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Khodaijatul Kubra v. Krishna Pershad

Patna High Court

Jan 3, 1930

Judgment

CaseIQ

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Factual and Procedural Background

The opinion recounts a sequence of loans and successive mortgages over parts of the village (Mauza) Makhdumpur, and later litigation to obtain possession following execution sales. Key factual and procedural events set out in the text are:

14 August 1897: Jawad Hussain (defendant 1) borrowed Rs. 11,000 from the predecessors of the plaintiffs and mortgaged, among other things, a 10-annas interest in Mauza Makhdumpur.
18 September 1904: The mortgagees obtained a decree on that mortgage.
24 February 1905: Jawad Hussain borrowed a further Rs. 2,000 and mortgaged a 6-annas interest in the same mauza.
4 April 1905: Jawad Hussain executed an instrument (Ex. L) in favour of his wife, Khodaijatul Kubra (defendant 2), purporting to make over 16-annas of Makhdumpur in consideration of an annual rent of Rs. 500 and as satisfaction (in substance) of a dower-debt of Rs. 10,000. The legal effect of this instrument is the principal question in the litigation.
18 November 1905: Jawad Hussain borrowed further sums and by a deed (reciting earlier mortgage decree and second mortgage) mortgaged the 16-annas, keeping prior liens alive.
17 September 1910: A suit was instituted on that mortgage; decree obtained 20 January 1911; execution proceedings followed from 1912 and were protracted.
2 June 1917: Makhdumpur was sold in execution for Rs. 48,000; sale certificate granted to the mortgagees-auction purchasers on 28 August 1920.
18 September 1920: Purchasers applied for delivery of possession but found the mauza in the possession of Khodaijatul Kubra, not of the judgment-debtor Jawad Hussain.
23 October 1922: The purchasers (plaintiffs) brought the present suit for possession with mesne profits.
The suit was defended only by Khodaijatul Kubra who asserted (a) that the 1905 instrument created a permanent mokarrari lease in satisfaction of her dower-debt and gave her continuous possession since 1905 (including improvements), and alternatively (b) that the transaction was a hiba-ba-shart-ul-ewaz conferring title.
The learned Subordinate Judge decreed in favour of the plaintiffs, finding the 1905 instrument concocted long after that date, the evidence of possession unreliable, and that defendant 1 had continued in possession.
On appeal, Ross, J. (with Wort, J. concurring) dismissed the appeal, upholding the Subordinate Judge's decision.

Legal Issues Presented

What is the legal effect of the instrument dated 4 April 1905 (Ex. L) executed by Jawad Hussain in favour of Khodaijatul Kubra — is it (a) a hiba-ba-shart-ul-ewaz (a conditional gift that becomes a gift), (b) a permanent mokarrari lease (a perpetual lease), (c) an agreement for a present lease (a present demise), or (d) merely a promise to execute a lease within three months?
Does the instrument require registration under the Registration Act, and if unregistered, what is its effect on the immovable property comprised therein (including admissibility as evidence and the ability to create or prove an interest)?
Given non-registration, can the acts and possession of the parties be used to prove that a permanent lease or title was in fact created (i.e., is there part performance or conduct amounting to recognition/exercise of proprietary rights)?
On the facts, was the defence of Khodaijatul Kubra — that she had been in possession since 1905 under a permanent mokarrari lease — established so as to defeat the plaintiffs' claim to possession following the execution-sale?

Arguments of the Parties

Defendant (Khodaijatul Kubra)'s Arguments

The 4 April 1905 instrument effected a permanent mokarrari lease (described in various records as mokarrari istemrari or perpetual mokarrari) in satisfaction of her dower-debt of Rs. 10,000, with the obligation to pay Rs. 500 annually; she asserted continuous possession since 1905, with improvements (house and garden).
Alternatively, the transaction was in the nature of a hiba-ba-shart-ul-ewaz (conditional gift which confers complete title once condition is fulfilled).

