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1982 DIGILAW 976 (ALL)

Indramani v. Matru

1982-08-25

KAUSHAL KISHORE

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JUDGMENT Kaushal Kishore, Member - This is a defendant's second appeal against the judgment and decree dated March 1, 1980 by the learned Additional Commissioner, Faizabad Division. Faizabad, rejecting the appeal and confirming the trial court's decree dated December 6, 1978 in favour of Matru and others. 2. I have heard the learned counsel for the patties and have also perused the record. 3. The dispute arose on account of two sale-deeds for the same plots executed by the admitted tenant Sumitra Devi. The first sale-deed dated January 8, 1971, four in number, in favour of the defendants Indramani were registered on March 15 20, 1971. The subsequent sale-deed dated January 18, 1971 was in favour of the plaintiffs and was registered on January 14, 1971. Mutation in favour of the plaintiffs was rejected, hence the suit for declaration was filed. The two courts below relied on the sale-deed dated January 13, 1971 registered on January 14, 1971 and decreed the suit. 4. The main question involved in this appeal is whether the sale-deeds operate from the date of execution or the date of registration. The learned Additional Commissioner relying on the ruling reported in AIR 1961 SC 1747 , held that the sale-deed of January 13, 1971 on being registered on January 14, 1971 became operative and Smt. Sumitra Devi had no right to execute another sale-deed in favour of the defendants. The learned counsel for the appellant has argued mat the ruling has been misunderstood, that Section 47 of the Registration Act already provides that the sale would be operative from the date of execution of the deed on its registration. The learned counsel argued that the ruling relates to commencement of the right of presumption while in the instant case, the date from which sale itself becomes operative is to be considered. The learned counsel cited ruling reported in AIR 1965 SC 430 and AIR 1973 Mysore 276, in which correct law relating to the question involved in the present case has been laid. 5. The learned counsel for the respondent has argued that the learned trial court found that the sale of January 8, 1971 was fictitious and relied on the sale of January 13, 1971. 5. The learned counsel for the respondent has argued that the learned trial court found that the sale of January 8, 1971 was fictitious and relied on the sale of January 13, 1971. He further argued that in the ruling of AIR 1961 SC 1747 , it had been made clear that under Section 54 of the Transfer of Property Act, registration of sale deed involved value over Rs. 100/- was necessary and the sale under Section 49 of the Registration Act would not be complete until the deed was registered in accordance with Sections 60-61, therefore, the sale would be operative from the date of completion of registration. 6. As regards the observation of the learned trial court on the sale-deed dated January 8, 1971, it is not the word 'fictitious' but the word 'doubtful' used by the trial court. This does not amount to deciding validity or otherwise of the sale-deed. The learned Additional Commissioner has rightly overlooked this observation, he has not commented on this aspect and did not hold it void on his ground. Even a doubtful sale-deed does not lose its validity until duly cancelled by a competent civil court, I have also looked into the sale-deed which is on the record and find nothing to render it void ab initio. The vendor's thumb-marks on the sale-deed and its registration have not been challenged and there is no finding of the courts below that the sale-deed was void ab initio. Mere doubt is not relevant here. 7. In respect of the main question about the date from which a sale-deed becomes operative, after considering the rulings reported in A.I.R. 1965 S.C. 430 and A.I.R. 1973 Mys. 276, no doubt remains that the earlier ruling of 1961 has been incorrectly applied. The reasons for misunderstanding becomes clear when it is revealed that the learned Additional Commissioner has taken the completion of sale as equivalent to operation of sale. 276, no doubt remains that the earlier ruling of 1961 has been incorrectly applied. The reasons for misunderstanding becomes clear when it is revealed that the learned Additional Commissioner has taken the completion of sale as equivalent to operation of sale. In K.J. Nathan v. S.V. Narathi Rao, A.I.R. 1965 S.C. 430, it was held: "Agreement creating mortgage by deposit of title deeds executed on July 5, 1947 but registered on July 22, 1943 - Agreement would take effect from July 5, 1947 under Section 47 and would prevail over subsequent mortgage executed in favour of third person on October 10, 1947." This is a similar matter and shows that the importance is only of the deed being registered The date of registration is not at all important so long as the registration has been done, for the deeds to be worth consideration must have been registered before the date when dispute arises. If unregistered, under Section 49 of the Registration Act the deeds for value over Rs 100 lose their operative powers. This ruling being similar nature and fact is quite applicable to the instant case. In the other ruling in Azzemullah Sharief v. Bhabhutimul, A.I.R. 1973 Mys. 276, it was held that a compulsory register-able sale deed executed earlier in point of time will when registered, prevail over the subsequent sale-deeds even though such later deeds were registered at an earlier point of time. This is perfectly applicable to the present case, being on the same subject of the sale-deed and its date of commencement of operation. In fact, in this latter ruling, the earlier rulings of 1961 and 1965 both have been discussed along with an earlier Privy Council ruling reported in AIR 1987 PC 47, which related to a matter of gift There is no doubt that in the present case, the rulings of 1927 and 1966 have to be relied upon and the ruling of 1961 must be distinguished. 8. The ruling of 1961 related to right of pre-emption and in that context, the Hon'ble Supreme Court had held that a pre-requisite was a preliminary demand by the pre-emptor which could be made only after the completion of the sale. Therefore, the right of pre-emption could not commence earlier than the date of completion of sale. 8. The ruling of 1961 related to right of pre-emption and in that context, the Hon'ble Supreme Court had held that a pre-requisite was a preliminary demand by the pre-emptor which could be made only after the completion of the sale. Therefore, the right of pre-emption could not commence earlier than the date of completion of sale. But the ruling did not say that the effect of Section 47 of the Registration Act had been wiped out. It is sufficient to quote the sentence from para 8: "A sale which is admittedly act complete until the registration of the instrument of sale is completed, cannot he said to have been completed earlier because by virtue of Section 47, the instrument by which, its effect after it ha; been registered, commended to operate from an earlier date." Indeed, the Hon'ble Supreme Court had reiterated that the sale after registration, had commenced to operate from the date of execution of the sale-deed in view of Section 47. Obviously, there is a date of the completion of the sale and there can be a different date of commencement or operation of sale. There is no question of any confusion or contradiction about these two different dates. The two concepts are not the same and the dates can certainly be distinctly different. 9. In view of the above, I find that the legal position was wrongly approached by the learned first appellate court and the correct view must be that the sale-deeds in favour of the defendant had become operative from January 8, 1971. Therefore, the vendor being left without any land to sell, had no power to execute the subsequent sale deed for the same plots in favour of other persons and that subsequent sale deed has to be dis-regarded. In consequence, the plaintiffs had not been able to establish their case and the suit must have tailed. The judgments arid decrees of the two courts below. Accordingly, deserve to be set aside. 10. In the result, I allow this appeal, set aside the judgments and decrees of the two courts below and dismiss the suit of the plaintiff with costs throughout.