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Chaturbhuj Sharma Vs. Durga Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 21 of 1972
Judge
Reported inAIR1976All7
ActsConstitution of India - Article 226; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7 and 7F; Registration Act, 1908 - Sections 47, 48 and 61(2)
AppellantChaturbhuj Sharma
RespondentDurga Dayal and ors.
DispositionAppeal dismissed
Excerpt:
constitution - writ - article 226 of constitution of india , section 7 of u.p. (temporary) control of rent and eviction act, 1947 - allotment of house - in the possession of the petitioner - in undue haste - held , there was sufficient justification for the petitioner to file the writ petition challenging the allotment - u.p. (temporary) control of rent and eviction act, 1947 not enacted to dispossess the owners from the accommodation in their actual occupation. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3.....mathur, c.j.1. this is an appeal by chaturbhuj sharma against the order of a learned, single judge of this court allowing the writ petition of durga dayal and u. p. tuberculosis association, luck-now, and thereby quashing the allotment order dated 25-10-1971 passed by the district magistrate under section 7 of the u. p, (temporary) control of rent and eviction act in favour of the appellant.2. the material facts of the case are as follows:--the disputed house known as 'bhagwati niwas' can, for purposes of this proceeding, be deemed to consist of two parts, the northern portion is in the occupation of the appellant. the dispute centres about the southern portion and the allotment order in question pertains to this portion. durga dayal, petitioner no. 1, purchased the house in 1939. in or.....
Judgment:

Mathur, C.J.

1. This is an appeal by Chaturbhuj Sharma against the order of a learned, single Judge of this Court allowing the writ petition of Durga Dayal and U. P. Tuberculosis Association, Luck-now, and thereby quashing the allotment order dated 25-10-1971 passed by the District Magistrate under Section 7 of the U. P, (Temporary) Control of Rent and Eviction Act in favour of the appellant.

2. The material facts of the case are as follows:--

The disputed house known as 'Bhagwati Niwas' can, for purposes of this proceeding, be deemed to consist of two parts, the northern portion is in the occupation of the appellant. The dispute centres about the southern portion and the allotment order in question pertains to this portion. Durga Dayal, petitioner No. 1, purchased the house in 1939. In or about 1942 the northern portion was let out to one Sardar Rajendra Singh, and thereafter to the appellant. The petitioner's case is that he (Durga Dayal) was throughout in occupation of the southern portion though in the year 1949 he permitted his brother, Shri (later Mr. Justice) S. D. Khare. to occupy the southern portion. This portion, was later occupied by his sister's husband. Shri (later Mr. Justice) Gur Saran Lal Srivastava, and thereafter his son. His another sister's son Dr. B. P. Singh, was transferred to Lucknow and as no residence was available for his occupation he was also allowed to live in the southern portion with effect from 11-7-1966. When an official residence was allotted to Dr. B. P. Singh, sometime in August. 1971, he shifted to the Government accommodation. The petitioners' case is that the southern portion was throughout in his (Durga Dayal's) occupation, though the relations mentioned above were allowed to reside along with him.

3. On 5-10-1971, the appellant, Chaturbhui Sharma. applied to the Rent Control and Eviction Officer for allotting the southern portion of the house to him. On 9-10-1971 the Inspector contacted the petitioner No. 1 in connection with the allotment application when petitioner No. 1 handed over the writing which has now been filed by the District Magistrate under orders of this Court passed a few days back. Further inquiry was made by the Town Rationing Officer, Divesh Chandra Ghosh, whereafter he submitted the report Annexure B-2 to his counter-affidavit. The report is dated 23-10-1971. It was thereafter on 25-10-1971 that the impugned allotment order was passed.

