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Sultan Ahmad Khan Vs. Sirajul Haque and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All170
AppellantSultan Ahmad Khan
RespondentSirajul Haque and ors.
Excerpt:
- - 31 of 1912 possession was sought of the properties over which ali bakhsh had failed to obtain possession on account of the delay in applying for delivery of possession. 8 it appeared that a one kauri share in a certain village was included and that share alone gave jurisdiction to the particular sub-registrar, but it appeared that the one kauri share had not been effectively purchased by the executant of the document, the mortgagor. is not confined to non-existing properties, it is satisfied if the deed does not 'relate' to a specified property for any effective purpose of enjoyment or use. in the court below as well as before us, it was argued that the power of attorney executed by abdul sattar in favour of his father was defective and that power of attorney could not be.....bajpai, j.1. this is an appeal by sultan ahmad khan, minor, through his next friend mohammad raza, and arises out of a suit brought by him for the recovery of possession of certain immovable properties mentioned at the foot of the plaint by avoidance of a document dated 23rd december 1927. it is conceded that if this document is binding on the plaintiff his suit cannot succeed. the transactions anterior to the aforesaid document are mentioned in the plaint and the disputes that arose in connexion with those anterior transactions are mentioned in the deed itself, but in order to make our judgment intelligible it will be necessary to state them in some detail. the suit was dismissed by the trial court in a very perfunctory judgment which hardly does any justice to the complicated questions.....
Judgment:

Bajpai, J.

1. This is an appeal by Sultan Ahmad Khan, minor, through his next friend Mohammad Raza, and arises out of a suit brought by him for the recovery of possession of certain immovable properties mentioned at the foot of the plaint by avoidance of a document dated 23rd December 1927. It is conceded that if this document is binding on the plaintiff his suit cannot succeed. The transactions anterior to the aforesaid document are mentioned in the plaint and the disputes that arose in connexion with those anterior transactions are mentioned in the deed itself, but in order to make our judgment intelligible it will be necessary to state them in some detail. The suit was dismissed by the trial Court in a very perfunctory judgment which hardly does any justice to the complicated questions of fact and law that arise in the case, and hence the present appeal which has been argued ably by learned Counsel appearing for the parties. At the very outset it would be convenient to set forth the pedigree of the family which plays a prominent part in this litigation.

KARIM KHAN

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Maula Bakhsh=Daulat Bibi Ali Bakhsh

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------------------------------- Azimullah

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Sirajul Haq Mohammad Mohammad |

(Deft. 1) Umar (Deft. 4) Husain (Deft. 3) |

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Mohammad Yusuf Mohammad Rafi Abdul Gaffar Mt. Shakuran Mt. Rafian Bibi

| (Deft. 4) (Deft. 5) (Deft. 7) (Deft. 6)

Sultan Ahmad (Plaintiff).

2. After the death of Karim Khan, there was a suit for partition and rendition of account between the two brothers Ali Bakhsh and Maula Bakhsh which came up to the High Court in which the shares were separated and a decree for Rs. 15,000 was passed in favour of Ali Bakhsh against Maula Bakhsh. In execution of this decree, Ali Bakhsh got a half share of Maula Bakhsh put up to auction and purchased it himself in the years 1907, 1908 and 1909. It might be mentioned here that village Lado did not stand in the name of Maula Bakhsh and that of his wife Mt. Daulat Bibi, but the case of Ali Bakhsh was that that property also belonged to Maula Bakhsh and the sale certificate in respect to that property was obtained on 1st March 1912 (p. 87), and the dakhaldehani was obtained on 22nd March 1912 (p. 89). There is one other sale certificate at p. 71 of villages Sharfuddin patti and Megapur, dated 11th August 1910. The dakhaldehani in respect of Megapur, Sharfuddin patti and Ballia Kalyanpur, dated 3rd October 1910, is also on the record at p. 73. It appears that there was some delay in applying for delivery of possession as regards certain items of property, and therefore Maula Bakhsh applied on 18th November 1910 that the Court may order the amin not to effect delivery of possession over certain portions of property in Ballia Kalyanpur, Megapur and Sharfuddin patti. His objections were allowed.

3. On 22nd August 1910, presumably while the proceedings regarding redelivery of possession were in contemplation, Maula Bakhsh executed a sale deed of certain isolated plots in favour of one Mirza Taja Beg. Ali Bakhsh died in 1910. Azimullah, the son of Ali Bakhsh, also died some time after, and then two suits were instituted by the sons of Azimullah against Maula Bakhsh. In Suit No. 31 of 1912 possession was sought of the properties over which Ali Bakhsh had failed to obtain possession on account of the delay in applying for delivery of possession. Suit No. 32 of 1912 related to the property covered by the sale deed of 22nd August 1910 executed by Maula Bakhsh in favour of Taju Beg in which it was said that the sale deed was fictitious. Both these suits were pending in the Court of the same Subordinate Judge. On 22nd May 1912 the parties entered into an agreement for reference to arbitration (p. 91). The agreement specifically referred to the properties in dispute in the two cases, but added that if in disposing of the case it might be found necessary to decide any other family matter also, which was not in issue in the case, the arbitrators had right and power to do that also. The matter was therefore referred to arbitration through the intervention of Court under Schedule 2, Civil P.C. The arbitrators delivered two distinct and separate awards. In Suit No. 31 of 1912 the award dated 29th July 1912 was a long one (p. 95) and divided the family properties among the various members. It also provided that the defendants should pay a sum of Rs. 2000 to the plaintiffs. On the same date another award (p. 101) was delivered in Suit No. 32 of 1912 which was to the effect that the sale deed executed in favour of Taju Beg was fictitious and without consideration and that accordingly the plaintiffs' claim should be decreed. The second paragraph of this award, which was the cause of considerable trouble later, may be quoted.

