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Tarachand Dass and ors. Vs. Prokash Chunder Dass - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal82
AppellantTarachand Dass and ors.
RespondentProkash Chunder Dass
Excerpt:
registration acts (viii of 1871 and iii of 1877) - sale-certificates, registration of--construction of act--maxim 'optimus legis interpres consuetude.' - .....fact, we are now asked to put a construction upon these acts with reference to the registration of sale-certificates, which is directly at variance with that which has been recognized and acted upon by the people of bengal for many years past. we are not aware of a single instance in which this court has held that such certificates ought to be registered; whilst, on the other hand, both on the appellate and on the original sides of the court, such instruments have been admitted in evidence without registration.3. and this practice moreover appears to have received the sanction of the government of bengal from a very early period.4. in a letter written by mr. secretary eden to the inspector-general of registration, on the 19th of september 1868, the government laid it down as an.....
Judgment:

Richard Garth, C.J.

1. If we were called upon to decide this question merely upon the language of the Registration Act of 187.1 and the Code of 1859, and without regard to the practice which has prevailed in this province, it is possible that we might take the same view of it as the other High Courts, or at any rate, out of respect for their opinion, we should not adopt a contrary view without considerable reluctance.

2. But, in point of fact, we are now asked to put a construction upon these Acts with reference to the registration of sale-certificates, which is directly at variance with that which has been recognized and acted upon by the people of Bengal for many years past. We are not aware of a single instance in which this Court has held that such certificates ought to be registered; whilst, on the other hand, both on the Appellate and on the Original Sides of the Court, such instruments have been admitted in evidence without registration.

3. And this practice moreover appears to have received the sanction of the Government of Bengal from a very early period.

4. In a letter written by Mr. Secretary Eden to the Inspector-General of Registration, on the 19th of September 1868, the Government laid it down as an instruction to Registration Officers, that certificates given on sales for arrears of revenue did not require registration. It is stated in that letter, that such instruments did not come under Section 17 of the Registration Act; and that if they come within that Act at all, it was under Section 42, which requires the Court, and not the parties, to register the instrument.

5. These certificates were, of course, of much of the same nature as certificates under sales in execution; and we believe that, upon the strength of this authority, and the practice which has prevailed in accordance with it, many thousands of purchasers at execution-sales have omitted to register their sale-certificates in the belief that they were acting in accordance with the law; and if we were now to hold that registration was necessary, the consequences would be most unjust and disastrous.

6. We think, therefore, that, in this instance, we may very properly act upon the well-known legal maxim 'optimus legis interpres consuetudo.' When a legislative measure of doubtful meaning has, for several years, received an interpretation, which has generally been acted upon by the public, Courts of Justice should be very unwilling to change that interpretation, unless they see cogent reasons for doing so. And this argument, of course, applies more strongly where, as in the present case, the measure relates not to any general principle of law, but to some technical or fiscal rule, such as the registration of documents, and where the interpretation which has been put upon the measure is in case of the general public.

7. There is undoubtedly much force in the remarks of Mr. Justice Field in the last paragraph of the reference which we are now answering, that the two main objects of registration,--namely, the authentication of documents, and the publicity given to dealings in land,--are both, to a great extent, unnecessary in the case of sale-certificates.

8. And the result of recent legislation has been to show, either that the Government of India never intended these certificates to be registered, or that, having intended it, they have now found reason to change their minds.

9. In the Civil Procedure Code of 1877, Section 316, which provides for certificates of sale being given, the words in the former Code are omitted, that 'the certificate shall operate as a transfer.' Then, by the Registration Act of the same year, provision is made in. Section 89, that such instruments shall be registered by the Courts, and not by the parties. And lastly, by the Transfer of Property Act 25 (Section 2, sub-section d), the provisions which make registration necessary are not to extend to 'any transfer in execution of a decree of a Court of competent jurisdiction.'

10. We think it right, for these reasons, to answer the question which has been referred to us, in the negative.


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