Plaintiffs / Appellants

The Subordinate Judge (and thus effectively the plaintiffs' position as accepted below) was that the 1905 instrument had been concocted well after that date, the evidence of possession relied on by defendant 2 was unreliable and unsatisfactory, and that Jawad Hussain had continued in possession of Makhdumpur.
On appeal the court addresses the appellant's objection to the defendant's setting up the deed, specifically stressing registration requirements and the true legal character of the instrument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abbas Ali Shikdar v. Karim Bakhsh Shikdar	Cited for the proposition that a transaction which in substance amounts to a sale for valuable consideration (and not a mere nominal gift) requires registration.	The court relied on it to support the view that the 1905 instrument, being for valuable consideration (dower-debt and reserved rent), was not a hiba and therefore required registration.
Mahomed Musa v. Aghore Kumar	Authority for the doctrine that an unregistered instrument may be admissible for collateral purposes (e.g., to prove the nature of possession) even though it cannot be relied on to prove a concluded transaction transferring an interest under the Registration Act.	The court invoked this doctrine to explain that, despite non-registration, the instrument could be used to assess the nature of the defendant's possession but not to establish a binding transfer of the immovable property.
Maharani Janki Kuer v. Birj Bhikhan Ojha	Applied the Mahomed Musa doctrine to instruments of this kind (unregistered agreements affecting immovable property), permitting their use for collateral purposes such as proving possession.	The court noted that Maharani Janki Kuer applied the same principle and treated such documents as admissible for the collateral purpose of proving the character of possession rather than establishing a binding proprietary transfer.

Court's Reasoning and Analysis

The court's analysis proceeds from characterising the 4 April 1905 instrument and then applying statutory registration rules and precedents to that characterisation:

The court examined the operative language of the 1905 instrument (quoted at length) and concluded that it "plainly purports to create an interest in land" and thus is an agreement for a lease operating as a present demise rather than merely a promise to execute a lease later.
Because the instrument creates an interest in immovable property, it falls within the registration provisions of the Registration Act. The court specifically referred to Section 2(7) and Section 17(1)(a) of the Registration Act as making such agreements registerable.
The legal consequence of non-registration was drawn from Section 49 of the Registration Act: an unregistered instrument, where registration is required, "does not affect any immovable property comprised therein, nor can it be received as evidence of any transaction affecting such property." The court emphasized that non-registration is an objection of substance, not mere form.
Notwithstanding the above, the court applied the doctrine in Mahomed Musa v. Aghore Kumar (as applied in Maharani Janki Kuer) that an unregistered instrument may still be admissible for collateral purposes — specifically to prove the nature of the defendant's possession — because parties' acts may be consistent only with the possession or exercise of rights the document purported (but failed formally) to confer.
The court thus refrained from treating the instrument as establishing a binding transfer or lease in law (because of non-registration) but allowed an inquiry into whether the parties' conduct and possession supported the defendant's claim independent of the unregistered document.
On the facts, and applying the above principles, the court agreed with the Subordinate Judge's factual findings: the instrument was concocted later, the evidence of continuous possession by defendant 2 since 1905 was unsatisfactory, and defendant 1 had continued in possession. There was therefore no basis to treat the unregistered instrument as establishing a proprietary title or to displace the plaintiffs' rights following the execution sale.

Holding and Implications

HOLDING: The appeal is DISMISSED; the decision of the learned Subordinate Judge in favour of the plaintiffs is upheld, with costs.

Implications and direct effects:

The 4 April 1905 instrument was held to be an agreement purporting to create an interest in land (an agreement for a present lease/demise) and therefore required registration under the Registration Act.
Because the instrument was not registered, it could not be relied upon to affect the immovable property or to prove a binding transfer; at most it could be used for the collateral purpose of explaining the nature of possession, subject to factual proof.
On the facts of this case, the court found the evidence of defendant 2's possession and the genuineness of the 1905 instrument insufficient; the plaintiffs' title by execution sale and their claim to possession were therefore vindicated.
No broader or new principle of law was laid down; the court applied existing statutory provisions and established authorities to the facts, and the decision operates to affirm the lower court's decree as between the parties in this litigation.