4. It is not in dispute that on 22-10-1971. petitioner No. 1, Durga Dayal, executed a sale deed in favour of petitioner No. 2, U. P. Tuberculosis Association, A Bank Draft for Rs. 60,000/- and a cheque for the remaining sale consideration were handed over to petitioner No. 1 the same day. The possession over the southern portion was, according to the petitioners, delivered to petitioner No. 2 on the morning of 23-10-1971. Petitioner No. 2 informed the District Magistrate, to be more correct the Deputy Commissioner, Lucknow, of the transfer and also of the delivery of possession under letter dated 23-10-1971. Annexure 3 to the writ petition. Similar information was also communicated to the Town Rationing Officer on 23-10-1971 when he visited the spot for inquiry as shall be evident from his report Annexure B-2 to his counter-affidavit. Even then the allotment order was passed on the 25th of October. The sale deed was, however, registered on 28-10-1971.

5. The case of the appellant and also of the District Supply Officer and the District Magistrate is that petitioner No. 1 was never in occupation of the southern portion. It is said that petitioner No. 1 is a leading Advocate of Barabanki practising there and he could have no occasion to reside at Lucknow in this portion of his house. It is also said that his father-in-law has a house in the same locality Pandariba where petitioner No. 1 used to stay during his visits to Lucknow.

6. The petitioners did not move the State Government under Section 7-F of the Act against the order of allotment but preferred the present writ petition and at the same time obtained a stay order. Even though the stay order was passed on 26-10-1971, the appellant managed to secure possession over the southern portion.

7. The learned single Judge has recorded the finding that there was no vacancy and, therefore, no order of allotment under Section 7 could be passed. The action taken was held to be mala fide.

8. The learned Advocate for the appellant has raised an objection to the entertainment of the writ petition. It is contended that the petitioners had an alternative remedy by way of an application under Section 7-F before the State Government and when this remedy was not availed of this Court should not have entertained the writ petition. The other point contended is that none of the petitioners could be regarded as aggrieved parties who could seek redress from this Court. None of these grounds are such as would justify our not entertaining the writ petition at this stage.

9. We need not express any opinion on the allegation of mala fide. It is, however, evident that the Rent Control Authorities had acted in a great hurry. When it had been brought to the notice of the District Magistrate and also of the Town Rationing Officer that the disputed house 'Bhagwati Niwas' had been purchased by the U. P. Tuberculosis Association and possession had been delivered to the purchases on 23-10-1971, they should not have acted in a hurry by passing the order of allotment within two days. There could be no reason to suspect the bona fides of the sale transaction. The U. P. Tuberculosis Association is a public institution maintaining proper records. Nothing has been brought to our notice which may show that the sale was on insufficient consideration or was made to defeat the ends of justice. Consequently, it was necessary for the respondents to allow such time that the sale deed could be registered and the sale becoming complete. Even if they were in a hurry to pass an order, equity demanded that they should have acted upon the sale deed and passed an order as if the new owner was the U. P. Tuberculosis Association and not Durga Dayal. It is this undue haste which created a doubt in the mind of the petitioners that all this was being done to favour the appellant who was previously a State Minister. It may be that the respondents thought that they would gain the favour of the appellant and his friends, without the appellant having any intention to have the order of allotment passed quickly. There-fore, we would not endorse the allegation of mala fide, but the undue haste shown by the respondents could be a sufficient justification for the petitioners to move the High Court under Article 226 of the Constitution and not to first avail of the remedy under Section 7-F of the U. P. (Temporary) Control of Rent and Eviction Act and, if necessary, to challenge the allotment order before the High Court.

10. Even though Durga Dayal had transferred the house to the U. P. Tuberculosis Association on 22-10-1971 he can be regarded as a party interested in having the allotment order quashed. It can be assumed that there was an understanding that vacant possession shall be delivered over the southern portion and if the U. P. Tuberculosis Association could not secure vacant possession thereof, there could be some disputes followed by litigation between the petitioners in which petitioner No. 1 would have been put to considerable inconvenience and harassment. Petitioner No. 1 could, therefore, join petitioner No. 2 in having the allotment order quashed. Even though the sale deed had not been registered by the time the petition was moved, petitioner No. 2 had interest in the property knowing fully well that after the registration of the sale deed, it shall become full owner of the property and can claim the benefits from the date of the execution. It was handed over possession over the southern portion and as a result of the allotment order it would have been dispossessed therefrom. The writ petition moved by the petitioners could, therefore, be entertained by the High Court; in any case, it will not be proper to quash the proceedings on this technical ground, at such a late stage.

