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Hari Chand L. Sharna Mal Vs. Gordhan Das Faqir Chand Vaish and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 1 of 1952
Judge
Reported inAIR1957P& H238
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rule 6 - Order 41, Rule 1; Easements Act, 1882 - Sections 1, 4 and 15; Limitation Act, 1908 - Sections 26; Punjab Pre-emption Act, 1913 - Sections 16 and 21A; Transfer of Property Act, 1882 - Sections 54; Registration Act, 1908 - Sections 35, 47, 49 and 52; Evidence Act, 1872 - Sections 91
AppellantHari Chand L. Sharna Mal
RespondentGordhan Das Faqir Chand Vaish and ors.
Appellant Advocate Gurbachan Singh, Adv.
Respondent Advocate Hardayal Hardy, Adv.
DispositionAppeal allowed
Cases ReferredNabadwip Chandra v. Loka Nath
Excerpt:
.....and i am in perfect agreement with that view. budhan mahto, air 1941 pat 247 (h) a subsequent sale-deed in respect of the same property executed after the first deed but registered earlier than the first was not held to be effective so as to give good title to the purchaser under the second deed. --a right of pre-emption can be said to have been effectively exercised or enforced only when the pre-emptor has become actually substituted for the vendee in the original bargain of sale. the analogy of substitution of a pre-emptor who has obtained a decree in a suit for pre-emption coming into effect on the payment of the price into court would have no application to a case like the present for the simple reason that in the former case it is so provided in the decree itself and also..........in gali panibari, teliwara, delhi to shrimati kapuri devi defendant no. 1 for rs. 6000/- the sale-deed was executed on 21st september and registered on 25th september, 1949. on 6th october 1950, gowardhan das brought the present suit, basing his preferential right of pre-emption on the following grounds:--(a) contiguity of his house towards east of the house in dispute;(b) there being a common wall between the two houses; and(c) that water from a spout (pamal) and a drain (mori) of the plaintiff's house passed through the house in suit, thus giving him a right of easement.'in the month of september, the courts were closed for summer-vacation and therefore the suit was within time.2. defendant no. 1 in her written- statement disclosed that she had sold the house to hari chand.....
Judgment:

Chopra, J.

1. This is an appeal by Hari Chand defendant, in a suit for pre-emption decreed against him by Sub Judge 1st Class, Delhi. Defendants Nos. 2 and 3 sold their house situate in Gali Panibari, Teliwara, Delhi to Shrimati Kapuri Devi defendant No. 1 for Rs. 6000/- The sale-deed was executed on 21st September and registered on 25th September, 1949. On 6th October 1950, Gowardhan Das brought the present suit, basing his preferential right of pre-emption on the following grounds:--

(a) contiguity of his house towards east of the house in dispute;

(b) there being a common wall between the two houses; and

(c) that water from a spout (pamal) and a drain (mori) of the plaintiff's house passed through the house in suit, thus giving him a right of easement.'

In the month of September, the Courts were closed for summer-vacation and therefore the suit was within time.

2. Defendant No. 1 in her written- statement disclosed that she had sold the house to Hari Chand appellant, and thereupon the latter was impleaded as defendant No. 4 in the suit. The sale-deed in favour of appellant was executed on 2nd September 1950 and registered on 4th December 1950. In his amended plaint the plaintiff denied all knowledge of this sale, and alleged that if there was one, it was fictitious, illegal and void. It was further submitted that since the sale took place after the institution of the suit it could have no effect and that, in any case, the plaintiff had a preferential right of pre-emption even as against defendant No. 4. Defendant No. 4 contested the suit alleging that the sale deed in his favour was executed in recognition of his pre-emptory right which was equal to that of the plaintiff, his own house being contiguous towards west of the house in dispute. The pleadings gave rise to the following issues:

'1. Has defendant No. 1 sold the house in dispute in favour of defendant No. 4 ?

2. If issue No. 1 is proved, is the sale fictitious, illegal and void ?

3. Has the plaintiff a superior right of preemption to defendant No. 4 ?

4. Is the suit within time against defendant No. 4?

5. Relief.'

The trial Court held that defendant No. 1 had sold the house in dispute in favour of defendant No. 4, that the sale was not fictitious or void, that the suit against defendant No. 4 was within time and that the plaintiff had a superior right of pre-emption. The suit was consequently decreed on payment by the plaintiff of Rs. 6000/- to defendant No. 4.

