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Banwari Lal Vs. Khubi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported inAIR1914All371; (1915)ILR37All59
AppellantBanwari Lal
RespondentKhubi Ram and ors.
Excerpt:
.....to fraud, in the absence of any provisions limiting the period within which a document must be presented to the revenue court or officer referred to in the said section 97, seems to me of considerable weight. ' now in section 97 of the tenancy act, clause (3), it is not laid down that a lease endorsed by a revenue court or revenue officer under the provisions of that section shall be deemed to be a 'registered' document, but only that it shall be as valid as if it had been registered under the law for the time being in force for the registration of assurances......of assurances.' now in section 97 of the tenancy act, clause (3), it is not laid down that a lease endorsed by a revenue court or revenue officer under the provisions of that section shall be deemed to be a 'registered' document, but only that it shall be as valid as if it had been registered under the law for the time being in force for the registration of assurances. the real question to my mind is whether any intention on the part of the local legislature favourable to the contention now urged before us on behalf of the present appellant can be inferred from the use of the latter expression rather than the former. on the whole, while feeling the force of the arguments urged in support of this appeal, i have come to the conclusion that the view which has been expressed by my.....
Judgment:

Chamier, J.

1. The facts of this case as found by the lower appellate court are as follows. The occupancy tenants of some land executed in favour of the defendant Khubi Ram, on the 15th of November, 1910, a lease for five years. On the 7th of December, 1910, they took it to a kanungo under Section 97 of the Tenancy Act, and got him to sign and date an endorsement thereon under Sub-section (2) of that section. In the meantime, on the 21st of November, 1910, they had executed a similar lease in favour of the plaintiff and caused it to be registered under the Registration Act on the same day. The plaintiff brought a suit against the defendants second party, and that suit was dismissed on their pleading that they had paid the rent to Khubi Ram, defendant No. 1. The plaintiff then brought the present suit for possession of the property and for a declaration that the lease held by Khubi Ram, defendant No. 1, was void and ineffectual as against his lease of the 21st of November, 1910. The court of first instance dismissed the suit and its decree was confirmed on appeal by the Subordinate Judge. This is a second appeal by the plaintiff. On his behalf it is contended that the lease in favour of the defendant Khubi Ram did not take effect until it was endorsed by the kanungo; while on behalf of Khubi Ram, defendant, it is contended that the lease took effect from the date on which it was executed. The decision of the question depends on the construction of Sub-Section 3 of Section 97 of the Tenancy Act. That sub-section runs as follows : 'Such instrument shall thereupon be as valid as if it had been registered under the law for the time being in force for the registration of assurances.' It appears to me that this subsection means that an instrument, which has been endorsed under Section 97 by a revenue officer or kanungo, is to be as valid in all respects as if it had been taken to the registration office and registered under the Indian Registration Act, and that full effect will not be given to this provision if it is held that such an instrument takes effect from the date on which the endorsement is made under this section and not from the date of execution. In this particular case such a view would result in the lease held by the defendant Khubi Ram having no effect at all, for it would have to give way to the lease which has been registered. It was contended that if any provision of the Registration Act is applied to an instrument endorsed under Section 97 all the provisions of the Act roust be applied, including the provisions regarding the time within which a document is to be presented for registration, and the provision allowing a document to be registered after the expiry of four months in certain cases. I am not prepared to go as far as this. It seems to me that such matters should be governed by the rules which the Local Government is empowered to make under Section 203(c) read with Section 97,of the Tenancy Act, and this, I think, sufficiently meets the contention that, unless all the provisions of the Registration Act are considered to be applicable to the case of an instrument taken to a kanungo to be endorsed under Section 97, it would be possible for a party to a lease of this kind to take it to a Revenue Court or officer several years after it was executed. It appears to me also that the procedure regarding the presentation of a document for registration stands on an entirely different footing from such a provision as that contained in Section 47 of the Registration Act, i.e., that a 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. I am not prepared to say that the question we have to decide is entirely free from difficulty; but, on a full consideration of the arguments addressed to us and of the language of the section, it appears to me, as I have said before, that full effect will not be given to Sub-Section 3 if we do not hold that an instrument endorsed by a kanungo or a Revenue Officer under this section takes effect from the date on which it was executed. The result is in my opinion that the appeal should be dismissed.

Piggott, J.

2. The point for the determination in this appeal has been stated by my learned colleague. I am bound to confess that I felt, and still feel, no small difficulty in coming to a decision. The argument on which considerable stress was laid on behalf of the appellant that, if documents endorsed under Section 97 of the Tenancy Act are held to operate from the date of their execution, the result will be to open a wide door to fraud, in the absence of any provisions limiting the period within which a document must be presented to the Revenue Court or officer referred to in the said Section 97, seems to me of considerable weight. I agree, however, with what my learned colleague has said as to the powers of the Local Government in this matter. In Section 97 itself the right conferred thereby, to substitute attestation before a Revenue Court or officer for the regular procedure of registration, is made subject to such conditions as the Local Government may by rules under this Act direct. It is probable that the question of appropriate rules to be made for the regulation of procedure in this matter and avoidance of fraud requires further consideration by the Local Government. At the same time it must be admitted that under the Registration Act itself there are possibilities of fraud, or at any rate of dishonest dealing, and that the courts are sometimes called upon to decide difficult questions of fact, when two documents have been executed dealing with the same immovable property and registered on different dates. A plea to the effect that a document subsequently registered was fraudulently antedated has been raised in cases to which the Registration Act applies and is often difficult to determine satisfactorily. The real question, however, is as to the wording of the two enactments bearing on the point in issue. The case on behalf of the plaintiff appellant seems to me to be put in its strongest form when reference is made to the provisions of Section 47 of the Registration Act as embodying a special privilege intended by the Legislature to apply only to a 'registered' document, in the sense in which that expression is used in Section 47 itself. The word 'registered' is defined in the General Clauses Act (Local Act No, I of 1904), Section 4, Clause (35) as 'registered in British India under the law for the time being in force for registration of assurances.' Now in Section 97 of the Tenancy Act, Clause (3), it is not laid down that a lease endorsed by a Revenue Court or revenue officer under the provisions of that section shall be deemed to be a 'registered' document, but only that it shall be as valid as if it had been registered under the law for the time being in force for the registration of assurances. The real question to my mind is whether any intention on the part of the local Legislature favourable to the contention now urged before us on behalf of the present appellant can be inferred from the use of the latter expression rather than the former. On the whole, while feeling the force of the arguments urged in support of this appeal, I have come to the conclusion that the view which has been expressed by my learned colleague is correct. If the lease of the 15th of November, 1910, had been registered under the law for the time being in force it would have been valid for the purpose of conferring title from the date of its execution, that is to say, from the 15th of November, 1910; and it appears to me that we should be making law on our own account, rather than interpreting the law as it stands, if we refuse to give its full force to the word 'valid.' I concur in dismissing the appeal.

3. The appeal is dismissed with costs.


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