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Mangali Lal and ors. Vs. Abid Yar Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1917All97; (1917)ILR39All523
AppellantMangali Lal and ors.
RespondentAbid Yar Khan and ors.
Excerpt:
.....were oppressing him, or bringing pressure to bear on him, or keeping him under their thumbs. the expression used in the vernacular is a vague one, of which the last expression -seems the best translation into idiomatic english. of course, if abdul wahid khan was on the 18th of november, 1903, the bond fide owner of a parcel of land with a ruined house thereon in the city of bareilly, and the transfer of this land was in good faith included in the sale-deed of the 18th of november, 1903, it being the intention of the parties to the transaction that the ownership of this land should pass from the vendor to the vendees, the mere fact that the immediate object of this transaction was to obtain a legal warrant for the registration of the sale-deed at the bareilly office, instead of the..........executed a deed of sale which is the document of title on which the present suit is based. by the deed abdul wahid khan purported to convey to the present plaintiffs his rights in the estate left by naushani begam. a specification of that lady's estate and of the property purported to be conveyed was appended to the sale-deed. the consideration was stated at rs. 5,000, of which rs. 100 had been paid in advance and rs. 4,000 were formally handed over to abdul wahid khan at the time of the registration, while a sum of rs. 900 was retained for the time being by the purchasers, under a convenant to pay it later on when they had succeeded in obtaining settled possession over the property conveyed. we may note at once certain facts bearing on the principal question now before us for.....
Judgment:

Piggott and Walsh, JJ.

1. The suit out of which this appeal - arises is based upon the following state of facts, There was a lady named Naushani Begam, who died as long ago as the 24th of November, 1900. On the findings now before us we must take it that she left two heirs to her estate under the Muhammadan law: one was her husband, Ahmad Husain, and the other was a distant cousin named Abdul Wahid Khan. The pedigree filed with the plaint, the accuracy of which may be taken as established, shows that Abdul Wahid Khan was the son's son of one Ali Muhammad Khan, and that Naushani Begam was the son's daughter of another son of the said Ali Muhammad Khan. The relationship was thus a distant one, and this alone might account for the fact that Abdul Wahid Khan did not find it easy to enforce his claim to a share in the estate of the deceased lady. It further appears from this record that the legitimacy of Abdul Wahid Khan was contested by other members of the family. So far as the record before us goes, we must take it that in the present litigation Abdul Wahid Khan's legitimacy is established; but it is a point of importance in the history of the case that Abdul Wahid Khan's legitimacy was at one time contested. It would appear that, as a matter of fact, Ahmad Husain succeeded in taking effective possession of the entire estate of his deceased wife. He has since been dealing with it as owner and has made a number of transfers. Abdul Wahid Khan himself never attempted to bring his claim to the adjudication of a court of law. On the 18th of November, 1903, he executed a deed of sale which is the document of title on which the present suit is based. By the deed Abdul Wahid Khan purported to convey to the present plaintiffs his rights in the estate left by Naushani Begam. A specification of that lady's estate and of the property purported to be conveyed was appended to the sale-deed. The consideration was stated at Rs. 5,000, of which Rs. 100 had been paid in advance and Rs. 4,000 were formally handed over to Abdul Wahid Khan at the time of the registration, while a sum of Rs. 900 was retained for the time being by the purchasers, under a convenant to pay it later on when they had succeeded in obtaining settled possession over the property conveyed. We may note at once certain facts bearing on the principal question now before us for determination. The whole of the immovable property which formed part of the estate of Naushani Begam, and which purported to be conveyed by the sale deed of the 18th of November, 1903, was situated in the district of Pilibhit. In the ordinary course of things a deed of sale in respect of that property required to be registered before the Sub-Registrar of Pilibhit and registration in any other office would be