1. The appellant in this Court was the defendant No. 1 in the Court below. He purchased on the 17th of January 1908 a four annas share in each of the two villages Lachhmipur and Harnampur and 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:
Dal Bahadur Ganga Dayal Naik
Naik (Defendant No. 2)
| | |
Tameshwar Rameshwar |
Prasad Prasad |
(Plaintiff) (Plaintiff) |
Nageshar Prasad Sheo Lochan Naik
alias. (Defendtan No. 4)
(Defendtan 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 twelve 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 l/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 intended 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 registerable by the Sub-Registrar of Gorakhpur. If this property had been excluded the Sub-Registrar of Maharajganj alone, would have had the jurisdiction to register the document.
5. The fact that at the date of sale the property in plot No. 95 in Belaura belonged to Ganga Dayal has not been disputed. Indeed, the copies of the village records filed do 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 pies 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-pies share less by a fraction.' It is quite within 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 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 respondents 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 Chowdhury v. Hari Dasi Debi 23 Ind. Cas. 637, 41 C. 972, 27 M.L.J. 80; (1914) M.W.N. 462; 16 M.L.T. 6; 18 C.W.N. 817; 19 C.L.J. 484; 16 Bom L.R. 400; 12 A.L.J. 774; 1 L.W. 1050; 41 I.A. 110 (P.C.) and the case of Muthra Prasad v. Chandra Narayan Chowdhury 60 Ind. Cas. 833; 19 A.L.J. 385; 40 M.L.J. 489; 33 C.L.J. 440, 23 Bom. L.R. 629; (1921) M.W.N. 370; 14 L.W. 1; 29 M.L.T. 413; 25 C.W.N. 985; 2 P.L.T. 397 (P.C.)., 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 decided and is no authority for what may seem to follow from the reasonings adopted in the case. In the case of Harendra Lal Roy Chuwdhury v. Hari Dasi Debi 23 Ind. Cas. 637, 41 C. 972, 27 M.L.J. 80; (1914) M.W.N. 462; 16 M.L.T. 6; 18 C.W.N. 817; 19 C.L.J. 484; 16 Bom L.R. 400; 12 A.L.J. 774; 1 L.W. 1050; 41 I.A. 110 (P.C.) 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. Lordships 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.
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'. In the latter case, the finding was that the 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, there fore, 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.
9. 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 facts as put by the learned Counsel for the respondent) that this property of Belaura was entered into the deed simply for the sake of registration, we do not think that fact would not give the Sub-Registrar of Gorakhpur 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, bona fide, the parties avoid a journey to Maharajganj at a cost of Rs. 20. Why should not the vendor be allowed to say that he has sold the property and why should not the vendee be allowed to say that he has 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.
10. 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. Laraiti, 48 Ind. Cas. 200; 16 A.L.J. 871; 41 A. 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 all fours with the case before us. But it lays down at least this much that where a transaction is a bona 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.
11. Coming to the second point. At the date of the sale the family consisted mainly of four persons, namely, the vendor Ganga Dayal, his father Bhola Naik who was a lunatic and the plaintiffs-respondents who were minors. There wore two decrees for large sums of money passed against the family on foot of two mortgages executed by Ganga Dayal's grandfather Harnam Naik. The total amount due on the two decrees went up to Rs. 35,000. Ganga Dayal, the only male adult in the family who was in a position to enter into any transaction on behalf of it, has been found by the Court below to have acted to the best of his capabilities. He raised small sums of money from time to time out of the property and put off the evil day of sale by small payments. He got himself appointed guardian under the Guardians and Wards Act of 1890 of his minor nephews, the plaintiffs. He approached the learned District Judge of Gorakhpur from time to time and represented how the state of affairs was, and sought his permission as the guardian of his nephews and as a manager of his lunatic father's property to transfer family property, to avoid an auction sale of it and consequent loss. The copies of decrees which have been printed show that shares in no less than six villages had been mortgaged (see Exhibit C at pages 41-43). We find that he approached the learned District Judge first on the 16th of December 1905 by his application, printed at page 47 of the record. By an order, he was appointed the manager of his father's property. Then on the 13th of July 1906 