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Udaya Naik Vs. Lokanath Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 322 of 1948
Judge
Reported inAIR1954Ori195; 20(1954)CLT407
ActsTenancy Law; Central Provinces Tenancy Act, 1898 - Sections 46(3), 46(5), 47(1) and 95; Transfer of Property Act, 1882 - Sections 3 and 123; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantUdaya Naik
RespondentLokanath Naik and ors.
Appellant AdvocateR.N. Sinha and ;B.N. Das, Advs.
Respondent AdvocateP.C. Chatterji, Adv.
DispositionAppeal allowed
Cases ReferredJabbarshah v. Kanchhedi Lal
Excerpt:
.....assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 8. hence, i am satisfied that the invalidity of the deed of gift (ext. moreover, it is a well settled rule that where an act creates a new jurisdiction, a new procedure, new forms and new remedies, the procedure, forms and remedies there prescribed and no others must be followed (see lopes l......did not formally adopt him as his son. on 11th of april 1938 balamakund executed an unregistered deed of gift (ext. e) giving away all his properties to defendant no. 1. the consent of the gaontia to the transfer was obtained on the document itself and similarly the consent of the plaintiff who was the next heir of balamakund was also obtained on the same document.balamakund died a few days afterwards and defendant no. 1, with a view to further safeguard his rights, obtained an ekrarnama (ext, b) from the plaintiff on 7-12-1938 in which his consent already given in the deed of gift was ratified. defendant no. 1 obtained possession of the properties by virtue of the deed of gift and continued in possession and was paying his share of the rent regularly to the gaontia. on 16-7-1942,.....
Judgment:

Narasimham, J.

1. This is a defendant's appeal against the concurrent decisions of the two lower Courts decreeing the plaintiffs' suit for declaration of title and recovery of possession of some raiyati lands described in Schedule A-1 of the plaint and a portion of a residential building (Schedule B-1) situated in village Bandhapali, P. S. Dhama, in the district of Sambalpur.

2. Plaintiff No. 1 had a brother named Balamakund to whom the disputed property originally belonged. The appellant-defendant No. 1 is their sister's son. Balamakund was issueless and had brought up defendant no. 1 in his house though he did not formally adopt him as his son. On 11th of April 1938 Balamakund executed an unregistered deed of gift (Ext. E) giving away all his properties to defendant No. 1. The consent of the Gaontia to the transfer was obtained on the document itself and similarly the consent of the plaintiff who was the next heir of Balamakund was also obtained on the same document.

Balamakund died a few days afterwards and defendant No. 1, with a view to further safeguard his rights, obtained an Ekrarnama (Ext, B) from the plaintiff on 7-12-1938 in which his consent already given in the deed of gift was ratified. Defendant No. 1 obtained possession of the properties by virtue of the deed of gift and continued in possession and was paying his share of the rent regularly to the Gaontia. On 16-7-1942, however, the plaintiff instituted the suit under appeal alleging that he was the next heir of Balamakund and as such entitled to his property.

The suit was brought as if it were a simple suit for ejectment of a trespasser and in the plaint there was a complete suppression of the deed of gift and the Ekrarnama (Exts. E and B). Defendant No. 1 contested the claim alleging various grounds such as estoppel, waiver, valid surrender, etc. But one of the important grounds urged by him was that the suit was barred by the special rule of limitation laid down in Section 47(1), C. P. Tenancy Act, 1898. This was the only point that was pressed before us and we think that it would suffice for the disposal of the appeal. Plaintiff No. 2 and defendant No. 2 are not necessary parties.

3. The disputed property is situate in that portion of Sambalpur district where the Central Provinces Tenancy Act of 1898 is still in force. As the property is admittedly an occupancy holding the relevant sections for consideration are Sub-sections (3) and (5) of Section 46 of that Act and Section 47(1) of that Act. They are reproduced below for ready reference.

'Section 46(3).-- No occupancy tenant shall be entitled to sell, make a gift or mortgage, sub-let (except for a period not exceeding one year) or otherwise transfer his right in his holding or in any portion thereof, and every such sale, gift, mortgage, sub-lease (other than for a period not exceeding one year) or transfer shall be voidable in the manner and to the extent provided by the two next following sections:

Provided that an occupancy tenant may transfer his right of occupancy to any person who, if he survived the tenant, would inherit the right to occupancy, or to any person in favour of whom as a co-sharer the right of occupancy originally arose, or who has become by succession a co-sharer therein:

Provided also that nothing in this section shall affect the right of the Government to sell the right of an occupancy tenant in his holding for the recovery of an advance made to him under the Land Improvement Loans Act, 1883, or the Agriculturists Loans Act, 1884, or the right of the purchaser at such sale to succeed to the holding.'

