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Rajagopala Ayyar and anr. Vs. Avadai Velar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 101 of 1957
Judge
Reported inAIR1961Mad251; (1961)1MLJ193
ActsRegistration Act, 1908 - Sections 21, 21(2), 21(3), 22, 22(1) and 22(2)
AppellantRajagopala Ayyar and anr.
RespondentAvadai Velar and ors.
Appellant AdvocateM. Natesan, Adv.
Respondent AdvocateT.V. Balakrishnan, Adv.
DispositionAppeal dismissed
Cases ReferredNathulal v. Mst. Gomti Kuar
Excerpt:
property - sale deed - sections 21, 21 (2), 21 (3), 22, 22 (1) and 22 (2) of registration act, 1908 - section 21 requires that description in non-testamentary property should be sufficient to identify property conveyed or dealt with by document and whenever it is practicable description of property should be by reference to government map or survey - description sufficient to identify immovable property conveyed in sale deed - registration of sale deed cannot be refused on ground that description of property in sale deed not by reference to government map or survey - no vagueness or indefiniteness about property conveyed under sale deed - registration of property not to be refused. - - 2. a number of alienees from the lather as well as defendants 1 and 2 were impleaded as party..........conveyed to the plaintiff and his two brothers, defendants 3 and 4, by defendant 43 under a sale deed dated 28-3-1946. the sale was for a consideration of rs. 3,000 of which rs. 1,000 was paid by the plaintiff to defendant 43 at the time of the execution of the sale deed. the vendor, evidently, having at the instance of his brothers, defendants 1 and 2, refused to register the sale deed, the plaintiff and defendants 3 and 4 got it compulsorily registered.the property conveyed under the sale deed is in mannankadu village in paltukottai taluk, which is a shrotriem inam consisting of 16 shares. panchapakesa ayyar and his sons, defendants 1, 2 and 43, owned 2-12-9 shares out of them under a court auction purchase. even after the death of panchapakesa ayyar, his three sons continued,.....
Judgment:

1. This appeal from the judgment of Ramaswami Gounder J. arises out of a suit for partition and separate possession of one third share in the properties conveyed to the plaintiff and his two brothers, defendants 3 and 4, by defendant 43 under a sale deed dated 28-3-1946. The sale was for a consideration of Rs. 3,000 of which Rs. 1,000 was paid by the plaintiff to defendant 43 at the time of the execution of the sale deed. The vendor, evidently, having at the instance of his brothers, defendants 1 and 2, refused to register the sale deed, the plaintiff and defendants 3 and 4 got it compulsorily registered.

The property conveyed under the sale deed is in Mannankadu village in Paltukottai taluk, which is a shrotriem inam consisting of 16 shares. Panchapakesa Ayyar and his sons, defendants 1, 2 and 43, owned 2-12-9 shares out of them under a court auction purchase. Even after the death of Panchapakesa Ayyar, his three sons continued, as before, as members of a Joint Hindu family. Under the said sale deed, defendant 43 sold his undivided one-third share in the 2-12-9 shares in the village.

2. A number of alienees from the lather as well as defendants 1 and 2 were impleaded as party defendants but they were all given up. Defendant 43 remained ex parte and defendants 1 and 2 were the only contesting defendants. They raised various defences but it is only necessary for the purpose of this appeal to refer to two of their namely, (1) that the sale deed did not satisfy the requirements of SECTION 22 of the Registration Act; and (2) that the sale deed was rendered void by a material alteration therein between the dates of its execution and registration.

These two defences found favour with the trial and the first appellate courts with the result that the suit stood dismissed. On second appeal by the plaintiff, Ramaswami Gounder J. differing from the courts below, found no substance in those contentions and allowed the second appeal by granting a preliminary decree for partition as prayed for by the plaintiff and directing him to deposit into court Rs. 2,000 being the balance of the sale price within the specified time to the credit of defendant 43 who was entitled to recover the same.

3. In this appeal before us were reiterated the same two contentions on behalf of defendants 1 and 2 which the first two courts had accepted but rejected by Ramaswami Gounder J. The first of them relying on the provisions of Section 22 of the Registration Act proceeded on the plea that the sale deed, purporting to convey an one-third share in the 2-12-9 shares, contained no description of the properties or survey numbers though the village in which they were situate was surevyed as early as 1930.

It was stated that in the absence of a description of the properties including survey numbers, conveyed by the suit sale deed, it could not be said what properties were intended to be conveyed by and included in the sale deed and that as it was thus vague and indefinite, it was void. The sale deed recited that lands representing 2-12-9 out of 16 shares in the inam Mannangadu village were purchased by the vendor's fattier the late Panchapakesa Ayyar in auction and taken delivery of possession by him and that the vendor conveyed, exclusive of the properties sold by him, and out the balance remaining as detailed thereunder in 2-12-9 shares of nanja, punja, trees, samudayam vagaira in the village, his one third share.

