Lord Moulton) and the judgment was delivered by Viscount Finlay. He said (1) " The view which their Lordships take of the facts is that which is compendiously stated by the High Court in the judgment of Coxe J. I agree. The circumstances of the case leave no doubt that the parties never intended that the share of Kolhua should really be sold to Udit Narayan or mortgaged to Polai Lal. The so-called sale was a mere device to evade the Registration Act. The judgment then sets out the passage cited above from the judgment in Harendra Lal Roy Chowdhuris case (( 1914) L. R. 41 I. A. 120.), and the Board held that in the view taken of the facts by the High Court and by their Lordships the case fell within that decision. Law. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao 6 In Collector of Gorakhpur v. Ram Sundar Mal (( 1934) L. R 6l I. A. 286.) the question turned on the inclusion in a sale deed of a one-third share in a garden-room, which was the only property covered by the deed which was situated in the district where registration was effected. Here there was no doubt either as to the existence of the property or the vendors title to it, but again a similar conclusion was reached. Lord Blanesburgh, by whom the judgment of the Board was delivered, referring to the inclusion of this item says (Ibid. 311.) "[Their Lordships] think that one of two inferences alone is possible either that it was never intended by either party that the sitting-room, should for any purpose other than that of registration be subject of sale at all, or that the vendor only included it because he knew that it never could become an effective subject of enjoyment or occupation by the purchasers. The word fictitious used in Harendra Lal Roy Chowdhuri v. Hari Dasi Debt (( 1914) L. R. 41 I. A. 110, 120.) is not confined to non-existing properties. It is satisfied if the deed does not relate to a specified property for any effective purpose of enjoyment or use." Dealing with the question on these lines the Board held that the so-called sale was a mere device to evade the Registration Act, and that the registration of the document was invalid. Having regard to these pronouncements their Lordships can have no doubt that the criterion by which the question now before them must be decided is whether, upon the facts established by the evidence, the parties intended this one yard of land to pass under the deed. The motive may be immaterial, as the respondent contends, if the requirements of the law have been complied with ; but of this the intention is critical. They are satisfied that in the present case no such intention existed. It is clear that the document as originally prepared, and, indeed, as executed by the vendor, contained no reference to any land in Vundoor. When it was brought in, no value was placed upon it, and no part of the consideration was assigned to it. The purchaser neither lived in Vundoor, nor did he own any property in Vundoor, and what possible use he could have had for a single yard of land in that village is unexplained. It is at least doubtful on the evidence whether this parcel, though forming part of a plot ostensibly purchased in the name of the vendor (the father of the present appellant), really belonged to him, or whether it was in fact identifiable. It is at least doubtful on the evidence whether this parcel, though forming part of a plot ostensibly purchased in the name of the vendor (the father of the present appellant), really belonged to him, or whether it was in fact identifiable. It is admitted that the purchaser never made any attempt to take possession of it in any shape or form that when after his death his estate was partitioned between his sons, the first and second respondents, no account was taken of it, and no reference made to it, and the uncontradicted evidence is that it was shortly afterwards enclosed and built over by the owner of the immediately adjacent property, with whom the vendor was living, and for whom it is said that he was only a benamidar. Their Lordships think that it is the inevitable conclusion from these facts that neither did the vendor intend to sell, nor did the purchaser intend to buy, this almost ridiculous fraction of land, and that in the words of Lord Blanesburgh in the case last cited, the so-called sale of it was a mere device to evade the Registration Act. The result, in their opinion, is that there was no effective registration of the conveyance upon which the respondent seeks to defeat the appellants claim, and that it was, therefore, no obstacle to the appellants suit for possession, which they think, was rightly decreed in his favour by the Subordinate Judge. There is one other matter to which their Lordships must refer. Mr. Dunne for the first respondent contended that if the conveyance was held to be ineffective, possession should only be given to the appellant upon the terms of his refunding the purchase money to the first respondent. If it had been established that the appellant had in fact received, or got the benefit of, the Rs.27, 000 which the father of respondents one and two undoubtedly paid, there might have been some basis for this claim. But, unfortunately for the first respondent, there was no proof of this, and both Courts in India have Law. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao 7 found against him on the point. But, unfortunately for the first respondent, there was no proof of this, and both Courts in India have Law. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao 7 found against him on the point. For the reasons above stated their Lordships will humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court, dated August 20, 1930, should be set aside, with costs, and the decree of the Subordinate Judge, dated September 20, 1924, restored, with the modification that the mesne profits should be calculated at the rate of Rs.600 per annum instead of Rs.1000. The appellant must have his costs of the appeal.