'Section 48(5).-- Notwithstanding anything contained in the Indian Registration Act, 1877, no officer empowered to register documents shall admit to registration any document which purports to transfer the right of an occupancy tenant in his holding or in any portion thereof unless the document recites that the transferee is a person who, if he survived the tenant, would inherit the right of occupancy or is a person in favour of whom as a co-sharer the right of occupancy originally arose or who became by succession a co-sharer therein.'

'Section 47(1).-- If an occupancy tenant transfers any portion of his right in any land in contravention of the provisions of the last foregoing section, any such person as would be entitled to inherit his right in the holding in the event of his death without nearer heirs, or the landlord from whom the tenant held the land, may, on application to a Revenue Officer, made within two years from the date on which in pursuance of the transfer the tenant parted with possession of the land, be placed in possession, subject to far as the Revenue Officer may, in accordance with rules made by the Local Government, determine, to his acceptance of the liabilities of the transferring tenant for arrears of rent and for advances made by the landlord or other persons for the necessary expenses of cultivation.'

It will be clear that the main object of the aforesaid sections is to prohibit the transfer of an occupancy holding or a portion thereof to any person other than the next heir of the transferor or his co-sharer. Sub-section (5) of Section 46 prohibits the registration of any document of transfer if ex facie there are recitals therein which would contravene the provisions of Sub-section (3). Sub-section (1) of Section 47 gives a remedy to the next heir of the transferor to avoid the transfer by applying to the Revenue Officer within two years from the date on which the transferor parted with his possession of the land. Section 95 expressly bars the jurisdiction of the Civil Court to take cognizance of any dispute or matter in respect of which authority is given by the Act to a Revenue Officer.

4. It was therefore argued on behalf of the appellant that the transfer in his favour by Balamakund by virtue of the deed of gift (Ext. E) contravened Sub-section (3) of Section 46 and that the only remedy of the plaintiff was by way of an application to the Revenue Officer under Sub-section (1) of Section 47. Admittedly, this procedure was not adopted and on the date of the institution of the suit under appeal the period of limitation for an application under Section 47(1) had expired. The maintainability of the present suit was challenged both on the ground of choice of a wrong forum and also on the ground of limitation.

5. On behalf of the respondents, however, it was contended that Section 47(1) would apply only if the claim to the property was based on contravention of Sub-section (3) of Section 46, C. P. Tenancy Act. But the plaintiff's claim was based on his right of inheritance from his brother (Section 46(1), C. P. Tenancy Act) and the incompetence of the defendant to acquire any title on the basis of an unregistered deed of gift in contravention of Section 123, Transfer of Property Act. Hence, it was urged that this was a simple suit for ejectment of a trespasser, which had nothing to do with Section 46(3), C. P. Tenancy Act and that the general law of limitation would apply.

6. Both the Courts have accepted the plaintiff's contention and taken the view that where the invalidity of a transfer is based on grounds other than those specified in Section 46(3), C. P. Tenancy Act, the Civil Court's jurisdiction would not be ousted and that the special rule of the C. P. Tenancy Act would apply where a transfer otherwise valid, contravenes Section 46(3) of that Act.

7. It is true that the word 'transfer' occurring in Sub-section (3) of Section 46 would mean a valid transfer. Thus where a transfer is made by a limited owner who has no right to transfer the property except under some special circumstances or where the transfer is invalid as having been brought about by fraud, undue influence, etc., the right of an aggrieved person to challenge the validity of such a transfer in a Civil Court cannot be taken away. The Revenue Officer's exclusive jurisdiction under Section 47(1) arises only where a transfer otherwise valid contravenes the provisions of Section 46(3) and (5).

Hence, we have to see whether in the present case the dispute between the parties is, in substance, one regarding the validity or otherwise of a transfer effected in contravention of the relevant provisions of Section 46, C. P. Tenancy Act. Both the Courts thought that as the deed of gift was unregistered the transfer was invalid under the provisions of the Transfer of Property Act. I am unable to accept this argument. Doubtless, Section 123, Transfer of Property Act says expressly that a deed of gift of immovable property can be effected only by a registered instrument. But the expression 'registered' occurring in that section must be construed in accordance with the definition of that expression given in Section 3 of that Act which is as follows:

' 'Registered' means registered in a State under the law for the time being in force regulating the registration of documents.'