Let this be known that, in the award made by us, the arbitrators, in Suit No. 31 of 1918, the plaintiffs v. Maula Bakhsh and Ors. we the arbitrators, have awarded the property objected to, to the plaintiffs, but as this plaint is a separate one, a decree is passed, in favour of the plaintiffs, holding that the defendants have no concern (with the property).

4. Both these awards were challenged by the plaintiffs and by Taju Beg separately who filed separate objections. As regards the award in Suit No. 31 of 1912, the Court on 30th September 1912 held (p. 325) that the arbitrators were guilty of misconduct inasmuch as they had made no attempt to examine the witnesses for the plaintiffs and had in fact wrongly refused to examine those witnesses and decided the case without taking any evidence of the plaintiffs. The learned Judge accordingly ordered that the award should be set aside under Para. 15, Schedule 2, Civil P.C. but as regards one of the plaintiffs Abdul Gaffar the Court held that he had been properly represented by a next friend; Abdul Rafi, who had joined in the agreement to refer to arbitration, and accordingly his objection should be rejected. The final order passed by the Court was that.

The award is set aside and the case is restored to file, the date to be fixed for final decision. A copy of this judgment to be annexed with the record No. 32 of 1912.

5. In Suit No. 32 of 1912, the learned Subordinate Judge came to the conclusion that for the reasons given in the connected case the objections of Abdul Gaffar and Taju Beg should be disallowed and that accordingly a decree should be passed in terms of the award. Further, the objection with respect to the award be rejected and the award be confirmed. Suit No. 32 of 1912 accordingly terminated in a decree on 30th September 1912, but Suit No. 31 of 1912 having been restored to its original file was proceeded with and was ultimately decided on its merits. The learned Subordinate Judge passed a decree in favour of the plaintiffs on 12th May 1913 (p. 113) and possession was awarded to the plaintiffs over a six anna share in Megapur, a five anna share in Sharfuddin patti and 11 bighas odd in Ballia Kalyanpur In this decree a list of the properties claimed; by the plaintiffs was given, so also was a list of the property not claimed by the plaintiffs in that suit, as also a list of the properties which had been sold before and which were not in suit as the plaintiffs claimed to be in actual possession. It is therefore clear that these two suits ware disposed of separately by two different awards, by two separate judgments and by two separate decrees. Each judgment prima facie dealt with the property in dispute in that suit, but the decree as prepared by the office of the learned Subordinate Judge (p. 105) in Suit No. 32 of 1912 went beyond merely incorporating the award which had been delivered in that suit and added

per arbitration award it is ordered and decreed that the defendants do pay to the plaintiffs Rs. 2000 out of the amount due to the plaintiff under the decree...; and that the parties shall abide by the decision given in the arbitration award in respect of the claimed and unclaimed properties.

6. The date of the award is not mentioned in the decree. It might therefore have been presumed that the award referred to therein was the award delivered by the arbitrators in Suit No. 32 of 1912 in which this decree was prepared, but unfortunately the provision as regards the payment of Rs. 2000 to the plaintiffs by the defendants had not occurred in this award but was borrowed from the award in Suit No, 31 of 1912. It is not quite clear what was meant by saying 'that the parties shall abide by the decision given in the arbitration award in respect of the claimed and unclaimed properties', and it is due to the mistake made in preparing the decree which ordinarily ought to have been in strict accordance with the judgment delivered, by the Court, that the entire future trouble has arisen. On 17th February 1315 Mohammad Yusuf, the father of the present plaintiff, and his brothers Mohammad Bafi and Abdul Gaffar executed a mortgage deed (p. 131) of all the properties, that is properties inherited from their lather Ali Bakhsh and properties purchased at the various auction sales mentioned More, in favour of Bhairo Dayal Sahu. The mortgage was for a sum of Rs. 3000 and carried interest at Re. 1-2-0 par cent per mensem compoundable every year. The plaintiff's father Mohammad Yusuf died in 1915 when, according to the age given by the plaintiff in the present plaint and also as given in an earlier litigation, the plaintiff was only a few months old. On 19th February 1917 Mohammad Bafi and Abdul Saffar, in order to pay the debt due to Bhairo Dayal Sahu, sold a moiety share of the mortgaged property to Bharosa Singh and others. This document did not include the plaintiffs' share in the sale deed because the mortgagors were entitled to a ten anna eight pie share in the entire properties. The result of these two transactions, namely the mortgage deed of 17th February 1915 and the sale deed of 19th February 1917, was that a half share of the family property went away to strangers and over the rest of the property there was a heavy incumbrance, and it appears that at this time the two branches of the family joined together in order to defeat the strangers or to buy them out.

7. When Bharosa Singh applied for mutation of names on the basis of the sale deed dated 11th February 1917, Rafi and Gaffar objected on the ground that the sale deed was not supported by consideration and Mania Bakhsh, who had not taken any steps so far to get his name mutated in respect of the properties which had been taken possession of by Ali Bakhsh after the auction, purchase and which had been given back to Maula Bakhsh by the arbitrators under the award in Suit No. 31 of 1912, applied on 14th March 1917 for getting his name mutated over several properties on the basis of the decree passed by the Subordinate Judge of Azamgarb in terms of the award. The curious part is that Rafi, who had been dealing with not only the properties which he had inherited from Ali Bakhsh but also those which had been obtained from Maula Bakhsh under the auction sales, appeared on the same date (14th March 1917) before the Naib Tahsildar professing to act as agent of all the persons concerned including the minor Sultan Ahmad and made an admission that the applicant Maula Bakhsh was entitled to get his name entered on the strength of the decree passed in terms of the award. It does not appear whether the Naib Tahsildar had before him both the awards and both the decrees in the two civil suits, but in the order granting mutation he says:

