Patna High Court
Jamuna Prasad vs Bhuneshwar Thakur And Ors. on 26 September, 1986
Equivalent citations: AIR1988PAT113, AIR 1988 PATNA 113, (1987) 1 CIVLJ 351, (1987) 2 CURCC 338, (1987) BLJ 149, (1987) PAT LJR 251
Author: N.P. Singh
Bench: N.P. Singh
JUDGMENT N.P. Singh, J.
1. Whether a document compulsorily registered takes effect from the date of execution or from the date of presentation for registration is the substantial question of law raised in this second appeal.
2. Defendant No. 1 is the appellant in this second appeal. The suit in question had been filed by the plaintiff-respondent for declaration of his title and recovery of possession over 10 dhurs of land of holding No. 99 situate at Mohalla Saraiyaganj in the town of Muzaffarpur. According to the plaintiff, the holding aforesaid has an area of 1 katha and originally belonged to Sitaram Sari (defendant No. 5). On 31-12-1951, Sitaram Sah executed a sale deed in favour of one Jamuna Sah, husband of Most. Sundri Devi (defendant No. 6) in respect of 10 dhurs of land of the aforesaid holding. On 9-11-1959, Jamuna Sah executed a sale deed in respect of aforesaid 10 dhurs of land in favour of Ram Bilash Ojha (defendant No. 2). Before the sale deed could he presented for registration. Jamuna Sah executed another sale deed on 11-11-1959 in respect of the same 10 dhurs of land in favour of Jamuna Prasad (defendant No. 11, the appellant. On 7-3-1960, Ram Bilash Ojha presented the deed executed in his favour on 9-11-1959 by Jamuna Sah for compulsory registration. After following the procedure for compulsory registration the sale deed dated 9-11-1959 was registered. On 12-6-1962. Ram Bilash Ojha transferred the same 10 dhurs of land which is the subject-matter of controversy in favour of the plaintiff through a registered sale deed.
3. According to the plaintiff, Jamuna Sah having executed a sale deed on 9-11-1959 in favour of Ram Bilash Ojha aforesaid, who, in his turn, transferred the land to the plaintiff, defendant-appellant did not acquire any title oh the basis of the sale deed dated 11-11-1959 executed in his favour of the same Jamuna Sah.
4. The claim of the plaintiff over the disputed land was resisted by the dcfendant-appellant. According to the defendant-appellant, the sale deed dated 9-11-1959 executed by Jamuna Sah in favour of Ram Bilash Ojha (defendant No. 2) was a forged, fabricated and ante-dated document and as such the vendor of the plaintiff neither acquired any title nor possession over the land in question. The defendant-appellant claimed title and possession over the suit land on the basis of the sale deed dated 11-11-1959 executed in his favour by Jamuna Sah.
5. The trial Court came to the conclusion that the sale deed dated 9-11-1959 in favour of Ram Bilash Ojha was not a forged document, as such the plaintiff acquired right, title and interest over the suit land, by virtue of sale deed dated 12-6-1962 having been executed in his favour by Ram Bilash Ojha. On the aforesaid finding, a decree for recovery of possession with mense profits was passed. On appeal being filed by the defendant-appellant, the court of appeal below affirmed the finding of the trial court and held that although the sale deed dated 9-11-1959 was registered after execution of sale deed by Jamuna Sah in favour of the defendant-appellant but after registration it became operative, from the very date of execution, the sale deed in favour of defendant-appellant being later in point of time, the defendant-appellant acquired title to the land in dispute.
6. On behalf of the appellant it was urged that even if the finding of the Courts below that on 9-11-1959 Jamuna Sah did execute a sale deed in favour of Ram Bilash, Ojha, the vendor of the plaintiff, is held to be correct still as the said sale deed was presented for registration on 7-3-1960 and was registered through the procedure of compulsory registration, in view of Section 75(3) of the Registration Act (hereinafter referred to as the Act), it became operative only with effect from the date of its presentation for registration, i.e. 7-3-1960. About the sale deed executed in favour of the defendant-appellant it was submitted that although it was executed on 11-11-1959 but having been registered through the normal procedure, it became operative with effect from the date of execution, in view of Section 47 of the Act. In support of the contention aforesaid reliance was placed on the judgment of a learned Judge of this court in the case of Bibi Zaminmissa v. Sk. Qudoos, AIR 1975 Pat 67 where it has been held that documents compulsorily registered take effect not from the date of execution but from the date of presentation for registration, in view of Section 75(3) of the Act.