3. A preliminary objection as to the proper presentation of the appeal is raised on behalf of the respondents on the ground that the memorandum was not accompanied by a copy of the decree appealed against. The objection in fact is that the decree prepared by the trial Court, copy of which is filed with the appeal, is not in accordance with the provisions of Order XX Rule 6, Civil Procedure Code and is not capable of execution. Mr. Hardyal Hardy, learned counsel for the respondents, submits that the appellant ought to have applied for amendment of the decree by correction of the material clerical omissions therein and field the appeal after it was amended and made executable.

It is correct that the decree is not properly prepared; it is hopelessly defective. The decree dos not recite the final decision of or the order made by the Court; the operative portion of the printed form of the decree-sheet is all left blank. It does not even state by which of the parties the costs, details of which are given, are to be paid. The whole thing does not reflect favourably on the staff which prepared the decree, and the Presiding Officer who failed to notice the defects when he signed the decree. They ought not to have been so negligent about it.

All the same, the appellant was in no way responsible for the mistake. He cannot be penalised for any fault of the Court. It would bo unnecessarily prolonging the litigation, if I were to direct that a proper-decree Be prepared and that the appellant should then obtain a copy of the amended decree and file it with the appeal. A proper and executable decree can be prepared by this Court on decision of the appeal on merits, which would include the decree of the trial Court as well. I would therefore reject the preliminary objection and proceed to decide the appeal on merits.

4. The decision of issues Nos. 1 and 2 is not being challenged before us. As regards the superior right of the plaintiff, the plea of there being a common wall between the two houses did not find favour with the trial Court, and the finding is no longer disputed. It is further admitted that the plaintiff's house and that of defendant No. 4 adjoin on either side of the house in dispute. On that score, therefore, the plaintiff's right to pre-empt the sale is not superior to that of defendant No. 4. Superiority is, however, claimed on the basis of the plaintiff's alleged right of easement. A similar claim to the right of easement with respect to his own house was also put forth by defendant No. 4. This plea of the defendant was not accepted by the trial Court, and the point is no longer pressed in this appeal.

5. Shri Gurbachan Singh, learned counsel for the appellant, contends that there is no clear and cogent evidence in support of the claim to a right of easement by the plaintiff. The plaint does not state whether the easement was acquired by grant or by prescription. There is no evidence or even an allegation that it was acquired by means of any grant. Evidence on the point of easement is confined to the testimony of Joti Parshad P. W. 4 and Gowardhan Das plaintiff himself. On going through their statements, I am left with no doubt trfat the contention must prevail. Joti Parshad states that he was occupying the house in dispute as a tenant for the last twelve or fourteen years.

He speaks of a drain of the plaintiff's house opening into the house in dispute, but his knowledge is limited to the period of his occupation. The witness denies the existence of any spout of the plaintiff's house on or towards the house in suit. All that the plaintiff states on the point is: 'My two drains open in this house.' He does not say since when the drains are there, whether the User was permissive or by way of prescription, and, if the latter, whether he had prescribed for the full period.

6. Under Section 16 of the Punjab Preemption Act, the right of pre-emption in respect of urban immovable property vests, where the sale is of a servient property, in the owner of the dominant property, and vice-versa. Section 4 of the Easements Act describes the right of easement and dominant and servient heritages like this:--

'An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.

The land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof the dominant owners the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.'

Section 15 of the Easements Act lays down the conditions necessary for acquisition of a right of easement by prescription. The conditions necessary for the -acquisition of the right are;

1. The right claimed must have been enjoyed Independently of any agreement with the owner or occupiar of the land over which the right is claimed;

2. it must have been enjoyed peaceably, openly, as of right, as an easement and without interruption for twenty years.

The section further provides that the period of twenty years must be one ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. It is then and then only that the right becomes indefeasible and absolute.

7. In place where the Easements Act does not apply, as in the Punjab, the case may be decided according to the principles laid down therein, which are based upon justice, equity and good conscience.

8. According to Section 26 of the Limitation Act, where any way or watercourse, or the use of any water, or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption, and for twenty years, the right to such watercourse, use of water or other easement shall be absolute and indefeasible. The section further provides that the period of twenty years shall be taken to be a 'period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

9. It is thus clear that to prove the right of easement claimed by the plaintiff and to make him the dominant owner it was necessary to prove that the plaintiff was in peaceful, upon end uninterrupted enjoyment of that right for a period of twenty years lasting within two years of the suit. In that the plaintiff has totally failed. As already observed, the plaintiff does not say since when he is in enjoyment of that right, the knowledge of his solitary witness does not run beyond twelve or fourteen years. I shall therefore hold that the plaintiff cannot claim any superior right of pre-emption on that ground.

