1. The objection to the sale under Section 21 of the Registration Act, based on the vagueness of description of the property sold (see paragraph 4 of the Appellate Court's judgment), is not sustainable. On the question of the validity of the registration of the deed, the Temporary Subordinate Judge's judgment has been so expressed that was are unable to discover whether he meant that in his opinion the parties did or did not intend that property in the one cent of land in R.S. No. 236/2 should pass by the sale deed.
2. In the first part of paragraph 5, the Subordinate Judge says 'it does appear that (he parties did not really intend to sell or to purchase the said one cent of land.' Later on be says that 'it cannot be said that it is so patent that the parties intended that the property should not pass in the one sent.'
3. Finally he concludes this paragraph by finding the let point in the affirmative, that point being itself worded in a negative form.
4. We call on the present Subordinate Judge of the Temporary Court to return a fresh finding on the 9th issue in the suit on the evidence on record within six weeks Seven days will be allowed for filing objections.
5. In compliance with the order contained in the above judgment, the Temporary Subordinate Judge of Rajahmundry submitted the following
6. FINDING--The appeal has been remitted by their Lordships of the High Court for a fresh finding on the 9th issue, viz., 'whether the suit sale-deed is not valid for want of proper registration?'
7. The question raised by the issue really involves two points:
(1) Whether the parties to the sale-deed, Exhibit I, did not intend that the property in the 1 cent of land in R.S. No. 236/2 should pass by the document?
(2) If so, whether the registration of the document in the Sub Registry Office at Amalapur was illegal, being in fraud of the Registration Law and the sale-deed was accordingly not valid?
3. 1st point.--The 1 cent of land in dispute is not mentioned at all in the body of the sale-deed, Exhibit I, which recites the arrangement of sale as being only in reference to the 15 acres 88 cents of land detailed lower down. The operative part of the sale deed, directing the vendee to enjoy the land with rights of gift and sale, etc., from generation to generation, has reference also to the 15 acres 88 cents of land mentioned previously. The schedule at the end of the document, however, sets forth the 1 cent of land as the 1st item, 3 other lands which make up a total of 15 acres 88 cents being subsequently entered. The 1 cent of land is situate in Amalapur within the jurisdiction of the Sub-Registry Office at that place,' while the other lands are at Krapa, within the jurisdiction of the Sub-Registrar of Mummidivaram. The 1 cent is an unascertained part of R.S. No. 236/2, which is admittedly of much larger extent.
4. The plaintiff's 1st witness K. Janakiramayya, who is one of the attestors of the sale deed, affirms that there was no intention to sell the 1 cent of land in question under the sale deed, that it was included in the document for the purpose of registry at Amalapur, and that the entire land No. 236/2 has been in the possession and enjoyment of the 5th defendant's family, i.e., the family of the vendors. The 6th defendant, who was one of the vendors, as D.W. No. 1 no doubt states in his examination-in-chief that the 1 cent was also arranged to be sold and was actually sold; but in his cross-examination he deposes as follows:
The Krapa land 15 acres 88 cents was arranged to be fold. Krapa is in Mummidivaram Registry. For the purpose of the document being registered at Amalapur, 1 cent of land of Amalapur was added.As to the subsequent enjoyment of the 1 cent of land, the witness prevaricates by stating at first that it was being enjoyed by the 8th defendant's husband (vendee deceased), and then by saying that it has been kept waste. He also concedes that the vendee never paid taxes on the 1 cent and that his own family members have been paying the same for the entire land. The witness further admits that the situation of the 1 cent of land has never been ascertained and made definite,
5. So far as the evidence of the 6th defendant is concerned, it is prevaricative and unreliable; and if it shows anything at all, it is that the 1 cent of land has been along with the rest of the land in R.S. No. 236/2 in the enjoyment of his own family members, notwithstanding its inclusion in the sale-deed in favour of 8th defendant's husband, and that the 1 cent was added on in the sale deed just for facilitating the registration of the document in the Amalapur Sub Registry Office, which had otherwise to be done at Mummidivaram. The plaintiff's 1st witness is no doubt the maternal uncle of the plaintiff; but he was an attestor of the sale deed and as such cannot be regarded as a stranger unacquainted with the transaction. His testimony that there was no intention to sell the 1 cent of land and it was included in the sale deed just for the purpose of registering the document at Amalapur, receives corroboration not only from the peculiar wording of the document; indicated above but also from the evidence of the 6th defendant himself. The fact that an insignificant and undefined part of a larger extent of land was included in the sale deed just for the purpose of registering the document at Amalapur, the entire land continuing in the enjoyment of the vendors themselves, also goes in support of the evidence of the plaintiff's witness. Under snob circumstances, I do not think the lower Court was right in rejecting the evidence of the witness on the point in a summary fashion.