invalid under the provisions of the Indian Registration Act. The sale-deed in question, however, was registered before the Sub-Registrar of Bareilly. This was done on the strength of a certain detail appended to the said deed. The important words are the following: 'I include,' says Abdul Wahid Khan, 'in this sale a ruined house with the land appertaining to it, bounded as below, situated in Naqsha Bandan Mohalla in the city of Bareilly, which I purchased from Syed Sher Ali under a sale-deed dated the 3rd of September, 1903.' In the specification at the foot of the deed boundaries of this house situated in the above-mentioned quarter of the city of Bareilly are set forth. In the suit as brought a large array of defendants was impleaded. Ahmad Husain, husband of Naushani Begam, was dead and his heirs were impleaded as defendants of the first party. Abdul 'Wahid Khan was alive at the date of the institution of the suit, and was impleaded as defendant No. 3. He died while the suit was pending in the court below, and his heirs were brought on the record. The remaining defendants consist of transferees of different portions of the property under conveyances executed by Ahmad Husain or his heirs. In the suit as brought all the property set forth in the deed of the 18th of November, 1903, was claimed, including the alleged 'ruined house' in the city of Bareilly. Abdul Wahid Khan did not defend the suit, and he was presumably the only person interested in this particular item of property. The defence set up by the other defendants, however, happened to raise the question whether Abdul Wahid Khan had been the owner of any such property in the city of Bareilly as was specified in the sale-deed of the 18th of November, 1903, and sooner than produce even prima facie evidence on this point the plaintiffs elected to abandon this part of their claim.

2. The defence set up by the other defendants raised two essential - points and a number of questions of detail. One of the essential questions raised was the legitimacy of Abdul Wahid Khan, and we must treat that point as having now been deeded in favour of the plaintiffs. The other essential point was the validity of the plaintiff's document of title, the sale-deed of the 18th of November, 1903. Before taking up this question it is worth while to mention the questions of detail which were raised regarding certain items of property claimed. In the plaint as drafted the most important item of property was a zamindari share in a village, named Parasi or Parsea, in the Pilibhit district. The question of this property is still in issue now before us in appeal. The second item specified was a zamindari share in a village called Manpur Jalalpur in the same district. This property seems to have now passed into the ownership of certain persons, two of whom are Niranjan Singh and Janak Singh, impleaded as defendants Nos. 7 and 8 in the plaint as filed. In this Court there has been some difficulty about the service of summons on these two, and sooner than persevere in this matter the plaintiffs have elected to abandon the appeal against) Niranjan Singh and Janak Singh. This means that they abandon their claim as regards the greater part, if not the whole, of the second item. In the view we take of the case it is not necessary for us to determine how much they abandoned; but we note the fact. The third and fourth items specified in the plaint were small parcels of land described as 'Maqruqa property' in a village named Desnagar. As regards one of these parcels of land there has been a finding that it never belonged to Naushani Begam, and this finding is not contested before us in appeal. With regard to the other parcel, the finding of the court below is that it did at one time belong to Naushani. Begam, but she conveyed it to her husband by a deed executed shortly before her death The question of the validity of this alleged transfer is in controversy in this appeal, and we note the fact, although it will not be necessary for us to determine it. The next item of property concerned, specified in the plaint, is three houses situated in the town of Pilibhit The court below has found that these houses formed no part of the estate of Naushani Begam. This finding has been contested before us in appeal; but if it were necessary for us to determine it, we should have no hesitation in holding on the evidence that these houses, as described in the plaint, are not proved to have belonged to Naushani Begam. The last item of property specified in the plaint is the alleged 'ruined house' in Bareiily the claim to which was abandoned.

