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Azeezulla Sheriff and ors. Vs. Bhabhutimul - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal Nos. 760 and 905 of 1968
Judge
Reported inAIR1973Kant276; AIR1973Mys276; (1972)2MysLJ408
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Registration Act, 1908 - Sections 35, 47, 49, 75(1) and 75(3); Transfer of Property Act, 1882 - Sections 48 and 54
AppellantAzeezulla Sheriff and ors.
RespondentBhabhutimul
Appellant AdvocateS. Rangaraj, Adv.
Respondent AdvocateG. Vedavyasachar, Adv.
DispositionAppeal dismissed
Excerpt:
.....the hostile witness is not supporting prosecution case in certain minor aspects which has no bearing on prosecution case, said portion of evidence can be rejected. part of evidence which supports prosecution case will have to be accepted. - 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. once a sale deed is registered, there would be compliance of the provisions of section 54 of the transfer of property act as well as section 49 of the indian registration act. section 48 of the transfer of property act incorporates an important principle that no mart can convey a title better than what he himself..........1962. 2. the plaintiffs instituted the suit on the 26th of october, 1962, for declaration that the sale deed dated 17th september, 1962, executed by the plaintiffs 1 and 2 in favour of the defendant purporting 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 executed a sale deed on the 17th of september 1962 in favour of the defendant which has been produced in the case as exhibit p-l. though the defendant got the sale deed executed, representing that he would pay the amount of rs......
Judgment:

V.S. Malimath, J.

1. These two appeals are by plaintiffs 1 to 3 against the decrees passed by the II Addl. Civil Judge, Bangalore, in Regular Appeals Nos. 150 and 160 of 1967, affirming the decree passed by the 1st Additional 1st Munsiff, Bangalore, in O. S. No. 1373 of 1962.

2. The plaintiffs instituted the suit on the 26th of October, 1962, for declaration that the sale deed dated 17th September, 1962, executed by the plaintiffs 1 and 2 in favour of the defendant purporting 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 executed a sale deed on the 17th of September 1962 in favour of the defendant which has been produced in the case as Exhibit P-l. Though the defendant got the sale deed executed, representing that he would pay the amount of Rs. 1,500/- (in?) 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 Exhibits P-2 and P-3 on the 10/11th 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 dated 17th September, 1962, the suit was instituted by the plaintiffs.

3. The defendant resisted the suit on various grounds. He inter alia 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 in spite 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 dated 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, by his order dated 17th May, 1963, refused to register the sale deed dated 17th September, 1962. The defendant, therefore, took up the matter to the District Registrar who, by his order dated 19th August, 1964, directed the registration of the sale deed dated 17th September, 1962. In pursuance of the said direction of the District Registrar, the sale deed was registered by the Sub-Registrar oa 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 dated 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 Exhibits P-2 and P-3 executed in favour of plaintiff No. 3 shall prevail over the sale deed Exhibit P-l 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 plaintiffs 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, ont 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 Exhibit P-l 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 mad* to demonstrate that the findings recorded by the Court below are contrary to law. Hence, those 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 Exhibits P-2 and P-3 executed by plaintiffs 1 and 2 in favour of plaintiff No. 3 will not prevail over the sale deed Exhibit P-l dated 17 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 facte, viz., that the sale deed Exhibit P-l dated 17th September, 1962, was refused to be registered by the Sub-Registrar by his order dated 17th May, 1963. The same was ordered to be registered by the District Registrar by his order dated 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 Exhibits P-2 and P-3 dated 10/11th of October. 1962, executed by plaintiffs 1 and 2 in favour of plaintiff No. 3 were registered on the 11th of October, 1962, much earlier than the date on which Exhibit P-l was compulsorily registered.

9. On the basis of the aforesaid established facts, it was urged by Shri Rangaraj that as the sale deeds Exhibits P-2 and P-3 have been registered earlier than the sale deed Exhibit P-l, though the sale deed Exhibit P-l was executed earlier in point of time than the sale, deeds Exhibits P-2 and P-3 the sale deeds Exhibits P-2 and P-3 prevail over the sale deed Exhibit P-l, in view of their earlier registration. Reliance in support of this contention was placed on Section 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 Section 32 provides for presentation of documents for registration. Section 34 provides for an enquiry before registration by the registering officer. Section 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 Sections 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 a 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 XII containing Sections 71 to 77, deals with the procedure to be followed in regard to refusal to register the document. Section 71 requires reasons to be recorded for the refusal to register the document. Section 72 provides for an appeal to the Registrar from the orders of the Sub-Registrar refusing registration on grounds other than denial of execution. Section 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. Section 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. Section 75 provides that if the Registrar finds that the document has been executed and the other requirements of law have been complied with, he shall order that the document 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 Sections 58 to 60. Sub-section (3) of the same section provides that the registration made in pursuance of the order of the Registrar under Section 75 shall take effect as if the document has been registered when it was first duly presented for registration. Part X 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. Sri Rangaraj is right in his submission that the registration of the sale deed Exhibit P-l in this case attracts the provisions of Section 75, inasmuch as the said document was not registered under Section 35(1) on the admission of execution by the executants but was compulsorily registered under Part XII on the strength of the order passed by the District Registrar under Sub-section (1) of Section 75 on an application made by the defendant under Section 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 Exhibit P-l was compulsorily registered in pursuance of an order made under Section 75(1) of the Act, it was urged that full effect must be given to Sub-section (3) of Section 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 Exhibit P-l under Section 75 is regulated by Sub-section (3) of Section 75 and not by Section 47 of the Act.

