1. The lower Appellate Court should not have gone into the question of the genuineness (that is, the execution by the ostensible excellent) of the sale-deed C, when the grounds of appeal to the lower Appellate Court did not raise any such contention and when the document was allowed without objection in the District Munsif's Court to be exhibited and argued upon as a genuine document.
2. Some of the other questions, namely, whether the document was nominal or fictitious, whether its registration was legally effected (that is, whether a fictitious land was included in it for purposes of registering it in a particular Registration Office, and whether that fact legally invalidates the registration), and the contention as to title, etc., mentioned in the District Munsif's judgment have not been considered at all by the lower Appellate Court and the rest have not been decided by it.
3. We request the lower Appellate Court to submit its findings on these questions.
4. Further evidence will be allowed only on the facts connected with the question of the validity of the registration of Exhibit.
5. The findings should be submitted within two months from receipt of records and ten days will be allowed for filing objections.
In compliance with the order contained in the above judgment, the Subordinate Judge of Ramnad at Madura submitted the following
1. I have been directed to submit by findings on the following issues--
(1) Whether the decedent Exhibit C is nominal or fictitious, whether its registration was legally effected (that is, whether a fictitious land was included in it for purposes of registering it in a particular Registration Office and whether that fact legally invalidates the registration)?
(2) Whether the plaint land belonged to the 4th defendant and title passed to Nachiyappa Chetti and from him to plaintiff?
(3) Whether the rent sale relied on by the 5th defendant is true and valid or whether it is fraudulent or collusive as pleaded by plaintiff?
2. As per their Lordships' order, additional evidence was taken only on the question relating to the validity of the registration of Exhibit C.
3. I shall first take up issues Nos. 2 and 3 together. Admittedly, the suit land No. 566, Veppal Punjah 1 kuli and add, in the village of Chinnavallikkulam, originally belonged to Poosari Subba Reddi. The plaintiff's case is that Poosari Subba Reddi sold this land to 4th defendant, Venkatachala Reddi, under Exhibit A, dated 15th May 1890, that the latter inter alia mortgaged it to Nachiyappa Chetti, now examined as plaintiff's 4th witness, that the latter obtained a mortgage decree against the 4th defendant and purchased in execution of that decree the suit land and three other items of land and got possession of the same through Court under Exhibit E in November 1899, and that he sold the suit land along with a house site at Aratnanaippatti, 80 miles off the suit village, Chinnavallikkulam, to the plaintiff under Exhibit C, dated 4th August 1911, i.e., about two months before the institution of this suit. The congesting defendants are Nos. 8 and 9 who are the legal representatives of the 5th defendant the late melwardtndar of the suit village. Their claim is confined to 0-14-0 kali of the suit land and they are not interested in the remaining extent. Their case is that so far as 0-14-0 huli is concerned, Poosari Subba Reddi continued in possession of the land, that neither the 4th defendant as owner, nor Nachiyappa Chetti ever enjoyed the land, that for arrears of rent for Fasli 1313, 0-6-1 kuli was brought to sale and the 5th defendant purchased it on 26th January 1905, and similarly be purchased 0-7-3 huli on 25th January 1903 at a rent pale held for arrears of rent of Fasli 1314, and that ever since the 5th defendant was enjoying the land through his tenants, defendants Nos. 1 to 4. The question is who was in possession of the land claimed by defendants Nos. 8 and 9 since 1890 until the dates of the rent sales?
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11....P. Subba Reddi was the real owner of the land claimed by defendants Nos. 8 and 9 at the time of the rent sale. The Ambalam (defendants' 1st witness) speaks to the rent sales and the Kurnam (defendants' 3rd witness) also says that be prepared arrears lists that led to the sales, that notice was duly served and that the sales were conducted in a public manner. There is absolutely no evidence that the sale was brought about fraudulently or collusively. I find on the 3rd issue that the sale relied on by the 5th defendant and his heirs is true and valid and that he acquired a valid title to at least 0-12-2 kuli of the suit land [to the north of defendants' 2nd witness, T. Subba Reddy's Punjab land and to the east of A. Kumaru's Punjab land (vide Exhibits III and IV)].
