P.K. Mohanti, J.
1. This appeal, by defendants 1 to 3, arises out of a suit for declaration of title to and confirmation, or in the alternative, recovery of possession of 1.68 acres of land described in Schedule 'Kha' of the plaint
2. Plaintiff No. 2 Rabindra Sahu is the natural son of one Krushna Chandra Sahu, He was brought up by plaintiff No. 1 Api Bewa from his childhood. On 29-10-56 plaintiff No. 1 executed a deed of sift (Ext. 3) in his favour in respect of 1.85 acres of land. In 1957 she adopted him as a son. On 1-3-66 defendant No. 5 Nabaghana Sahu fraudulently obtained from her a sale deed in respect of the 'ka' schedule properties, covered by Ext. 3, on a false representation that she was executing a power of attorney. On 18-3-67 defendants 2 to 4 as marfatdars of the deity-defendant No. 1 purchased from defendant No. 5 the 'Kha' schedule properties which form part of the 'Ka' schedule. Thereafter defendants 2 to 4 forcibly occupied a room of the house standing on the suit land. Upon these allegations the plaintiffs came to court for the aforesaid reliefs.
3. Defendants 5 and 6 who are husband and wife respectively filed a joint written statement denying the adoption of plaintiff No. 2 and challenging the validity of the deed of gift (Ext 3). They contended that plaintiff No. 1 sold the 'Ka' schedule properties in favour of defendant No. 5 for legal necessity and he was in possession of the same since the date of sale. Defendants 1 to 4purchased the 'Kha' schedule properties from him and have been in possession of the same since the date of their purchase. Defendants 1 to 3 filed a separate written statement supporting the plea of defendants 5 and 6.
4. The trial court, on a consideration of the evidence led by the parties, came to the findings that plaintiff No. 2 is the adopted son of plaintiff No. 1 and that the gift deed Ext. 3 is valid. It also found that the sale deed obtained by defendant No. 5 from plaintiff No. 1 is fraudulent and devoid of consideration. Upon, these findings, the suit was decreed in favour of both the plaintiffs. The learned lower appellate Court concurred in the findings of the trial Court that the deed of gift was valid and that the sale deed (Ext. 1) obtained by defendant No. 5 from plaintiff No. 1 was fraudulent and not supported by consideration. It also held that plaintiff No. 1 having no subsisting title to the suit properties, she could not convey any title to defendant No. 5 under the sale deed Ext. 1. The finding of the trial Court regarding adoption of plaintiff No. 2 was not challenged before the appellate Court.
5. The only question that has seriously been debated before me is that although the bulk of the property covered by the deed of gift is situate within the jurisdiction of the Sub-Registry at Gop, a small area of 0.02 acre lying within the jurisdiction of the Sub-Registry at Pipili was included therein with the intention to set the deed registered at Pipili and that this amounted to fraud on registration and consequently rendered the gift-deed invalid. In support of this contention reliance is placed on the decisions reported in AIR 1936 PC 91 (Venkatarama Rao v. Subbanadri Appa Rao) and (1972) 38 Cut LT 511 (Narayan Prasad Maity v. Daitari Das). These two decisions are clearly distinguishable on facts. In AIR 1936 PC 91, one yard of land in a village in Godavari district was included in a sale deed by inserting an additional sheet to the original sale deed that was executed previously in respect of the properties in another district. The document was presented for registration at Godavari one month after the execution. In these circumstances, it was held that there was no intention on the part of the parties to that document that the small strip of land should pass under that sale deed and it was only added with the sole view to obtain registration in Godavari district. It was observed that the criterion by which the question of validity of presentation of a document for registration must be decided is whether upon the facts established by evidence, the parties intended the property to pass under the deed of transfer.
In (1972) 38 Cut LT 511 my learned brother Patra, J. made it clear at the outset that the criterion by which the question as to the validity or otherwise of the registration is to be decided is whether upon the facts established by evidence the property, by the inclusion of which the Sub-Registrar got jurisdiction to register the document, was really intended to pass under the deed. The findings of fact in that case were that the one decimal of land in mouza Anantapur did not belong to the vendors of the sale deed, that they were never in possession of it, that the vendee never got possession of this land and that there was no evidence to show that the vendee possessed any land in mouza Anantapur so that he would, for any reason, be anxious to have the one decimal of land out of a plot measuring 1.33 acres. Another significant feature was that in a subsequent deed of relinauishment obtained from the father of one of the vendors the one decimal land of mouza Anantapur was excluded. Taking all these circumstances into consideration, his Lordship held that the one decimal of land was not intended by the parties to pass under the sale deed and that the sole object with which this land was included in the sale deed was to confer jurisdiction on the Sub-Registrar of Soro. Accordingly, the sale deed was held to be invalid.
