Faiyazuddin Khan vs Musammat Zahur Bibi on 23 November, 1937

Patna High Court
Faiyazuddin Khan vs Musammat Zahur Bibi on 23 November, 1937
Equivalent citations: 174 Ind Cas 372
Author: F Ali
Bench: F Ali, Rowland


JUDGMENT

Fazl Ali, J.

1. This is an appeal from the judgment and decree of the Additional Subordinate Judge of Gaya affirming the judgment and decree of the Munsif of Aurangabad in a suit brought by the respondent under Order XXI, Rule 63, Civil Procedure Code. It appears that the appellant had brought a contribution suit against the husband of the plaintiff (respondent) in 1926 but he withdrew it on December 21, 1927, having obtained the permission of the trial Court to bring a fresh suit. He did bring a fresh suit on June 22, 1928, and also obtained an order of attachment before judgment against the property which is the subject matter of the present litigation on August 27, 1928. It appears, however, that on July 19, 1928, that is to say, some time before the date of the attachment, the husband of the respondent had executed a batmok as a deed in respect of the same property in her favour and this deed was registered on January If, 1929. The appellant’s suit was ultimately decreed and he proceeded to execute his decree against the properly in dispute whereupon the responded preferred a claim under Order XXI, Rule 58. This claim being negatived, the respondent brought the present suit under Order XXI, Rule 63.

2. The main question which arises in this case is whether the deed of baimokasa executed by the plaintiff’s husband in her favour on July 19, 1928, will pravail against the attachment of tie same property effected on August 27, 1928. Both the Courts below have answered this question in the affirmative on the ground that though the baimokasa deed was registered after the attachment, it must under Section 47, Registration Act, be held to operate from the date of its execution. This view is assailed by the learned Counsel for the appellant as erroneous in law, and he refers us in support of his contention to the decision of a Division Bench of this Court in Tilakdhari Singh, v. GOUR Narain 5 P.L.J. 715 : 59 Ind. Cas. 290 : A.I.R. 1921 Pat. 150 : 2 P.L.T. 95, as an authority for the proposition that where an instrument which purports to transfer the title to property requires to be registered, the title aces not pass until the registration has been effected. It has been pointed out to us on behalf of the respondents that the correctness of this view has been doubted by the Madras Court in Venkataramana Reddi v. Rangiah Chetti A.I.R. 1922 Mad. 249 : 70 Ind. Cas. 212 : 41 M.L.J. 399 : (1922) M.W.N. 15, Akki Guru Basappa v. Santhappa A.I.R. 1925 Mad. 359 : 83 Ind. Cas. 133, and Akki Guru Basappa v. Santhappa A.I.R. 1925 Mad. 710 : 87 Ind. Cas. 568 : 48 M.L.J. 496, but it appears to me to be unnecessary to examine these cases as the matter seems to have been settled once for all by the decision of the Privy Council in Kalyansundaram Pillai v. Karuppa Mooppanar 50 M. 193 : 100 Ind. Cas. 105 : A.I.R. 1927 P.C. 42 : 54 I.A. 89 : 25 A.L.J. 113 : (1927) M.W.N. 149 : 4 O.W.N. 197 : 25 L.W. 336 : 52 M.L.J. 346 : 38 M.L.T. 87 : 31 C.W.N. 509 : 8 P.L.T. 327 : 29 Bom. L.R. 833 : 45 C.L.J. 435(P.C.). In that case a day after a Hindu male had executed a deed of gift in respect of part of his immovable property and delivered it to the donee, he adopted a son and three days later the document was registered. A. question then arose as to whether the deed of gift took effect from the date of execution or from the date of registration. The Privy Council answered the question by laying down affirmatively that the deed became effectual from the date when it had been executed and the gift accepted by (he donee In delivering the judgment of the Board, Lord Salvesen remarked as follows:

They (their Lordships) are unable to see how the provisions of Section 123, Transfer of Property Act, can be reconciled with Section 47, Registration Act. except upon the view that, while registration is necessary solemnity in order to the enforcement of a gift of immovable property, it does not sustend 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 everything 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.

3. His Lordship then observed:

Their Lordships apprehend that the Judges of the High Court of Madras in allowing leave to the appellant in the present case desired to elicit an authoritative opinion as to the soundness of the two latest decisions in the Madras Courts, and their Lordships think it desirable that a point which has occasioned so much controversy in the past should be settled by a decision which will apply to the whole of India.