The facts of possession and death are proved from the statement of patwari. Copies of decree and award are on the record. Also the statement of Abdul Rafi, one of the opposite party, showing his admission has been recorded.... The case is uncontested and is beyond time. A penalty of Rs. 2-8-0 should be imposed,

and it was therefore ordered that the names of Abdul Rafi, Gaffar and Sultan standing against the share be removed and the names of Maula Bakhsh and Siraju Haq, decree-holders, entered in equal shares in the khewat. This was the first step that was taken by the family to defeat Bharosa Singh. On 12th February 1918 Sultan Ahmad with Mohammad Khalil as next friend sued to pre-empt the sale of 19th February 1917 by Rafi and Gaffar. We might mention that Mohammad Khalil is the brother of Mohammad Ismail who has been found in the present case to be a creature of Maula Bakhsh. This suit was decreed by the trial Court in respect of all the properties covered by the sale deed with the exception of village Lado about which it was held that there was no custom. Bharosa Singh now sued for possession of village Lado about which the pre-emption suit had been dismissed. We do not know who the defendants to the suit were, because all that we have got in connexion with this litigation is a judgment of the High Court, but we might safely presume that Rafi and Gaffar and the sons of Maula Bakhsh who had managed to obtain mutation were impleaded. This suit was decreed in respect of khewat Nos. 2, 7 and 9 but was dismissed in respect of khewat No. 1 because under the award it was given to Sirajul Haq. A Bench of this Court while disposing of the second appeal observed as follows:

The award was set aside in Suit No. 31 and it was confirmed in Suit No. 32. Now it is impossible to contend that the award was both valid anil invalid except about different matters, In this state of affairs, in our opinion, the lower Courts were correct in coming to the conclusion that it must be understood that the award of the arbitrators was set aside be far as the matters in dispute in Suit No. 31 were concerned and it was confirmed so far as the matters in dispute in Suit No. 32 were concerned and that the matters which were in dispute in neither of these suits were altogether left untouched by the Court. This being the view, which having regard to the conflicting decrees we are driven to uphold, the result is that so far as mauza Ladopur is concerned it must be said that the award was neither confirmed nor set aside by either of the decrees in Suit Nos. 31 or 32.

8. Their Lordships therefore confirmed the decree of the learned District Judge on 14th July 1922. Once again the family therefore had managed to defeat Bharosa Singh even in village Lado to a certain extent. We have already mentioned that there was a heavy incumbrance on the entire property by reason of the mortgage deed executed by Yusuf, Bafi and Gaffar on 17th February 1915 and therefore on 20th April 1917 Sirajul Haq in the name of Mohammad Ismail by purchase from Bhairo Dayal Sahu, the mortgagee, obtained an assignment of the mortgage deed in his favour. Although up till 19th February 1917, when Bafi and Gaffar executed a sale deed in favour of Bharosa Singh and others, nobody seems to have laid any claim on the basis of the award in Suit No. 31 or on the basis of the defective decree in Suit No. 32, yet when time came to oppose Bharosa Singh the attention of the family was drawn pointedly to the awards and the decrees and attempts were made, which we have mentioned before, to bring the awards and decrees into prominence and to reap some advantage from them to the detriment of the strangers to the family. In 1917 or 1918 (the date is doubtful, more likely it is 1918 than 1917) Mohammad Rafi applied to the District Judge of Azamgarh to be appointed a guardian of the person and property of the minor Sultan and a certificate of guardianship (p. 149) was obtained. This certificate expressly provided that the guardian should not mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward or lease any part of the property for a term exceeding five years or for any term extending more than one year beyond the date on which his ward would cease to be a minor without the express sanction of the Court previously obtained. The certificate therefore incorporates the provisions of Section 29, Guardians and Wards Act.

9. There are no other transactions which require any further mention till we come to the document dated 23rd December 1927 (p. 239), a deed which forms the main plank in the defence case and which the plaintiff wants to avoid. The document styles itself a deed of settlement by way of a deed of compromise and in the plaint it has been described as a deed of family settlement. The parties to this document were : (1) Maula Bakhsh, (2) Sirajul Haq, (3) Mohd. Husain, (4) Mohammad Umar and (5) Abdul Sattar Khan, executants first party, (6) Mohammad Rafi and (7) Abdul Gaffar, sons of Azimullah, (8) Sultan Ahmad under the guardianship of Mohammad Rafi, and (9) Mt. Rafian Bibi, executants second party, (10) Babtt Bharosa Singh, (ll) Brijbhukhan Singh, and (12) Mt. Kapila Kunwar, executants third party and (13) Muhammad Ismail) Beg, son of Mirza Taju Beg executant fourth party. The document mentions all the transactions that we have so far given and then mentions the various disputes that have arisen amongst the members of the family. It says:

Neither executant No. 8 (Sultan Ahmad) as the pre-emptor and mortgagor nor executants third party as the vendees paid the amount of the documents (the mortgage deed of 1915) nor did executants Nos. 6, 7 and 9 pay any part thereof although executant No. 9 (Mt Rafian) by reason of the fact that the prior debt due by the ancestor was assigned (?) by Bhairo Dayal Sahu, was liable for the same. But as she, as a matter of faot, has not been benefited from any of the property left by Azimullah, deceased, nor has she 'any concern', She did not pay the debts. At all events a suit on the basis of the hypothecation bond in favour of Bhairo Dayal Sahu is about to-be brought whereby the entire property of executants Nos. 6, 7 and 8 is in danger. For this reason executants Nos. 6 and 7 also are about to bring a suit against executants third party on this allegation that interest under the said document has increased as they (executants third party) had not paid it and had not fulfilled the promise and that, as a matter of fact, they had not paid a large portion of the consideration of the sale deed by reason of which the said vendors (executants Nos. 6 and 7) are entitled to damages.

