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Hari Ram and anr. Vs. Sheo Dayal Mal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All590
AppellantHari Ram and anr.
RespondentSheo Dayal Mal and anr.
Excerpt:
registration, place of - act viii of 1871 (registration act), sections 28, 85-- 'whole or some portion of the property'--bona fide transferee for value of mortgaged property--notice--ignorance of existing incumbrance. - - but in a case like the present in which there is a large and valuable property in one sub-district, and another small piece of land situate at a distance, it seems to me that to allow registration of a document affecting both properties in the place where the smaller and less valuable is situate, would be inconsistent with the implied intention of the legislature, that registration should be made with reference to the locality of the property. the only evidence as to notice is in one of the defendant's answers to interrogatories, in which he stated that he was aware of..........at champaran, each of which places is at a considerable distance from patna, and he had also at patna a property which is assumed to be worth about rs. 500, but which was, in all probability, worth less than that amount, and which, at all events, bore a very small proportion to the whole property belonging to mr. brooke, and mortgaged by the deed of the 20th may 1873. under these circumstances, the bond in question was registered at patna. now, the first question which arises in this appeal is, whether it was sufficiently registered with reference to the provisions of section 28 of act viii of 1871, which contained the registration law in force at the time when the bond was executed. that section provides that 'every document mentioned in section 18, clauses (1), (2), (3), and (4),.....
Judgment:

W. Comer Petheram, C.J.

1. I think that this appeal must be allowed on the ground that the deed executed by Mr. Brooke, on the 20th May 1873, was invalid as against subsequent purchasers by reason of not being properly registered. I take the facts which are necessary for the purposes of this judgment, to be the following: Mr. Brooke is the owner of valuable property at Gorakhpur and also at Champaran, each of which places is at a considerable distance from Patna, and he had also at Patna a property which is assumed to be worth about Rs. 500, but which was, in all probability, worth less than that amount, and which, at all events, bore a very small proportion to the whole property belonging to Mr. Brooke, and mortgaged by the deed of the 20th May 1873. Under these circumstances, the bond in question was registered at Patna. Now, the first question which arises in this appeal is, whether it was sufficiently registered with reference to the provisions of Section 28 of Act VIII of 1871, which contained the registration law in force at the time when the bond was executed. That section provides that 'every document mentioned in Section 18, Clauses (1), (2), (3), and (4), and Section 17, Clauses (1), (2), (3), and (4), 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.' The document of the 20th May 1873 comes under Clause (2) of Section 17, which makes compulsory the registration of 'other instruments (not being wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of Rs. 100 or upwards, to or in immoveable property.' Now, here we have an instrument purporting to create a vested interest in immoveable property of greater value than Rs. 100, and therefore it required registration in the place referred to in Section 28, namely, the office of a Sub-Registrar, within whose Sub-District 'the whole or some portion of the property to which' it related was situate. Now, since Mr. Brooke had about Rs. 500 worth of land at Patna, which was hypothecated in the bond, 'some portion' of the property to which the bond related was undoubtedly situate in the place of registration. And, therefore, if the words of Section 28 are to be taken in their literal sense, the bond must be regarded as having been properly registered. But it seems to me that to take them literally would be to defeat the real object which the Legislature had in view when it enacted the section. That object was that the registration of a document should have some reference to the locality of the property to which the document relates. The section first speaks of the sub-district in which the whole of the property is situate. But in a case like the present in which there is a large and valuable property in one sub-district, and another small piece of land situate at a distance, it seems to me that to allow registration of a document affecting both properties in the place where the smaller and less valuable is situate, would be inconsistent with the implied intention of the Legislature, that registration should be made with reference to the locality of the property.

2. What, then, is the rule to be followed in cases where a literal interpretation of the terms of an enactment would defeat the intention with which the enactment was made? Mr. Wilberforoe in his book on Statute Law (1881) has expressed the rule in clear language, and has collected the cases by which it has been established. He says (p. 131): 'It has often been laid down that while words are to be understood in their plain and ordinary sense, they must not be read so literally as to defeat the object of an enactment. Acting on this principle, the Courts have both in ancient and modern times given some words a wider meaning than they usually bear, and have restricted or modified the meaning of others.' He cites cases which establish this principle, and in some of which the literal meaning has been enlarged, while in others it has been restricted by the Courts. In the case before us we must first consider whether the intention of the Legislature cannot be effected without either enlarging or restricting the meaning of the terms which it has used. For the reasons which I have already given, I do not think that this is possible.

