ဖြစ်ရပ်ချင်းတူသောအမှု၂မှု
ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ
A. I. R . 1948 Patna 60( D. B. )အမှုဟာ၊1995 B. L. R. 151( F. B. )နဲ့ဖြစ်ရပ်ချင်းတော်တော်တူပါတယ်။
B စွဲဆိုတဲ့အနိုင်ဒီကရီရရှိရာကမှတ်ပုံတင်စာချုပ်ချုပ်ဆိုနိုင်ခဲ့ပါတယ်။
ပစ္စည်းလက်ရောက်ပေးအပ်ဖို့လျှောက်တဲ့အခါ၊ C ကဝင်ရောက်ပြီးလက်ရောက်မပေးရဖို့ကန့်ကွက်ပါတယ်။
(၁၆-၇-၁၉၃၀)နေ့မှာပစ္စည်းရောင်းတာဟာ၊ B စွဲဆိုတဲ့အမှုမပြီးပြတ်မီကာလအတွင်းဖြစ်လို့ပျက်ပြယ်တယ်ဆိုတဲ့အကြောင်းပြချက်နဲ့၊ C ရှုံးနိမ့်ပါတယ်။
အဲဒီတော့ C က B ရရှိခဲ့တဲ့ဒီကရီဟာမိမိအပေါ်အကျိုးမသက်ရောက်တဲ့အကြောင်းမြွက်ဟကြေညာပေးစေရန်နှင့်မိမိဒီကရီကိုအတည်ပြုရာမှာအငြင်းပွါးလျက်ရှိတဲ့ပစ္စည်းကိုလက်ရောက်ရယူခြင်းမပြုရန် B အားတားမြစ်တဲ့အမြဲတမ်းတားဝရမ်းထုတ်ဆင့်ပေးဖို့၊တရားမကျင့်ထုံးဥပဒေအမိန့်၂၁၊နည်း၁၀၃အရတရားစွဲဆိုပါတယ်။
တရားမကျင့်ထုံးဥပဒေအမိန့်၂၁၊နည်း၁၀၃အရစွဲဆိုတဲ့အမှုဟာတရားလိုအနေနဲ့အခင်းဖြစ်ပစ္စည်းကိုလတ်တလောလက်ရှိထားခွင့်နဲ့ပတ်သက်ပါတယ်။
ဆွေးနွေးနေတဲ့အမှုမှာတောင်းဆိုတဲ့သက်သာခွင့်ဟာအဲဒီအခွင့်အရေးနဲ့ဆက်နွယ်နေတာမငြင်းနိုင်ပါဘူး။
အမှုမှာတောင်းဆိုတဲ့သက်သာခွင့်ဟာနည်း၁၀၃မှာအကျုံးမဝင်ဘူးလို့အငြင်းမပွားပါဘူး။
A ကအခင်းဖြစ်ပစ္စည်းက်ု C ထံမှာရောင်းချတဲ့စာချုပ်ချုပ်ဆိုပြီးတဲ့တနေ့တည်းမှာပဲ၊ B က A အပေါ်၊ပဋိညာဉ်အတိုင်းဆောင်ရွက်ပေးစေလိုမှုစွဲဆိုခဲ့ပြီးအမှုအတောအတွင်းမှာ၊ A နဲ့ C တို့ချုပ်ဆိုတဲ့စာချုပ်ကိုမှတ်ပုံတင်ပေးခဲ့ပါတယ်။
ပစ္စည်းလွှဲပြောင်းခြင်းအက်ဥပဒေပုဒ်မ၅၂ရဲ့အဓိပ္ပာယ်အရအမှုမပြီးမပြတ်သေးသည့်ကာလအတွင်းအဲဒီစာချုပ်ကိုချုပ်ဆိုခြင်းဟုတ်မဟုတ်ဟာအမှုမှာအဓိကဆုံးဖြတ်ရမဲ့ကိစ္စဖြစ်ပါတယ်။
အရောင်းအဝယ်စာချုပ်ကိုအမှုမစွဲဆိုမီချုပ်ဆိုခဲ့ပြီးအမှုစွဲဆိုထားဆဲမှာမှတ်ပုံတင်ခဲ့ပါတယ်။
12 Ran. 263( D. B. )စီရင်ထုံးကိုတင်ပြခဲ့ပေမဲ့၊အဲဒီစီရင်ထုံးကိုပယ်ဖျက်ခဲ့တဲ့၊1937 R. L. R. 375( F. B. )ကိုတော့၊မတင်ပြခဲ့ပါဘူး။
စီရင်ထုံး၁၀ခုကိုလေ့လာပြီးခုံရုံးကအောက်ပါအတိုင်းထုံးဖွဲ့ပါတယ်-