10. Mr. Hardy supports the decree of the trial Court on another ground. He submits that the' sale in favour of the appellant actually took place on 4th December 1950, when the sale deed was registered, and since that happened after the period of limitation has expired and the present suit has been instituted, the rule of lis-pendens applied and the appellant could not resist the plaintiff's suit on the basis of his own right. Section 21-A of the Punjab Pre-Emption Act is clear on the point, it says:--

'Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit.'

The question then arises whether the sale in favour of Hari Chand appellant is to be regarded as having taken place on 2nd September 1950, when the sale-deed was executed, or on 4th December 1950, when the deed was registered. The argument of Mr. Hardy is that till the instrument was registered it could have no effect on the property transferred and no title or interest therein passed on to the appellant, for the deed was required to be eompulsorily registered. It is further submitted that even the consideration was not paid when the deed was executed, nor was physical possession delivered to the vendee. Section 54 of the Transfer of Property Act, Sections 17 and 49 of the Registration Act and Section 91 of the Evidence Act are being referred to in support of the proposition. Reliance is also placed on Mt. Sant Kaur v. Teja Singh. AIR 1946 Lah 142 (FB) (A), Mahomed Saddiq v. Ghasi Ram, AIR 1946 Lah 322 (FB) (B), Naresh Chandra Dutta v. Girish Chandra Das, AIR 1936 Cal 17 (C) and Gobardhan Bar v. Gunadhar Bar AIR 1941 Cal 78 (D).

11. The learned trial Judge decided the point in favour of the defendant and I am in perfect agreement with that view. The fact that the price was not paid at the time of registration is of no consequence. In the absence of a clear intention common to both the parties to a sale that the ownership should not pass until the consideration has been actually paid and the deed of sale registered, the accomplishment of this condition is not essential to the completion of sale. Mere non-delivery of possession or stipulation to deliver possession at a later period does not prevent the sale from being complete. Mansabdar v. Nalu Bakhsh 43 Pun. Re. 1900 (E) Here, the plaintiff's own witness. Joti Parshad, admits that he was occupying the house in dispute as a tenant at the time of its sale to defendant No. 4, and that he attorned to the defendant by executing a lease-deed in his favour. Udmi Ram (D, W. 1), husband of Kapuri Devi defendant No. 1, states that possession of the house was delivered by getting a rent-deed executed by Joti Parshad in favour of defendant No. 4.

12. This is not a case where the sale-deed was never registered. The sale-deed was registered at the time when it was sought to be proved or given effect to. Section 49 of the Registration Act and Section 91 of the Evidence Act, therefore, did not stand in the way of proof of the document or giving effect to the sale. Section 47 of the Registration Act lays down that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been reequired or made, and not from the time of its registration. A document which has been registered dates back to the date of its execution. A sale-deed of immovable property operates immediately after its registration, not from the date of registration, but from the date of its execution.

13. IN Kalyanasundaram v. Karupa Moop-panar, AIR 1927 P. C. 42 (F), it was held that where the donor of immovable property has handed over to the donee an instrument of gift duly executed and attested, and the gift has been accepted by the donee, the donor has no power to revoke the gift prior to the registration of the instrument Their Lordships while rejecting the contention that the gilt was not complete until registration or that, as the grantor had before registration adopted the appellant as a son, the latter's rights in the family property had intervened so as to revoke or invalidate the gift, observed that the provisions of Section 123 of the Transfer of Property Act (which required that a transfer of immovable property by gift can only be effected by a registered instrument) cannot be reconciled with Section 47. of the Registration Act, except upon the view that, while registration is a necessary solemnity in order to the enforcement of a gift of immovable property, it does not suspend the gift until registration actually takes place. Their Lordships proceed to observe:--

'When the instrument of gift has been handed by the donor to the donee and accepted by him, tho former has done everything in his power to complete the donation and to make it effective. Registration does not depend upon his consent, but is the act of an officer appointed by law for the purpose, who, if the deed is executed by or on behalf of the donor and is attested by at least two witnesses, must register it if it is presented by a person having the necessary interest within the prescribed period. Neither death, nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with.'