3. Having said this much by way of explanation, we return to the principal question in issue, viz., the validity of the plaintiff's document of title. That there was in the present case an attempt to evade the provisions of the Indian Registration Act by including in the deed of sale a purely formal transfer of an item of property to which neither the vendor nor the vendees attached substantial value is beyond question. The motive which actuated Abdul Wahid Khan and the present plaintiffs in adopting this course is a matter for inference only. Abdul Wahid Khan died before he could be called upon to make any statement in court. Evidence on the point has been given by Sher Ali, the alleged former owner of the 'ruined house' and by the plaintiff Nadir Husain. Sher Ali seems to have fenced a good deal with the questions put to him. He certainly tried to convey to the court a belief that Abdul Wahid Khan had purchased the site in question from him with the bond fide intention of building a house thereon and settling down in Bareiily, It may be noted that he was in fact a resident of Pilibhit. Sher Ali was compelled, however, to make a number of admissions which show that this statement on his part was quite unreliable. He seems to have acted as a broker between Abdul Wahid Khan and the present plaintiffs in the matter of the sale, and no doubt he had some object to serve in bringing about that transaction. He had to admit that Abdul Wahid Khan never took effective possession of the site in* question or made any attempt to build a house thereon, and as a matter of fact he proceeded to sell it to the plaintiffs by the deed of the 18th of November, 1903, as already noted. The plaintiff Nadir Husain was more straight forward in his evidence and made statements which show clearly enough, up to a certain point, what the meaning of this transaction was. He says that Abdul Wahid Khan complained to him that his relatives at Pilibhit were oppressing him, or bringing pressure to bear on him, or keeping him under their thumbs. The expression used in the vernacular is a vague one, of which the last expression - seems the best translation into idiomatic English. He added that his intention in purchasing this 'ruined house' in the city of Bareilly was that he might thereby 'cause a suit to be instituted' against the aforesaid relatives. The long and the short of the matter is that Abdul Wahid Khan was anxious to execute a conveyance of the Pilibhit property, in the hope of thereby getting a litigation started against Ahmad Husain or other members of the family, and at the same time be did not wish these persons to have any opportunity of getting to know in the execution of the deed. Whether he was afraid of their remonstrances, or did not wish to have the question of his legitimacy at once raised by the institution of declaratory suit, we can only conjecture; but it is clear from Nadir Husain's own admissions that the motive for this juggling with the Registration law was to keep the matter secret as long as possible from the persons residing at Pilibhit who had an interest in the property of the deceased Naushani Begam. Now the question is whether in this attempt to juggle with the Registration law the plaintiffs have not gone too far and have not, as a matter of fact, accepted a deed of transfer which is void for want of legal registration. Of course, if Abdul Wahid Khan was on the 18th of November, 1903, the bond fide owner of a parcel of land with a ruined house thereon in the city of Bareilly, and the transfer of this land was in good faith included in the sale-deed of the 18th of November, 1903, it being the intention of the parties to the transaction that the ownership of this land should pass from the vendor to the vendees, the mere fact that the immediate object of this transaction was to obtain a legal warrant for the registration of the sale-deed at the Bareilly office, instead of the Pilibhit office, would not invalidate the registration. The question, however, is whether there was as a matter of fact any bona fide transfer of any property in the city of Bareilly, or within the jurisdiction of the Sub-Registrar of Bareilly effected by this particular sale-deed. With regard to the case-law on the subject, the point has been very ably argued before us by the learned advocates on both sides. A number of cases have been referred to us, two cases of our own Court, one of the Calcutta High Court and one case decided by their Lordships of the Privy Council. The cases of this Court are Jagan Nath v. Ram Nath (1914) 12 A.L.J. 918 and Bansraj Singh v. Rajbans Bharti (1914) 12 A.L.J. 918. The Calcutta case is Purna Chandra Bakahi v. Nobin Chandra Ganyopadhya (1903) 8 C.W.N. 362. The Privy Council case is Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R. 41 Calc. 972. The argument before us has centred principally around this last judgement. Different passages in the same are relied upon by the two parties. On behalf of the defendants respondents reliance is placed upon certain passages in the judgement, especially on the paragraph on page 989, commencing with the words: 'But the point may be put in another way upon broader grounds...', in which stress is laid upon the inadmissibility of a purely fictitious transfer to give jurisdiction to a registration office. On behalf of the plaintiffs appellants stress is laid on other passages of the same judgement, and also on the decision of the Calcutta High Court, dealing principally with