6. Mr. L. K. Dasgupta, the learned counsel appearing in support of the appeal took me through the evidence of P.W. 7 and vehemently urged on the basis thereof that plaintiff No. 1 had no title to the 0.02 acre of land included in the sale deed and there was no intention to transfer the same under the deed of gift. The evidence of P.W. 7 shows that he had orally sold the said 0.02 acre of land to plaintiff No. 1 in 1954 for a consideration of Rs. 20/- and subsequently he cultivated the land on bhag under plaintiff No. 1. The argument is that in the absence of any statement by P.W. 7 that the oral sale was effected by delivery of possession it must be held that there was no valid sale of the property in favour pf plaintiff No. 1 and consequently she could not convey the same under the gift deed. I am unable to accede to this contention. P.W. 7 was not asked anything in cross-examination about the delivery of possession. His statement to the effect that he sold the land orally and subsequently cultivated the same on Bhag conveyed in it by necessary implication that the sale was effected by delivery of possession. It was next contended by Mr. Dasgupta that the said 0.02 acre of land alleged to havebeen sold by P.W. 7 appertains to a Sikimi khata and that Sikimi right being non-transferable, it must be held that plaintiff No. 1 acquired no title to the property. It is significant to mention in this connection that nothing was asked either to plaintiff No. 1 or to P.W. 7 about non-transfer ability of the land. The schedule of property appended at the foot of the deed of gift shows that the land in question appertains to Sikimi khata No. 173 of the current settlement In reply to a question in cross-examination with reference to this schedule, P.W. 7 made the following statement :
'The word Sikimi written in Ext. 3 in respect of the said 2 decimals is correct.'
This solitary statement, without anything more, does not, in my opinion, lead to the conclusion that P.W. 7 had no right to transfer the land by the date of sale which took place in 1954. It is to be remembered in this connection that it was not specifically pleaded in the written statement of the appellants that inclusion of 0.02 acre of land in the gift-deed amounted to fraud on registration. At the trial, there was no suggestion far less any proof that plaintiff No. 1 was not in possession of the land by the date of gift. There is, therefore, no force in the contentions raised on behalf of the appellants.
7. From a conspectus of the cases cited on behalf of the respondents, the principle that emerges is that to establish fraud on the registration law there must be collusion between the parties to practice a fraud and that as a test of whether the parties had intended to practise such a fraud, it has primarily to be considered whether there was a property that could be transferred by a party or as to which a genuine belief existed that he could convey it. Another point to be considered is whether the parties intended that the property should pass under the deed of transfer. The facts that the property is small or that the primary intention was that registration should be in a particular office will not in themselves constitute acts of fraud.
In AIR 1919 Pat 572 (Mt Ram Dei v. Ram Chandrabali Debi) a property included in the deed of transfer was partly situated in Benaras and partly elsewhere. The transferor had ceased to have any title to the portion situated in Benaras, but that portion had been included in the deed of transfer which gave jurisdiction to the Registering Authority at Benaras to register the document of transfer. It was held that the transferor who was acting in a perfectly bona fide manner had ceased to have any interest in the portion of the property situated in Benaras, but the inclusion thereof would not amount to a fraud on registration. This decision was followed by the same High Court in a recent decision reported in AIR 1969 Pat 203 (Deonandan Singh v. Rambahal Singh).
In AIR 1925 Pat 787 (Mt. Jasoda Kuar v. Janak Missir) the vendor purchased a certain property in the jurisdic-tion of the Sub-Registrar at Ranchi and sold it immediately along with other properties of his situated within the jurisdiction of the Sub-Registrar at Daltonganj with a view to get it registered at Ranchi. His own vendor's title in respect of the property appeared later to be defective, yet, it was held by a Division Bench that the registration was valid in the absence of evidence of dishonest motive in getting the deed registered in the particular place and any defect in the title of the vendor's vendor to the property did not affect the validity of the sale deed. It was further held that in a proceeding for registration of document, title to property cannot be gone into and that Section 28 of the Indian Registration Act does not require anything more than the existence of a property within the jurisdiction of a particular Sub-Registrar in order to entitle him to register the same. This decision was relied upon by a Division Bench of the same High Court in a case reported in AIR 1965 Pat 279 (Julumdhari Rai v. Debi Rai).
In AIR 1928 Pat 89 (Damodar Prasad v. Masoodan Singh) one dhur of land belonging to the lessor situate at a locality different from the locality where the bulk of the lease property lay, was included in the document with a view to get registration. It was held by a Division Bench that the document was valid and that there was no fraud on the laws of registration.
8. Viewing the facts of the pre-sent case in the light of the principles laid down in the aforementioned cases, I find that there is absolutely no material on record to show that the plaintiff No. 1 had any dishonest motive to get the deed of gift registered at Pipili. No circumstance has been shown to indicate that she wanted to avoid the publicity of the registration of the gift deed in the Sub-Registry at Pipili. There is also nothing to show that she wanted to defeat or defraud any creditor or that she had any other dishonest motive. I would, therefore, conclude that the inclusion of the aforesaid 0.02 acre of land in the gift deed does not amount to fraud on the law of registration and that the gift deed is valid. The plaintiff No. 1 had no subsisting title to transfer the 'Kha' schedule properties in favour of defendant No. 5 and consequently defendants 1 to 4 didnot acquire any title to the same by virtue of their purchase from defendant No. 5. There is, therefore, no merit in this appeal.
9. The courts below have gone wrong in granting a decree in favour of both the plaintiffs. As a result of the finding that plaintiff No. 1 had no subsisting title to the property after execution of the gift deed, she is not entitled to any relief in the suit. The plaintiff No. 2 alone is entitled to a decree for declaration of title in respect of the 'Kha' schedule properties. He is also entitled to recover possession of the room forcibly occupied by defendants 5 and 6. His possession over the rest of the properties will be confirmed and he will be entitled to costs incurred by him in both the courts below.
10. For the foregoing reasons not with the modification in the decree as indicated above, the appeal fails and is dismissed with costs to respondent No. 2only.