Madar Saheb vs Subbarayalu Nayudu on 29 September, 1882

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Madras High Court
Madar Saheb vs Subbarayalu Nayudu on 29 September, 1882
Equivalent citations: (1883) ILR 6 Mad 88
Bench: Innes, M Ayyar


Innes and Muttusami Ayyar, JJ.

1. The question in this second appeal is whether plaintiff’s registered sale-deed in 1878 renders defendant’s attachment in execution of the decree in Suit 53 of 1879 on an unregistered hypothecation-deed of 1872 inoperative under the provisions of Section 501 of the Registration Act and whether the attachment ought to he removed ?

2. Had defendant’s document been opposed to plaintiff’s document in the suit of 1879, there can be no question that, under the provisions of Section 50 of the Registraticn Act, plaintiff’s document would have taken effect against defendant’s document.

3. Indeed, the operation of registered documents against unregistered documents is an operation which takes effect from the moment of execution (Section 472), and, therefore, from 4th July 1878, the date of the plaintiff’s sale-deed, defendant’s hypothecation-deed ceased to have operation as regards the property comprised therein. Can the decree in Suit 53 of 1879, to which plaintiff was not a party, revive the operation of defendant’s document as regards the property? We are of opinion that it cannot. If it could do so, it would be only necessary to put such a document in suit to be able successfully to defeat the Registration Act.

4. The case Kolluri Nagabhushanum v. Ammanna I.L.R. 3 Mad. 71 is not on the same footing. In that case the unregistered document became merged in and superseded by a decree prior to the execution of a registered document relating to the same property. The competition there was between the decree and the registered document, and a decree relating to land, though unregistered, is by Section 50 unaffected by a subsequent registered document. In the present case the decree is upon a document, which, as regards the property, had ceased to have operation long before the suit, and it can, therefore, convey no rights in regard to the property as against plaintiff’s registered document. In so far, therefore, as it renders the hypothecated property liable to satisfy the decree, it must be held to be inoperative. If defendant be regarded as having pursued his personal remedy under the decree, the case stands thus : defendant attached what he supposed to be the judgment-debtor’s property which had been hypothecated to him, but simultaneously with the execution of the plaintiff’s sale-deed in 1878 this property had ceased to be the property of the judgment-debtor, and had become that of the plaintiff. The attachment ought, therefore, to be removed. It has been already held by this Court in Nallappa v. Ibram I.L.R. 5 Mad. 73 that notice is immaterial.

5. We must reverse the decree of the Subordinate Judge and restore that of the district Munsif. Plaintiff will have his costs in this and the Lower Appellate Court.

1 Registered documents relating to immoveables of which the registration is optional, to take effect against unregistered documents.

[Section 50: Every document of the kinds mentioned in Clauses (1) and (2) of section eighteen shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document, relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.

Explanation.-In cases where Act No. XVI of 1864 or Act No. XX of 1866 was in force in the place and at the time in and at which such unregistered document was executed, “unregistered” means not registered according to such Act, and, where the document is executed after the first day of July 1871, not registered under this Act.]

2 Time from which registered document operates.

[Section 47: 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.]

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