11. Two material questions of fact in issue are whether the southern portion of Bhagwati Niwas was in the occupation of Durga Dayal. petitioner No. 1, before the execution of the sale deed. Naturally, if he was in occupation thereof, he could deliver possession to petitioner No. 2 on the morning of 23-10-1971. The other question of fact in issue is whether in the facts and circumstances of the case, petition No. 1 could be deemed to have been in occupation of the southern portion during the time it was occupied by his relations. In case findings of fact can be recorded in favour of petitioner No. 1, the material question shall be whether the possession of petitioner No. 2 from the morning of 23-10-1971 can be deemed as owner or its possession was unauthorised which could be disregarded by the Rent Control Authorities and the accommodation could be regarded as vacant and allotted by the District Magistrate under Section 7.

12. It is strenuously contended on behalf of the appellant that the questions of fact involved in the present proceeding are all of a controversial nature such that this Court should not in a proceeding under Article 226 enter into. It was thus urged that if this Court did not enter into the facts it could not interfere with the order of allotment passed by the Dist. Magistrate. It shall have to be kept in mind that the orders passed by the Dist. Magistrate including the Sent Control and Eviction Officer under the U. P. (Temporary) Control of Rent and Eviction Act, cannot be challenged in a civil suit. They are, as provided in Section 16 of the U. P. (Temporary) Control of Rent and Eviction Act, final The order of allotment can, therefore be challenged in a civil suit only if it is without jurisdiction or otherwise a nullity. Where an accommodation is not vacant and even then an order of allotment is passed the order is clearly without jurisdiction. Hence the petitioners had an alternative remedy by way of a civil suit. But it is a matter of common knowledge that the final decision of a civil suit takes a very long time and in suitable circumstances the High Court can in spite of there being a remedy open by way of civil suit, exercise its jurisdiction under Article 226 of the Constitution.

13. The circumstances of the present case make it evident that unless action was taken quickly, the petitioners would have been adversely affected in that even though in actual possession they would have been dispossessed from the accommodation. When the stay order passed by the High Court on 26-10-1971 became infructuous, the petitioners could have been put to still greater difficulty if they would have availed of the alternative remedy of filing a civil suit. Consequently, it would not be justified to quash the present proceeding under Article 226 on the ground that an alternative remedy was available. However, while expressing an opinion on facts, we shall have to keep in mind that the present is a proceeding under Article 226 and not a civil proceeding where evidence of the parties is recorded in detail. If on facts, no clear finding can be recorded, the best thing shall be to proceed on facts as asserted by the public authorities, namely, the District Supply Officer and the District. Magistrate, But if the material on record justifies the recording of a clear finding, that course can be adopted.

14. The District. Magistrate and also the Town Rationing Officer, who was the Rent Control and Eviction Officer, had before them the writing given by petitioner No. 1 and also the letter sent by petitioner No. 2. In his writing dated 9-10-1971 the petitioner No. 1 had clearly mentioned that the southern portion of the house had always been in his personal occupation and that his entire luggage was in the southern portion of the house. In case the Town Rationing Officer regarded this assertion to be incorrect, he could himself visit the house or depute his Inspector to direct the petitioner No. 1 to unlock the southern portion to find out if any luggage was kept therein and also whether he could be deemed to be in actual occupation of this portion. No such steps were taken. Similarly in its letter dated 23-10-1971 petitioner No. 2 had informed the District Magistrate that possession had been delivered to petitioner No. 2 on the morning of 23-10-1971. If this assertion was not regarded to be correct the District Magistrate could have taken a similar action to find out if petitioner No. 2 was then in actual occupation of the southern portion.

15. The report Annexure B-2 to the counter-affidavit of the Town Rationing Officer contains many inaccuracies. Even then if the report is read as a whole, it would give the impression that the petitioner No. 1 was throughout in occupation of the southern portion, at occasions along with the relations otherwise all by himself.