10. Then the dispute regarding the properties of Maula Bakhah purchased by Ali Bakhsh is mentioned and the respective claims of persons either on the basis of the award or on the basis of the auction-purchase are prominently stated, and towards the end the various executants say how far they have recognized the claim of certain persons and how far to that extent they have relinquished their own claims. They further say:

Accordingly we, executants first and second parties, give as a matter of precaution separate lists of our properties in this document.

11. Finally, four lists are prepared, and it is said that list No. 1 shall remain in the possession of executants first party, list No. 2 shall remain in the possession of executants 6 to 8, list No. 3 shall remain in the possession of executants third party and list No. 4 shall remain in the possession of executant fourth party. The deed, dated 23rd December 1927 is impugned by the plaintiff on the ground of defective registration and on the ground that it transfers the minor's property and thus is beyond the scope of the certificated guardian of the minor, and we shall deal with these two grounds in some detail. We shall take up the question of registration first. The submission on behalf of the plaintiff is that a fraud was committed on the law of registration inasmuch as it; was presented before a Sub-Registrar who had no territorial jurisdiction in the matter. Another branch of the same objection is that even if it be conceded that a portion of the property, to which this document related did lie within the territorial jurisdiction of the particular Sub-Registrar, then by reason of the fact that registration was refused as against one of the executants who was the only person who was possessed of property within the jurisdiction of that Sub-Ragistrar, the said officer lost all authority in the matter and the original presentation must be deemed to be invalid.

12. Under Section 28, Registration Act, every document mentioned in Section 17, Sub-section (1), Clauses (a), (b), (c) and (d) - and it is conceded that the present document is one of such documents - 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. Prima facie, the document does relate to a tiled house together with all the rights therein in mouza Sidha, Sultanpur, Tappa Donha pargana Nizamabad (page 243), and this, house does lie within the territorial jurisdiction of the Sub-Registrar of Azamgarh. It is however said that there was no dispute regarding this property and that this property was entered 'fictitiously' within the meaning given to that expression by their Lordships of the Privy Council in several oases, and reliance is placed particularly on the cases in Harendra Lal Roy v. hari Dasi Debi (1914) 1 A.I.R. P.C. 67, Mathura Prasad v. Chandra Narayan (1921) 8 A.I.R. P.C. 8 and Collector of Gorakhpur v. Ram Sundar Mal a house in Calcutta was included in order to give jurisdiction to the particular Sub-Registrar and it came out in evidence when the document was put in Court and was attacked on the ground of invalid presentation, that there was no such house in Calcutta belonging to the executant. In Mathura Prasad v. Chandra Narayan (1921) 8 A.I.R. P.C. 8 it appeared that a one kauri share in a certain village was included and that share alone gave jurisdiction to the particular Sub-Registrar, but it appeared that the one kauri share had not been effectively purchased by the executant of the document, the mortgagor. It would therefore appear that in the two cases mentioned above, the property did not as a matter of fact belong to the executants of the document, that in other words the property was nonexistent. In the third case in Gorakhpur v. Ram Sundar Mal , a third of a sitting room in Gorakhpur was included and it became obvious to their Lordships of the Privy Council on the evidence in the case that this inaccessible item of property valueless to the purchaser was selected for service only in order that some colour for the registration of such deed in Gorakhpur might appear upon its face, that the property was of no real value and that not only from the interest in it conveyed but also from its landlocked situation it was a subject incapable of enjoyment by the purchasers. Their Lordships held that a, fraud was practised on the law of registration and

the word 'fictitious' used in Harendra Lal Roy v. hari Dasi Debi (1914) 1 A.I.R. P.C. 67 ubi cit. is not confined to non-existing properties, It is satisfied if the deed does not 'relate' to a specified property for any effective purpose of enjoyment or use.

13. It has been held in Durga Prasad Sahu v. Tameshar Prasad (1924) 11 A.I.R. All. 897 that if a property is entered into a deed (imply for the Bake of registration the document can be presented to the Sub-Registrar within whose territorial jurisdiction that property is situate. Their Lordships said that if the parties find that by selling a small bit of property they would have the convenience of avoiding a a long and expensive journey, the inclusion of such property should not be treated as an act done only to commit fraud on the law of registration It is however said that the present case is not such a case and that the objection of including this property was not that the document should in any way affect such property nor was there any dispute regarding such property but the only object of the parties was that the Sub-Registrar of Azamgarh might obtain jurisdiction in connexion with the document. Mr. Mukhtar Ahmad on behalf of the appellant has argued that if there was any dispute, the dispute was between the sons of Maula Bakhsh on the one hand and the non-s of Ali Bakhsh on the other and that there was no dispute inter se so far as Maula Bakhsh's branch was concerned and yet this small house was Included, and all that the document purported to settle was that although the htousa stood in the name of Abdul Sattar alone (Abdul Sattar is the son of Sirajul Haq) all the sons of Maula Bakhsh would possess the house. It is quite true that the main controversy was between the two branches, but when that main controversy was being settled, it is not unreason, able to suppose that the members of one branch who otherwise were living in per. feet amity should try and dispose of a minor dispute as amongst themselves Our attention has been drawn by learned Counsel for the respondents to the fact that certain other properties stood in the name of Abdul Sattar alone and that there was some dispute as to whether these proper. ties had been purchased benami in his name, and under the deed of 23rd December 1927 these disputes were settled and it was agreed that most of the properties that stood in the name of Abdul Sattar should ho deemed to be the properties of the entire branch of Maula Bakhsh. At p. 281 Abdul Sattar is recorded as having purchased a small share in Ballia Kalyanpur, namely half of 937 links. At p. 342 this share has been included in Hat 1 which belongs to the branch of Maula Bakhsh. At p. 282 Abdul Sattar is shown as owning half of 2.559 acres in Ballia Kalyanpur and at p. 242 this item is also included in list 1. The house in question appears to have been gifted to Abdul Sattar Khan by Badu Khan, a person related as grandfather to Sattar, and in connexion with this house also there may have arisen a dispute between Abdul Sattar on the one : hand and his unoles on the other Siraj says:

Maula Bakhah and Badu gifted their shares in the house to Sattar and the remaining share of the house which belonged to Taqi, Mariam Bibi and others was purchased by us benami in the name of Abdus Sattar.