4. The only ground on which the appellant tries to distinguish the present case from the case which was before the Privy Council is that in this case between the execution and the registration of the baimokas a deed, there was an order of attachment issued by a competent Court, which, it is contended, must be held to have the effect of prohibiting the husband of the respondent from doing any further act to complete that deed. This argument overlooks the fact that the person in whose favour the document is executed, has a right under the law to ask for compulsory registration; and the document, when so registered, must under Section 47, Registration Act, take effect from the date of the execution. I do not see why in principle the attachment should prevail as against the document when the party executing it does voluntarily what he can under the law be compelled to do. This view is fully supported by the decision of the Calcutta High Court in Nabadweepchandra Das v. Lokenath Ray 59 C. 1176 : 142 Ind. Cas. 452 : 36 C.W.N. 733 : Ind. Rul. (1933) Cal. 293 : A.I.R. 1933 Cal. 212.In that case a question arose as to whether an attachment would prevail over a mortgage deed which had been executed before it. The learned Judges answered it thus:

To consider the effect of Section 64, Civil Procedure Code, the true nature of an order of attachment” has to be realized. Form No 24 of App E to the Code is the form of prohibitory order for attachment of immovable 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 persons are prohibited from receiving the same by purchase, gift or otherwise. We are accordingly of opinion that 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 make it effective and the transferee had already taken by 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 enforcible. We are, accordingly, of opinion that the attachment such as it was in the present case did not affect the mortgage.

5. I may also here refer to the case in Mina Kumar Bibi v. Bijoy Singh Dudhuria 44 C. 662 : 40 Ind. Cas. 242 : A.I.R. 1916 P.C. 238 : 44 I.A. 72 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 C.W.N. 585 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473(P.C.), in which it was not even suggested before the Privy Council that in law an order of attachment would render a document executed before the order, but registered after it wholly ineffectual as against the attachment. The only other points which were raised in this appeal were: (1) that the registration was invalid, inasmuch as the deed which should have been registered at Aurangabad (where the properties covered by it were situated) was registered at Gaya; and (2) that the property conveyed by means of the baimokasa deed being of a much higher value than the value stated in the deed, the parties had tried to commit a fraud upon the revenue and, therefore, the document was invalid. The first point, however, was given up in view of the clear provisions of Section 30, Land Registration Act, and the second point has been fully answered by the learned Subordinate Judge who points out that the Collector has in the present case given a certificate under Section 40, Clause (2) of the Stamp Act, and that certificate is conclusive to show that the proper stamp fee was paid. In these circumstances I hold that the decision of the Court below is correct and the appeal must be dismissed with costs.

Rowland, J.

6. I agree. The question is of the effect of an attachment before judgment and an order under Order XXI, Rule 54
prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from Such transfer or charge.

7. With this goes Section 64, Civil Procedure Code:

Where an attachment has been made, any private transfer or delivery of property attached…shall be void as against all claims enforceable under the attachment.

8. The argument was that as an unregistered document did not pass title, the transfer was not complete pending registration and, therefore, there was something still left for the transferor to do to make the transfer. If so, it was said he could be restrained from doing that which had remained for him to do. Whatever view we might take, if the matter were res integra, the authorities only allow of one answer to this question. A sufficient answer is given in the words of Lord Salvesen in Kalyan-sundaram Pillai v. Karuppa Moopanar 50 M. 193 : 100 Ind. Cas. 105 : A.I.R. 1927 P.C. 42 : 54 I.A. 89 : 25 A.L.J. 113 : (1927) M.W.N. 149 : 4 O.W.N. 197 : 25 L.W. 336 : 52 M.L.J. 346 : 38 M.L.T. 87 : 31 C.W.N. 509 : 8 P.L.T. 327 : 29 Bom. L.R. 833 : 45 C.L.J. 435(P.C.), which are quoted by Lord Shaw in an analogous appeal from Bombay in Venkatasubba Shrinivas v. Subba Rama 52 B. 313 : 108 Ind. Cas. 367 : A.I.R. 1928 P.C. 86 : 54 M.L.J. 573 : 47 C.L.J. 590 : 27 L.W. 766 : 26 A.L.J. 598 : 30 Bom. L.R. 827 : 32 C.W.N. 708 : I.L.T. 40 Bom. 99 (P.C.), It is said:

Registration does not depend upon his (the donor’s) 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.

9. The argument, therefore, that after execution of the document there still remained any voluntary act on the part of the transferor which he could be restrained from doing fails.

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