16. Similar inference can be drawn from the other material on record which may have been in the notice of the public authorities or could come to their notice if a proper inquiry was made. In his letter dated 14-6-1967, addressed to petitioner No. 1, Annex. 8 to the rejoinder affidavit, the appellant clearly mentioned that the other portion, namely, the southern portion was in the occupation of petitioner No. 1. This was during the period Dr. B. P. Singh was also residing in this portion. Paragraphs 7 to 12 of the writ petition also lead to the same inference. In paragraph 7 it is clearly asserted that the southern portion was never let out to anyone: at first the previous owner himself occupied the entire house including the southern portion, and after the purchase in 1939. petitioner No. 1 occupied the entire house till 1942 and it was in 1942 that the northern portion was let out to Sardar Rajendra Singh. Further details in respect of the northern portion need not be given. Similarly, in paragraphs 9 and 11 it was made clear that the relations mentioned above had occupied the southern portion along with petitioner No. 1. These assertions were evasively denied by the respondents of the writ petition, namely, the present appellant and the Town Rationing Officer. In case the southern portion had been let out to any person after the purchase in 1939, and before its occupation by Shri (later Mr. Justice) S. D. Khare, particulars of the tenancy could be given. On the basis of the affidavits on record it must, therefore, be held that after the purchase of the house in 1939 the southern portion was not let out to anyone. It must therefore, have been in the personal occupation of petitioner No. 1. The fact that petitioner No. 1 is a leading advocate of Barabanki is of no importance. He could be visiting Lucknow either on private work or in the course of his professional duties. He could easily think of retaining the southern portion for his own use. Consequently, when it appears that the southern portion was never given on rent, no other inference can be drawn except that petitioner No. 1 was in actual occupation of this portion of the house.

17. When the house is needed by the owner himself and he permits his relations to live in the house, he does not exclude himself from residing therein. Ordinarily, therefore, the possession of the relations permitted to reside is not exclusive of the owner. In other words, even during the period the relations of petitioner No. 1 stayed in the southern portion of the house, petitioner No. 1 was also in possession thereof. This finds support from the writing dated 9-10-1971 which the petitioner No. 1 had given to the Rent Control and Eviction Officer while the question of allotment was pending. In this letter he has referred to his entire luggage being in the southern portion. When petitioner No. 1 permitted his relations to live in the house, he would not have removed the luggage and brought it back when the relations left it. It is therefore, established that the southern portion of Bhagwati Niwas was throughout in the personal occupation of petitioner No. 1. The fact that his father-in-law had a house in this very locality will not make a difference. The visits of petitioner No. 1 to Lucknow were casual and consequently, he could for some time stay with his father-in-law also. The actual possession of petitioner No. 1 over southern portion would thus extend upto the morning of 23-10-1971 when it was transferred to petitioner No. 2. Petitioner No. 2 had intimated to the District Magistrate of having secured possession over the southern portion of the house on the morning of 23-10-1971. There is nothing to show that this assertion is incorrect. Consequently, at the time the allotment order was passed the southern portion was in occupation of petitioner No. 2.

18. This leads us to the consideration of the question of law involved. As already mentioned above, the sale deed was executed on 22-10-1971 but was registered on 28-10-1971. The allotment order was passed in between 25-10-1971. The Question arises whether the possession of petitioner No. 2 can be regarded as an authorized one, such that his possession could be disregarded and in the eye of law there was a vacancy to justify the District Magistrate to pass an order under Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act.

19. It is strongly contended on behalf of the appellant that petitioner No. 2 acquired title in the property only after the registration of the sale deed on 28-10-1971 and its possession before this date was not as owner. It is said that when the possession was not as owner, nor could it be as a legal tenant, the possession of petitioner No. 2 was unauthorised and the Rent Control Authorities could disregard the executed sale deed and regard the possession to be unauthorized and a vacancy having arisen could allot the accommodation to a suitable person.

20. A finding on this question will depend upon the scope of Section 47 of the Registration Act which provides that on a document being registered, it shall take effect from the date of execution, namely, the date the document would have come into operation had registration thereof not been necessary.