The sale deed went on to say that the vendor left the properties conveyed thereunder in the en-joyment of the vendees from the date of the sale and declared that there were no previous encumbrances in respect of them. Then followed the details of the property which set out the four major boundaries for the inam No. 170 Mannankadu village, Pattukottai taluk and the extent of tie village as consisting of 240 valies inclusive of shrotriem.

The further details given there are: 'Out of the Gana Sankaya Bhagam (aggregate of shares into which the lands of a village are at the time of the original grant equally divided) of 16 shares the share to my vagaira is 2-12-9, out of this my l/3rd share, the nanja, punja, samudayam, trees, two warams, one waram, etc., pertaining to the same and the aforesaid my share (0-14-11), the particulars of the property are, as follows : Survey number- and extent situated in the aforesaid village out of 7 1/4 shares the lake, tank, pond, lane, samudayam, road etc., pertaining to my one-third share, you shall yourself enjoy the same'.

Though the village had been surveyed, the sale deed did not give the survey numbers pertaining to the share of the lands conveyed thereunder.

Notwithstanding the recital that what was conveyed by the vendor was exclusive of the properties sold by him, the evidence was that actually ha had made no sale whatever of any of the properties. On these facts there appears to be no vagueness or indefiniteness about what precisely was conveyed under, the sale deed. What was conveyed by defendant 43 was his one-third share in 2-12-9 pangus out of 16 pangus in Mannankadu village consisting of 240 valies and situate within the specified four major boundaries and it was clearly identifiable.

That being the case, the description of the properties in the sale deed conveyed thereunder complied with the requirements of Section 21(1) of the Registration Act, 1908. In fact the undivided one-third share of defendant 43 which was the subject matter of a release deed executed by him in favour of defendants 1 and 2 subsequent to the suit sale deed, was described in the release deed in term identical with those in the suit sale deed; and that shows that defendants 1 and 2 themselves could think of no better or fuller description to identify the undivided one-third share of defendant 43.

4. But the learned counsel for the appellants, taking his stand on the fact that the sale deed specified no survey numbers, contended that the failure to set out the survey numbers of the lands conveyed was in violation of the requirements of Section 22(1) of the Registration Act and the notification of the Government made under that provision in G. O. Ms. No. 53 Law (Registration) dated 24-4-1933, and that consequently the sale deed was void and unenforceable. Section 22 is in these 'terms:

'22. Description of houses and land by reference to Government maps or surveys:

(1) Where it is, in the opinion of the State Government, practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall for the purposes of Section 22, be so described.

(2) Save as otherwise provided by any rule made under Sub-section (1), failure to comply with the provisions of Section 21, Sub-section (2) or Sub-section (3) shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property'.

This section appears to be more or less complementary to the provisions of Section 21 which require that the description in a non-testamentary document' relating to immoveable property should be such as may be sufficient to identify the property conveyed or dealt with by the document and that whenever it is practicable the description of the property should also be by reference to a Government map or survey. But if a description sufficient to identify the immoveable property conveyed is contained in a sale deed, Section 21 does not appear to warrant a refusal of its registration on the ground that the description of the property in the document, though practicable, was not by reference to a Government map or survey.

In other words, 'the provisions of Sub-sections (2) and (3) of Section 21 are only directory. That was the view taken by this court in one of the earliest cases which is now supported by the provisions of sub-section (2) of Section 22. But the contention of the learned counsel for the appellants was that by reason of the said notification under Section 22(1), the sale deed in question, was not entitled to be registered. The material clauses in the notification read :

'(a) Every non-testamentary document presented for registration and relating to land shall, if the land comprises one or more entire survey fields or sub-divisions, specify the number of each field or sub-division as given in the Government village map.

(b) If the land has no separate number assigned to it in the Government village map, the document shall specify the number assigned in such village map to the survey field or sub-division in which the land is situated, together with such description of the land as is sufficient for its identification.

(c) Failure to comply with the provisions of this rule shall disentitle a document to be register ed'.

Where Clauses (a) and (b) of the notification apply to a document, failure to comply with those provisions may of course, be a good ground for a refusal to register the document. We do not however see how the notification applies to the sale deed under consideration. The conveyance thereunder was of an undivided one-third sharp out of certain pangus in a village and it is nobody's case that it was practicable to describe and delimit the lands comprised in the undivided one-third share with reference to any particular survey field or sub-division on gtound.

Further, as a matter of fact, the sale deed has already been registered and once that has been done it seems clear that Clause (c) of the Notification has, or can have, no more relevance. But it was contended that if a document not entitled to be registered under Clause (c) of the Notification had nevertheless been registered, it would all the same be void. The counsel could find no support for this proposition either from the provisions of the Registration Act, or the rules framed and Notifications made thereunder or any decided cases.