14. In Boota Ram v. Bhagga Singh AIR 1948 Lah 103 (G) a suit for pre-emption was thrown out because the vendee had improved his status and brought it equal to that of the plaintiff by acquiring property by means of a gift-deed which was executed before but registered after the institution of the suit.

15. In Jeo Narayan v. Budhan Mahto, AIR 1941 Pat 247 (H) a subsequent sale-deed in respect of the same property executed after the first deed but registered earlier than the first was not held to be effective so as to give good title to the purchaser under the second deed.

16. In Sadei Sabu v. ChandramanI Del, AIR 1948 Pat 60 (I) it was observed that Section 47 of the Registration Act and Section 54 of the Transfer of Property Act have to be read together and this leads to the obvious result that a deed of sale executed before the institution of a suit for specific performance of a prior contract for sale of the same property but registered thereafter cannot be regarded as executed pendente lite. Decisions in AIR 1936 Cal 17 (C) and AIR 1941 Cal 78 (D) which are being relied upon by Mr. Hardy in support of his contention that the provisions of Section 47, Registration Act, operate only as between the parties to the deed and that they do not affect the rights of third parties, were considered in this case and distinguished. It was further observed that in so far as those cases purport to interpret Section 47. Registration Act they appeared to be inconsistent with the decision of their Lord-ships of the Privy Council in AIR 1927 P. C. 421(F).

17. In Venkataramana v. Rangiah AIR 1922 Mad 249 (J) and in Guru Basanna v. Setra Santhappa, AIR 1925 Mad 359 (K), it was held that a mortgage or a sale deed executed before but registered after the institution of a suit is not affected by the doctrine of lis pendens, for the deed on registration takes effect from the date of its execution.

18. Nabadwip Chandra v. Loka Nath AIR 1935 Cal. 212 (L) is a case where subsequent to the execution of a mortgage but prior to its registration the property was attached. It was held that by operation of the provisions of Section 47, Registration Act, the attachment could have no effect on the mortgage lien.

19. Now, let us turn to the decisions relied upon by Mr. Hardy. They appear to have no bearing on the facts of this case. In AIR 1946 Lah. 142 (FB) (A), the question referred to the Full Bench was--

'Whether a sale by a vendee in favour of a superior pre-emptor during the pendency of a suit for pre-emption but after the expiry of the period of limitation entitled the subsequent transferee to be impleaded as a party to the suit so as to be able to defeat the right of preemption claimed by the plaintiff.'

The question was answered in the negative. Achhru Ram J. while accepting, the proposition that where during the pendency of a suit for pre-emption and before the expiry of limitation for instituting a suit for pre-emption the vendee transfers the property sought to be pre-empted in favour of A in recognition of his right of preemption and in recognition of his right to enforce that right by means of legal action, the transfer by the vendee to A cannot be regarded as voluntary so as to attract the rule of lis pen-dens and that in such a case A must be regarded as having simply been substituted for the vendee in the original bargain of sale and he can defend the suit on all pleas which he could have taken had the sale been initially in his own favour, proceeded to observe:--

'However, where the subsequent transferee has lost the means of making use of the coercive machinery of the law to compel the vendee to surrender the original bargain to his, a retransfer of the property in the former's favour cannot be looked upon as anything more than a voluntary transfer in the former's favour of such title as he had himself acquired under the original sale. Such transfer has not the effect of substituting the subsequent transferee in place of the vendee in the original bargain. Such a transferee takes the property only subject to the result of the suit. Even if he is impleaded as a defendant in such suit, he cannot be regarded as anything other than a representative-in-interest of the original vendee, having no right to defend the suit except on the pleas that were open to such vendee himself.'

No argument is required to impress that the observations have no application to the facts of the case in context.

20. In AIR 1946 Lah, 322 (FB) (B), it was held that the doctrine of lis pendens applied to a case where before the institution of the suit for pre-emption an agreement to sell the property has been executed by the vendee in favour of another prospective pre-emption with an equal right of pre-emption and subsequent to the institution of the suit, in pursuance of the agreement, a sale-deed has been executed and registered in the latter's favour, after the expiry of limitation for a suit to enforce his own pre-emptive right. Particular stress is being laid by Mr. Hardy upon the following observations of Achhru Ram J. at page 325 of his judgment:--

'A right of pre-emption can be said to have been effectively exercised or enforced only when the pre-emptor has become actually substituted for the vendee in the original bargain of sale. Till such substitution takes place the vendee remains the owner of the property purchased by him and the prospective pre-emptor cannot claim to have any right to or in the subject matter of the sale. Where the preemptive right is sought to be enforced by means of a suit, such substitution takes place, and the pre-emptive right is deemed to have been exercised or enforced, only when the price has been paid by the pre-emptor into Court in compliance with the decree passed in his favour. Till such payment has been made, the act of the pre-emptor in instituting the suit for pre-emption amounts to no more than a mere assertion of the right, which becomes a successful assertion of the right when the suit culminates in a decree. There is however a vast difference between a mere assertion, albeit a successful assertion, of the pre-emptive right and the exercise or enforcement of that right.'