Disposition recorded in the opinion: "Appeal dismissed." Wort, J. concurred.

Show all summary ...

Ross, J.:— On 14th August 1897, Jawad Hussain, who was defendant 1 in the present suit, borrowed Rs. 11,000 from the predecessors of the plaintiffs and mortgaged inter alia, 10-annas interest in Mauza Makhdumpur. On 18th September 1904, the mortgagees obtained a decree on this mortgage. On 24th February 1905, Jawad Hussain borrowed a further sum of Rs. 2,000 and mortgaged 6-annas interest in Mauza Makhdumpur. On 4th April 1905 he is said to have executed a deed of agreement in favour of his wife Khodaijatul Kubra (defendant 2) by which he purported to make over to her the 16-annas of Mauza Makhdumpur in consideration of an annual rent of Rs. 500. The effect of this instrument is the principal question in the present litigation. On 18th November 1905, Jawad Hussain borrowed a further sum from the same parsons, and by a deed which recited the mortgage decree and the second mortgage referred to above, he mortgaged 16-annas of Mauza Makhdumpur keeping alive the lien of the prior mortgage bond and the decree aforesaid as well as the second mortgage deed referred to above. A decree was obtained on this mortgage on 20th January 1911, in a suit which was instituted on 17th September 1910. Proceedings in execution were taken from 1912. The execution was very protracted, being resisted on all possible grounds, but on 2nd June 1917, Makhdumpur was sold for Rs. 48,000 and the sale certificate was granted on 28th August 1920 to the mortgagees auction-purchasers. On 18th September 1920 the purchasers applied for delivery of possession; but it was found that Makhdumpur or, at least the kutchery, was not in possession of the judgment-debtor, Jawad Hussain, but of his wife Khodaijatul Kubra. The purchasers therefore brought the present suit on 23rd October 1922 for possession of this village with mesne profits.

2. The suit was defended only by Khodaijatul Kubra and her defence was that she had obtained in 1905 a permanent mokarrari lease of the village in satisfaction of her dower-debt of Rs. 10,000 and in consideration of an annual payment of Rs. 500 to defendant 1 that she had been in possession of the village since the date of the agreement and had built a house and laid out a garden there. There was an alternative defence that the transaction was in the nature of a hiba-ba-shart-ul-ewaz which conferred complete title.

3. The learned Subordinate Judge passed a decree in favour of the plaintiffs. He held that the instrument of 1905 had in fact been concocted long after that date and that the evidence of possession was unreliable and unsatisfactory. He found that defendant 1 had continued in possession of Makhdumpur.

4. The decision of this case, in my opinion, depends upon the facts; but as a great deal of discussion was directed to the legal aspect of the case during the hearing of this appeal I shall briefly state my opinion on this matter.

5. The operative words in the deed of agreement executed on 4th April 1905 (Ex. L) are these:

“I therefore considered it proper and suggested to the said Musammat to take over 16-annas Mauza Makhdumpur …… in lieu of Rs. 10,000 out of her dower-debt on the condition of paying annually Rs. 500 on account of revenue and cases and for my personal expenses. Accordingly, my second wife, Mt. Bibi Khodaijatul Kubra alias Jamil Khatun liked and accepted it. But it is impossible at this time to execute any necessary deed at this place, Islampur Konand … I therefore executed this deed of agreement with the same condition. I do declare that on reaching Sahibganj, District Gaya, within three months, I shall execute a necessary deed to the above effect, and shall put (her) in possession and occupation of the said mauza. If, God forbid, a necessary deed to the above effect may not be executed even on the expiry of the aforesaid period of three months, or I fail to execute it for any reason, the said Mt. Khodaijatul Kubra alias Jamil Khatun has and shall have right and power, according to this deed of agreement, to take possession of the said Mauza Makhdumpur in lieu of Rs. 10,000 out of the dower-debt due to her on the condition of paying annually Rs. 500 on account of revenue and road-cess and for my personal expenses to me and to my heirs and representatives in respect of Mauza Makhdumpur …… and of paying sadr jama of Rs. 36-9-0 year after year and to get a necessary deed executed by me and my heirs and representatives through Court or in whatever way she may think possible and proper.”

