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Tameshar Prasad and anr. Vs. Durga Prasad Sahu and Ganga Dayal Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1924)ILR46All754
AppellantTameshar Prasad and anr.
RespondentDurga Prasad Sahu and Ganga Dayal Naik and ors.
Cases ReferredPahladi Lal v. Musammat Laraiti
Excerpt:
sale - registration--addition of a minute portion of property for the sake of getting the sale-deed registered at a particular place. - - but the question has been very well threshed out before this court and we owe it to the learned counsel for the respondent and to the court below to discuss it. we hold therefore that the sale-deed was perfectly valid and did convey title to the appellant......transfer of title to it should take place. it was owing to the inclusion of this property in 'the sale-deed that the deed became registrable by the sub-registrar of gorakhpur. if this property had been excluded, the sub-regastrar of maharajganj alone would have had jurisdiction to register the document.5. the fact that at the date of the sale the property in plot no. 95 in belaura belonged to ganga dayal has ndt been disputed. indeed, the copies of the village records filed go to show that the vendor had title to this property. it is, however, urged that the vendee never wanted this property and it is pointed out that he never asked the revenue court to enter his name with respect to it and further that he never took possession of the property. the village records, the copies of which.....
Judgment:

Mukerji and Dalal, JJ.

1. The appellant in this Court was the defendant No. 1 in the court below. He purchased, on the 17th of January, 1908, a 4 anna share in each of the two villages Lachhmipur and Hannampur and a one dhur area land out of plot No. 95 in the village of Belaura for a consideration of Rs. 25,100. The vendor was one Ganga Dayal Naik. The pedigree of the family will be found at page 1 of the plaint and is as follows:

HAENAM NAIK

|

Bhala Ncik ..........

|

________________|________________

| |

Dal Bahadur Naik. Ganga Dayal Naik,

| (Defendant No. 2.)

________________| |_________________

| | | |

Tameshar Prasad, Rnmeshur Prasad, Nacesbar Prasad, Sheo Lootaan Naik

(Plaintiff.) (Plaintiff.) alias Baij Natli, (Defendant No 4)

(Defendant No. 3.)

2. The plaintiffs, who are sons of Ganga Dayal's brother Dal Bahadur, brought the suit, out of which this appeal has arisen, to have the sale set aside. The suit was instituted on the 14th of January, 1920, that is to say, just two days less than 12 years after the sale. Various grounds were taken to impeach' the sale. The court below set aside the sale on two grounds. ' It held that the registration of the deed was illegal and no title passed to the appellant. It also held that the property was worth at least Rs. 30,000, and the sale of it by the managing member of the family for Rs. 25,100 was not justified.

3. These are the two points which have been controverted in this appeal and we need not try any other question that was before the court below.

4. The question of registration arises in this way. The property of Belaura was a very insignificant one. One dhur is equal to 1/400th part of a bigha. The argument that found favour with the court below on this question was that, the property being so insignificant, neither party intended1 that any transfer of title to it should take place. It was owing to the inclusion of this property in 'the sale-deed that the deed became registrable by the Sub-Registrar of Gorakhpur. If this property had been excluded, the Sub-Regastrar of Maharajganj alone would have had jurisdiction to register the document.

5. The fact that at the date of the sale the property in plot No. 95 in Belaura belonged to Ganga Dayal has ndt been disputed. Indeed, the copies of the village records filed go to show that the vendor had title to this property. It is, however, urged that the vendee never wanted this property and it is pointed out that he never asked the revenue court to enter his name with respect to it and further that he never took possession of the property. The village records, the copies of which are to be found at pages 85 and 91 of the printed record, go to show that in spite of the transfer, the name of the transferor Ganga Dayal continued to be recorded over the land in Belaura and it was actually held by a tenant. The evidence of the appellant's son Ganesh Prasad does indicate that the vendee never cared to take possession over the property, although Ganesh Prasad insists on stating that he is in possession of the property and gets one anna as the rent for it. The admitted fact, therefore, is that in spite of the transfer the vendee never took possession of it. On the other hand, there are circumstances to show that the vendor believed that the property had been sold and that he had no longer any title left to it. No direct evidence has been adduced to show what was the exact amount of share- held by Ganga Dayal and his family in Belaura at the date of the sale. But copies of the decrees that were passed against the family and which record the properties mortgaged show (see pages 42 and 43 of the printed record) that a 4 pie share was held by the family in Belaura. Five years after the sale, on the 27th of August, 1913, Ganga Dayal sold the property in this village to one Chandi Prasad Pande. The sale-deed is printed at page 81 of the record. He described the property possessed by him as 'A 4 pie share less by a fraction.' It is quite wiithin the range of probabilities that the fraction which he deducted out of the property which he wanted to sell was the fraction represented by the one dhur land which he had already sold to the appellant. This conduct on the part of Ganga Dayal goes .to show that, at least, so far as he is concerned he never regarded himself as the owner of the one dhur land which he had sold. Further, it appears that Ganga Dayal as a certificated guardian of his nephews, the plaintiffs in 'the suit, made an application to the District Judge for permission to sell the property now in suit in order to pay off certain debts of the family. In the application that was presented to the court (Exhibit K, printed at page 65) he expressly mentioned the one dhur land in plot No. 95 situate in Belaura as one of the items of property he intended to sell. In the draft sale-deed that was presented to the District Judge for his approval the plot No. 95 was again specifically mentioned. It is clear, therefore, that Ganga Dayal did mean to transfer, this property and took the trouble of obtaining the sanction of the District Judge for 'the transfer. On the question of fact, therefore, our finding is that the plot No. 95, a portion of which was sold by the sale-deed in suit, was intended by Ganga Dayal to be sold and was meant to be purchased by the appellant, although it is a fact that after the purchase the appellant did not care to take possession of the property.