7. Section 47 of the Act is as follows : --
"47. Time from which registered document operates. --A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
The scope of Section 47 was considered by the Supreme Court in the case of Ram Saran v. Domini Kuer, AIR 1961 SC 1747. It was pointed out that registration under the Act is not complete till the document to be registered has been copied out in the office of the Registration Office, as provided by Section 61 of the Act. It was pointed out that once the registration is complete, in view of Section 47 of the Act, the registered document operates from the date of its execution.
8. Section 75 occurs in Part XII of the Act which deals with provisions "of refusal to register". Section 73 which is also in that very part of the Act is applicable when the Registrar refuses to register a document on the ground that any person by whom it purports to be executed, or his representative, denies its execution. Any person claiming under such document may apply to the Registrar for an order to establish his right to have the document registered and in view of Section 74 of the Act, the Registrar has to make an enquiry as to whether the document had been executed by the person in question. Section 75(1) prescribes that if the Registrar finds that the document had been executed and that the requirements for registration have been complied with, he shall order the document be registered meaning therein compulsorily registered. Sub-section (3) of Section 75 of the Act says as follows : --
"75(3). Such registration shall take effect as if the document had been registered when it was first duly presented for registration."
9. According to the appellant, in view of Sub-section (3) of Section 75 of the Act, a document compulsorily registered shall take effect only from the date it was presented for registration. The reason for enactment of the aforesaid provision appears to be to safeguard the interest of the person who has to pursue the procedure for compulsory registration which in many cases may take years before such document is registered. In absence of any provision like Sub-section (3) of Section 75 of the Act in many cases the registration might have proved to be a futile exercise; the executant having later executed and registered a document in favour of another person during [he pendency of the proceeding for compulsory registration. In order to avoid such situation the framers of the Act have provided a statutory fiction under Sub-section (3) of Section 75 of the Act saying that after the document is registered it shall take effect as if the document had been registered when it had been duly presented for registration.
10. The next question for consideration is as to whether the Act prescribed different dates since when documents executed shall commence to operate i.e. in case of normal registration, with effect from the date of the execution of the document and in case of compulsory registration with effect from the date of its presentation. In my opinion, reading the different provisions of the Act, there does not appear to be any reason to hold that a document executed through normal procedure is to be operative with effect from the date of its execution; whereas a document executed through the procedure of compulsory registration is to operate only with effect from the date it is presented for registration. If the contention raised on behalf of the appellant is accepted, it will lead to an absurd result inasmuch as the person who had to pursue the procedure for compulsory registration, a view of the denial of execution by the executant ultimately for no fault of his, may lend to a situation, where he finds that the whole exercise has ended in fugggtility, as his vendor had executed another sale deed before the earlier sale deed had been presented for registration. Tile frameres of the Act while enacting Sub-section (3) of Section 75 of the Act only wanted to bridge the gap between the date of the presentation for registration and the date of the compulsory registration by the statutory fiction. Thereafter, in my view, Section 47 of the Act shall be applicable even in respect of such registered documents. In other words. Sections 47 and 75(3) of the Act have to be read together harmoniously. The result whereof will be that after a document is registered compulsorily by virtue of Sub-section (3) of Sections 75 and 47, it shall become operative not only from the date of presentation for registration but from the date of its execution. A learned Judge of Mysore High Court in the case of Azeezulla Sheriff v. Bhabhutimul, AIR 1973 Mys 276 has also taken the view that once a document is compulsorily registered, it shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made. With due respect for the learned Judge who decided the case of Bibi Zamirunissa v. Sk. Quadoos, (AIR 1975 Pat 67) (supra), I am unable to agree with the view expressed in that judgment.
11. Once it is held that the sale deed dated 9-11-1959, which was executed in favour of Ram Bilash Ojha, shall operate with effect from 9-11-1959 although registered compulsorily later than the sale deed dated 11-11-1959 executed and registered in favour of the appellant, it has to be held that Ram Bilash Ojha (defendant No. 2) acquired a valid title which he could have transferred in favour of the plaintiff through the sale deed dated 12-6-1962. As such the Courts below have rightly decreed the suit of the plaintiff.
12. In the result, this appeal fails. But, in the circumstances of the case, there shall be no order as to costs.
S.S. Sandhawalia, C.J.
13. I agree.