14. Sattar says:

In Ballia and Laro some zamindari and a house in Sidha were purchased in my name. The money was advanced by my grandfather, father and uncles. There was a family dispute about these items of property, My 'chachas' wanted these i items along with other items in Sidha, The Lara, and Ballia property were given to my 'chachas'. Sidha property was not given to them. The Sidha house was given to them. I agreed to this,

15. Taqi, a witness for the plaintiff, and the vendor of a portion of the house in Sidha, admits that there was a dispute and that it was settled by the deed of compromise, He says:

I and my brother have sold our shares in Sidha, Sultanpur to Sattar. The price was paid to us by Maula Bakhsh. Sattar was only benamidar. Sattar has purchased shares of Mt. Zadi and Nabi Bus in Kalyanpur. Maula Bakhsh paid the price, Sattar was benamidar.

16. Later he says:

That house originally belonged to Badu. I had half a share in that house. I sold my own share to Sattar. There was some dispute between the members of Sirajul's family. Maula Bakhsh had purchased some property in Sattar's name. Maula Bakhsh had purchased this house with his own money in Sattar's name.

17. The position therefore is that not only regarding this house in Sidha but also regarding some other properties there was a dispute and the dispute was that whereas Sattar was claiming those properties as his exclusive property his uncles were claiming them as joint property, and it was decided that some of those properties should be the joint properties of Maula Bakhsh's branch and the zamindari in : Sidha should be considered as the exclusive property of Sattar. The tiled house in Sidha had an existence in fact. The document did relate to that house inasmuch as it transferred it from the exclusive ownership of Sattar to the joint ownership of Mania Bakhsh's branch and the house was capable of effective enjoyment. There is therefore be flaw in the act of presentation.

18. The second branch of the contention conneceted with registration might now be disposed of Sattar says that regarding his private dispute with his uncles, although there was an agreement, nothing was written down, because there were other quarrels with Bafi, and as at that time he was going away to another country it was settled that a compromise would be written which would settle all disputes, and he then executed a mukhtarnama in favour of his father and in that mukhtarnama he gave him power to get deeds registered on Ms behalf. He had absolutely no objection to the deed of settlement and, if necessary, he could even then tender it for registration and get the same registered. In this way the deed of settlement was executed by Sirajul Haq on his own behalf and as the general attorney of Abdul Sattar Khan, but the Sub-Registrar in his endorsement says that registration was refused on behalf of Abdul Sattar Khan. That is not quite an accurate translation. The words in the vernacular are 'aur mutaliq Abdul Sattar he registri se inkar kia gaya'. They presumably mean that the Sub-Registrar refused to register the document as against Abdul Sattar Khan. The Sub-Registrar was not examined in this case, and we do not know why he refused to register as against Sattar nor were any further proceedings taken in this matter and we cannot therefore discover the reason of his refusal with certainty. In the Court below as well as before us, it was argued that the power of attorney executed by Abdul Sattar in favour of his father was defective and that power of attorney could not be recognized by the registering authorities as giving the agent the power to get documents registered. Section 35 enjoins on the Sub. Registrar the duty of enquiring from the executant as to whether he has executed the document or not, and on certain grounds like the denial of execution by the executant or if the executant is a minor, idiot or lunatic or if he has died the registering officer shall refuse to register the document as to the person so denying, appearing or dead. It is therefore dear that a document may be registered as against persons who admit its execution and about whom no defect appears and it may be refused as against persons about whom there is some defect. The words of the Legislature 'refuse to register the document as to the person so denying, appearing or dead' make this clear, but this was the view taken by their Lordships of the Privy Council even before these words appeared on the Statute Book. In Muhammad Ewaz v. Brij Lal (1875-1877) 1 All. 465 they held that the words

if all or any of the persons by whom the document purports to be executed deny its execution, or if any such person appears 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 representatives or assign denies its execution the registering officer shall refuse to register the document

must be read distributively and construed to mean that the registering officer shall refuse to register the document quoad the persons who deny the execution of the deed and quoad such persons as appear to be under any of the disabilities mentioned, because any other construction would cause great difficulty and injustice and would be inconsistent with the language and tenor of the rest of the Act. The power of attorney is printed at p. 221 of the record and was executed on 22nd September 1926. It was presented for registration the same day between the hours of 3 and 4 p.m. and the Sub-Registrar says that the execution and completion of this document was admitted by Sattar Khan aforesaid. The document therefore was not executed before the Sub-Registrar; its execution was only admitted before him. Under Section 33, Registration Act, only such a power of attorney shall be recognized as giving an authority to the agent to get the document registered as is executed before and then authenticated by the Registrar within whose district or sub-district the principal resides. As we said before, the endorsement at the back of the power of attorney shows that the power of attorney was not executed before the registering authority. The Sub-Registrar therefore might well have thought that the power of attorney was defective and that it did not authorize Sirajul Haq to get the document registered on behalf of Abdul Sattar. It may however be mentioned that all that Section 35 requires is that the document should be admitted to have been executed by the person by whom it purports to be executed and it can be refused to be registered as against him only if he denies the execution. The deed of settlement was not executed by Abdul Sattar but was executed by Sirajul Haq on behalf of Abdul Sattar, and the view that we take is that Sirajul Haq's admission of its execution was quite enough so far as he himself was concerned or so far as Abdul Sattar was concerned and that it was not necessary for him to produce any power of attorney nor was it necessary for the Sub-Registrar to look at that power of attorney for purposes of registration. This was the view taken in Kesheo Das v. Hari Das (1899) 21 All. 281 at p. 283, Sitaram Laxmanrao v. Dharmasukhram Tansukhram (1927) 14 A.I.R. Bom. 487 and Mt. Aisha Bibi v. Chhajju Mal (1924) 11 A.I.R. All. 148. As we mentioned before, we are only speculating as to why the Sub-Registrar refused to register the document so far as Abdul Sattar was concerned, and on the basis of that speculation we have tried to dispose of the questions of law that arose in connexion therewith.

