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Faiyazuddin Khan v. Mt. Zahur Bibi
Factual and Procedural Background
This appeal arises from an order under Order 21, Rule 63 of the Civil Procedure Code (CPC). The appellant had originally brought a contribution suit against the respondent's husband in 1926 but withdrew it on 21 December 1927 with the trial Court's permission to institute a fresh suit. A fresh suit was filed on 22 June 1928, and an order of attachment before judgment against the property in dispute was obtained on 27 August 1928.
Prior to that attachment, on 19 July 1928 the respondent's husband executed a Raimokasa deed in favour of the respondent; that deed was subsequently registered on 16 January 1929. The appellant's suit was ultimately decreed and execution was levied against the property. The respondent first preferred a claim under Order 21, Rule 58 which was negatived, and then brought the present suit under Order 21, Rule 63. Both the trial Court (Munsif of Aurangabad) and the appellate Court (Additional Subordinate Judge of Gaya) held that the Raimokasa deed prevailed over the attachment because, under Section 47 of the Registration Act, the registered deed operates from the date of its execution.
Legal Issues Presented
- Whether the Raimokasa deed executed by the respondent's husband on 19 July 1928 prevails against the attachment of the same property effected on 27 August 1928.
- Whether the rule that an instrument requiring registration does not pass title until registration is effected applies so as to defeat a deed executed before but registered after an attachment.
- Whether the place of registration (registered at Gaya instead of Aurangabad) invalidated the registration of the deed.
- Whether an undervaluation in the deed (conveying property of a higher value than stated) rendered the deed invalid as a fraud on the revenue.
Arguments of the Parties
Appellant's Arguments
- Reliance on a Division Bench decision reported in 5 Pat LJ 715 for the proposition that where an instrument purports to transfer title and requires registration, the title does not pass until registration has been effected.
- The existence of an order of attachment between execution and registration operates to prohibit the husband (transferor) from doing any further act to complete the deed; thus the transferor could be restrained from performing any remaining voluntary act necessary to complete the transfer.
- The registration was allegedly invalid because the deed should have been registered at Aurangabad (where the properties were situated) rather than at Gaya.
- The value stated in the deed understated the true value, suggesting an attempt to defraud the revenue (and thus invalidating the document).
Respondent's Arguments
- The deed, although registered after the attachment, must operate from the date of execution under Section 47 of the Registration Act; registration is a necessary solemnity but does not suspend the operation of the deed.
- Even though some High Court decisions (Madras) had doubted the contrary view, the Privy Council had settled the law that a deed of immovable property, once executed and accepted by the donee, takes effect from execution and is not suspended until registration.
- On the point of registration location, the appellant ultimately abandoned this contention in view of Section 30 of the Land Registration Act.
- On stamp and valuation, the Collector issued a certificate under Section 40(2) of the Stamp Act that the proper stamp fee was paid, which the respondent relied on as conclusive evidence that no fraud on revenue occurred.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 5 Pat LJ 715 (Division Bench) | Proposition that where an instrument purports to transfer title and requires registration, the title does not pass until registration is effected. | The Court noted the appellant's reliance on this authority but did not follow it; instead treated the matter as settled by later authority of the Privy Council. |
| AIR 1922 Mad 249; AIR 1925 Mad 359; AIR 1925 Mad 710 (Madras High Court decisions) | These decisions doubted the view that an executed but unregistered instrument is effective from execution (i.e., expressed scepticism of the principle applied by the Privy Council). | The Court observed these doubts but considered it unnecessary to examine them in detail because the Privy Council decision (50 Mad 193) settled the law for all India. |
| 50 Mad 193 (Privy Council) | Held that a deed of gift of immovable property becomes effectual from the date of execution and acceptance by the donee; registration is a solemnity for enforcement but does not suspend the gift until registration. | The Court relied on this decision as the controlling authority establishing that the Raimokasa deed took effect from its execution date, and thus prevailed against a later attachment. |
| 59 Cal 1176 (Calcutta High Court) | Held that an attachment did not affect a mortgage executed before the attachment though the mortgage was registered after the attachment. | Cited in support of the proposition that an attachment does not defeat a transfer or charge executed before the attachment but registered afterwards; the Court found this decision fully supportive of its view. |
| 44 Cal 662 | Referenced as a case in which it was not even suggested before the Privy Council that an order of attachment would render a document executed before the order but registered after it ineffectual. | Used to indicate that prior authorities did not treat such attachment as defeating an earlier executed document that was registered later. |
| 52 Bom 313 (referenced; Lord Shaw) | Quoted by Lord Shaw in an analogous appeal; supportive of the proposition that registration is ministerial and does not depend on the donor's consent. | Quoted by the Court (through Rowland, J.'s concurrence) to reinforce that registration is the act of an official and that execution plus acceptance completes the transfer. |
Court's Reasoning and Analysis
The Court identified the principal question as whether a Raimokasa deed executed on 19 July 1928 could prevail over an attachment effected on 27 August 1928. Both judges reached the same conclusion, but their reasoning is stated in complementary terms.