6. It has been urged that as a matter of fact neither the vendor nor the vendee wanted to transfer and purchase this property of Belaura and it was included in the sale-deed for the sole purpose of getting the deed registered by the Sub-Registrar of Gorakhpur. In view of our finding on the question of fact, this question does not really arise. But the question has been very well threshed out before this Court and we owe it to the learned Counsel for the respondent and to the court below to discuss it.

7. The learned Counsel for the respondent has taken his stand on two Privy Council judgments, viz: Harendra Lal Roy Chowdhuri v. Haridasi Debi (1914) I.L.R. 41 Calc. 972 and Biswanath Prasad v. Chandra Narayan Chowdhury (1921) I.L.R. 48 Calc. 509. As we understand him, he has argued that the court has to look to the intention of the parties, and where neither of the parties intended that the transfer of a certain property should take place, the inclusion of that property in the deed would not give jurisdiction to the Sub-Registrar to register the document. The cases cited must be taken to have been decided only with reference to the particular facts dealt with by them. We need hardly mention that a case is an authority only for what it decides and is no authority for what may seem to follow from the reasonings adopted in the case. In the case in I.L.R. 41, Calcutta, the property which was in question was a house No. 25 in Gurudas' street in Calcutta. It was found as a fact that there was no house in existence within the ambit of that street. It followed 'that it was never intended that any such property should pass to 'the transferee. Their Lordships of the Privy Council said that there were two ways of looking at the thing; first, the property was non-existent and, secondly, the entry was a fictitious one. In either view the transaction was entered into only to commit a fraud on the registration law, that is to say, to give jurisdiction to an officer who would not otherwise possess jurisdiction. There can be no doubt that their Lordship used the following language:--'Their Lordships hold that this parcel is in fact a fictitious entry, and represents no property that the mortgagor possessed or intended to mortgage, or that the mortgagee 'intended to form part of his security ' (p. 989 of the report).

8. We are of opinion that it is not open to contention that the words 'the mortgagor intended to mortgage or that the mortgagee intended to form part of his security' can be taken out of the rest of the context and can be read as an independent dictum for guidance of the subordinate courts. In our opinion the words are inseparable from the words 'Their Lordships-hold that this parcel is in fact a fictitious entry.'

9. In the later case, the finding was that t>he property of one cowrie share in 'the village of Kolhua was the property owing to which the Sub-Registrar of Muzaffarpur had the jurisdiction to register the deed. It was found as a fact that the transferor ~ did not possess any such property. Evidence was adduced to show that he did, and one witness was examined who said that he had sold it by an unregistered document. But it was found that there was no real delivery of the property. Their Lordships, therefore, laid down their law on the foundation of the fact that the mortgagor did not possess any such property and consequently it was never the intention of the parties that the mortgagor should offer it as security to the mortgagee and the latter should hold it as security for his money. The language that was used in connection with this case must be read with the facts involved in it.

10. In the case before us we have got 'the fact that the property entered in the deed and which gave jurisdiction to the Sub-Registrar of Gorakhpur to register did exist. We have the fact that it did belong to the vendor. Even if we concede for the sake of argument, (we are really considering a case based not on the facts found by us but on the fads as put by the learned Counsel for the respondent), that this property of Belaura was entered in the deed simply for the sake of registration, we do not think that fact would not give the Sub-Registrar of Grorakhpur jurisdiction to register the deed. The appellant was purchasing two big items of property. If the parties found that by selling also a small bit of property, which' it was not otherwise (intended to be sold, they would have the convenience of avoiding the journey to Maharajganj, I do not See why the inclusion of that property should be treated as an act done only to commit fraud on the law of registration. Suppose the journey to Maharajganj costs the party a sum of Rs. 20. Suppose again the property sold is worth Rs. 10 By adding a property worth Rs. 10 and selling it, bond fide, the parties avoid a journey to Maharajganj at a cost of Rs. 20. Why should not the vendor be allowed to say that ' I have sold the property ' and why should not the vendee be allowed to say that ' I have purchased the property '? The title to the property passes by the registration of the deed and the vendee becomes the owner of the property for the simple reason that the vendor was the owner of it and has chosen to sign a sale-deed with respect to it and to have it registered.

11. Coming to authority again, no case has been cited to us which can be taken as being on all fours with the case before us. In this Court two learned Judges held in the case of Pahladi Lal v. Musammat Laraiti (1918) I.L.R. 41 All. 22, that where a property included in a deed of mortgage did exist, the fact that the mortgagor had no title to the property did not vitiate the registration, if the mortgagee was not aware of the want of title in the mortgagor and was not colluding with him in the inclusion of the property to procure registration. This case, too, is not on al] fours with the case before us. But it lays down at least this much that where a transaction is a bond fide one, the inclusion of a property for the sake of obtaining the registration of a document at a particular place will not oust the jurisdiction of the Sub-Registrar to register the document. We hold therefore that the sale-deed was perfectly valid and did convey title to the appellant.

[The remainder of the judgment dealt with the question of the adequacy of the consideration for the sale, and is not reported.

The appeal was decreed with costs.]


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