[ ပစ္စည်းလွှဲပြောင်းခြင်းအက်ဥပဒေပုဒ်မ၅၄နှင့်အညီချုပ်ဆိုသောမှတ်ပုံတင်စာချုပ်အရလွှဲပြောင်းမှုကိုပြုလုပ်သည်နှင့်တပြိုင်နက်၊စာချုပ်ချုပ်ဆိုသည့်နေ့သို့နောက်ကြောင်းပြန်သည်ဟူသောအခြေခံအရသာလျှင်စာချုပ်စာတမ်းမှတ်ပုံတင်ခြင်းအက်ဥပဒေပုဒ်မ၄၇ကိုပုဒ်မ၅၄နှင့်တွဲဖက်ဖတ်ရှု၍ရနိုင်သည်။ထို့ကြောင့်ပစ္စည်းတခုကိုရောင်းချရာ၌အလျင်ကျသောပဋိညာဉ်အတိုင်းဆောင်ရွက်ပေးစေလိုမှုကိုမစွဲဆိုမီ၊ချုပ်ဆိုသော်လည်း၊အမှုစွဲဆိုပြီးမှမှတ်ပုံတင်သောအရောင်းအဝယ်စာချုပ်ကိုထိုအမှုမပြီးပြတ်သေးမီကာလအတွင်းချုပ်ဆိုသည်ဟုကောက်ယူခြင်းမပြုနိုင်။ ]
ဆုံးဖြတ်ချက်အခြေခံကတော့ AIR 1927 PC 42 ပဲဖြစ်ပါတယ်။
ပစ္စည်းလွှဲပြောင်းခြင်းအက်ဥပဒေပုဒ်မ၅၄နဲ့၁၂၃ဟာ၊သဘောချင်းတူလေတော့အဖြေတခုတည်းထွက်ရမှာပါပဲ။
1995 B. L. R. 151( F. B. )စီရင်ထုံးနဲ့တော့ဖြောင့်ဖြောင့်ကြီးဆန့်ကျင်နေပါတယ်။
A. I. R. 1948 Patna 60( D. B. )အမှုမှာ၊ B ရဲ့ရှေ့နေက၊ပစ္စည်းလွှဲပြောင်းခြင်းအက်ဥပဒေပုဒ်မ၅၄အရမရွှေ့မပြောင်းနိုင်တဲ့ပစ္စည်းကိုမှတ်ပုံတင်စာချုပ်အရသာလွှဲပြောင်းနိုင်တဲ့အတွက်ပုဒ်မ၅၂ပါကိစ္စအလို့ငှာလွှဲပြောင်းတဲ့နေ့ရက်ဟာမှတ်ပုံတင်တဲ့ရက်ဖြစ်ရမယ်လို့လျှောက်လဲတင်ပြပါတယ်။
12 Ran. 263( D. B. )အမှုကိုဆုံးဖြတ်တဲ့တရားသူကြီးတွေကလည်းဒီမှတ်ပုံတင်တဲ့အချက်ကိုအလေးထားဆုံးဖြတ်ခဲ့တာပါ။
၁၉၉၅ခုနှစ်စီရင်ထုံးမှာလည်းဒီလိုပါပဲ။
အဲဒီအမှုကိုကြားနာစဉ်က၊ 1937 R. L. R. 375( F. B. )နဲ့ A. I. R.1948 Patna 60( D. B . )စီရင်ထုံးတွေကိုတင်ပြခဲ့ကြဟန်မတူပါဘူး။
နိုင်ငံခြားစီရင်ထုံးကိုမတင်ပြနိုင်ဦးတော့အထင်ကရစီရင်ထုံးဖြစ်တဲ့၊ 1937 R. L. R. 375( F. B. )ကိုတင်ပြဖို့တော့၊ပျက်ကွက်ကောင်းတဲ့ကိစ္စမဟုတ်ပါဘူး။
လက်ရှိအခြေအနေမှာတော့၊ 1995 B. L. R. 151( F. B. )နဲ့ 1937 R. L. R. 375( F. B. )၊စီရင်ထုံးနှစ်ရပ်ဟာဝိရောဓိဖြစ်လျက်ရှိပါတယ်။
တနေ့မှာညှိယူဘို့အခွင့်အရေးရကောင်းပါရဲ့။
12 Ran. 263 ဟာသုံးနှစ်ပဲအတည်ဖြစ်ခဲ့တာကံကောင်းပါတယ်။
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စာဖတ်သူဥပဒေပညာရှင်များအလွယ်တကူဖတ်ရှုလေ့လာနိုင်ရန်အတွက်၊ A. I. R. 1948 Patna 60( D. B. )စီရင်ထုံးနှင့် A. I. R. 1927 PC 42 စီရင်ထုံးတို့အား၊အင်တာနက်မှရှာဖွေကူးယူဖော်ပြလိုက်ပါသည်။