19. Be that as it may, registration was refused as against Abdul Sattar, and we cannot agree with Mr. Kanhaya Lal Misra, learned Counsel for the respondents, that although the endorsement says that the document is not registered on behalf of Abdul Sattar, the document should be deemed to have been registered on his behalf as well inasmuch as the Sub-Registrar was wrong in his refusal. The case in Official Reciever v. P.L.k.M.R.M. Chettyar Firm is an entirely different case. There the document was registered but the endorsement itself showed that there was an invalid presentation, and their Lordships held that there was nothing in the Act to prevent a person from showing that the endorsement made by the Sub-Registrar was inaccurate and the real facts were allowed to be proved. This is, if anything, a converse case. Here the document was not registered as against a particular person, and if anybody was aggrieved by that order he ought to have pursued appropriate remedies provided by law. Nor can we agree with the contention for the respondents (although perhaps it is not necessary to decide that point for the purpose of the present ease) that as the document was registered against Siraj it should be deemed to be registered as against Sattar as well. The argument is that Siraj filled two capacities, one in his own right and the other as the general attorney of Abdul-Sattar. He executed the document in these two capacities and when the document was registered as against Siraj it should-be deemed that it was registered as against Sattar as well. The more reasonable view to take in a case like this is that the document was registered as against Siraj so far as his individual right was concerned and was not registered so far as the vicarious right of Siraj was concerned.

20. The document must therefore be deemed to have been not registered as against Sattar, and it is contended by Mr. Mukhtar Ahmad, counsel for the appellant, that Battar's house, viz. the tiled house in Sidha, should not be deemed to be affected by the document, and therefore the only property which gave jurisdiction to the Sub-Registrar must be deemed to be nonexistent so far as the deed of settlement is concerned. This does not appear to be a. sound contention. An enquiry in this connexion should relate to the time when the document was presented before the Sub-Registrar under Section 28. If the parte intended that the document should relate-to a property lying within the territorial jurisdiction of a particular Sub-Registrar the conditions laid down in Section 28, Registration Act, are complied with, and if later by operation of law a fact contrary to the intention of parties is obtained because of; non-registration, for any reasons whatsoever, the matter is foreign and should not affect the original enquiry. The fact that because of the Sub-Registrar's refusal, the deed does not perhaps operate upon the Sidha property, has no effect on the original question of the Sub-Registrar's jurisdiction. It is only the act of the parties that has got to be considered, and if the parties themselves intended to perpetrate a fraud on the law of registration, then the matter assumes a different complexion, but if on account of any action of the Sub-Registrar certain consequences flow, the act of presentation itself will now be invalid.

21. The question whether the parties intends ed to commit a fraud on the law of registration is a question of fact and like every other question of fact it has got to be pleaded and proved. At this stage we might mention that although the plaint as it appears on the printed record does not contain any allegation regarding defective registration, an application was made for the amendment of the plaint on 13th August 1930 and para. 15-A was sought to be added. This paragraph runs as follows:

This deed of family settlement made on 23rd December 1927 is invalid for this reason also, that It was not correctly executed, completed and registered, that the Sub-Registrar of Azamgarh had no power to register the document aforesaid, that the house at Sidha Bultanpur was fraudulently included in the document to acquire the right of registration and that the said house did not as a matter of fact belong to the executants, nor was it intended to be transferred, nor was the valuation thereof correctly shown, nor was the stamp duty paid.

22. The amendment was allowed under an order of the Court dated 14th August 1930. These allegations were denied in the written statement and an issue was struck on the point which was decided by the Court below against the plaintiff. It was the duty of the plaintiff to prove that the parties intended to include the Sidha house fraudulently in the document in order to give jurisdiction to the Sub-Registrar of Azamgarh, and if the plaintiff could have shown by evidence in the case or by the surrounding circumstances that the intention of the parties was not to make the document have any binding effect on the said house, then the matter would have assumed a different aspect. We have already stated what the disputes regarding this property were and we are satisfied that such disputes did in fact exist and that it was the intention of the parties that the Sidha house should belong jointly to Maula Bakhsh's branch instead of remaining the exclusive property of Sattar according to the deed of gift. If because of the fact that registration was refused as against Abdul Sattar, it may be argued that the document has no relation now to the Sidha house, that has nothing to do with the original intention of the parties Sattar even now says that he agreed, that he has absolutely no objection to the deed of settlement and Ram Lakhan Singh, a witness for the plaintiff, has said that the iqrarnama has been acted upon. Under all these circumstances of the case, we think that there is no force in the plea taken by the plaintiff that the document was not validly presented for registration and therefore under Section 49, Registration Act, cannot be received as evidence of any ransaction affecting the property comprised in the document or that it cannot affect any immovable property comprised in the document.