Apparently, both the Courts thought that 'the law for the time being in force regulating the registration of documents' is the Indian Registration Act, 1908 only. But there is no justification for limiting that expression only to that Act. Sub-section (5) of Section 46, C. P. Tenancy Act is also 'a law for the time being in force regulating the registration' of a certain class of documents and that sub-section should be construed along with the provisions of the Indian Registration Act for the purpose of deciding the effect of nonregistration of transfers of this type,

Where the special law in question (the Central Provinces Tenancy Act) prohibits transfer of occupancy holdings except to a specified class of persons and also prohibits the registration of those documents in which the recitals contravene the provisions restricting the transfer, it seems clear that the provisions of the Indian Registration Act cannot apply with full force to such prohibited transfers. Hence, such transfers cannot be registered under 'any law for the time being in force regulating the registration of documents' because as soon as they are presented before the Sub-Registrar he would, under Sub-section (5) of Section 46, refuse to register them.

The requirement about compulsory registration of a deed of gift as laid down in Section 123, Transfer of Property Act cannot be fulfilled in respect of those prohibited transfers. Hence, the invalidity of such a transfer arises, not because of nonregistration of an otherwise compulsorily registrable document but because by virtue of subsection (5) of Section 46, C. P. Tenancy Act the document cannot be validly registered at all. Hence, by construing Sub-section (5) of Section 46, C. P. Tenancy Act, along with the provisions of the Indian Registration Act and Section 123, Transfer of Property Act, it may be reasonably held that the requirement about compulsory registration of a deed of gift under the general law of transfer is not applicable where the transfer is of an occupancy holding to a person other than the persons specified in Sub-section (3) of Section 46.

The plaintiff cannot contend that Section 46, C. P. Tenancy Act, must be completely ignored and the validity of the transfer judged from the provisions of the Transfer of Property Act and the Registration Act only. Section 6, Transfer of Property Act, makes it clear that the provisions of that Act apply only to those classes of properties which are transferable and where by any other law for the time being in force, transfer of a certain class of property is prohibited except to a certain specified class of persons the provisions of the Transfer of Property Act would apply to such transfers except to those specified persons. That is to say, in the present case if Balamakund wanted to execute a deed of gift in favour of the plaintiff who was his brother and next heir he would be bound to comply with the provisions of s. 123, Transfer of Property Act regarding registration.

8. Hence, I am satisfied that the invalidity of the deed of gift (Ext. E) arises not on the ground of non-registration of a compulsorily registrable document because it is not registrable under any circumstance but by virtue of the contravention of Sub-section (3) of Section 46, C. P. Tenancy Act. The remedy for that is provided in Section 47 (1). A special rule of limitation of two years is fixed and the Revenue Court alone has jurisdiction to entertain an application for avoiding the -transfer. This is made clear by Section 95 of that Act. Moreover, it is a well settled rule that where an Act creates a new jurisdiction, a new procedure, new forms and new remedies, the procedure, forms and remedies there prescribed and no others must be followed (see Lopes L. J.'s observation in --'Reg v. County Court Judge of Essex', (1887) 18 Q B D 704 at p. 825 (A)).

Subjection (3) of Section 46 does not say that the transfers in contravention of that sub-section are void but only says that they are voidable 'in the manner and to the extent provided by the two next following sections' namely, Sections 47 and 48. Hence the Revenue Court alone has exclusive jurisdiction to avoid such transfers provided the application is made within the special rule of limitation fixed in Section 47(1). If this procedure is not adopted, the transfer cannot be avoided.

9. Mr. Chatterji on, behalf of the respondents, however, relied on some observations in -- 'Madan Meher v. Jujesti Meher', 1 Cut L T 57 (B), in support of his argument that where there are two-fold remedies open to a party he was free to avail himself of one of them even though he might not have availed himself of the other. He also relied on -- 'Chindhu v. Dadu Ambar', AIR 1945 Nag 119 (C), where it was held that if a transfer of an occupancy holding which is otherwise compulsorily registrable is made by an unregistered document the transferee is a mere trespasser against whom a remedy will lie in the Civil Court.

Doubtless, that decision, was based on a construction of Sections 12 and 13, C. P. Tenancy Act, 1920 as it was before the amendment of 1939. But the provisions of those two sections of the 1920 Act are not materially different from the provisions of Sections 46 and 47 of the 1898 Act so far as the point in controversy is concerned. Mr. Chatterji also relied on a Division Bench decision of the Patna High Court reported in --'Madliuban v. Basanta', AIR 1947 Pat 424 (D), Where following the aforesaid decision of the Nagpur High Court it was held that such a transfer was only an attempt at transfer as it was not completed by registration and that the remedy lay in the Civil Court.