6. My predecessor, who heard the appeal originally, was also of the opinion that the parties did not really intend to sell or purchase the 1 cent of land. Later on in the course of his judgment he no doubt stated that it was not so patent that the parties intended that the property should not pass in the 1 cent; but he would seem to have so expressed himself for the purpose of distinguishing the present case from the ruling in Azmat Alt v. Sitla Bnx Pal 16 Ind. Cas. 108 : 9 A.L.J. 766. But with the due deference, I think it should make no material difference whether in a case of this kind the intention not to pass property is patent on the face of the documents or is to be established from other evidence,
7. The learned Vakil for the respondent no doubt argues that though the I cent might have been included in the sale deed for the sole reason of facilitating registration at Amalapur, the parties might have done so with intent to pass property therein for that purpose at least; but having regard to all the circumstances of the case adverted to already, I do not think the parties could have had any such limited intent as is sought to be made out by the argument, which seems to be based on an article from a contributor published in 24 Madrs Law Times, page 6,
8. Thus, on a consideration of the material evidence in the case I find on the 1st point that the parties to the sale-deed, Exhibit I, did not intend that property in the 1 cent of land should pass by the document.
9. 2nd point.--In Harendra Lal Roy Choudhury v. Hari Dasi Debi 23 Ind. Cas. 637 : 41 C.P 972 : 27 M.L.J. 80 : (1914) M.W.N. 462 : 16 M.L.T. 6 : 18 C.W.N. 817 19 C.L.J. 484 : 16 Bom.L.R. 400 : 12 A.L.J. 774 1 L.W. 1050 : 4l I.A. 110 their Lordships of the Privy Council lay down as follows:
Their Lordships hold that this parcel (25, Guru Das Street) is in fact a fictitious entry and represents no property that the mortgagor possessed or intended to mortgage or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists, is a fraud on the registration law, and no registration obtained by means thereof is valid. To hold otherwise would amount to saying that mortgages relating solely to land in other parts of the Presidency could be validly registered by the Sub-Registrar at Calcutta, if the parties merely took the precaution to add as a last parcel, the Government House, Calcutta or any similar item. Following the aforesaid ruling, their Lordships, Sadasiva Aiyar and Kumaraswami Sastri, JJ., held in Rama Naik v. Naga muthu Nachiar 43 Ind. Cas. 515 : 22 M.L.T. 516 : 7 L.W. 33 that neither the vendor nor the vendee in the case before them having intended 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 affected by the sale, the sale-deed was not legally registered. It is no doubt pointed out by the learned Vakil for the respondent that, while in Harendra Lal Roy Choudhury v. Hari Dasi Debi 23 Ind. Cas. 637 : 41 C. 972 : 27 M.L.J. 80 : (1914) M.W.N. 462 : 16 M.L.T. 6 : 18 C.W.N. 817 19 C.L.J. 484 : 16 Bom.L.R. 400 : 12 A.L.J. 774Rama Naik v. Naga muthu Nachiar 43 Ind. Cas. 515 : 22 M.L.T. 516 : 7 L.W. 33 the item, though in existence, did not belong to the transferor, in the present case the property is both in existence and belongs to the vendor, but the distinction sought to be made out does not seem to create any real difference in the principle that ought to govern such cases according to the dictum of their Lordships of the Privy Council.
10. In the present case the parties to the sale not having intended that property in the 1 cent should be affected by the gale, the inclusion thereof in the document must be held to be a fictitious entry in fraud of the registration law within the meaning of the rulings cited above. I accordingly bold on the 2nd point that the registration of the sale-deed at Amalapur was illegal and the sale-deed was not valid.
11. For these reasons, I find on the issue remitted that the suit sale-deed is not valid for want of proper registration.