A. I. R. (35) 1948 Patna 60 [C N. 22.)
BENNETT AND BEEVOR JJ.
Sadei Sahu - Defendant - Appellant.
V.
Chandramani Dei and another — Plaintiff and Defendant -Respondents.
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SADEI SAHU V. CHANDRAMANI DEI
Patna High Court
Feb 17, 1947
CASE NO. Appeal No. 9 of 1940
JUDGES Bennett & Beevor, JJ.
ACTS
SECTION 54 A PROVINCIAL INSOLVENCY ACT 1920
provision of the earlier Registration Acts of 1864, 1866, 1871 and 1877
SECTION 123 TRANSFER OF PROPERTY ACT 1882
Article 113 of sch. 1 to the Limitation Act, 1908,
SECTION 52 TRANSFER OF PROPERTY ACT 1882
SECTION 54 TRANSFER OF PROPERTY ACT 1882
SECTION 47 REGISTRATION ACT 1908
Section 27(b) of the Specific Relief Act,
SECTION 10 LIMITATION ACT 1908
SECTION 91 TRUSTS ACT 1882
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SADEI SAHU V. CHANDRAMANI DEI
Bennett, J.:— This is an appeal from a decision of the Additional Subordinate Judge, Cuttack, reversing the judgment of the Munsif of the 1st Court, Cuttack, in a suit instituted by the respondent under O. 21, R. 103 of the CPC, for a declaration that the decree obtained by the appellant in original Suit No. 242 of 1930 of the latter Court is not binding upon her and for a permanent injunction against the appellant restraining him from taking delivery of possession of the disputed property in execution of the said decree.
2. The facts of the case are as follows. On 5-12-1927, one Alekh Sahu agreed to sell the disputed property to the appellant.
On 20-6-1930, Alekh Sahu entered into a second agreement under which he contracted to sell the disputed property to the respondent and on 16-7-1930, he executed a deed of sale thereof to the respondent who thereafter entered into possession and her name appears in the Current Settlement Record of Rights.
3. There are concurrent findings of fact of the two Courts below, which were not disputed before us, that the respondent at the date of her purchase had notice of the prior sale to the appellant.
On the same day, 16-7-1930, but subsequent to the actual execution of the above-mentioned deed of sale to the respondent, the appellant instituted O.S No. 242 of 1930 against Alekh Sahu claiming specific performance of the contract of sale of 5-12-1927.
In his evidence the appellant as D.W 3, admitted that on 16-7-1930, when he instituted O.S No. 242 of 1930, he was aware of the prior execution on that day of the deed of sale to the respondent.
He did not, however, see fit to implead the respondent in that suit.
On 19-7-1930, three days after the institution by the appellant of O.S No. 242 of 1930, the deed of sale to the respondent was duly registered.
The appellant's claim in O.S No. 242 of 1930 against Alekh Sahu for specific performance of the agreement of 5-12-1927, was duly decreed and a registered kebala was duly executed in his favour by the Munsif of the 1st Court.
On his application for delivery of possession, the respondent intervened under Section 151 of the CPC, and prayed that delivery of possession be refused.
His claim was dismissed on the ground that the deed of sale to him of 16-7-1930, was executed pendente lite.
He therefore commenced the present suit.
4. The first point taken by Mr. B.K Pal on behalf of the appellant was that the sale to the respondent was pendente lite in that the deed of sale was not registered until three days after the institution of suit No. 242 of 1930.
He argued that since Section 54 of the Transfer of Property Act, 1882, provides that a sale of tangible immovable property can only be made by a registered instrument, it follows as of course that the date of the transfer for the purposes of S. 52 of that Act, which enunciates the doctrine of lis pendens, must be the date of registration.
This argument however entirely ignores Section 47 of the Registration Act, 1908, which itself repeats the corresponding provision of the earlier Registration Acts of 1864, 1866, 1871 and 1877 and which provides as follows:
“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.”
