RATHNAKAR v. H. S. MADHAVA RAO — 1990 DIGILAW 611 (KAR)

SHIVARAJ V. PATIL, J. ( 1 ) THIS appeal is by the plaintiff. The plaintiff filed o. s. No. 306/1971 for setting aside the order made in misc. No. 67/1968 on the file of the munsiff court, sagar, and for ordering the release of the property from the attachment made in o. s. No. 74/1967. ( 2 ) THE plaintiff contended that he is the owner of the suit schedule property measuring about 1 acre 8 guntas out of 3 acres 6 guntas in sy. No. 1 with the boundaries mentioned therein, having purchased the same under a registered sale deed from the 5th defendant-k. N. Ramaiah. One sundara rao, father of present defendants-1 to 4, obtained a decree against the fifth defendant ramaiah in o. s. No. 74/1967 in the court of the learned munsiff at sagar and got the suit schedule properties attached conditionally before judgment in collusion with the second defendant. The said sundara rao in execution of the decree in o. s. No. 74/1967 brought the suit property to sale in execution 137/1968. The plaintiff having come to know about such intended sale of the properties in question, filed a claim petition before the learned munsiff, sagar, under order 21, Rule 58 of C. P. C. in misc. No. 67/1968 contending that the suit property was not liable for attachment. The said claim petition came to be dismissed on 12-2-1971. The plaintiff contended that the 5th defendant ramaiah had no subsisting interest on the date of attachment of the property and that it was he who was in possession of the same as owner and as such the suit property was not liable for attachment or sold in execution of the decree in o. s. No. 74/1967. On these pleadings the plaintiff prayed for setting aside the order dated 12-2-1971 passed in misc. No. 67/1968, dismissing the claim petition and to release the property from attachment. ( 3 ) DEFENDANT No. 1 in the written statement filed by him categori cally denied that the plaintiff was the owner of the suit property having purchased it from the 5th defendant under the alleged sale deed and that the plaintiff was in possession. No. 67/1968, dismissing the claim petition and to release the property from attachment. ( 3 ) DEFENDANT No. 1 in the written statement filed by him categori cally denied that the plaintiff was the owner of the suit property having purchased it from the 5th defendant under the alleged sale deed and that the plaintiff was in possession. According to him, the 5th defendant was the owner in possession of the suit property on the date of attachment and the property was rightly brought for sale in execution of decree passed in o. s. No. 74 of 1967. He also denied that the decree obtained in the said suit was collusive. He asserted that plaintiff had no right interest or possession over the suit property on the date of attachment that is on 16-3-1967. It was the 5th defendant who was in possession of it. According to the first defendant, the sale deed in favour of the plaintiff was only nominal and there was failure of consideration and that the document had been created only to knock off the property. Thus the plaintiff did not acquire any right or title over the said property much less possession under the sale deed. He further contended that the suit itself was not maintainable and as such it was liable to be dismissed. The 5th defendant k. n. ramaiah remained exparte. ( 4 ) THE trial court on a consideration of the evidence brought on record with reference to the issues framed came to the conclusion that the plaintiff was not the owner of the suit schedule property and that he failed to prove that the 5th defendant was not in possession of the suit property on the date of attachment. In this view of the matter, the trial court dismissed the suit with cost. The plaintiff preferred regular appeal No. 123 of 1975, aggrieved by the said judgment and decree of the trial court contending that the trial court failed to appreciate properly the necessary points for determination even though the only question for consideration was whether or not when the attachment before the judgment was effected in the suit o. s. No. 74/1967 the 5th defendant had any right or interest in the suit property. The plaintiff also contended that sale deed was executed on 21-11-1966 which was long prior to the date of attachment. The plaintiff also contended that sale deed was executed on 21-11-1966 which was long prior to the date of attachment. He further contended that the trial court was wrong in discussing at length the question of possession in a suit brought under order 21, Rule 63 of CPC. The trial court having seen that the executant of the sale deed did not deny the execution or payment of consideration and that the entire approach of the trial court was incorrect. ( 5 ) THE first appellate court having considered the arguments advanced on behalf of both the parties and the contentions raised set forth the following points for determination:-1) whether the plaintiff proves that he is the owner of the suit schedule properties? 2) whether the judgment and decree of the trial court needs to be interfered with? 3) what order? ( 6 ) THE learned additional civil judge, shimoga having taken into consideration the material on record, recorded the findings against plaintiff stating that the sale deed ex. P-l was presented for registration on 26-4-1967, although it was executed on 21-11-1966. But the attachment had taken place on 16-3-1967 and that the 5th defendant had no subsisting interest on the date of attachment inasmuch as on the date of presentation of the documents for registration, the property was already attached. In this view of the matter, the first appellate court, thought it unnecessary to refer to the evidence on record either in regard to the title or in regard to the possession of the suit property. The learned appellate judge has also observed that the 5th defendant himself has not comeforth in this case to contest the title of the plaintiff or to say that he has not executed ex, p-l. ( 7 ) THIS appeal was admitted on 26-10-1979 to consider the following substantial question of law:"in view of the Provisions contained in Section 49 of Indian Registration Act and also in view of the fact that ex. P-l was executed on 21-11-1966, though it came to be registered on 1-6-1967. Whether the lower appellate court