8. This second appeal came on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial
9. Mr. K. Kamannn for Mr. P. Narayanamurti, for the Respondents.--There is no fraud. In Harendra Lal Roy Choudhury v. Hari Dasi Debi 23 Ind. Cas. 637 : 41 C.P 972 : 27 M.L.J. 80 : (1914) M.W.N. 462 : 16 M.L.T. 6 : 18 C.W.N. 817 19 C.L.J. 484 : 16 Bom.L.R. 400 : 12 A.L.J. 774 1 L.W. 1050 : 4l I.A. 110 not only was the property fiotitioue, but there was no possession by the mortgagor. Hence fraud was presumed. So also in Rama Naik v. Nagamutku Nachiar 43 Ind. Cas. 515 : 22 M.L.T. 516 : 7 L.W. 33 where the property did not belong to the vendor. In the present case, the property is existent, belongs to the vendor and is in his possession, besides being within the jurisdiction of the Sub-Registrar. It may be that the vendee did not intend to take possession because it was only one cent and is insignificant. Further, what is done for the convenience of both parties is not fraud. The distinction has been pointed out in Sankaran Nambiar v. Narayanan Thirumumpu 55 Ind. Cas. 86 : 11 L.W. 192 : 38 M.L.J. 251 :(1920) M.W.N. 205 : 43 M.P 405.
10. The plaintiff should, in any event, pay the proportionate share of the purchase' money before he is allowed to recover.
11. The suit is barred under Article 44, Limitation Act.
12. Mr. N. Rama Row, for the Appellant.--The plaint is not for a proportionate share.
13. The finding is that the one cent of land was not intended by the parties to pass by the sale. There has been a fraud on the registration law and the document is a nullity. It need not be set aside, and the suit is governed by Article 141 of the Limitation Act.
14. We must accept the finding of the Subordinate Judge that the one cent of land in Amalapur was included in the sale-deed, Exhibit A, purely for the purpose of getting the deed registered by the Sub Registrar of that place without any intention of passing title in it to the vendee. That finding is supported by the evidence and no valid objection has been urged against it. On that finding we must hold, following the case in Rama Naik v. Nagamuthu Nachiar 43 Ind. Cas. 515 : 22 M.L.T. 516 : 7 L.W. 33, that the present case falls within the principle enunciated by the Privy Council in Harendra Lal Roy Choudhury v. Hari Dasi Debi 23 Ind. Cas. 637 : 41 C.P 972 : 27 M.L.J. 80 : (1914) M.W.N. 462 : 16 M.L.T. 6 : 18 C.W.N. 817 19 C.L.J. 484 : 16 Bom.L.R. 400 : 12 A.L.J. 774 1 L.W. 1050 : 4l I.A. 110 The action of the parties in this case was a fraud on the registration law. The fact that there was land corresponding to the one cent included in the deed, belonging to the vendor is not sufficient to take it out of that principle, as the finding is that it was not intended that the deed should affect the land in any way.
15. On this view the sale-deed, Exhibit A, must be taken to have not been properly registered and the title to A Schedule properties was, therefore, not validly conveyed to the 8th defendant.
16. The next question is as to limitation. Article 44 does not apply, as there was no rule at all in law to be set aside. See Narayanan Chettiar v. Lahshmanan Chettiar 29 Ind. Cas. 1 : 89 M.P 456 : 28 M.L.J. 571 and Petherpermal Chetty v. Muniandy Servui 35 C.P 661 : 10 Bom. L.R. 690 : 12 C.W.N. 562 : 5 A.L.J. 290 : 7 C.L.J. 528 : 14 Bur.L.R. 108 : 18 M.L.J. 277 : 35 I.A. 98 : 4 M.L.T. 12 : 4 L.B.R. 266. The article really applicable is Article 144 but the period required for it has not expired yet. There is thus no bar by limitation.
17. Plaintiff is, therefore, entitled to have the A Schedule properties also included in the partition. But as pointed oat by the respondents' Vakil the sum of Rupees 6,000, the consideration for Exhibit A, was utilised to pay of a mortgage and for other purposes binding on the estate. This was found by the Munsif and the point was not controverted in the lower Appellate Court, as the Subordinate Judge notes. We think an equity arises in favour of the 8th defendant against the plaintiff on that finding which we adopt, and on the sale to him being invalidated the plaintiff should pay him a proportionate share of the moneys so utilised, viz., of the sum of rupees 6,000.
18. This second appeal must be allowed and the decree of the lower Appellate Court must be modified as stated above. Each party will bear costs throughout with regard to A Schedule properties.