21. Before making comments on the provisions of the Registration Act and the Transfer of Property Act it shall be proper to refer to the object of the U. P. (Temporary) Control of Rent and Eviction Act, whether that enactment can justify the hasty attitude adopted by the Rent Control Authorities.

22. The U. P. (Temporary) Control of Rent and Eviction Act was passed to afford relief to tenants. To this extent the rights of owners were taken away. But this Act was not enacted to dispossess the owners from the accommodation in their actual occupation. An order under Section 7 could be passed only when there was an actual vacancy or a vacancy was likely to arise. When the intention of the framers of the above Act was not to deprive the owners of their possession of their buildings, it is necessary for the Rent Control Authorities to keep this aspect in mind. They are not to allot the accommodation to an outsider when due to the delays in the registration of a document the title of the transferee does not become complete soon after the execution of the document. In case the sale transaction was not brought to their notice, they could rightly presume that no sale deed had been executed. In the instant case it had been pointedly brought to the notice of the Rent Control authorities that possession had been delivered to the transferee on the morning of 23-10-1971. If the District Magistrate did not accept the contents of the letter received by him he could direct his subordinate authorities to verify whether in fact any sale deed had been executed. He could also direct petitioner No. 2 to produce the sale deed. The bona fide of the present sale deed has not been challenged and even if there was any doubt in the mind of the Rent Control Authorities, they could have directed the petitioners to have the document registered promptly and fix the period for the purpose. If the sale deed was not produced before the Sub-Registrar for registration within period, the sale deed could be disregarded and then the District Magistrate could pass an order under Section 7. When the underlying object of the enactment is not to dispossess the owners in possession, such intention was to be given effect to which was not done in the present case.

Section 47 of the Registration Act runs as follows:--

'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.'

This section thus makes a provision from which date a document registered subsequently shall operate. Section 47 has been placed in Part X bearing the heading 'Of the effects of registration, and non-registration'. The effect of registration, there-fore, is that a document after registration becomes effective and comes into operation from the date of execution. On the basis of an observation made in Ram Saran Lall v. Mst. Domini Kuer. : [1962]2SCR474 it was however contended that the object of the section was to decide which of the two or more registered documents in respect of the same property was to have effect. It is suggested that this is the only object of Section 47 with the result that in the instant case where there was only one instrument. Section 47 did not come into operation and had to be disregarded. We cannot accept this contention.

23. The object of an enactment is often judged from the contents thereof and it is not necessary that the object of any enactment or a provision thereof is only one and not more. Where any provision has been worded generally, we would not be justified to restrict its scope. As Section 47 has been worded generally, its scope can be, as mentioned above, when it is considered along with Section 48 of the Transfer of Property Act. But if we have to find out from which date the document shall operate in so far as the parties to the document are concerned, Section 48 does not come into operation and a finding shall have to be recorded on consideration of the provisions of Section 47 alone. In other words, we would not be justified to restrict the scope of Section 47 of the Registration Act and to hold that its object is only what is detailed in Section 48 of the Transfer of Property Act. If such was the intention of the Legislature, Section 47 would not have been incorporated in the Registration Act and instead a more comprehensive Section 48 would have been incorporated in the Transfer of Property Act.

24. In this connection it may be observed that the Supreme Court had made the observations in connection with the right of pre-emption governed by the Mohammedan Law where such right arose only out of a valid, complete and bona fide sale. There the Supreme Court was considering the effect of a demand made before the sale was complete, i.e., after the execution of the sale deed and before the registration thereof. In substance, the rights claimed by the pre-emptor and the rights of the transferee were in issue. The Supreme Court were not considering from which date the rights of a transferee can be enforced irrespective of whether there has or has not been any other demand or transaction. The above observation made in the Supreme Court case cannot, therefore, be regarded to be applicable to all the situations.