was justified in holding that the sale transaction evidenced by ex. P-l was not valid and cannot be held to be effective as against the attachment in question. P-l was executed on 21-11-1966, though it came to be registered on 1-6-1967. Whether the lower appellate court was justified in holding that the sale transaction evidenced by ex. P-l was not valid and cannot be held to be effective as against the attachment in question. " ( 8 ) SRI t. S. Amarkumar, learned counsel for the appellant contended that both the courts-below were not right in their conclusion in dismissing the suit filed by the plaintiff-appellant. He urged that even though document ex. P-l was registered on 1-6-1967 it bad become operative from 21-11-1966, on which date it was executed. In support of this contention he relied on Section 47 of the Registration Act which reads thus:- "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". In this regard he relies on the decision in the case of bhagavathula kameswara rao v doddaku veera raghavulu and another, AIR 1960 ap 616 and azeezulla sheriff and others v bhabhutiimil, AIR 1973 Mysore 276. Sri mallikarjun, learned counsel for respondent-1 supported the judgments of both the courts-below and submitted that the conclusions recorded by them are justified on the facts and circumstances of the case. He also submitted presentation of document ex. P-l for registration after the property was attached was bad in law and as such sale transaction evidenced by ex. P-l was not valid and was not effective against the attachment in question. In support of his contention he placed reliance on the decision in the case of kameswar singh and another v hanuman prasad and others, AIR 1968 Patna 184; ram saran lall and others vmst. Domini kuer and others, AIR 1961 SC 1747 and in the case of muna ravanna mima muhammad kassim sahib v ana runa sitna subramanian chettiar, AIR 1940 Madras 444. ( 9 ) A plain reading of Section 47 of the Act, shows that a document be comesoperative from the time of its execution and not from the time of its registration. Section 47 states from what date the document becomes operative and Section 75 states from what date the registration takes effect. ( 9 ) A plain reading of Section 47 of the Act, shows that a document be comesoperative from the time of its execution and not from the time of its registration. Section 47 states from what date the document becomes operative and Section 75 states from what date the registration takes effect. Almost on similar facts, in the case reported in AIR 1960 a. p. 616, it is held that a sale deed relating to an immovable property of the value of over Rs. 100/- executed in favour of the claimant before the attachment of the suit property in execution of a decree but registered after the attachment, prevails over the attachment; for under Section 47 of the Act, the transfer relates back to the execution of the sale deed when it is registered. In the decision reported in AIR 1973 Mysore 276, this court has taken the view that once a sale deed is registered the document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made in view of the clear Provisions of Section 47 of the act. In this decision it was further observed that a sale deed requiring registration compulsorily, executed earlier in point of time, will when registered, prevail over the subsequent sale deeds even though such latter deeds were registered at an earlier point of time. In the case of chandcr singh and others v jamuna prasad singh and others, AIR 1958 Patna 193, it was held that a sale is complete when a sale deed is executed by the vendor and the vendor has no right in law to rescind or revoke the sale, registration or no registration. After a sale is completed by execution of a deed, registration comes as a matter of course and is not dependent upon the volition of the vendor. It can be brought about compulsorily in the event of refusal of the vendor to assent to the registration. Hence, i find sufficient force in the contention urged on behalf of the appellant that the sale deed ex. P-1 executed in favour of the appellant was valid and it was effective as against the attachment in question. ( 10 ) AIR 1961 SC 1747 deals with as to when a registration is complete. Hence, i find sufficient force in the contention urged on behalf of the appellant that the sale deed ex. P-1 executed in favour of the appellant was valid and it was effective as against the attachment in question. ( 10 ) AIR 1961 SC 1747 deals with as to when a registration is complete. It isstated that registration is complete when a document to be registered is copied out in the record of registrar's office as required by Section 61 of the act. In AIR 1940 Madras 444, it is observed that where petition to attach a property under order 21, Rule 63 is rejected by the executing court on the ground that the sale deed relied on by the claimant in proof of his title is fictitious and the claimant institutes a regular suit under order 21, Rule 63 of CPC, the onus to prove that the sale in his favour is a genuine transaction and that he purchased the property for a valuable consideration, is on the claimant. ( 11 ) IN AIR 1968 Patna 184, it is held that a mere finding that the claimant had acquiredan interest in the property is not sufficient. A further finding about its being in the possession of the claimant on their own account at the time of attachment is necessary before the claim can be allowed. ( 12 ) BUT none of these decisions are of any assistance to respondcnt-1 on the substantial question of law that has arisen for consideration in this appeal as to whether ex. P-1 executed on 21-11-1966 that came to be registered on 1-6-1967 was valid and effective as against the attachment in question. ( 13 ) THUS, for the reasons stated and discussion made above, I have no hesitation to conclude that ex. P-1 was valid and effective as against the attachment in question. ( 14 ) IN the result, this appeal is allowed, the judgments and decrees of both the courts-below are set aside and the suit of the plaintiff is decreed. The order in misc. No. 67/1968 on the file of the munsiff court at sagar is set aside. The suit schedule property under attachment in o. s. No. 74/1967 on the file of the munisff court at sagar be released in favour of the appellant. No costs. --- *** --- .