AZEEZULLA SHERIFF ALIAS ANWAR PASHA v. BHABHUTHIMUL
1972-06-28
MALIMATH
body1972
DigiLaw.ai
( 1 ) THESE two appeals are by plaintiffs 1 to 3 against the decree passed by the II Addl. Civil Judge, Bangalore in RA. Nos. 150 and 160 of 1967, affirming the decree passed by the I Addl. I Munsiff, Bangalore in OS. No. 1373 of 1962. ( 2 ) THE plaintiffs instituted the suit on the 26th of October, 1962 for declaration that the sale deed dt. 17th September, 1962 executed by the plaintiffs 1 and 2 in favour of the defendant purportng to sell their share in the suit schedule properties is null and void and for an order directing the defendant to deliver the said document to plaintiffs 1 and 2. The case of the plaintiffs is that plaintiffs 1 and 2 have a share in the suit schedule properties, which they agreed to sell to the defendant for a consideration of Rs. 1,500. Plaintiffs 1 and 2 exeouled a sale deed on the 17th of September, 1962 in favour of the defendant which has been produced in the case as Ext. P1. Though the defendant got the sale deed executed- representing that he would pay the amount of Rs. 1,500 near the Sub-Registrar's office he refused to pay the amount and insisted that the document should be registered in the first instance. Plaintiffs 1 and 2 having become aware of the fraudulent conduct of the defendant, came away from the office of the sub-Registrar, but the sale deed remained with the defendant. Thereafter, plaintiffs 1 and 2 sold their share in the suit properties in favour of the 3rd plaintiff and executed sale deeds as per Exts. P2 and P3 on the 10|llth of October, 1962. These sale-deeds were registered on the 11th of October, 1962. As the defendant is trying to claim share in the suit schedule properties and has continued to remain in possession of the sale-deed dt. 17th september, 1962, the suit was instituted by the plaintiffs. ( 3 ) THE defendant resisted the suit on various grounds. He inter alin contended that plaintiffs 1 and 2 executed the sale deed on the 17th of september. 1962 in his favour, after due receipt of consideration of Rs. 1,500 and that he has not committed any fraud, as alleged by the plaintiffs.
( 3 ) THE defendant resisted the suit on various grounds. He inter alin contended that plaintiffs 1 and 2 executed the sale deed on the 17th of september. 1962 in his favour, after due receipt of consideration of Rs. 1,500 and that he has not committed any fraud, as alleged by the plaintiffs. He further pleaded that plaintiffs 1 and 2 did not get the sale deed registered inspite of several requests, on the ground of some personal inconvenience. Subsequently, plaintiffs 1 and 2 gave a notice to the defendant putting forward a false and concocted story against the defendant. The defendant presented the sale deed dt. 17th September, 1962 for registration before the Sub-Registrar on the 25th of October, 1962. As plaintiffs 1 and 2 did not appear before the Sub-Registrar and admit the execution of the sale deed, the Sub-Registrar, bv his order dt. 17th May, 1963. refused to register the sale-deed dt. 17th September, 1962. The defendant, therefore, took up the matter to the District Registrar who, by his order dt. 19th august, 1964, directed the registration of the sale deed dt,17th September, 1962. In pursuance of the said direction of the District Registrar, the sale deed was registered by the Sub-Registrar on the 25th of August,1964. The registration actually took place during the pendency of the suit. ( 4 ) THE learned Munsiff, after considering the evidence on record, came to the conclusion that the sale deed dt. 17th September, 1962 executed by plaintiffs 1 and 2 in favour of the defendant is not vitiated by fraud and misrepresentation. He also held that the same is also supported by consideration. The learned Munsiff, though he refused to grant the reliefs prayed for in the plaint, passed a decree declaring that as between plaintiffs 1 to 3 and the defendant, the sale deeds Exts. P2 and P3 executed in favour of plaintiff 3 shall prevail over the sale deed Ext. P1 executed in favour of the defendant. ( 5 ) THE aforesaid decree was challenged in appeals preferred by both the plaintiffs and the defendant, in the Court of the Civil Judge at Bangalore. The learned Civil Judge disposed of both the appeals by his common judgment rendered on 30th March, 1968.