23. Coming to the other important question raised by the plaintiff that the guardian Rafi exceeded his powers in executing this document on behalf of Sultan Ahmad, the plaintiff, because the effect of the document is that some portion of the minor's property has been transferred and the conditions laid down in the certificate of guardianship have been violated, we shall examine the document and see whether any portion of the minor's property has been transferred. As we have mentioned in the beginning of our judgment the document has been called a deed of family settlement in the plaint and also in the application for amendment of the plaint and the argument comes with ill grace from learned Counsel for the plaintiff, appellant that the document is not a deed of family settlement. Belying on Halsbury's Laws of England, Vol. 15, page 2, it is argued that a family arrangement is a transaction between members of the same family which is for the benefit of the family generally as, for example, one which tends to the preservation of the family property, to the peace or security of the family and the avoidance of family disputes and litigation or to the saving of the honour of the family, and therefore it is said that as in the present document certain strangers are included the deed ceases to be a family arrangement. Reliance is also placed on Mitter Sain v. Datta Ram : AIR1926All194 where Lindsay J. discussing the document before him said:

One thing at least is apparent from this statement of the facts and that is that all the persona concerned were members of the same family, i.e. the family to which Bapurao belonged and in that sense it may be said that the transactions entered into were between members of the same family and related to property belonging to that family concerning which there was some dispute.

24. It is quite true that an arrangement, before it can be called a deed of family settlement should principally aim at settling either the disputes of the family or pre-serving the family property or should aim at the peace or security of the family or the honour of the family, but it does not follow therefrom nor has any case been cited at the bar that if over and above aohiaving the objecta mentioned above, certain other disputes with strangers - disputes which are intimately connected with members of the family - are also settled, the document goes out of the domain of a family arrangement. A rose by any other name would smell as sweet, so an arrangement in which strangers are included will have the same binding effect on the members of the family so far as it deals with family matters as a family arrangement strictly so called. If other extraneous matter have also been decided in the document under consideration, we shall examine it carefully to see if the minor has been prejudiced in any way by the inclusion of strangers to the family in the dead. Bharosa Singh is undoubtedly a stranger to the family and Muhammad Ismail Beg may also be said to be a stranger, although as Ismail Beg is only a benamidar for Siraj and others, he might also be said to be a member of the family. By the inclusion of Ismail, even if he be considered to be a stranger, the minor does not lose anything. As a matter of fact he gains inasmuch as the mortgage of 1915 executed by the minor's father has been extinguished by the deed of settlement. It was staid that list 4 is the list of pro-portion which have been given to Muham. mad Ismail, but a careful examination of the concord has not revealed that any portion of the minor's property is contained in list 4. At p, 201 is a sale deed by Muhammad Rafi Khan and another to Mirza Taju Beg, the father of Muhammad Ismail. This sale deed is dated 7th June 1923 and this is not the sale deed which was cancelled in Suit No. 32 of 1912. It has not been shown that this property or any portion of it was inherited by the minor from AH Bakhsh exclusive of Maula Bakhah's property. There are certain other properties entered in list 4 of Balia Kalyanpur and it has not been shown that those properties were included in the sale deed by Maula Bakhsh to Mirza Taju Beg in 19:10. The position therefore is that so far as Muhammad Ismail is oonoerned, the minor has, if anything, derived an advantage under the document in question. In the document itself Muhammad Ismail is put down as having become a party to the deed of settlement on the ground of the ism-farzi purchase made by him. This is the purchase of 1917 by which the rights of Bhfdron Dayal Sahu in the mortgage of 1915 were purchased by Muhammad Ismail. There is no mention of list 4 in the body of the document, as indeed there is a mention of the fact that executants first and second parties have given separate lists of their properties in the document. This satisfies us that list 4 has got nothing to do with the property with which the minor has any concern whatsoever.

25. Now so far as Bharosa Singh is concerned, he became a party to the deed of settlement because of his purchase dated 19th February 1917. We know that after repeated litigation he was declared to be the owner in respect of khewats 2, 7 and 9 in village Lado. It is obvious that the minor can lay no claim to these khewats in his own right. In the suit for preemption he admitted that this was the property of Rafi and Gaffar which they were competent to sell subject to the plaintiff's right of preemption. Sultan Ahmad never said that he had any right in these khewats independent of the right of pre-emption and if Bharosa Singh's rights in these khewats were acknowledged the plaintiff has in no way been damnified. It appears that Bharosa Singh was included in order to make it absolutely clear that he would lay no claim to any property under his purchase dated 19th February 1917 excepting khewats 2, 7 and 9 in village Lado. On his relinquishing all such claims he was relieved from the liability of paying any portion of the mortgage money due to Sirajul Haq. These seem to be the only reasons why Bharosa Singh was included and in none of these properties the minor had any interest. The above investigation has shown that Bharosa Singh and Muhammad Ismail had absolutely different claims and interests - claims and interests with which the minor had no concern - and that for the rest the document principally aims at settling the disputes of the members of the family, which disputes it was practically impossible to settle without settling the disputes of Bharosa Singh and Muhammad Ismail.

26. It is then contended that there has been a transfer of the minor's property. If we are right in our finding that the deed is a family arrangement, then its true scope is the same as that of a document before the High Court of the North Western Provinces in 1868 in Lala Oudh Beharee Lal v. Ranee Mewa Koonwer (1868) 3 Agra Hcr 82 where the learned Judges observed:

The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claims in respect of all property in dispute other than that falling to his share and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to Each an arrangement.

27. It is clear that in this document also no distinct title was conferred on anybody, but all that was done was that there was a relinquishment of claim by some person in respect of property assigned to another and a recognition of the antecedent right of that other person to the property which fell in his share. A similar question although in a different connexion arose in the Full Bench case in Ram Gopal v. Tulshi Ram : AIR1928All641 , and Boys, J. delivering the judgment of the Bench quoted several cases of their Lordships of the Privy Council, and in particular their judgment in Mt. Hiran Bibi v. Mt. Sohan Bibi (1914) 1 A.I.R. P.C. 44 where their Lordships said:

A compromise of this character is, in no sense of the word, an alienation by a limited owner of the family property but is a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent and by way of compromise, admitted by the other parties.

28. The learned Judge then observed:

These pronouncements of their Lordships of the Privy Council are sufficiently clear to put it beyond doubt that in the usual type of family arrangement in which there is no question of any property, the admitted title to which rests in one of the parties, being transferred to one or the other patties, there is no transfer of ownership.