The observations are to be read in context of the facts of that case. Merely an agreement to sell could not have the effect of substituting the prospective purchaser in place of the original vendee. The substitution took place only when the sale-deed was actually executed. In the present case we are not concerned with an agreement to sell but an outright sale, the sale-deed having been registered subsequently. The analogy of substitution of a pre-emptor who has obtained a decree in a suit for pre-emption coming into effect on the payment of the price into Court would have no application to a case like the present for the simple reason that in the former case it is so provided in the decree itself and also because no sale-deed is executed by the vendee in favour of the prospective pre-emptor.

21. In AIR 1936 Cal 17 (C) the question for determination was when does the right to pre-empt a sale under the Mohammadan Law-arise, whether on the execution of the sale-deed or on its registration. It was held that incompleteness due to want of registration is not a thing of which the executant can take any advantage and that if the instrument is otherwise complete, the executant is to be regarded as having done everything that was in his power to complete the transfer and to make it effective, but as regards third parties the point of time on which the transfer is to be effective as when the deed of transfer can be said to be a registered deed. This decision was followed by a Division Bench of the same Court in AIR 1941 Cal 78 (D).

There, too, it was observed that as between the transferor and the transferee a registered document takes effect from the date of its execution. On the question as to which of the statutes, the one obtaining at the time the deed was executed or the one that had come into force before the deed was registered, would be applicable to determine the rights of a preemptor, it was found that the apparent intention of the Legislature was that the provisions of the hew Act would be applicable in respect of the transfers which were registered after the new Act came into force, although the instrument with respect to them was executed earlier when the old Act was in force.

22. In the present case, the sole question is when did substitution of defendant No. 4 for the original vendee take place. As between them, admittedly the sale was complete when the deed was executed. The substitution did not remain in abeyance till the deed was registered. It means that the substitution took place before the expiry of limitation for a suit for pre-emption and before the suit was instituted. What Section 52, Transfer of Property Act, prohibits is the transfer of or otherwise dealing with the immovable property which is the subject-matter, of a suit, during the pendency of that suit. Undoubtedly, the transfer was made before the suit was instituted.

Hari Chand appellant served Shrimati Kapuri Devi, the original vendee, with a notice of pre-emption. She, in recognition of his right of pre-emption, transferred the house by executing a sale-deed in his favour on 2nd September 1950. By then, the suit had not been filed, nor had limitation for a suit for pre-emption expired. Kapuri Devi did not agree to get the sale-deed registered, and thereupon Hari Chand submitted an application (Exhibit D 1 dated 29th November 1950) to the Sub Registrar, Delhi, for registration of the sale-deed. Kapuri Devi then appeared before the Sub-Registrar on 4th December 1950 and admitted execution of the sale-deed, and the deed was registered. As observed by the Privy Council in Kalyanasundaram's case (F), registration is the act of an officer appointed by law for the purpose, who, under the given conditions, must register the deed if it is presented by a person having the necessary interest within the prescribed period. The registration did not depend upon Kapuri Devi's sweet will or consent.

Her admission of the execution of the deed before the Sub-Registrar did not amount to dealing with the property within the meaning of Section 52 of the Transfer of Property Act. I am, therefore, of the view that the rule of lis pen-dens has no application to the present case. Hari Chand appellant made use of the coercive machinery of law in compelling Kapuri Devi to surrender the property in recognition of his right of pre-emption and got himself substituted for Kapuri Devi in the original transaction of sale in her favour. Kapuri Devi divested herself of all the rights in the property by executing the sale-deed in favour of Hari Chand. Consequently, the plaintiff would succeed only if he could show that he had a superior right of preemption as against defendant No. 4. In this, as already observed, he has totally failed.

23. No other point has been urged by anyof the parties.

24. In the result the appeal is accepted with costs and the suit dismissed.

Bishen Narain, J.

25. I agree.


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