P1 executed in favour of the defendant. ( 5 ) THE aforesaid decree was challenged in appeals preferred by both the plaintiffs and the defendant, in the Court of the Civil Judge at Bangalore. The learned Civil Judge disposed of both the appeals by his common judgment rendered on 30th March, 1968. The learned Civil Judge dismissed the appeal of the plaintffs and allowed the appeal of the defendant, with the result, the suit of the plaintiffs stands dismissed. On the ground that there were two appeals before the learned Civil Judge, one by the plaintiff and the other by the defendant, the plaintiffs have preferred these two second appeals. ( 6 ) THE first contention of Shri S. Rangaraj, learned Counsel for the appellants, is that the learned Civil Judge has not properly analysed the evidence on record and that therefore the findings regarding consideration fraud and misrepresentation require to be set aside. Both the Courts have on consideration of the evidence on record, recorded findings of fact against the plaintiffs and held that the sale deed Ext. P1 is supported by consideration and that the same is also not vitiated by fraud and misrepresentation apart from submitting that the appreciation of evidence by the Court below is not proper no attempt was made to demonstrate that the findings recorded by the Court below are contrary to law. Hence, these findings cannot be interfered with in these second appeals. ( 7 ) IT was next urged by Shri Rangaraj that the Court below committed an error in holding that the sale deeds Exts. P2 and P3 executed by plaintiffs 1 and 2 in favour of plaintiff 3 will not prevail over the sale deed ext. P1 dt. 17th September, 1962 executed by plaintiffs 1 and 2 in favour of the defendant. ( 8 ) THE argument of Sri Rangaraj is constructed on the admitted and proved facts, viz. , that the sale deed Ext. Pl dt. 17th September, 1962 was refused to be registered by the Sub-Registrar by his order dt. 17th May, 1963. The same was ordered to be registered by the District Registrar by his order dt. 19th August, 1964 passed at the instance of the defendant. The document was thus compulsorily registered on the 25th of August, 1964. The sale deeds Exts. P2 and P3 dt.
17th May, 1963. The same was ordered to be registered by the District Registrar by his order dt. 19th August, 1964 passed at the instance of the defendant. The document was thus compulsorily registered on the 25th of August, 1964. The sale deeds Exts. P2 and P3 dt. 10/11th of October , 1962 executed by plaintiffs 1 and 2 in favour of plaintiff 3 were registered on the 11th of october, 1962, much earlier than the date on which Ext. Pl was compulsorily registered. ( 9 ) ON the basis of the aforesaid established facts, it was urged by shri Rangaraj that as the sale deeds Exts. P2 and P3 have been registered earlier than the sale deed Ext. Pl, though the sale deed Ext. Pl was executed earlier in point of time than the sale deeds Exts. P2 and P. 3 the sale deeds Exts. P2 and P3 prevail over the sale deed Ext. Pl, in view of their earlier registration. Reliance in support of this contention was placed on s. 75 (3) of the Indian Registration Act which reads as follows: " (3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration. " in order to appreciate the contention, it will be useful to briefly examine the relevant provisions of the Indian Registration Act. S. 32 provides for presentation of documents for registration. S. 34 provides for an enquiry before registration by the registering officer. S. 35 provides that if the persons executing the document or their representatives, assigns or agents admit the execution of the document; the registering officer shall register the document as directed in Ss. 58 to 61. It further provides that if any person by whom the document purports to be executed denies execution or if any such person appears to the registering officer to be a minor, an idiot or lunatic or if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead. Sections 58 to 61 contain the procedure to be followed on admitting a document to registration. Part 12 containing Ss. 71 to 77, deals with the procedure to be followed in regard to refusal to register the document.
Sections 58 to 61 contain the procedure to be followed on admitting a document to registration. Part 12 containing Ss. 71 to 77, deals with the procedure to be followed in regard to refusal to register the document. Sestion 71 requires reasons to be recorded for the refusal to register the document. S. 72 provides for an appeal to the Registrar from the orders of the Sub-Registrar refusing registration on grounds other than denial of execution. S. 73 provides that an application may be presented to the Registrar when the Sub-Registrar refused to register on the ground of denial of execution. S. 74 prescribes the procedure to be followed by the Registrar in respect of an application presented to him against the refusal by the Sub-Registrar to register a document. S. 75 provides that if the Registrar finds that the document has been executed and the other requirements of law have been (Complied with that he shall order that the document to be registered. It further provides that if the document is duly presented for registration within 30 days after the making of the order by the Registrar, the Registering officer shall obey the said order and register the document, after following the prescribed procedure as far as may be practicable in Ss. 58 to 60. Sub-sec. (3) of the same section provides that the registration made in pursuance of the order of the Registrar under S. 75 shall take effect as if the document has been registered when it was first duly presented for registration. Part 10 of the Act deals with effects of registration and non-registration. It is enough for the purpose of this case to advert to Section 47 contained in that part which provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. ( 10 ) SHRI Rangaraj is right in his submission that the registration of the sale deed Ext. P1 in this case attracts the provisions of S. 75, inasmuch as the said document was not registered under S. 35 (l) on the admission of execution by the executants but was compulsorily registered under part 12 on the strength of the order passed by the District Registrar under sub-sec.