29. What we have got therefore to see in the present case is whether any property in which the title of the plaintiff is admitted beyond any controversy has been transferred to anybody else and we might say here that the plaintiff's title is admitted beyond any controversy only in respect of the property which he inherited from Ali Bakhsh, namely the original 8 annas share in the family properties and not any property which Ali Bakhsh purchased subsequently in execution of his money decree against Maula Bakhsh beoause it has been made abundantly clear that the other 8 annas share is bristling with disputes. There were so many other instances of litigation and transactions in connexion with the property which originally belonged to Maula Bakhsh or Daulat Bibi before the auction sale, and if any portion of that property has been put in another list not belonging to the plaintiff's branch, then that allotment is due to the fact that there was perhaps an antecedent title of the members of the other list which was only acknowledged by the deed of settlement.

30. An attempt was made by learned Counsel for the appellant to prove that some portion of such admitted property has not been put in list 2 and a portion of such property has been put in list 1 and to that extent there has been a transfer by the certificated guardian in violation of the provisions of Section 29, Guardians and Wards Act. So far as Megapur and Sharfuddin patti are concerned, it is quite clear that the plaintiff and his branch of the family have eight annas out of 16 annas. So far as Balia Kalyanpur is concerned, there again it has not been shown to us in spite of desperate attempts made by Mr. Mukhtar Ahmad that any portion of the admitted property of the minor in Balia Kalyanpur has been put in list No 1. It must be remembered that Ali Baksh had no share in mauza Lado prior to the auction purchase, and therefore if mauza Lado has been put in part only in list 2, the minor has nothing to complain about. It is however said that under the pre-emption decree the plaintiff got eight annas in several properties and as the plaintiff's share in the undisputed property inherited from Ali Bakhsh was two annas eight pies, list No. 2 should contain at least ten annas eight pies of such properties instead of eight annas alone. We would have felt inclined to accept this contention for what it was worth, that is to say in connexion with mauza Megapur, Sharfuddin patti and Balia Kalyanpur, if the plaintiff had satisfied us that the pre-emption decree was executed. It is true that under the pre-emption decree, the minor's suit succeeded qua the above mentioned properties but he had to pay certain sums to the vendee and possibly certain sums to the mortgagee. We know that nothing was paid in cash to the mortgagee Bhairon Dayal Sahu or to Muhammad Ismail, the benamidar of the deed of assignment of 20th April 1917, or to Sirajul Haq, the real purchaser under the deed of assignment, and that it was only under the deed of settlement of 1927 that this mortgage claim was wiped out, It is also true that there in an allegation in the plaint that under an agreement the simple mortgage of 1915 was converted into a usufructuary mortgage deed and Sirajul Haq was given possession over the mortgaged property and thus the mortgage has been wiped out but no evidence of the agreement has been produced. Certain witnesses have been produced and certain receipts have been produced but all that they show is that some people paid certain rents to Sirajul Haq but nobody has come forward and said that this was done under the agreement to which reference has been made in the plaint. We know that about the year 1917, collusive proceedings were going on and it may well be that in order to show that possession was with Maula Bakhsh and others, tenants were directed to pay rent to Maula Bakhsh or Sirajul Haq. The amount that was left for payment to the vendee Bharosa Singh has not been shown to have been paid to Bharosa Singh. Mr. Mukhtar Ahmad on behalf of the appellant has sought permission to file additional evidence after almost the completion of arguments in the case in order to show that dakhaldebanl over the pre-empted property was obtained by the mother. This document was not produced in the Court below nor was any application accompanied with an affidavit, showing why the document was not produced at an earlier stage filed in this Court. We see no reason whatsoever for exercising our powers under Order 41, Rule 27, Civil P.C., under the circumstances mentioned above, and if we admitted fresh evidence it would be necessary to give the other side an opportunity to rebut such inference as might be drawn from the production of the document sought to be produced and this case which started in the year 1930 would not come to a termination even now. We have some doubts as to the payment of the money found in the pre-emption decree to be payable to the vendee. At p. 244 it is mentioned that the executant third party, namely Bharosa, the vendee in the pre-emption suit, shall take Rs. 200 from executant second party namely Sultan Ahmad and others. Any advantage therefore which the plaintiff seeks to obtain on the plea that there has been an unauthorised transfer by the guardian of the minor's property in connexion with the pre-empted property, cannot be had inasmuch as sufficient materials have not been placed before us. On this aspect of the case the position is that there has been no unauthorized transfer by i the guardian of the minor's property.

31. Some other questions were raised during the hearing of the case, but in the view that we have taken of the binding effect of the document of 1927, it is not necessary to discuss them. It will serve no useful purpose to say what is our own view regarding the awards of 1912 or the decrees that were passed in Suits Nos. 31 and 32 of 1912. All these matters have been settled and settled, we hope, for good by the document of 23rd December 1927. We have examined this document with care in order to guard jealously the interest of the minor and we find that if at this stage we proposed to cancel the document we would have to adjust the equities that arise in favour of the various parties, and in this adjustment it might be that the minor might lose more than what he might gain by the avoidance of the document. Like the learned Subordinate Judge we entertain our own doubts about the present suit. Various allegations are made against Rafi, who it is said, did cot protect the interests of the minor at the time of the settlement; and although another next friend figures in the plaint, Muhammad Rafi seems to be at the bottom of the case. Muhammad Taqi, a witness for the plaintiff says : 'Rafi and Sultan are joint in mess and their business too is joint; Rafi always looked to the interest of Sultan.'

32. For the reasons given above, we dismiss this appeal. We might have had some hesitation in the matter of costs, but during the pendency of the appeal the minor has attained majority and has applied to proceed with the appeal in his own name. We therefore direct that he will pay the costs of this appeal.


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