Patna High Court
Radha Kant Jha vs Ramanup Singh And Ors. on 9 September, 1949
Equivalent citations: AIR1950PAT166, AIR 1950 PATNA 166
JUDGMENT Ramaswami, J.
1. This is an appeal by the plaintiff from a deoiaion of the Subordinate Judge of Muzaffarpur dismissing his suit.
2. The plaintiff alleged that in 1941 he bad instituted a money suit against the defendant 2nd party for recovery of Rs. 642 and odd due under a handnote. He obtained a decree, in execution of which ha purchased 4 bighas 1 katha 12 dhura of land. The purchase was on 11th May 1943 and shortly after the plaintiff obtained dakhaldehani. It is stated that on 3rd May 1941, defendant 2nd party executed a kebala with respect to the land in suit in favour of the defendants 1st party, but the kebala was registered only on 6th May 1942, after certain contested proceedings before the Registration Officer. It is the admitted case that on 7th June 1941, the plaintiff had prayed in the money suit for attachment of the disputed land. The Court accepted the petition and on 30th June 1941, passed an order of attachment. After dakhaldehani had taken place, the defendants 1st party filed an objection under Order 21, Rule 100, Civil P. C., which was allowed by the executing Court. The plaintiff thereafter instituted the present suit under the provisions of Order 21, Rule 103, Civil P. C.
3. The main question debated before the lower Court, was whether the kebala executed by defendant 2nd party in favour of the defendants 1st party was a farzi and fraudulent document.
4. Upon this issue of fact the lower Courts have after examining the evidence, reached the definite conclusion that the kebala was genuine and for consideration and was not ante-dated. 5. In support of the appeal Mr. S.C. Mukharji, nevertheless pressed the argument that the kebala, executed in favour of the respondents could not prevail over the order of attachment since it was registered long after the order of attachment was made by the Court. Learned counsel referred to the provisions of Section 64, Civil P. C., which is to the following effect:
"Where an attachment has been made, any private transfer or delivery of the property attached . . . shall be void as against all claims enforceable under the attachment."
But it is necessary to read Order 38, Rule 10 which enacts that "attachment before judgment shall not effect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the Bale of the property under attachment in execution of such decree".
6. Upon the facts of the present case, it is manifest that the plaintiff cannot succeed for the attachment cannot prevail against a sale deed which was executed before the order of attachment was made.
7. In Kalyanasundaram Pillai v. Karuppa Mooppanar, 8 P. L. T. 327 : (A. I. R. (14) 1927 P. C. 42) a Hindu male had executed a deed of gift in respect of part of immovable property and delivered it to the donee; a day after he adopted a son, and five days later the deed of gift was registered. The question arose as to whether the deed of gift took effect from the date of execution or from the date of registration. The Judicial Committee affirmatively laid down that the deed became effective from the date when it was executed and the gift accepted by the donee. Lord Salvesen remarked in the course of his judgment:
"Their Lordships are unable to see how the provision of Section 123, T. P. Act, can be reconciled with Section 47, Registration Act, except upon the view that, while registration is a necessary solemnity in order to the enforcement of a gift of immoveable property, it does not suspend the gift until registration actually takes place. When the instrument of gift has been handed by the donor to the donee and accepted by him, the former has done every thing in his power to complete the donation and to make it effective. Registration does not depend upon his consent, but is the act of an officer appointed by law for the purpose, who, if the deed is executed by or on behalf of the donor and is attested by at least two witnesses, must register it if it is presented by a person having the necessary interest within the prescribed period."
8. In a Calcutta case Ndbadweepchandra Das v. Lokenath Ray, 59 Cal, 1176 : (A. I. R. (20) 1933 Cal. 212) a question arose as to whether an attachment would prevail over a mortgage deed which had been executed before it. The learned Judge answered the question as follows:
"To consider the effect of Section 64, Civil P. C., the true nature of an order of attachment has to be realised, Form No. 24 of Appendix E to the Code is the form of a prohibitory order for attachment of immoveable property. It shows that, by such an order, the, judgment-debtor is prohibited and restrained from transferring or charging the property by sale, gift or otherwise, and all persona are prohibited from receiving the same by purchase, gift or otherwise. At the stage at which the attachment in the present case was effected, the transferor had done all that lay in his power to complete the transfer and to make it effective and the transferee had already taken the charge, which had been so created in his favour, and all that remained was the solemnity to be gone through which was necessary to make it enforceable, we are, accordingly, of opinion that the attachment, such as it was in the present case, did not affect the mortgage."