P1 in this case attracts the provisions of S. 75, inasmuch as the said document was not registered under S. 35 (l) on the admission of execution by the executants but was compulsorily registered under part 12 on the strength of the order passed by the District Registrar under sub-sec. (1) of S. 75 on an application made by the defendant under S. 73 complaining about the refusal by the Sub-Registrar to register the said document, on account of the denial of its execution by plaintiffs 1 and 2. As Ext. P1 was compulsorily registered in pursuance of an order made under S. 75 (1) of the Act, it was urged that full effect must be given to sub-sec. (3) of S. 75 which provides that such registration shall take effect as if the document had been registered when it was first duly presented for registration. It was contended that the effect of compulsory registration of the document Ext. P1 under S. 75 is regulated by sub-sec. (3) of S. 75 and not by S. 47 of the Act. In my opinion, S. 47 and sub-sec. (3) of S. 75 deal with two independent topics and that therefore one does not exclude the operation of the other. Sub-sec. (3) of S. 75 no doubt, applies only to documents which are compulsorily registered under Part 12 in pursuance of en order made by the Registrar under sub-sec. (1) of S. 75. What sub- sec. (3) provides is that the registration of a document made in pursuance of an order passed under S. 75 by the Registrar takes effect as if the document had been registered when it was first duly presented for registration. In other words, the registration of the document effected in pursuance of the order made under S. 75 (l) relates back to the date on which the document was duly presented for registration, though in fact the document was actually registered long after the same was duly presented for registration. Sub-sec. (3) of S. 75, therefore, only determines the deemed date of registration in respect of documents compulsorily registered in pursuance of an order made under Section 75 (1 ). Sub-section (3) of Section 75 does not deal with the effect of registration of a document.
Sub-sec. (3) of S. 75, therefore, only determines the deemed date of registration in respect of documents compulsorily registered in pursuance of an order made under Section 75 (1 ). Sub-section (3) of Section 75 does not deal with the effect of registration of a document. That topic is dealt with by S. 47 which states that once a document is registered, it shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. The expression not from the time of its registration used in S. 47 makes it clear that the date of registration, whether actual or the deemed date under S. 75 (3), has no relevance whatsoever for determining the time from which the registered document operates. Once the document is registered, whether it is on admission of execution under S. 35 or by way of compulsory registration under Part 12 of the Act, the provisions of S. 47 are attracted for the purpose of determining the time from which the registered document operates. Repelling the argument of Shri rangaraj, I hold that though sub-sec. (3) of S. 75 applies to the document ext. P1, the same does not exclude the operation of S. 47 of the Act. ( 11 ) IT was next urged by Shri Rangaraj that the Court below has committed an error in holding that the sale deed Ext. P1 prevails over the sale deeds Ext. P2 and P3, solely on the ground that Ext. P1 has been executed by the same vendors at an earlier point of time than Exts. P2 and p3. In support of his submission he relied upon a decision of the Supreme court in Ram Saran Loll v. Mst. Domini Kver, AIR. 1961 SC. 1747. . That was a case in regard to right of pre-emption. Their Lordships had to examine with reference to the right of pre-emption claimed, as to what is the date on which the sale became complete. In that case, it was pointed out that the requisite before the rght of pre-emption can be exercised is the preliminary demand by the pre-emptor and that such demand must be made after the completion of the sale.
In that case, it was pointed out that the requisite before the rght of pre-emption can be exercised is the preliminary demand by the pre-emptor and that such demand must be made after the completion of the sale. It is in that context that their Lordships examined the relevant provisions of the Transfer of Property Act and the Registration Act, in order to determine as to the date on which the sale can be said to have become complete. Their Lordships pointed out that under Sec. 54 of the t. P. Act sale of a tangible immovable property of the value of Rs. 100 and upwards can be made only by a registered document and further that the registration under the Registration Act is not complete till the document has been copied in the records of the Registration Office, as provided in S. 61 of the Act. Their Lordships held that S. 47 of the Act has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale, when the instrument is one of sale. Dealing with S. 47, their Lordships held that a sale which is admittedly not completed until the registration of the document of sale is completed cannot be said to be completed earlier because by virtue of S. 47, the instrument, after it has been registered, commences to operate from an earlier date. As we are not concerned in this case as to when the sale became complete, the aforesaid decision is clearly distinguishable, as the principle underlying in the said decision not having any application to the situation in the present case. ( 12 ) SHRI Rangaraj further submitted that their Lordships of the supreme Court have, in the aforesaid decision, referred with approval the decision of the Cal. High Court in Gobardhan Das v. Gangadhar Das, AIR. 1941 Cal. 78. The Calcutta High Court has inter alia laid down in that decision that as between the transferor and the transferee, a registered document takes effect from the date of execution and that if there is a competition between two documents relating to the same property both of which are registered, the one executed earlier in point of time will have priority, but that as regards third party the point of time at which the deed is to be effective is when it is registered.
