Fazl Ali, J.:— 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 O. 21, R. 63 of the CPC. It appears that the appellant had brought a contribution suit against the husband of the plaintiff (respondent) in 1926 but he withdrew it on 21st December 1927 having obtained the permission of the trial Court to bring a fresh suit. He did bring a fresh suit on 22nd June 1928 and also obtained an order of attachment before judgment against the property which is the subject matter of the present litigation on 27th August 1928. It appears, how-ever, that on 19th July 1928, that is to say, some time before the date of the attachment, the husband of the respondent had executed a Raimokasa deed in respect of the same property in her favour and this deed was registered on 16th January 1929. The appellant's suit was ultimately decreed and he proceeded to execute his decree against the property in dispute whereupon the respondent preferred a claim under O. 21, R. 58. This claim being negatived, the respondent brought the present suit under O. 21, R. 63.
2. The main question which arises in this case is whether the deed of Raimokasa executed by the plaintiff's husband in her favour on 19th July 1928 will prevail against the attachment of the same property effected on 27th August 1928. Both the Courts below have answered this question in the affirmative on the ground that though the Raimokasa deed was registered after the attachment, it must under Section 47 of the 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 as in support of his contention to the dexigion of a Division Bench of this Court in 5 Pat LJ 715,1 as an authority for the pro-position that where an instrument which purports to transfer the title to property requires to be registered, the title does 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 High Court in AIR 1922 Mad 249,2 AIR 1925 Mad 3593 and AIR 1925 Mad 710,4 but it appears to me to be an-necessary to examine these cases as the matter seems to have been settled one for all by the decision of the Privy Council in 50 Mad 193.5 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 the donee. In delivering the judgment of the Board, Lord Salvesen remarked as follows:
They (their Lordships) are unable to see how the provision of Section 123 of the Transfer of Property Act, can be reconciled with Section 47 of the 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 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 everything in his power to complete the donation and to make it effective. Registration does not depend upon his cannot, 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 baimokasa 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 over, looks 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 of the 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 59 Cal 1176.6 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 of the CPC, 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 casted, the transferor had done all that lay in his power to complete the transfer and make it elective 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.
5. I may also here refer to the case in 44 Cal 6627 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 of the Land Registration Act, and the second point has been fully answered by the learned sub-ordinate 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.:— I agree. The question is of the effect of an attachment before judgment and an order under O. 21, R. 54 prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from each transfer or charge.
6. With this goes Section 64 of the CPC:
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.
7. 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. It so, it was said he could be restrained from doing that which had remained for him to do.
8. 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 60 Mad 193 which are quoted by Lord Shaw in an analogous appeal from Bombay in 52 Bom 313,8 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.
K.S/R.K
10. Appeal dismissed.