9. These cases were followed with approval by a Division Bench of oar Court in Faiyazuddin Khan v. Mt. Zahur Bibi, 19 P.L.T. 383 : (A. I. R. (25) 1938 Pat. 134). In this case the learned Judges held that a deed of baimokasa executed by the plaintiff's husband in her favour on 19th July 1928, would prevail against an attachment of the same property effected on 27th August, 1928. Though the baimokasa deed was registered after the attachment, the learned Judges held that it must under Section 47, Registration Act operate from the date of its execution.
10. It is necessary to state that in two later cases, Jeo Narayan v. Budhan Mahto, A. I. R. (28) 1941 Pat. 247 : (192 I. C. 812) and Sadei Sahu v. Chandramani Dei, A. I. R. (35) 1948 Pat. 60 : (13 Cut. L. T. 21) the learned Judges referred with approval to and followed Faiyazuddin Khan v. Mt. Zahar Bibi, 19 P. L. T. 383,: (A. I. R. (25) 1938 Pat. 134).
11. On behalf of the appellant reliance was placed on Gopal Bux v. Shyambehari Singh, A. I. R. (27) 1940 Pat. 565: (188 I. C. 269) in which the learned Judges observed that:
"the words of Section 69, Civil P. C. make it clear that the property does not actually vest in the purchaser at the time of the sale; but once the sale is confirmed, it is deemed to have vested in him as and from that date. Confirmation of a sale is an integral part of the transaction of sale and without confirmation the purchaser acquires no title. Consequently an order prohibiting sale also prohibits confirmation of sale which had already taken place but which had not been confirmed before the prohibitory order was passed."
Learned counsel also made reference to Deopati v. Mahabir, 25 Pat, 529 at P. 538: (A. I. R. (34) 1947 Pat. 293) in which Manohar Lall J. refers with approval to the case in Gopal Bux v. Shyambehari Singh, A. I. R. (27) 1940 Pat. 565, : (188 I.C. 269) and observes as follows:
"To adopt this language, here also the registration of a sale deed is an integral part of the transaction of the sale and without its registration, the purchaser acquires no title. It follows that on the date when the application was made under Rule 89, the appellant had no title to maintain it."
12. The facts of the present case are clearly distinguishable for the kebala in dispute is a registered document. On the contrary, it is apparent from the recital of facts in Deopati v. Mahabir, 25 Pat. 629 : (A. I. R. (34) 1947 Pat. 293) that the unregistered bai beyana deed was not registered at all. Moreover, the decision in Gopal Bux v. Shyambehari Singh, A. I. R. (27) 1940 Pat. 565: (188 I.C. 269) and also the obiter of Manohar Lall J in Deopati v. Mahabir, 25 Pat. 529 : (A. I. R. (34) 1947 Pat. 293) are of doubtful authority in view of the decision of the Judicial Committee in Bhawani Kumar v. Mathura Prasad Singh, 40 Cal. 89 : (16 I. C. 210). In that case a mortgage had been granted on 9th August, 1886, in favour of the respondent over a certain share in four out of 71 villages. On 3lst May he obtained a decree on his mortgage which was made absolute on 19th December, 1899. He executed his decree and a sale took place on 19th March 1900, at which the respondent himself became the purchaser. On 28th March, an instalment of Government revenue on the 71 villages fell into arrear and the whole residuary share of 71 villages, including the 4 villages purchased by the respondent, was notified for sale. The respondent did not pay the revenue due, but on 23rd April he obtained a certificate confirming the sale of 19th March in execution of his decree. On 6th June 1900, the whole of the villages was sold for arrears of revenue and was purchased by the predecessor in title of the appellant, and the appellant instituted a suit against the respondent for the share purchased at the execution sale. Upon these facts the Judicial Committee reversed the decision of the High Court and held that the sale in execution of the mortgage decree took effect from the actual date of the sale, and not from its confirmation, and, therefore, from 19th March 1900 the respondent by his purchase became the proprietor of the estate sold, and not merely the purchaser of such right, title and interest in it as the mortgagor might have had.
13. Upon this review of the authorities it is manifest that the defendants first party obtained a valid title to the lands in dispute by their purchase which would prevail over the purchase by the plaintiff in the execution case.
14. In my opinion the decision of the lower appellate Court is correct, and this appeal must be dismissed with costs to the contesting defendants.
Meredith, J.
I agree.