he approached the District Judge and obtained permission to raise money by sale or by mortgage with possession of a part of the family property. The order is at page 49 of the printed record. The applications printed at pages 51, 53, 59 and 61 show how he succeeded in obtaining the good offices of the learned District Judge for staying the execution sale which was pending before the revenue authorities; (possibly the decree had been transferred to the Collector because the property was ancestral) We have already mentioned that the learned Subordinate Judge gives Ganga Dayal full credit for doing his best in the interests of the family, On the 30th of July 1907 Ganga Dayal approached the District Judge with a definite proposal for transfer. I may mention that the order of the learned District Judge dated the 13th of July 1906 was not very definite. On the 30th of July 1907 Ganga Dayal definitely proposed that he should be permitted to sell the shares now in suit in the villages of Lachhmipur and Harnampur to one Babu Bhagwati Prasad for Rs. 21, 245 and that he might be permitted to mortgage a portion of the remaining family property, namely, 4-annas share in the village Sarpataha to raise a sum of Rs. 5,000 to pay off the decrees. It appears that at that date the two sums, of Rs. 21,000 and Rs. 5,000 would have sufficed to pay off the two decrees. The order dated the 31st of July 1907 of the learned District Judge shows how diligently Gana Dayal had been acting. The learned Judge recites that the amount of the decrees was originally between Rs. 35 and Rs. 36,000 but Ganga Dayal had been able to reduce it by occasional payments to a sum of Rs. 26,000. The learned Judge sanctioned the sale of 4-annas share in the two villages in suit and, an usufructuary mortgage of another portion of the property But it appears that Bhagwati Prasad backed out of the transaction and the result was that the family property was put up for sale. At page 63 of the record is printed how the bids went before the Revenue Officer. Bhagwati Prasad evidently preferred to take his chance to purchase the property at an auction-sale to a purchase by private treaty. With respect to 4-annas share in Harnampur he offered Rs. 11,200 but the decree-holder outbid him by offering Rs. 100 more. Similarly in respect of the other property the decree-holder offered Rs. 11,100 as against Rs. 11,000 offered by Bhagwati Prasad. Thus, we find that at an open auction-sale the two properties fetched only the sum of Rs. 22,400. This sale took place on the 20th of December 1.907. To save the property Ganga Dayal had to pay within the 30 days of sale not only the decretal amounts but also five per cent. over the purchase-money. He, it appears, had been able to persuade the appellant to pay Rs. 25,100 for the two shares in the villages of Lachhmipur and; Harnampur inclusive of one dhur area in village Belaura. He had also been able to persuade the appellant to advance a sum of Rs 4,500 on a simple mortgage over the share in the village of Sarpataha. The learned District Judge approved of this proposal and a draft sale-deed was filed and approved. The sale-deed was eventually executed and on the 18th of January 1908 the entire amount of Rs. 29,600 was paid into the treasury and the sale was set aside.
12. It has been urged that although Ganga Dayal may have done his best in the interests of the family he might have done better and if he had used more discretion he might have procured Rs. 30,000 at least for the property. It is urged that his failure to obtain the best value for the family property vitiates the sale and the Court below was right in setting it aside.
13. It is conceded that although the permission of the District Judge was obtained by Ganga Dayal for the transactions in which he entered, Ganga Dayal could not validly be appointed a guardian of his minor nephews who were living jointly with him and that, therefore, the permission which was obtained from the District Judge did not stand good in favour of the appellant. This point having been conceded by the learned Counsel for the appellant we do not wish to express any opinion over it. Assuming, however, that the learned Judge's permission went for nothing, the proceedings show at least this that, it was impossible to obtain a better value at the time than was really obtained. We must assume the learned Judge did his duty and he made an enquiry in the' interests of the minors and the lunatic as to the value of the property and sanctioned the transaction only when he found that it was beneficial to their interests. Besides this presumption of law we have got the positive evidence of a learned Vakil of Gorakhpur who says that the then Munsif of Gorakhpur was entrusted with an enquiry into the application submitted before the District Judge. As we have said, the orders of the learned District Judge are very good evidence that the value paid at the time was a very proper value.