12. Issue 2.--On the above finding, even if the 4th defendant or Nachiyappa had any title to the said 0-12-2 kuli out of the suit land, it must be taken that the title had become extinguished before the date of Nachiyappa's sale to the plaintiff under Exhibit C (dated 4th August 1911) and that, therefore, no title passed to the plaintiff under Exhibit C so far as the said extent of land is concerned. As regards the remaining except , there is practically no contest, and the plaintiff may be entitled to it, if the sale deed, Exhibit C, in his favour be found to be valid under issue 1.
13. Issue 1--As already stated, Nachiyappe Chetti's sale deed in favour of the plaintiff Exhibit C covers 2 items, a house site at Aramanipatti, 80 miles off the Punjab land. On behalf of the contesting defendants, it is urged that item No. 1, i.e, house site at Aramanippatti was included in Exhibit C merely for the purpose of getting the document registered at Tiruppattur, that the Chetti had absolutely no interest in that item, and did not really intend to convey it to the plaintiff, and that- the plaintiff too did not intend to purchase it. No doubt, the Chetti has now been called and be says that the site was his ancestral property and that be really intended to sell and did sell that site also to the plaintiff, as the latter wanted to build a go down at Aramanaippatti for the purpose of his alleged trade in cotton seeds.
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17. It is suggested on behalf of the contesting defendants, and I think with reason, that the Chetti was only too willing to get rid of the suit land situated in a village 80 miles off his own and which he had not been able to get possession of, and he, therefore, readily agreed to sell his doubtful title in the land to the plaintiff for a small price, but at the same time he did not want to take the trouble of going to such a distant place to get the sale-deed for such a small price registered. He, therefore, adopted the device of including in the sale deed, the site item No. 1 to which he had absolutely no claim and which be did not really intend to convey to the plaintiff, all merely for the purpose of getting the document registered near his own village, i.e., at Tiruppattur. The document itself was executed not at Aramanaippatti where the site is situate but at Tiruppattur and it was not attested by any Chetti.
18. Although the house site item No. 1 is a property really in existence, it must be held that this parcel is in fact a fictitious entry and represents no property that the vendor intended to convey or that the vendee intended to purchase. In the words of their Lordships of the Judicial Committee in Harendra Lal Roy v. Hari Dasi Deli 23 Ind. Cas. 637: (1914) M.W.N. 462 : 16 M.L.T. 6 : 16 Bom. L.R. 400 : 12 A.L.J. 774 'Such an entry, intentionally made use of by the parties for the purposes of obtaining registration in a District where no part of the property actually charged and intended to be charged (here intended to be conveyed) in fact exists, is a fraud on the Registration Law, and no registration obtained by means thereof is valid.' So far as item No. 2 is concerned, the transaction was a speculative one, but that by itself would not affect the validity of the document, but as regards item No. 1 it must be held that a fictitious entry was made in the deed merely for the purpose of registering the deed in a particular Registration Office, viz., Tiruppattur Office, and that that fact legally invalidates the registration under the ruling quoted above. I find the 1st issue accordingly.
This second appeal coming on for final hearing after the return of the findings of the lower Appellate Court on the issues referred by this Court for trial, the Court delivered the following
6. We accept the findings of fact and following Harendra Lal Roy v Hari Dasi Vedi 23 Ind. Cas. 637: 16 M.L.T. 6 : 16 Bom. L.R. 400, we hold that the plaintiff's sale-deed has not been legally registered, neither the vendor nor the vendee intending that the property included in the sale-deed solely for the purpose of facility of registration in an office not having otherwise jurisdiction to register it should be really affected by the sale-deed.
7. The second appeal is, therefore, dismissed with costs.