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Gous Mahomed Vs. Khawas Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal450
AppellantGous :
RespondentKhawas Ali Khan
Cases ReferredJiwan Ali Beg v. Basa Mal I.L.R.
Excerpt:
registration act (iii of 1877), sections 17 (b) and 49 - deed of assignment of a decree--admissibility in evidence. - .....other than instruments of gift of immoveable property [which are provided for by clause (a)] which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immoveable property, shall be registered; and in construing this section a full bench of the allahabad high court in the case of jiwan ali beg v. basa mal i.l.r. 9 all. 108 held that in order that a document may come within clause (b) of section 17 of the registration act it must in itself purport or operate to create, &c.; sir john edge, in his judgment which was concurred in by the majority of the full bench, observes: 'now what construction should be placed on these.....
Judgment:

Banerjee and Gordon, JJ.

1. This appeal arises out of certain execution proceedings. The appellant, as the assignee of the assignee of a decree on a mortgage bond, applied for execution of that decree. The successive assignors admitted the assignments, but the judgment-debtor objected to the execution proceedings upon various grounds, of which it is necessary to notice only one, namely, that the applicant bad no right to execute the decree by reason of the assignment in favour of his vendor from the original decree-holder being by an unregistered document, which is inadmissible under Section 49 of the Registration Act.

2. The first Court overruled the other objections of the judgment-debtor, and with reference to the objection last mentioned, it held that, though by reason of the assignment in favour of the applicant's vendor not being by a registered document, the applicant was not entitled to enforce the decree as a mortgage decree, there was nothing to prevent his enforcing it as a simple money decree, and that order has been affirmed on appeal.

3. In second appeal it is contended on behalf of the judgment-debtor that this order is wrong, and that the applicant had acquired no right to enforce the decree when the intermediate assignment, namely, that in favour of his vendor, was by an unregistered document, and therefore inadmissible in evidence; and in support of this contention the case of Gopal Narayan v. Trimbak Sadashiv I.L.R. 1 Bom. 267 is relied upon.

4. That case no doubt supports the contention raised on behalf of the appellant, but with all respect for the learned Judges who decided it, we must say we are unable to assent to their decision. Section 17, Clause (b) of the Registration Act, which is the only provision of the Act that can possibly apply to this case, enacts that non-testamentary instruments other than instruments of gift of immoveable property [which are provided for by Clause (a)] which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immoveable property, shall be registered; and in construing this section a Full Bench of the Allahabad High Court in the case of Jiwan Ali Beg v. Basa Mal I.L.R. 9 All. 108 held that in order that a document may come within Clause (b) of Section 17 of the Registration Act it must in itself purport or operate to create, &c.; Sir JOHN EDGE, in his judgment which was concurred in by the majority of the Full Bench, observes: 'Now what construction should be placed on these prohibitory and highly penal sections, which impose such serious disqualification for non-observance of registration'? The only proper answer to my mind is that we must see that the strictest construction be placed on them, and that the document objected to comes within the four corners of these provisions. I have said that these endorsements are not, in my opinion, within the terms of Section 17, Clauses (b) and (c), and if I might deal with the question as to what the instrument should contain in order to be within the section, I should say that in my judgment an instrument to come within Sub-section (b) must in itself purport or operate to create, declare, &c.;'

5. Now let us see what the nature of the document objected to in the present case is. It is a deed of assignment, not of any property covered by the decree, but of the decree itself; and the decree, though it be a decree upon a mortgage bond, can in no sense be regarded as immoveable property. It clearly does not come within the definition of immoveable property given in the Registration Act, and we must, in applying the provisions of the Registration Act, be careful to distinguish between a decree and the property covered by it. Then, does the assignment in itself purport or operate to create any right, title or interest in any immoveable property? Clearly not. It may be the indirect means to the creation of such an interest, if the Court, under the provisions of Section 232 of the Code of Civil Procedure, thinks it fit to allow the application of the assignee claiming under this document. But Clause (b), whilst it is made to be very comprehensive in certain respects, does not contain any words like these 'which directly or indirectly purport to create,' &c.; The case we have cited from the Indian Law Reports, Allahabad series, is authority for construing the words 'which purport or operate to create' in the sense 'which in themselves purport or operate to create.' The letter of the Registration law does not therefore support the contention raised on behalf of the appellant.

6. Nor do we think the spirit of the Registration law in any way favours that contention. We do not think that the Registration Act was ever intended to apply to a document like an assignment of a decree, when the Code of Civil Procedure itself (see Section 208 of Act VIII of 1859 and Section 232 of the present Code) makes ample provision for preventing, in cases like the present, fraud or falsehood, such as the law relating to registration of documents is meant to guard against. Section 232 of the Code expressly provides that 'where a decree has been transferred by assignment, notice in writing of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections, if any.'

7. For all these reasons we are of opinion that the document objected to was not inadmissible in evidence for want of registration. That being so, the appeal fails, and must be dismissed, but without costs, as no one appears for the respondent.


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