3. If the words in Section 28 of Act VIII of 1871 'some portion of the property' are construed to mean some substantial portion, then the obvious intention of the Legislature is effected, and registration is kept to the place where a man's property is known to be situate. Now, the property of Mr. Brooke at Patna cannot be regard as a substantial portion of the whole property hypothecated, and therefore I am of opinion that the deed must be considered invalid. Cases were cited to show that an insufficient registration may not absolutely invalidate a deed with reference to Section 49. It is probable that in those cases, the question of registration arose between the parties to the deed and if the operation of Section 49 is confined to the case of persons subsequently taking the property, then the decisions referred to are not irreconcilable with the views which I am now expressing. Then comes the question whether the purchaser bought after the mortgage and with notice of it, in which case he would have no locus standi. The only evidence as to notice is in one of the defendant's answers to interrogatories, in which he stated that he was aware of the mortgage and believed that it had been satisfied. This statement is inconsistent with the knowledge of an existing encumbrance, and therefore is no proof of the purchase having been made after notice of a prior mortgage.

Mahmood, J.

4. I concur in the judgment delivered by the learned Chief Justice, but I wish shortly to express my own views as to the validity of the document upon which the suit is based... The construction placed upon the provisions of Section 28 of Act VIII of 1871 by the learned Chief Justice is, in my opinion, the only construction possible, and if the registration of the deed with which we are now concerned was not in accordance with those provisions so construed, it is undoubtedly invalid under the Registration Law. Much of the argument of the learned pleader for the respondents has turned on the analogy of the interpretation of Section 85 of the same Act, and also on two cases decided by their Lordships of the Privy Council Sah Mukhun Lal Panday v. Sah Kundan Lal 15 B.L.R. 228 : 24 W.R. 75 : L.R. 2 Ind. Ap. 210 and Muhammad Ewaz v. Birj Lal I.L.R. 1 All. 465 : L.R. 4 Ind. Ap. 166. I have carefully examined these cases, and some other authorities also, one being a decision of the Calcutta High Court, in which Beoughton, J., gave a judgment which has been followed by this Court. I think that in this case we must distinguish between those matters which are of the essence of the Registration Law and those which are merely subsidiary to the object which the Legislature in making that law had in view. And I take it as an almost universal rule of construction that the words of a statute must be understood in a sense calculated to promote the object with which it was enacted. I interpret the word 'shall' in Section 28 of Act VIII of 1871 to imply an absolutely imperative command addressed by the Legislature to all persons presenting documents for registration. It is obvious that the insignificant piece of land at Patna was not 'some portion' of the hypothecated property, using that expression in the sense in which I believe it to have been used in Section 28. Under that section, therefore, an irregularity was: committed, and the question then arises whether or not that irregularity is condoned by any provision of Act VIII of 1871, or any other Act, or by any principles which ought to be applied in the construction of statutes. The learned pleader for the respondents relied on Section 85 of Act VIII of 1871: 'Nothing done in good faith pursuant to this Act or any Act hereby repealed by any registering officer shall be deemed invalid merely by reason of any defect in his appointment or procedure.' Now, the imperative direction of Section 28 is addressed not to the registering officer, but to the person presenting a document to that officer for registration. Section 85, on the other hand, is not addressed to the parties, but relates to the registering officer. I do not think, therefore, that Section 85 can help the respondents' case especially as that section refer only to defects in the appointment or procedure of the registering officer. Here there is no question of defective appointment, nor looking to the sections of the Act which appear under the heading of procedure, do I think that any defect of procedure under these sections can be shown. The only remaining question is that of notice to bona fide transferees for value, which is one of the main objects of the Registration Law. The registration being vitiated by irregularity, as the learned Chief Justice has shown, I am further of opinion that no other notice to the purchaser has been sufficiently proved. I concur, therefore, in decreeing the appeal with costs.


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