25. Section 61(2) of the Registration Act lays down that the registration of a document shall be deemed to be complete after the endorsements and certificate referred to and mentioned in Sections 59 and 60 have been copied into the margin of the Register Book. Under Section 54 of the Transfer of Property Act, the transfer by sale of immovable property of a value of Rs. 100/- and more can be made only by registered document. On reading Section 54 of the Transfer of Property Act along with Section 61 of the Registration Act, it can be said that the sale is complete after the compliance of Sections 59, 60 and 61 has been made and not when the document has been executed or presented for registration. Title to the property may pass when the transaction is complete, that is, after the necessary endorsements have been made in the Register Book. But the transferee can, if permissible under the law, acquire right in the property from an earlier date. Section 47 of the Registration Act, in one way, gives a retrospective effect to a document after it has been duly registered. Like the retrospective enactments, a document having retrospective effect from the earlier date and not necessarily on the date when the transaction is complete. When the matter is considered in this light the transaction of sale may not be complete before registration, but after registration it takes effect from the date of execution namely, that the purchaser can assert his rights of ownership from the date of execution even though his title became complete on a later date-When the owner can assert his rights of ownership from an earlier date, his possession during the period prior to the registration shall after the registration of the document be as owner and not as a licensee or an outsider. On a careful consideration of the provisions of the Registration Act. we are of opinion that a document registered on a subsequent date operates from the date of its execution even though it can be said that the title of the transferee is not complete till the registration. 26. Our attention has been drawn to a few decisions of the Supreme Court, the Privy Council. Allahabad High Court and also the other High Courts and we find that the consensus of opinion is in favour of the view that we are adopting. In Ram Saran Lall v. Domini Kuer : [1962]2SCR474 (Supra) the point for consideration was when was the sale complete and not the date from which it operates. In paragraph 8 it was observed that;

'We will assume that the learned Attorney General's construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct Section 47 of the Registration Act does not, however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The obiect of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It 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. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date.' On the other hand, the above makes it evident that even though the sale is complete on a subsequent date it operates by virtue of Section 47 of the Registration Act from the date of execution. The transferee can thus enforce his rights of ownership from the date of registration.

The case of K.J. Nathan v. S. V. Maruthi Rao, (AIR 1965 SC 4301 contains a similar observation, namely, that: 'Though Ex A-19 was registered on June 22, 1948, under Section 47 of the Registration Act the agreement would take effect from July 5, 1947' (July 5, 1947 is the date of execution of the document).

27. In Alapati Venkataramiah v. Commr. of Income-Tax, : [1965]57ITR185(SC) it was observed that till a conveyance was executed and registered no title could pass to the transferee. This is what we have already indicated above. This ease nowhere lays down that a conveyance when executed and registered shall take effect from the date of registration and not from the date of execution.

28. T.V. Kalyanasundaram Pillai v. Karuppa Mooppanar and Venkat Subba Srinivas Hegde v. Subba Rama Hegde, (AIR 1928 PC 86) relate to a gift deed and not a sale deed. However, the principles laid down therein will clearly establish that the rights and benefits under the document can be exercised from the date of execution. It was held that once a gift is executed and has been delivered to the donee, the donor cannot revoke the gift even before its registration on the ground that the gift is not completed until the deed is register-ed. When the donee can claim under the document even though not registered, there is no reason why a transferee cannot assert his rights as owner of the property even though his title is not complete and would become complete after the registration of the document.

29. In Mohammad Bashir Khan v. Mt. Kulsum Bibi : AIR1927All545 Preemption Act of 1922 was held to be inapplicable because the sale deed had been executed before 17th February. 1923, the date from which the provisions of the Act were applicable. This view was taken even when the deed of transfer was registered after that date. In other words, the transfer was deemed to have been made on the date of execution, and not on the date of registration. In Mahadeo Singh v. Mian Din : AIR1938All431 it was held that after executing the sale deed it is not open to the executant to go back on his agreement and revoke it. The observation that the sale deed is completed when it is executed by the vendor is however, contrary to the provisions of Section 61 of the Registration Act and the law laid down in Alapati Venkataramiah v. Commr. of Income-tax. : [1965]57ITR185(SC) (Supra). The view taken in Raja Ram v. Girraj Kishore, : AIR1964All369 supports the view that we are taking. The material observation is:

'unless a sale deed is registered, the mere fact of its execution does not make it operative, but by reason of Section 47 once registration has been effected the sale deed becomes operative retrospectively from the date of execution.'

