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P.A. Seetharama Raju and ors. Vs. Lala Gopikrishna Gokuldoss Agency Department - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1962)2MLJ227
AppellantP.A. Seetharama Raju and ors.
RespondentLala Gopikrishna Gokuldoss Agency Department
Cases ReferredIn Mulji Sikka and Co. v. Nur Muhamad A.I.R.
Excerpt:
- .....for the appellants reiterated the plea taken before the learned judge and contended that the document exhibit p-4 was incomplete in that the schedules to it had not been signed by all the persons who were parties to the document. he even went further so far as to contend that the schedules which were signed by seetharama raju had not come into existence at the time when the main document was executed and that, therefore, it should be held that it was never intended to form part of the document. there is no substance in the later part of this contention. seetharama raju who makes common cause with the other appellants in resisting the registration of the document did not examine himself to speak to the circumstances under which he wrote the schedules. the third appellant had stated.....
Judgment:

S. Ramachandra Iyer, C.J.

1. This is an appeal against the judgment of Ganapatia Pillai, J., in a suit (C.S. No. 41 of 1957) under Section 77 of the Indian Registration Act directing registration of two documents together with a certificate of balance attached thereto, the documents being marked as Exhibits P-4 and P-1. The appellants, Seetharama Raju, Rajeswari and Bapiraju constitute a firm of partners carrying on business under the name and style of Srinivasa Mining Company at Chipurapalli in Srikakulam District (Andhra Pradesh). They were the defendants to the suit. The firm owns certain manganese mines in Srikakulam District. The respondent (Plaintiff in the suit) had agreed to finance the venture, undertaken by the firm and the question in this appeal relates to the registrability of that financing agreement Exhibit P-4, dated 30th June, 1956, entered into between the parties.

2. Before referring to the provisions of that agreement it is necessary to state certain other facts. The first appellant Seetharama Raju was originally a partner in a firm known as Ramakrishna Mining Company. By a document, dated 19th November, 1955 the respondent had agreed to, advance certain sums of money for the purpose of that partnership, and in pursuance thereof he had advanced about Rs. 3,80,000. Ramakrishna Mining Company, was subsequently dissolved and as a result of an arrangement between the partners Seetharama Raju became solely entitled to the mines and he also became responsible to pay the monies due to the respondent. On 16th May, 1956, Rajeswari and Bapiraju who were originally the only partners of Srinivasa Mining Company entered into a similar financing arrangement with the respondent for their own firm. That document is Exhibit P-1. The respondent advanced a sum of Rs. 79,099-10-0 to the partnership firm under the agreement. Subsequently the two partners of Srinivasa Mining Company admitted Seetharama Raju the first appellant as the third partner. It was stipulated between them that the assets and the liabilities of Ramakrishna Mining Company as well as Srinivasa Mining Company should be pooled together and treated as belonging to the new firm. On 30th June, 1956, a revised agreement superseding the earlier financing agreements was entered into between the appellants and the respondent. That is the suit document, namely, Exhibit P-4. Under the new agreement the appellants offered the two sets of mines as security for the amounts due to the financier; Schedules A and B thereto respectively set out mines originally owned by the Ramakrishna Mining Company and the Srinivasa Mining Company. The relevant covenants embodied in Exhibit P-4 state:

This agreement is to be read along with the agreement, dated 16th May, 1956, entered into between the financing agents and Srinivasa Mining Company and as supplement thereto. The mining owners agree that they will be liable also to repay the sum of Rs. 3,80,000 due from P.A.J. Seetharama Raju traceable to the liability of Ramakrishna Mining company to the financing agents and this liability shall be in addition to the sum of Rs. 79,099-10-0 already due to the financing agents from Srinivasa Mining Company as per certificate of balance issued dated 27th June, 1956. . . .

The mining owners hereby offer the entire assets of the mine-owners inclusive of all the mines and the ore raised therefrom and goodwill in respect of all the mines described in Schedules A and B as security for the amounts due to the financing agents....