In my opinion, Section 47 and sub-section (3) of Section 75 deal with two independent topics and that therefore one does not exclude the operation of the other. Subsection (3) of Section 75 no doubt, applies only to documents which are compulsorily registered under Part XII in pursuance of an order made by the Registrar under Subsection (1) of Section 75. What Sub-section (3) provides is that the registration of a document made in pursuance of an order passed under Section 75 by the Registrar takes effect as if the document had been registered when it was first duty presented for registration. In other words, the registration of the document effected in pursuance of the order made under Section 75(1) 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-section (3) of Section 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). Subsection (3) of Section 75 does not deal with the effect of registration of a document. That topic is dealt with by Section 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 Section 47 makes it clear that the date of registration, whether actual or the deemed date under Section 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 Section 35 or by way of compulsory registration under Part XII of the Act, the provisions of Section 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-section (3) of Section 75 applies to the document Exhibit P-l, the same does not exclude the operation of Section 47 of the Act.

11. It was next urged by Shri Rangaraj that the Court below has committed art error in holding that the sale deed Exhibit P-l prevails over the sale deeds Exhibits P-2 and P-3, solely, on the ground that Exhibit P-l has been executed by the same vendors at an earlier point of time than Exhibits P-2 and P-3. In support of his submission he relied upon a decision of the Supreme Court in Ram Saran Lall v. Mst. Domini Kuar, : [1962]2SCR474 . That was a case in regard to right to 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 right of pre-emption can be exercised is the preliminary demand by the pre-emptor and that such demands 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 Section 54 of the Transfer of Property 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 Section 61 of the Act. Their Lordships held that Section 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 Section 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 have completed earlier because by virtue of Section 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 Calcutta High Court in Gobardhan Bar v. Gunadhar Bar : AIR1941Cal78 . 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 No. 3 not being a party to the sale deed Exhibit P-l, the sale deeds Exhibits P-2 and P-3 in his favour, which have been registered earlier than Exhibit P-l in favour of the defendant, prevail over the subsequently registered sale deed Exhibit P-l. Though the decision of the Calcutta High Court does support the contention of Sri 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 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 th9 Supreme Court referred with approval the view taken by the Calcutta High Court in Gobardhan Bar's case : AIR1941Cal78 .

13. It is true that under Section 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, Section 47 of the Registration Act comes into operation which provides that the registered document shall operate from the time from which it would lave commenced to operate if no such registration thereof had been required or made and not from the time of its registration. Section 48 of the Transfer of Property Act determines the priority when there are successive transfers. It provides that where a person purports to create by transfer at different limes 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. Section 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 Sections 48 and 54 of the Transfer of Property Act and Sections 47 and 49 of the Indian Registration Act. Once a sale deed is registered, there would be compliance of the provisions of Section 54 of the Transfer of Property Act as well as Section 49 of the Indian Registration Act. Once a sale deed is registered, the document shall operate from the time from which it would have commenced to operate if no registration had seen required or made, in view of the clear provisions of Section 47 of the Indian Registration Act. The provisions of Section 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 Section 48 of the Transfer of Property Act. Section 48 of the Transfer of Property Act incorporates an important principle that no mart 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 tame 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. Kalyana Sundaram Pillai v. Karappa Mooppanar, . 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 bad 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 bv the Supreme Court in K. J. Nathan v. S. V. Maruthi Rao, : [1964]6SCR727 . 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 Section 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 Bar's case : AIR1941Cal78 . The view which I have taken also accords with the view taken by the High Court of Madras in S. Arunachalam Asari v. Sivan Peramal Asari, : AIR1970Mad226 , with which I respectfully agree.

14. For the reasons, aforesaid, I hold that the sale deed Exhibit P-l dated 17th September, 1962 executed by plaintiffs 1 and 2 in favour of the defendant prevails over the sale deeds Exhibits P-2 and P-3 dated 10/11th October, 1962, executed by plaintiffs 1 and 2 in favour of plaintiff No 3, notwithstanding the fact that the sale deed Exhibit P-l was registered long after the sale deeds Exhibits P-2 and P-3 were registered. In the result, both the appeals fail and the same are dismissed. No costs.


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