10. With great respect to the learned Judges I am unable to accept their reasoning. In --'AIR 1945 Nag 119 (C)', there are some observations to the effect that judicial opinion had varied, from time to time as to whether transfers of this type can be challenged in Civil Courts or in Revenue Courts. It is mentioned therein that in -- 'Moolchand v. Munney', 1921 Rev Rul 24 (E) and -- 'Gopala v. Mt. Bula', 1925 Rev Rul 23 (P), a contrary view was held and it was observed that the intention of the Legislature was to prohibit transfers Of occupancy holdings irrespective of their value for the purpose of registration and that consequently jurisdiction lay only with the Revenue Courts whether the documents were compulsorily registrable or optionally registrable.

In my opinion, in the aforesaid two decisions of the Nagpur High Court and the Patna High Court the full implications of the definition of the expression 'registration' occurring in Section 3, Transfer of Property Act were not considered. It is difficult to understand how a transfer which cannot be validly registered by virtue of the special law supplementing the general law regulating the registration of documents can be held to be invalid on the ground of non-registration on the assumption that it is compulsorily registrable. For such transfers the question of registration does not arise and the validity or otherwise must be determined by the other provisions either of the general law dealing with transfers or of the special law that may be contained in the Tenancy Act.

11. In -- 'Parashram v. Asaram', AIR 1936 PC 301 (G), there are the following observations regarding Sub-sections (3) and (5) of Section 46, C. P. Tenancy Act, which would support the above view.

'It is to be observed that Sub-section (5) does not determine the question of validity or otherwise of the transaction itself. For that purpose reference must be made to Sub-section (3), which alone interdicts certain transfers. Sub-section (5) merely shuts out the evidence, which would furnish a proof of the transfer, but does not enlarge the sphere of the prohibition. 'The registration or non-registration of the document does not affect the inherent character of the transfer, which is to be judged by another provision'. Their Lordships do not think that it can be held that the Registering Officer had no jurisdiction to register the document, because it included a transfer which was of a doubtful validity. They consider that, while the registration cannot be avoided, the validity of the transfer must be tested by the language of Sub-section (3).'

In particular, I would emphasise the passage underlined (here into ' ') where their Lordships have stated unambiguously that the inherent character of the transfer should be judged from Sub-section (3) and not from the fact that the document was registered or unregistered.

12. There are innumerable Nagpur decisions dealing with cases where either through fraud or inadvertence transfers made in contravention of Section 46(3) have been registered by the Registering authorities. As early as 1912 the Calcutta High Court in -- 'Baikantha Nath v. Laboo Nag', 17 Cal WN 621 (H) held that in such cases the remedy for the aggrieved party was only in the Revenue Court under Section 47, C. P. Tenancy Act. This view has been followed in several Nagpur decisions and I need refer only to -- 'Ganeshdas v. Shankar', 13 Ind Cas 909 (Nag) (I); -- 'Kanhaiya v. Sitaram', AIR 1936 Nag 18 (J) and --'Jabbarshah v. Kanchhedi Lal', AIR 1939 Nag 166 (K). Those decisions, however, are not very relevant for the present case inasmuch as the impugned document was not even presented for registration.

13. Mr. Chatterji then urged that the deed of gift ex facie did not contravene the provisions of Sub-section (3) of Section 46, C. P. Tenancy Act and that if it had been presented for registration the Sub-Registrar would not have refused to register the same. In support of this argument he invited our attention to the recitals in the deed of gift in which the donor stated that he had brought up the donee as if he were his son ('Putrapari Lalana Palana Kari') and that the donee was his successor-in-interest ('Tumbhe Ambhara Uttaradhikari Ata'). But this passage does not contain an unambiguous admission that the donee was the next heir of the donor or his co-sharer. The donee is not admitted to be his adopted son. Consequently, the recitals do not fulfil the requirements of Sub-section (5) of Section 46.

14. In the plaint, apart from the occupancy holding, claim was made for a portion of a residential house of the parties. There is, however, no evidence to show that the house was treated as part of the holding being the homestead of a raiyat. The arguments in both the Courts proceeded on the assumption that the entire disputed property was an occupancy holding to which Section 46, C. P. Tenancy Act would apply. In this Court also no separate argument was advanced as regards the invalidity of transfer of the house by the deed of gift. Hence, it is unnecessary to consider whether even if the plaintiff's remedy against the transferee of the occupancy holding is barred he can claim relief as regards that portion of the residential house described in Schedule B-1 of the plaint.

15. I would, therefore, in disagreement with both the lower Courts hold that the plaintiff's only remedy was under Section 47(1), C. P. Tenancy Act in the Revenue Court and that remedy also has become time-barred. The judgment and decree of both the Courts are set aside and the plaintiff's suit is dismissed with costs throughout.

Panigrahi, C.J.

16. I concur.


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