30. Hira Lall Burman v. The District Board, Aligarh. (ILR (1966) 2 All 784) is not very helpful as it proceeds on A different ground, namely, from which date the transferee becomes the owner of the property. It may, however, be observed that the observations in this case appear to be contrary to the law laid down in Alapati Venkataramiah v. Commr. of Income-tax : [1965]57ITR185(SC) (Supra).

31. Cases of other High Courts in which a document registered subsequently was held to take effect from the date of execution are: Faiyazuddin Khan v. Mt. Zahur Bibi, (AIR 1938 Pat 134), Bhagawathula Kameswara Rao v. Doddaku Veera Raghavulu : AIR1960AP616 , Champat Rao Mahadeo v. Mahadeo Bajirao Kunbi, (AIR 1937 Nag 143) and Nabadwip Chandra Das v. Loke Nath Roy. : AIR1933Cal212 .

On the application of this principle, sale deed executed before the filing of the suit but registered thereafter was held not to be affected by the doctrine of lis pendens. See Akki Guru Basappa v. Valuvathi, (AIR 1925 Mad 710).

32. A contrary view has, however, been expressed in Nabir Ganai v. Mohammad Ismail Ganai, (AIR 1960 J & K 112). Therein it was held that as between parties, registered document takes effect from, the date of its execution but as between third parties it takes effect from the date of registration. In case it was desired to lay down an inflexible rule applicable to all cases, we would with respect differ. The Supreme Court has clearly laid down in Ram Saran Lall v. Mst. Domni Kuer : [1962]2SCR474 that the object of Section 47 of the Registration Act is to determine the priority of various transactions pertaining to the same immovable property, parties to the various instruments shall not be the same. The transferees would invariably be different persons. Consequently, the observation that a document takes effect as between third parties from the date of registration is contrary to the law laid down by the Supreme Court.

33. To avoid the possibility of any misunderstanding it may be mentioned that departure from the scope of Section 47, Registration Act may be made in exceptional cases involving a question of limitation but not where the effect of the document and the rights of the transferor and the transferee have to be determined In such a case Section 47 must be interpreted as it is, that is, no restrictions not contemplated by the section be imposed.

34. One of the cases in which, in our opinion also, departure can be made from the strict scope of Section 47 is that of Paritala Narasimham v. Ayinampudi, (AIR 1957 Andh Pra 535). It was held therein that the transfer cannot be antedated for the purpose of Section 54 of the Insolvency Act. Also see Venkadari Samappa v. Official Receiver. (AIR 1938 Mad 801).

35. From the above it shall be evident that except for the Jammu and Kashmir High Court, every High Court, has taken the view that by virtue of Section 47 of the Registration Act, a registered document takes effect from the date of its execution and this, in our opinion, is the only view that can be taken of the provisions of Section 47 of the Registration Act.

36. Once the document takes effect from the date of execution, the transferee can assert his rights under the document from the date of the execution. Once the transferee can assert his rights from that date, his possession of the property under transfer shall be as owner and in no other capacity.

To sum up, petitioner No. 1 was in occupation of the southern portion of Bhagwati Niwas from the date of the purchase in 1939 upto the sale and transfer of possession to the new owner on 23-10-1971 and that the possession of petitioner No. 2. which is a transferee from petitioner No. 1, from the morning of 23-10-1971, is as owner, for the reason that even though the sale deed was registered on 28-10-1971, by virtue of Section 47 of the Registration Act, it operates from the date of execution that is from 22-10-1971. When the document operates from 22-10-1971, parties to the document can assert rights as if such rights had accrued from that date. The possession of petitioner No. 2 from the morning of 23-10-1971, was therefore, as owner and in no other capacity. When petitioner No. 2 was occupying the disputed southern portion of the house as owner, there could be no vacancy to entitle the District Magistrate to pass an order of allotment under Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act. The impugned order of allotment is thus without jurisdiction and deserves to be quashed.

The special appeal has no force and it is hereby dismissed with costs. The stay order is vacated.


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