14. Coming to the evidence adduced in the Court below by the parties we find that there is no documentary evidence whatsoever to show what value the properties in the two villages of Lachhmipur and Harnampur could fetch at the time. There is no sale-deed. There is no evidence of income from the property except, a certain vague statement on the part of the plaintiff No. 1. That statement is that one bigha of Lachhmipur could be let at Rs. 2-4 to Rs. 2-8 per annum. If this be the annual rent the price of the land could not be very high. The learned Subordinate Judge has been mainly, if not wholly, influenced by the fact that he misread the proceedings before the Revenue Officer at the auction-sale. It appears that after a 4-annas share of Harnampur had been sold, a one-anna share out of the 4-annas share of Lachhmipur was offered for being bid for, but no bids were made. The result was that the entire 4-annas share of Lachhmipur had to be put up. The learned Subordinate Judge thought that the price fetched, namely, Rs. 11,100, for Lachhmipur was the price paid for a one-anna share and not for the entire 4-annas share. We are perfectly sure that if he had correctly read this document he would have come to a different conclusion altogether.
15. We have already said there is no documentary evidence by which we can judge the market value either at the date of the sale or at the date of the suit of the properties in question.
16. Coming to oral evidence, we have read the whole of it and we find it impossible to be guided by it. On behalf of the plaintiff-respondent the evidence of no less than eight persons has been printed. One of these Raj Bahadur Lal is a patwari, but he is not the patwari of any of the villages in question. He said that he was the patwari of two adjoining villages. In our opinion no sufficient reason having been shown why the patwari of the villages in suit could not be found it is impossible to rely and act upon the statement of Raj Bahadur. He says that the lands of Lachhmipur could be sold at the date when, he was examined at Rs. 100 per bigha and the lands at Harnampur at Rs. 125 per bigha. It does not appear whether he was speaking of the cultivated land or the average value of the land. The 4-annas share sold would include lands actually under cultivation, lands which could be brought under cultivation by spending money and labour, and lands which would be absolutely unreclaimable at any expense. The evidence of the appellant's son Ganesh Prasad would go to show that there are huge areas in both the villages which are not cultivated and which are, therefore, not capable of yielding any income. Of the 8 witnesses examined by the plaintiffs the plaintiff No. 1 states that the lands in Harnampur would fetch Rs. 175 to Rs. 200 per bigha and the lands in Lachhmipur would fetch Rs. 1.50 per bigha. The witness Sheo Shankar Dube would not go so far as that. He does not belong to either of the two villages and his means of knowledge are extremely doubtful. He says that he never purchased any share in the two villages and that within the last 20 years, so far as he knew, no shares in those villages had been sold. The witness Dhanraj Rai brought a sale-deed which has been proved by Ram Kripal and which related to an entirely different village of Aligarh. He does not say anything about the valuation of the lands in suit. The witnesses Ramphal Panday and Mahipat do not speak anything on the value of the lands in the two villages in question. We have already commented on the statement of Raj Bahadur Lal. The witness Lalji Sahai does not speak on the point.
17. The appellant has examined his son to show under what circumstances the property was purchased and what value was paid for which property and why. The witness Jadunath Panday says that the price was fixed at Rs. 34 or Rs. 35 per bigha when the purchase was made. This price was evidently for all the lands whether good, bad or indifferent, taken as a whole.
18. The sale-deed having been executed under the circumstances already described it lay heavily on the plaintiffs to prove that their uncle, who did so much for them, could obtain much better value than he did obtain. We are of opinion that it has not been established that the price paid, namely, Rs. 25,100, was in any way inadequate price for the property at the time of the sale.
19. The result is that the appeal succeeds and it is hereby allowed, and the suit of the respondents Tameshwar Prasad and Rameshwar Prasad is dismissed with costs throughout. The costs in this Court will include Counsel's fees on the higher scale.
20. There is a cross-objection on the part of the respondents Nos. 1 and 2 but on it no Court-fee was paid. A sum of Rs. 800 was demanded as Court-fee. The respondents never said they would pay the Court-fee and the cross-objection might be rejected on that account. The learned Counsel for the appellant states that he was served with a copy of the cross-objection. We find on the record that on the 10th of January 1922 Mr. Jang Bahadur Lal, one of the learned Counsel, for the appellant, was served with a copy of the cross-objection. He was right, therefore, in claiming the costs of the cross-objection. The cross-objection is being rejected because no Court-fee has been paid, but the, costs due on the cross-objection will be paid by the respondents Nos. 1 and 2 to the appellant. The costs will include fees on the higher scale.