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Vinayak Pandurangrao Desai Vs. Parsappa Laxmanna Biradar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Reference No. 4 of 1937
Judge
Reported inAIR1938Bom212; (1938)40BOMLR160
AppellantVinayak Pandurangrao Desai
RespondentParsappa Laxmanna Biradar
Excerpt:
india registration act (xvi of 1908) section 17, 23, 28, 29, 32, 58-decree compulsorily registrable-decree adjusting claim of judgment-creditor-charge on immoveable property not in suit-property worth more than rs. 100-whether decree itself or true copy of it can be registered.;in the case of a decree of order, adjusting the claim of the judgment-creditor in execution of his decree, whereby a charge is created in favour of the judgment-creditor on immovable property of the value of more than rs. 100 which is not the subject-matter in suit, the decree or order itself need not be sent to the registrar; for registration; but a copy of such decree or order may be sent for being registered. - - unless, therefore, the words 'copy of a decree or order' are treated as a surplusage-which is..........which is in these terms :-every document other than a document referred to in section 28, and a copy of a decree or order, may be presented for registration either in the office of the sub-registrar in whose sub-district the document was executed, or in the office of any other sub-registrar under the local government at which all the persons executing and claiming under the document desire the 9ame to be registered.it is clear from these sections that section 28 refers to those documents which are compulsorily registrable under section 17(2), clauses (a) (b) (c), and (d), and documents which are optionally registrable under section 18, clauses (a) (b) and (c). section 29 refers to every document other than a document referred to in section 28. a decree or order which is compulsorily.....
Judgment:

Rangnekar, J.

1. This is a reference made by the First Class Subordinate Judge of Bijapur, The question raised in the reference is whether a decree or order adjusting the claim of the judgment-creditor in execution of his decree, whereby a charge is created in favour of the judgment creditor on immoveable property of the value of more than Rs. 100 and which property is not the subject-matter in suit, is to be sent to the Registrar for registration, or whether a copy of such decree or order can be accepted for registration.

2. The facts are that the applicant purchased a money decree in suit No. 470 of 1929. He applied to carry out the decree, and in the course of the execution proceedings a compromise was arrived at between him and the judgment-debtor, as a result of which the judgment-debtor agreed to create a charge on certain immoveable property of his which admittedly was of more than Rs. 100 and which property was not the subject-matter of the suit.

3. The applicant contended in the Court of the first instance that the decree must be sent to the registration office for registration. That application was opposed by the judgment-debtor, and the question arose whether the decree must be sent for registration, or whether a true copy of it could be registered.

4. Section 17 of the Indian Registration Act provides that certain documents mentioned in Sub-section (1) are compulsorily registrable. Sub-section (2) then refers to certain other documents or instruments which, although they may affect immovable property of the value of Rs. 100 or more, are not compulsorily registrable; and under Sub-section (2), Clause (vi), any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject-matter of the suit or proceeding is not compulsorily registrable. It follows, therefore, from this section, that a decree or order of the Court made on a compromise and relating to immoveable property which is not the subject-matter of the suit is compulsorily registrable.

5. Then comes Section 18 which lays down what documents are optionally registrable. It is clear on the facts that in this case the decree in question is compulsorily registrable. But the question is whether the decree itself must be registered, or whether a true copy of it can be registered.

6. The learned advocate of the applicant has referred to Section 28 under Part v. the heading of which is 'Of the Place of Registration.' Section 28 provides that :-

Save as in this Part otherwise provided, every document mentioned in Section 17, Sub-section (2), Clauses (a) (b) (c) and (d), and Section 18, Clauses (a) (b) and (c), shall be presented for registration in the office of a Sub-Registrar within; whose sub-district the whole or some portion of the property to which such document relates is situate.

7. Then comes Section 29, which is in these terms :-

Every document other than a document referred to in Section 28, and a copy of a decree or order, may be presented for registration either in the office of the Sub-Registrar in whose Sub-district the document was executed, or in the office of any other Sub-Registrar under the Local Government at which all the persons executing and claiming under the document desire the 9ame to be registered.

It is clear from these sections that Section 28 refers to those documents which are compulsorily registrable under Section 17(2), Clauses (a) (b) (c), and (d), and documents which are optionally registrable under Section 18, Clauses (a) (b) and (c). Section 29 refers to every document other than a document referred to in Section 28. A decree or order which is compulsorily registrable will obviously fall under Section 28, and if nothing more had been said, Section 29 would not apply to such a decree or order. But the legislature has deliberately put a copy of a decree or order in Section 29 as being a document which is not to fall within Section 28. Section 29 makes a clear distinction between documents other than the documents mentioned in Section 28 and a document of the nature of a copy of a decree or order. Unless, therefore, the words 'copy of a decree or order' are treated as a surplusage-which is clearly not allowable-the intention seems to be to put a copy of a decree or order on a special footing, and although if Section 29 had not been enacted, a copy of a decree or order which is compulsorily registrable would have come under Section 28, it seems to me that by enacting Section 29 in this particular way, the legislature has indicated that a copy of a decree or order compulsorily registrable can be registered. If there was no such distinction it would have been sufficient to enact Section 29 without the words 'copy of a decree or order,' and the scheme would have been complete.

8. Apart from that, there is ample indication in the statute that the legislature thought of making a clear distinction between documents and instruments as such and decrees and orders as such. In Section 23 that distinction is clearly to be seen, and it is conceded by the learned advocate of the applicant that that section is against the construction which he wants us to impose upon the relevant sections of the Indian Registration Act. Similarly, Section 58 also refers to copies of decrees or orders. But the matter is set at rest by Section 32 of the Act. That section is placed in Part VI, the heading of which is ' Of Presenting Documents for Registration.' Section 32, so far as material, provides that every document to be registered under the Act, whether such registration be compulsory or optional, shall be presented at the proper registration office (a) by some person executing or claiming under the same or-and this is important-in the case of a copy of a decree or order, claiming under the decree or order. It is clear, therefore, that a person claiming under a decree or order has to present only a 'copy of the decree or order' for registration.

9. The object of the Indian Registration Act is to give notice to the world of any transactions affecting immoveable property, the particulars of which are supposed to be correctly inserted in the register, and to secure that all dealings with reference to that particular property shall be noted, so that persons dealing with that property may have notice of the transactions relating to that particular property. That object seems to be capable of being achieved whether a decree itself is sent for registration or a copy of it is sent for registration. On the other hand, to insist that that decree must be sent for registration would certainly result in imposing more work on the Courts. The decrees are always on the records of the Courts and it seems to us that it is desirable that they should remain there. Parties can always obtain certified copies of the decrees.

10. In our opinion, therefore, the question must be answered against the applicant, and the answer to the reference is that there is nothing in the Indian Registration Act which would prevent any party from applying that a true copy of the decree or order should be sent to the Registrar for being registered.

11. No order of costs.

Norman, J.

12. I agree.


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