Another clause in the agreement reiterated that the conditions embodied in Exhibit P-1 if not contrary to those in Exhibit P-4 would also govern the latter.

3. The agreement proper, that is the portion excluding the schedules, covers four pages of typed matter and they have been signed on behalf of the respondent and also by the three partners of the appellant firm. Schedules A and B which cover the fifth page have been signed only by Seetharama Raju.

4. The earlier document, Exhibit P-1 is not a registered one. When Exhibit P-4 was presented for registration, the Joint Sub-Registrar of Madras who was exercising the power of the District Registrar declined to grant registration on the ground that although the document had been executed by the appellants, it was incomplete as the schedules attached thereto had not been signed by all the executants and as the earlier document and the certificate of balance had not been produced along with it.

5. The respondent, then instituted the suit out of which this appeal arises for directing the document to be registered. Ganapatia Pillai, J., held that the document presented for registration was complete and, therefore, directed its registration. The learned Judge also directed registration of the earlier document, Exhibit P-1, dated 16th May, 1956 and the certificate of balance referred to in Exhibit P-4.

6. It will be noticed that those two documents had not been presented before the Registrar and there was no order refusing registration to justify a decree under Section 77 of the Registration Act. Indeed Exhibit P-1 could have been presented for registration within the time permitted by law; that, however, was not done. Where a document which requires registration is not presented for registration within the time prescribed, it will not be open to the parties to have it registered in an indirect manner by simply adopting the device of referring to it or making it a part of a latter document which could be presented for registration. The claim for registration of Exhibit P-1 must be rejected for this reason. Learned Counsel for the respondent did not wish to support the direction given by the learned Judge for registration of the agreement, dated 16th May, 1956, as also the certificate of balance. Clause 2 of the decree of the trial Court will, therefore, stand vacated.

7. The substantial question argued on behalf of the appellants related to the registrability of Exhibit P-4. Learned Counsel for the appellants reiterated the plea taken before the learned Judge and contended that the document Exhibit P-4 was incomplete in that the schedules to it had not been signed by all the persons who were parties to the document. He even went further so far as to contend that the schedules which were signed by Seetharama Raju had not come into existence at the time when the main document was executed and that, therefore, it should be held that it was never intended to form part of the document. There is no substance in the later part of this contention. Seetharama Raju who makes common cause with the other appellants in resisting the registration of the document did not examine himself to speak to the circumstances under which he wrote the schedules. The third appellant had stated in his evidence that he was not present at the. time when the schedules were signed by Seetharama Raju. But that interested evidence cannot obviously be accepted. It is clear from the recitals in Exhibit P-4 that the parties had agreed about the Schedules A and B which was to comprise the mines owned by the two previous firms. Further this point does not appear to have been argued before the learned Judge and it suffers from an additional infirmity in that no ground of appeal has been taken in regard to it. We overrule this contention.

8. The main argument is the former one namely, that as the schedules which were intended to be part of the document had not been signed by all the executants the document was incomplete. Learned Counsel for the respondent on the other hand contends that the first four pages of the document which had been signed by all the appellants were by themselves sufficient to constitute the entire agreement between the parties , the property charged thereunder being specifically described in the body of the document itself. Reliance is placed for this contention upon the recital in the document wherein it is stated that the mine owners offer the entire assets belonging to them as security. We cannot, however, accept this as sufficient description which would enable identification of the property charged. But there is another clause in the agreement which can be said to specify with certainty the property charged. The document states that the mine owners offer as security all the mines, etc., described ' in Schedules A and B '. From this recital it would follow that Schedules A and B are incorporated by reference into the document. There is no dispute in the case that Schedules A and B are sufficiently clear and certain and that they have been signed by Seetharama Raju. That part of the document containing Schedules A and B was also presented for registration along with the main document. It will be clear from this that there could have been no possible difficulty in identifying the property which has been made the subject of the charge. In our opinion, although the main part of the document does not in terms specify the property charged thereunder except by reference to it as specified in Schedules A and B, the subject-matter of the charge should be regarded as identifiable in view of the fact that such schedules had been incorporated in the body of the document by reference, there being no controversy in the case that what the parties bargained for in respect of the charge was Schedules A and B as signed by Seetharama Raju. What then remains to be considered is whether Schedules A and B were such an integral part of the document that the omission of all the parties to sign them amounts to a non-execution of the document itself. We agree with the learned Judges that the first four pages of the document are complete in themselves by embodying all the terms of the bargain between them. Those four pages have been duly executed.