6. The difficulty in the way of the appellant's setting up this deed is that it is not registered. This difficulty is not removed by the contention that the deed is hiba bashart-ul-ewaz. Although the transaction thus known to Mahomedan law is nominally a gift with a condition for consideration, yet once the condition is fulfilled the contract becomes a sale: Ameer Ali's Mahomedan law, 14th Edn. Vol ls at p. 168, and it is obvious that in the present case the transaction would be a sale for valuable and not nominal consideration such as a copy of the Koran. The consideration is the dower-debt of Rs. 10,000, and a reserved rent of Rs. 500. Consequently this is not a gift and requires registration: see also Abbas Ali Shikdar v. Karim Bakhsh Shikdar (1). Apart from this the transaction, in my opinion, is not and was not intended to be a hiba bashart-ul-ewaz. This is only set up as an alternative and legal defence in the written statement. The real defence is that this was an agreement to grant a permanent mokarrari lease; and it has been so treated all along. Thus the tenure is described in the Record-of-Rights as mokarrari istemrari. In the petition submitted by Jawad Hussain to the Settlement Officer in 1915 the interest of Khadaijatul Kubra is described as mokarrari: Ex. 26. In a tamlikhnama executed in 1917 it is described as a perpetual mokarrari; and in the village collection papers defendant 2 is described as mokarraridar. Defendant 2 is also described throughout the evidence as mokarraridar. It is not therefore necessary to discuss further this suggestion that the instrument is hiba bashart-ul-ewaz.

7. The instrument, in my opinion, is an agreement for a lease operating as a present demise. It was contended for the appellant that it is in reality not an agreement for a lease for a present demise but a promise to execute a lease within three months or at the option of the lessee. In my opinion this is not the true effect of the instrument which plainly purports to create an interest in land. It is therefore an agreement for a lease and as such requires registration under Section 2(7) and Section 17(1)(a) of the Registration Act. The result of non-registration is that this instrument does not affect any immovable property comprised therein, nor can it be received as evidence of any transaction affecting such property: S. 49. It does not follow however that the document is wholly irrelevant. The doctrine of Mahomed Musa v. Aghore Kumar (2) was applied to such an instrument in Maharani Janki Kuer v. Birj Bhikhan Ojha* (3).

8. According to the decision the true position is that, while Section 49 of the Registration Act, precludes the use of the document for the purpose of proving a binding contract between the parties creating an interest in the property, nor can it be received as evidence of any transaction affecting the property, yet it is not necessary to rely upon such a transaction if the acts of the parties themselves are consistent only with the recognition on the one band, and the exercise, on the other, of those rights which the document, although not finally binding as a contract purported to confer. The instrument is admissible not for the purpose of proving a concluded transaction transferring an interest which it clearly is not, bub for the collateral purpose of proving the nature of the defendant's possession.

9. In that decision the authorities for this last proposition are cited. The objection to the document for want of registration is not a mere technical objection, but is an objection of substance going to the fact and the bona fides of the whole transaction; and the effect of the want of registration is that the acting of the parties have to be examined in order to see whether any such agreement for a permanent lease did in fact exist. (His Lordship here referred to the evidence concluding therefrom that defendant 2 had neither been in possession of Makhdumpur since 1905 nor was there any part performance of an agreement for permanent lease of that village to her which would enable her to establish a title independently of any registered lease).

10. In my opinion the decision of the learned Subordinate Judge in this case is right and the appeal must be dismissed with costs.

Wort, J.:— I agree.

V.B/R.K

11. Appeal dismissed.