On the premises that from the description given in the sale deed, the property conveyed thereunder could not be identified, which, as we have already stated, is a wrong assumption, the learned counsel for the appellants contended that the sale deed was void and referred us to the decision in Nahar Lal Shah v. Bafinath Shah : AIR1928Cal385 . In that case the finding was that the subject matter of the mortgage had not been identified at all for the purpose of registration within the meaning of Section 21 of the Registration Act and on that finding it was held that even though the mortgage deed was registered it would not be valid.

This decision is obviously of no assistance to us, as, in this case, the description given in the sale deed was quite sufficient to identify the property conveyed thereunder. Reference was also made to Somasundaram Mudaliar v. Rajappa Mudaliar, 52 Mad LJ 140 : AIR 1927 Mad 369, in which it was held that the meaning of Section 22(2) was that, unless the rule framed in Clause (1) to the effect that the property should be described in a particular way (as by giving survey numbers) also says that the document should not be registered unless it was so described, the document might be registered provided the description of the property was sufficient to identify the property. We do not see how this case helps the appellants either.

This is not a suit for compulsory registration of a document. As we said, the sale deed had already been registered and considerations which upon the question whether the document was entitled to be registered have no longer any bearing in the present case. We find, therefore, that there is no substance in the contention of the appellants that the sale deed was void because it failed to comply with the requirements of Section 22 and the notification made thereunder.

5. The second ground urged on behalf of the appellants was that the sale deed was void in consequence of a material alteration in the deed between the dates of its execution and registration, namely, the word 'Yengalal' was scored out and the word 'Yennal' was interlineated. in the body of the sale deed. The sale deed originally stated that the vendor conveyed his undivided one-third share in the pangus belonging to him and his two brothers, defendants 1 and 2, exclusive of the properties sold by them 'Yengalal'.

The argument was that the substitution of the word 'Yennal' for the word 'Yengalal' in the context, materially altered and enlarged the extent of the property conveyed by defendant 43 under the sale deed and also made it possible for the plaintiff and his two brothers as vendees to challenge the alienations of some of the properties effected for purposes binding on the family consisting of defendants I, 2 and 43.

In this connection reference was made to the fact that originally the plaintiff had impleaded all the alienees as party defendants in the suit but later on gave them up and that the suit eventually proceeded only as against defendants 1, 2 and 43. The learned counsel for the appellants also cited authorities to elucidate what is meant by a material alteration. In 11 Halsbury's Laws of England, (Simond's Edn.) paragraph 599 at page 368, it is stated ;

'A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in' its original state, or otherwise varies the legal effect of the instrument as originally expressed'.

The effect of making such an alteration without the consent of the party bound, according to the rule of English law, is exactly the same as that of canceling the deed. The meaning and effect of a material alteration thus stated, has been held to apply to this country by the Privy Council in Nathulal v. Mst. Gomti Kuar . We do not think it necessary to refer to the other cases cited by the learned counsel on the subject. That there was an alteration of the word 'Yengalal' into 'Yennal' in the deed has been found to be a fact by the first two courts below and it can no longer be in controversy. The question, therefore, is whether it was a material alteration in the sense mentioned above. We have no hesitation in Holding that the alteration was quite inconsequential and made no difference to the rights and liabilities of the vendor and the vendees under the sale deed, both in regard to the terms of the sale and the extent of the property conveyed thereunder. The word 'Yengalal' undoubtedly included the vendor. The vendor himself had made no earlier conveyance of any of the properties in Mannankadu village. The evidence of course showed that defendants 1 and 2 had sold some of the properties but defendant 43, the vendor, did not join them or either of them in any of the sales. It is not possible to read the word 'Yengalal' as only referring to the family as such of defendants 1, 2 and 43 so as to regard the alienations by defendants 1 and 2 as being on behalf of the family. What was sold by defendant 43 to the plaintiff and his two brothers, defendants 3 and 4 was his undivided one-third share in the pangus belonging to him and his two brothers. Under the sale deed defendant 43 did not reserve to himself any interest out of his one-third share. Whatever undivided interest he was entitled to was what was sold under the sale deed. In these circumstances, with respect, we agree with Ramaswami Gounder J. that the alteration did not in any way, affect the rights and liabilities of the vendor and the vendees under the suit sale deed and cannot, therefore, be held to be a material alteration to avoid the deed.

6. The learned counsel for the appellants represented to us that as defendants 1 and 2 bad paid defendant 43 a sum of Rs. 2,000 as consideration for the release deed dated 29-3-1946 and executed by the latter in favour of the former, it would be just and equitable to direct the deposit of Rs. 2,000 in the trial Courts made by the plaintiff being the balance of the price under the suit sale deed, to be paid not to defendant 43 but to defendants 1 and 2. We do not know whether, as a matter of fact, the plaintiff has made the deposit. Even if he has, defendant 43 is not represented before us. In the circumstances, it is a matter to be dealt with appropriately by the trial court in proper time if defendants 1 and 2 move that court for the purpose.

7. The appeal, therefore, fails and is dismissedwith costs against defendants 1 and 2.


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