It was, therefore, urged that the Supreme Court, in the aforesaid decision, must be deemed to have approved this principle laid down by the Calcutta High Court. On the basis of that decision, it was urged that plaintiff 3 not being a party to the sale deed Ext. P1, the sale deeds Exts. P2 and P3 in his favour, which have been registered earlier than ext. P1 in favour of the defendant, prevail over the subsequently registered sale deed Ext. P1. Though the decision of the Calcutta High Court does support the contention of Shri Rangaraj, it is not possible to agree with his contention that the Supreme Court approved the principle laid down by the Calcutta High Court that as regards the third party the point at which the deed is to be effective is when the same is registered. The question pertaining to competition between two registered documents did not arise for consideration before their Lordships of the Supreme Court. Their lordships were dealing with the limited question as to what is the date on which a sale of tangible immovable property of the value of Rs. 100 and upwards becomes complete. It is only in that context that their Lordships of the Supreme Court referred with approval the view taken by the Calcutta high Court in gobardhan Das's case (2 ). ( 13 ) IT is true that under S. 54 of the Transfer of Property Act sale of tangible immovable property of the value of Rs. 100 and upwards can be made only by a registered instrument. But, once the document is registered, S. 47 of the Registration Act comes into operation which provides that the registered document shall operate from the time from which it would have commenced to operate if no such registration thereof had been required or made and not from the time of its registration. Sec. 48 of the t. P. Act determines the priority when there are successive transfers. It provides that where a person purports to create by transfer at different times rights in or over the same immovable property and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.
S. 49 of the Registration Act provides that until the document is registered, it shall not affect any immovable property nor can the document be received in evidence. The right of priority in this case will have to be determined by the combined operation of the provisions of Ss. 48 and 54 of the Transfer of Property Act and Ss. 47 and 49 of the Indian Registration act. Once a sale deed is registered, there would be compliance of the provisions of S. 54 of the Transfer of Property Act as well as S. 49 of the Indian registration Act. Once a sale deed is registered, the document shall operate from the time from which it would have commencd to operate if no registration had been required or made, in view of the clear provisions of s. 47 of the Indian Registration Act. The provisons of S. 47 of the Registration act are attracted to all the successive sale deeds executed by the same vendor in respect of the same property. The question of priority has, therefore, to be determined only with reference to the principle embodied in S. 43 of the Transfer of Property Act. S. 48 of the Transfer of Property act incorporates an important principle that no man can convey a title better than what he himself possesses. If a person effects a transfer of property in accordance with law, he cannot thereafter deal with the property already transferred by him. If a person has effected a transfer of property, he cannot thereafter deal with the same property, ignoring the rights already created by the earlier transfer effected by him. This principle has been laid down by the Privy Council in T. V. Kalyanasundaram pillai v. Kanndppa Mooppana, AIR. 1927 PC. 42. . In that case, their Lordships of the privy Council were dealing with a case of transfer by way of gift, which also requires registration. Their Lordships of the Privy Council laid down that where the donor of immovable property had handed over to the donee an instrument of gift duly executed and attested, and the gift has been accepted by the donee, the donor has no power to revoke the gift prior to the registration of the instrument. To the same effect is also the principle laid down by the Supreme Court in K. J. Nathan v. S. V. Maruthi Rao, AIR. 1965 SC.
To the same effect is also the principle laid down by the Supreme Court in K. J. Nathan v. S. V. Maruthi Rao, AIR. 1965 SC. 420. That was a case of successive mortgages. Their Lordships of the Supreme court held that the agreement creating mortgage by deposit of title deeds executed on 5th July, 1947 but registered on 22nd July, 1948 would prevail over the subsequent mortgage deed executed in favour of third person on the 10th October, 1947, on the ground that though the subsequent mortgage was registered earlier than the previous document creating mortgage, once the earlier agreement was registered the same takes effect from the date of its execution by the application of S. 47 of the Registration Act and prevails over the subsequently executed and registered mortgage in favour of third person. In view of the authoritative pronouncement of the Privy council and the Supreme Court, it is not open to this Court to follow the principle laid down by the Calcutta High Court in Gobardhan Das's case (2 ). The view which I have taken also accords with the view taken by the high Court of Madras in S. Arunachalam Asari v. Sivan Perumal Asari, air. 1970 Mad. 226. with which I respectfully agree. ( 14 ) FOR the reasons aforesaid, I hold that the sale deed Ext. P1 dated 17th September, 1962 executed by plaintiffs 1 and 2 in favour of the defendant prevails over the sale deeds Exts. P2 and P3 dt. 10/11th October, 1962 executed by plaintiffs 1 and 2 in favour of plaintiff 3, notwithstandng the fact that the sale deed Ext. P1 was registered long after the sale deeds exts. P2 and P3 were registered. In the result, both the appeals fail and the same are dismissed. No costs. --- *** --- .