Fazl Ali, J.:
- The Court regarded the matter as settled by the Privy Council decision in 50 Mad 193. That decision held that a deed of gift of immovable property becomes effectual from the date of execution and acceptance by the donee, and that Section 47 of the Registration Act does not suspend the operative effect of such a deed until registration; instead registration is a necessary solemnity for enforcement.
- Lord Salvesen's reasoning (quoted) explains that registration is performed by an officer and does not depend on the donor's consent; if the deed is properly executed and attested, it must be registered when presented by a person with the necessary interest.
- The appellant's attempt to distinguish the Privy Council authority on the ground that an attachment intervened was rejected. The Court reasoned that the transferee has a right to compel registration and the transferor had done everything in his power to complete the transfer; therefore the attachment should not prevail over the previously executed deed.
- The Court found support in the Calcutta High Court decision reported at 59 Cal 1176, which held that an attachment did not affect a mortgage executed before the attachment though registered later; the Court relied on that reasoning to support its conclusion.
- Other procedural objections were considered: (a) the objection about place of registration (Gaya vs. Aurangabad) was abandoned in view of Section 30 of the Land Registration Act; (b) the undervaluation/fraud point was answered by the subordinate Judge's finding that the Collector had issued a certificate under Section 40(2) of the Stamp Act, which was conclusive as to proper stamp payment.
- Accordingly, Fazl Ali, J. concluded that the lower Court's decision was correct and dismissed the appeal with costs.
Rowland, J. (concurring):
- Emphasised the provisions of Order 21, Rule 54 (prohibiting the judgment-debtor from transferring or charging property) and Section 64 of the CPC (private transfer or delivery after attachment is void as against claims enforceable under the attachment).
- Addressed the appellant's argument that an unregistered document did not pass title and therefore some voluntary act remained for the transferor which could be restrained by attachment. He rejected that argument by reference to the Privy Council dicta (Lord Salvesen) and an analogous statement quoted by Lord Shaw, observing that registration is an act performed by an official and not a voluntary act of the transferor that could be restrained.
- Concluded that nothing remained for the transferor to do after execution (and acceptance) that an attachment could prevent; therefore the executed deed was not rendered ineffectual by the subsequent attachment.
Holding and Implications
Holding: The appeal is dismissed and the decision of the Court below is upheld. The Raimokasa deed executed on 19 July 1928 is effective from its date of execution and prevails over the attachment effected on 27 August 1928; the appellant's other objections (place of registration and alleged fraud on revenue) were either abandoned or resolved against the appellant.
Implications:
- The Court applied established authority (Privy Council in 50 Mad 193 and supporting Calcutta High Court authority) to hold that registration is a solemnity for enforcement but does not suspend the operative effect of an executed and accepted instrument of transfer of immovable property.
- The direct effect is that the respondent's title under the Raimokasa deed, having been executed prior to the attachment, prevailed despite registration occurring after the attachment; the decree and execution pursued by the appellant cannot defeat that pre-existing executed transfer.
- No new legal principle was announced; the decision applies and reaffirms pre-existing authorities rather than creating new precedent.
Disposition: Appeal dismissed with costs.
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.
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