9. What then survives for decision is whether the description of the property as mentioned in those pages are sufficient to satisfy Section 21 of the Registration Act. Section 21 (2) states that no non-testamentary document relating to immoveable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. Sub-section (3) prescribes the method to be adopted in giving description of the property.

10. Section 22 (2) states:

Save as otherwise provided by any rule made under suit-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.

Whether a property specified in a document is capable of identification or not will depend upon the nature of the description and to some extent in relation to the nature of the document executed. In Narasimha Nayanevaru v. Ramalingamma (1889) 10 M.L.J. 104 it was held that the description of the properties dealt with by the document for the purpose of the Registration Act need not be of local character and need not even be such as to indicate on searching the register without further enquiry or information the precise property to which the document relates. It is not clear from the judgment as to how the property was described in the operative part of the document in that case. The deed dealt with was one of partition between a father and his son. The case in Parsharama Pant v. Rama I.L.R.(1909) 34 Bom : was concerned with the registrability of a release deed whereby a father in a joint Hindu family relinquished all his rights in favour of his son. But the document did not contain any description of the lands relinquished. The father purported to transfer all his rights which he had in the immovable and ' moveable properties. It was held that the release must be considered as having been duly registered. Substantially the same view was taken in Subbalakshimi Ammal v. Narasimiah : AIR1927Mad586 , where a conveyance by one of the reversioners to the other after the succession opened merely stating that he had transferred all that he obtained on the reversion falling upon him, was held sufficient to entitle the document to be registered. The case in substance was one of release by a co-owner or co-heir in favour of the other, co-owners. The decisions in the above cases are sought to be supported on the familiar rule of logic as well as law applied in the construction of documents which is expressed in the Latin maxim ' certum est quod certumreddi potest' (that is sufficiently certain which can be made certain). But that rule cannot fully be adopted in the application of Section 21 of the Act; for to do so would amount to this namely, that the property disposed of could be left to be ascertained later by an enquiry. In our opinion the matter has to be decided only on the terms of Section 21 of the Registration Act. That requires that the description of the property in the document should be sufficient to identify it. It does not provide for any enquiry at that stage by the Registrar to ascertain what the property dealt with is. Under Section 3 of the Transfer of Property Act registration of document is deemed to be notice to all, of the disposition contained therein. It stands to reason that the description in the document should be such that any person making a search of the registry should be able to ascertain the property dealt with. Therefore in order that a document dealing with immoveable property should be registered, the property dealt with should be capable of ascertainment on the materials available before the the Registrar. Rule 17 framed under the provisions of the Act is in accord with this principle when it permits registration of a document describing the property, by reference to another registered document; that is, because, it would be easy to find out from the registry itself the description of the property from the other document.

11. Let us make the position clear by an example. Suppose a document describes the property dealt with as Schedule A but there is nothing before the Registrar to show what that schedule refers to it cannot be said that as that could be ascertained later on by an enquiry as to what the parties intended meant by Schedule A, the description satisfies Section 21. But where a document produced for registration states that the property dealt with by it is the same as that described in another registered document, there will be no difficulty in identifying the property. We are therefore, unable to accept without qualification the observation of the learned Judges in Narasimha Nayanevaru v. Ramalingamma (1899) 10 M.L.J. 104 that the description need not be such as to indicate to the person searching the register without further enquiry the property dealt with. It will be noticed that decision was given before the Explanation to Section 3 of the Transfer of Property Act was enacted.

