Patna High Court
Bibi Zamirunissa vs Sk. Qudoos And Ors. on 15 April, 1974
Equivalent citations: AIR1975PAT67, AIR 1975 PATNA 67
JUDGMENT S. Anwar Ahmad, J.
1. This appeal by the plaintiff arises out of a suit for declaration that the kebala dated the 11th November, 1951, executed by Bibi Sirejan widow of Sk. Doman in favour of respondents Nos 1 and 5 (defendants Nos. 1 and 2) and that dated the 26th February, 1952, executed by Bibi Sairunnissa daughter of Sk. Doman in favour of respondent No. 8 (defendant No. 3) were illegal, without consideration and did not affect the appellant's right to the suit lands as she was a prior purchaser. A prayer was further made for confirmation of possession, in the alternative, for recovery of possession as also for carving out a share to the extent of 1 bigha 13 kathas 13 1/2 dhurs in her favour after partition of Schedules 2 and 3 lands.
2. On the case of both the parties, 5 bighas 1:5 kathas 12 dhurs of land of village iDilawarpur, described in Schedule 1 of the plaint, belonged to and was in possession of one Sk. Doman. The entire land was sold in execution of the decree passed in Rent Suit No. 1369 of 1936 for arrears of rent. It was purchased in auction sale by the decree-holder who also took delivery of possession. Sk. Doman died leaving behind three sons, five daughters and a widow. On his death, three of his sons filed an application under Order 21, Rule 58, Code of Civil Procedure, (Miscellaneous Case No. 157 of 1938), but it was dismissed. Thereafter the five daughters and the widow of Doman filed an application under Order 21, Rule 90, Code of Civil Procedure, (Miscellaneous Case No. 117 of 1948), for setting aside the sale. This application was also dismissed but at the appellate stage (Misc. Appeal No. 66 of 1950) a compromise was arrived at between the parties as a result of which 1 bigha 10 kathas 17 1/4 dhurs out of the auction-sold lands (Schedule 3 of the plaint) was given to the five daughters and the widow of Sk. Doman. By the said compromise, the title of the five daughters and the widow of Sk. Doman and their possession over this land was accepted (the sons of Doman having nothing to do with it) and the claim over the rest of the auction-sold lands by the aforesaid female heirs of Sk. Doman was given up.
3. Out of the aforesaid female heirs of Sk. Doman, two of his daughters, Sairunnissa and Zulekha and his widow Sirajan executed a sale deed in favour of the appellant on the 22nd of October, 1951 (Exhibit 1). By this document they sold their entire share which they had got by means of the above compromise in Misc. Appeal No. 66 of 1960, arising out of Miscellaneous Case No. 117 of 1948. The share of the vendors was to the extent of one-half of 1 bigha 10 kathas 17 dhurs and odd as indicated by the petition of compromise (Exhibit 4).
4. The contesting defendants (respondents Nos. 2 to 4), inter alia, challenged that Sairunnissa and Zulekha were the daughters of Sk. Doman. According to them, they were daughters of Sk. Budhu, the former husband of Sirajan, after whose death she married Sk. Doman. According to them, the appellant had not acquired any title to the suit lands much less possession over them.
5. The learned Munsif, on a consideration of the evidence adduced in the case, came to the conclusion that Sairunnissa and Zulekha were daughters of Sk. Doman; that by the compromise (Exhibit 4) in Misc. Appeal No. 66 of 1950 the entire area of 1 bigha 10 kathas 17 1/4 dhurs was conveyed to the five daughters and the widow of Sk. Doman in which the vendors of the appellant held half share; that the kebala (Exhibit 1), dated the 22nd October, 1951, executed in favour of the appellant, was valid, genuine and for consideration and that the sale deeds dated the llth November, 1951 and the 2'6th February, 1952, executed in favour of respondents Nos. 1 and 5 and respondent No. 8, respectively, did not convey any title to them. Plot No. 328 (Schedule 4 of the plaint) was held to have not formed part of the aforesaid compromise.
6. On appeal, the learned Additional Subordinate Judge found that Sirajan had not joined in the execution of the sale deed dated the 22nd October, 1951. He also found that the three sons of Sk. Doman and all his five daughters as also his widow had share in Schedules 2 and 3 lands under the law of inheritance; and the sale deed (Exhibit 1), dated the 22nd October, 1951, having been executed by two daughters of Sk. Doman alone, the appellant was entitled to 14/5 share in the Schedules 2 and 3 properties and partition could be ordered to that extent only. He modified the judgment and decree of the learned Munsif accordingly.
7. It may be stated that although the sale deed (Exhibit 1) in favour of the appellant was executed by Sairunnissa, Zulekha and Sirajan, only the two daughters of Sk. Doman (Sairunnissa and Zulekha) admitted execution before the Sub-Registrar. Sirajan, the widow of Sk. Doman, did not admit execution with the result that the appellant filed an application under Section 74 of the Indian Registration Act to get the document compulsorily registered. To this application only Sirajan, widow of Sk. Doman, was made a party. Mr. Asghar Hussain appearing on behalf of the appellant drew my attention to Rules 280 to 239 of the Registration Manual, 1946 (Pp. 220 to 225, Vol. II) and submitted that under Section 73 of the Indian Registration Act notice had to be issued only to the person who refused to admit execution of the document. He submitted that the Court of Appeal below was not right in thinking that as notice was not served on the two daughters of Sk. Doman, who were not made parties to the application under Section 73, the application was not in proper form A perusal of Section 73 read with the form of notice (Rule 289 (c) of Vol. II of the Registration Manual) make it clear that only the person who refused to admit execution of the document before the Registrar were necessary parties on whom notice was to be served. The Court of Appeal below was also wrong in thinking that there was nothing to show that notice was actually served on Siraian, the only opposite party in the application, before the document was compulsorily registered. The order passed by the District Sub-Registrar (Exhibit 13) clearly states that the opposite party was absent in spite of service of notice. As the applicant was a pardanashin lady, her husband appeared and was examined along with witnesses. The District Sub-Registrar finally recorded -- "I am satisfied that the document in question has been voluntarily executed and I order registration in respect of Bibi Siraian under Section 75 of the Indian Registration Act XVI of 1908". Similarly, the reduction of share claimed by the appellant is also wrong inasmuch as by the compromise petition (Exhibit 4) a new right was created in favour of the vendors of the appellant, viz., the female heirs of Sk. Doman. As Doman's interest had already been auction-sold, his heirs other than those who were parties to the compromise could not get any share in it.
8. Ordinarily, whenever a document is registered, it takes effect from the date of registration. In case of a document which is voluntarily admitted before the Sub-Registrar, it operates from the time of its execution (vide Section 47 of the Indian Registration Act) and not from the time of its registration. In the case of documents which are compulsorily registered, the law is slightly different. It shall take effect not from the date of its execution but from the date of its first presentation for registration, see Sub-section (3) of Section 75 of the Act. In the present case the sale deed ('Exhibit 1') in favour of the appellant was presented on the 22nd October, 1951. Therefore, in spite of the fact that it was compulsorily registered on a much later date (5-9-92) than the sale deed in favour of the respondents, it will have precedence over the two kobalas dated the 11th November, 1951, and the 26th February, 1952, which conveyed no title to respondents Nos. 1, 5 and 8, as the executants had already parted with their entire interest much earlier in favour of the appellant.
9. In the result, the appeal succeeds, the judgment and decree of the Court of Appeal below are set aside end that of the trial court are restored. There will be no order for costs of this Court.