the question of the burden of proof. It does not seem to us that this matter of burden of proof is really vital in the present case. Undoubtedly the defendants to the present suit, who were challenging the validity of the plaintiffs document of title, were under an obligation to satisfy the court that that document was invalid by reason of defective registration. This point seems to have been fully appreciated by the court below. Both parties led evidence in the case, the plaintiff Nadir Husain giving his own evidence and the witness Sher Ali being also examined as already stated. The real question is what are the conclusions of fact which the court is justified in drawing from this evidence. One point which emerges with great clearness is that this parcel of land (admitting for the sake of argument that there is in the city of Bareilly a parcel of land situated within the boundaries stated in the sale-deed of the 18th of November, 1903) was practically valueless. It is supposed to have been sold by Sher Ali to Abdul Wahid Khan for Rs. 50. Abdul Wahid Khan never attempted to make the slightest use of it, nor did the present plaintiffs. The circumstances under which the plaintiffs have now abandoned their claim to this land have been already noted. The next question which arises is whether Sher Ali was really the owner of any land falling within the description given in the sale-deed and whether there was a valid and effectual conveyance of this land by Sher Ali to Abdul Wahid Khan. It may be true, in a certain sense, that the burden of proving that the document was invalid for want of proper registration was on the defendants; but the defendants cannot be expected to prove a negative by direct evidence. The plaintiffs undertook to show that Abdul Wahid Khan was in fact the owner of this parcel of land on the 18th of November, 1903, and the conclusion we have come to is that the plaintiffs certainly failed to prove this. According to Sher Ali's oral evidence, if that evidence is to be believed, the parcel of land consisted of a 'ruined house' standing on a plot of land adjoining Sher Ali's residential house. It is said to have been conveyed by means of an unregistered sale-deed, dated the' 3rd of September,' 1903. No such sale-deed was produced, and the explanation of the plaintiff Nadir Husain as to the disappearance of this alleged document does not sound convincing. In any case the existence or otherwise of an unregistered deed of sale would not be of vital consequence in the case, because title to immovable property could not be conveyed merely by such unregistered deed. The plaintiff's case is that title was conveyed by Abdul Wahid Khan's payment of Rs. 50 to Sher Ali and by Abdul Wahid Khan's taking effective possession of the land transferred to him in return; We are unable to conclude from the evidence before us that there was any such effective sale by delivery of possession, even supposing that the evidence on the record is such as to justify the conclusion that Sher Ali was the actual owner of a parcel of land answering to the description in the deed of the 18th of November, 1903. According to the plaintiffs evidence the site in question is now a plot of waste land, somewhere by the roadside in a part of the city of Bareilly, whose only occupants are stray dogs and birds and casual passers-by. On the whole the evidence, to which we have given our Lest consideration, justifies the conclusion arrived at by the court below as to the invalidity of this document. The parties to the sale deed of the 18th of November, 1903, set out to evade the clear provisions of the Indian Registration Act, and in attempting to do so they seem to have over-reached themselves. Sher Ali was not going to transfer property of any appreciable value to Abdul Wahid Khan, and consequently the arrangement was come to that the theory should be put forward that a transfer had taken place between them of something or other which was of no value whatever. It is quite beyond question that on the evidence on this record it could not be found affirmatively that Sher Ali was the owner of the parcel of land alleged to have been sold by him to Abdul Wahid Khan, or that Abdul Wahid Khan had become legal owner of the said parcel of land when he purported to convey it by the deed of the 18th of November, 1903, On the contrary, under all the circumstances of the case, and making due allowance for the position of the parties and the opportunities which they respectively had of producing evidence in the court below, the finding appears to be justified that on the 18th of November, 1903, Abdul Wahid Khan did not own or possess in Naqsha Bandan Mohalla in the city of Bareilly any such item of immovable property as that which he purported to transfer under the deed of the 18th November, 1903. From this conclusion it necessarily follows that the inclusion of this item of property in the aforesaid sale-deed was a purely fictitious use made of it, in order to a fraudulent evasion of the Registration law. We affirm the finding of the court below that the plaintiffs hold no valid document of title in respect of the property claimed by them. Their suit was rightly dismissed, and we dismiss this appeal with costs. We allow three sets of costs to the respondents, one set to those represented by Dr. Sapru, another set to those represented by Mr. O'Conor and another set to those represented by Mr. Abdul Raoof.


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