12. Documents in the nature of release between co-owners or members of a family may perhaps stand on a different footing as they would amount to a complete renunciation of interest in all the properties which were owned till then by the entire body of co-owners or members of a family. But in a case of partition which allots properties to the sharers there should be a specification of the properties allotted sufficient to identify them. Where a property is sold mortgaged or leased out it is Obvious that the description of it should be such that the property so dealt with could be capable of identification on the materials available before the Sub-Registrar. Baij Nath Tewari v. Sheo Saheb Bhagut I.L.R.(1891) Cal. 556, was a case of mortgage. The property was described as bearing Towaji No. 10 paying suddar jama of Rs. 719 and as lying with-in the jurisdiction of Thana Kotwali, sub-district Bahagalpur Collectorate of Bhagalpur. This description was found to be erroneous in that the property was actually situate in a different thana and bore a suddar jama of Rs. 919-15-0. The rest of the description was however found to be correct. A Full Bench of the Calcutta High Court held by a majority that Section 22 required that identification of the property dealt with should be such as to make it possible to carry out the provisions of the Registration Act and that as the jama as well as the than a were incorrectly described, it would not be possible for the Registrar to carry out the provisions of Section 66 of the Act properly and that the registration should be refused as the description given was misleading and insufficient for the purpose of identification of the property. In Mulji Sikka and Co. v. Nur Muhamad A.I.R. 1938 Nag. 377, a document purported to grant a lease of all the villages in 'Chhuri zamindari' except the village under inferior proprietary rights. There was no description of the names of the villages actually demised. It was held that the villages in respect of which the lease was granted could be ascertained with certainty and, therefore, the document was properly registered. The description of the zamin in that case as well as the villages excluded from the lease were sufficiently specific.

13. What is essential therefore is that the identification of property dealt with should be possible. That does not mean that the document containing the specification of the property should be subscribed to by all the executants, For example if the document says that the property conveyed by the document is that contained in another document between third parties which is registered and wherein the property is described with certainty, the requirements of Section 21 will be satisfied. Similarly if the document conveys a property which is contained in a .memorandum signed by one of the executants and that is also produced before, the Registrar, there is sufficient identification of the property. That description being incorporated into the document by reference will form part of the document. Rule 17 provides only for incorporation by reference of registered instruments.' But that cannot : be held to be exhaustive of cases where incorporation by reference is permissible. Whereas in the present case the parties have agreed as to what the schedule referred to in the document is and that schedule has been written and vouched by one of the executants and the same is presented for registration along with the main document, there is no difficulty in holding that that writing is incorporated as part of the main document.

14. In The petition of Venkatasami Naick 4 Mad. H.C.R. 101, two documents were written on a sheet of paper, the first being a mortgage executed by a person in favour of his creditor for a sum of Rs. 150; the second a mortgage of a Collector's certificate issued in the name of of the former for a further loan of Rs. 100. The first document contained a description of the mortgaged property but the second document did not specify the property but only referred to the first of the two mortgages the certificate mentioned therein relating to the property described in the first of the two mortgages. Both the documents were presented for registration simultaneously. It was held that the description of the property in the first document should be taken; to be incorporated by reference into the second, and that the registering officer could not refuse to accept the second document for registration on the ground, that the description of the property was not sufficient. On the same principle in the instant case also, the paper containing the schedules signed by Seetharama Raju should be held to have become part of the earlier document by incorporation and as the schedules have been presented along with the first four pages of the document for the purpose of registration, it must also be held that the properties charged under the document were capable of being identified. We, therefore, agree with the learned Judge that the document should be admitted for registration.

15. The learned Judge has awarded costs to be paid by the appellant to the respondents and such costs have been taxed at Rs. 5,152-95. We consider that the costs so taxed are excessive having regard to the fact that the question raised in the case relates only to the registrability of the document. In the circumstances we fix the advocate's fee at Rs. 1,000 here and before the learned trial Judge. The decree passed by the learned Judge will be modified in the light of our judgment. The respondent will be entitled to his costs.


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