5. This section can only be read together with Section 54 of the Transfer of Property Act, 1882, on the basis that the transfer by registered instrument under Section 54 of the Transfer of Property Act, 1882, once effected, relates back to the date of execution or other conventional date.
That this is so, is, in my opinion, clear from the decision of the Judicial Committee in 8 P.L.T 327( 1 )and from the application of that decision made by a Division Bench of this Court in 19 P.L.T 383.( 2 )
In the case in the Privy Council, it was held that where a Hindu governed by the Mitakshara School executed a deed of gift and made it over to the donee, who accepted the gift, but prior to registration the donor adopted a son, the adoption did not render the gift inoperative, although the gift had not been registered before adoption.
The ratio decidendi of their Lordships' decision was stated by Lord Salvesen as follows:
[They (their Lordships) are unable to see how the provisions 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 a 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 hag 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.
Neither death nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with.]
6. The provisions of Section 123 of the Transfer of Property Act, 1882, which govern the mode of a valid transfer of immovable property by way of gift, are as categorical and mandatory in their terms as are those of S. 54 of that Act and I am of opinion that they cannot be distinguished in their relation to Section 47 of the Registration Act.
That this is so, follows clearly from the decision of this Court above referred to in 19 P.L.T 383 where in reliance upon the decision of the Judicial Committee above quoted, it was held that where a deed relating to certain properties requiring registration was executed and before it could be registered the properties were attached, the attachment did not prevail against the deed or prevent registration thereof and that when registered the deed took effect from the date of its execution.
7. Mr. B.K Pal argued strenuously that Section 47 of the Registration Act, 1908, operated only as between the parties to the deed and did not affect the rights of third parties and he referred to the decisions in A.I.R 1936 Cal. 17,( 3 )A.I.R 1941 Cal. 78( 4 )and A.I.R 1934 Rang. 216.( 5 )
In so far as those decisions turn upon the wording of some other statutory provisions, such as Section 54 of the Provincial Insolvency Act, 1920, and s. 26F, Ben. Ten. Amendment Act, 1938, they are no guide to the present question, but in so far as they purport to interpret Section 47 of the Registration Act, 1908, they appear to me, if I may say so respectfully, to be inconsistent with the decision of the Privy Council in 8 P.L.T 327 and of this Court in 19 P.L.T 383, above referred to.
In both these cases the effect of S. 47 upon the right of a third party was directly in issue and the immediate subject of the decision.
8. Mr. B.K Pal next contended that he was entitled to rely upon Section 91 of the Trusts Act, 1882, and that thereunder the respondent must be deemed to hold the property in dispute in trust for the appellant.
In so far as this contention, in the circumstances of this case, can be said to aid the appellant, it must mean that by virtue of Section 91 of the Trusts Act, 1882, a person to whom the owner has contracted to sell immovable property is entitled to sue a subsequent transferee thereof with notice for possession of the immovable property without claiming or first obtaining a decree for specific performance of the contract, but that proposition refutes itself.
Under Section 27(b) of the Specific Relief Act, the vendor of immovable property is just as much a trustee for the person with whom he contracts for the sale thereof as is a subsequent purchaser thereof under Section 91 of the Trusts Act, 1882, but, as the decision of the Judicial Committee in 45 Mad. 641( 6 )makes abundantly apparent, the only remedy of such a person against a vendor is a suit for specific performance.
By purchasing with notice of the prior agreement, the subsequent purchaser assumed all the obligations of the vendor, but he does not assume any greater obligation.
The words ‘to the extent necessary to give effect to the contract’ in Section 91 of the Trusts Act, 1882, mean, therefore, to the extent necessary to give effect to the only means that exist of enforcing the contract, namely, a suit for specific performance.
The trust created by Section 91 of the Trusts Act, 1882, arises by operation of law and, as the decision of the Judicial Committee in 10 Pat. 851( 7 )shows, is not a trust for a specific purpose within the meaning of Section 10 of the Limitation Act, 1908.
Once, therefore, the remedy by way of specific performance is barred under Article 113 of sch. 1 to the Limitation Act, 1908, the person to whom the vendor first contracted to sell the property has no further or other remedy.
Mr. B.K Pal sought to distinguish the case where such a person has obtained a decree for specific performance against the vendor and cited the dictum of Mookerjee, J. in 34 C.L.J 79,( 8 )where that very learned Judge appears to have laid down a general proposition of law to the effect that when a suit for specific performance is ended by a final decree transferring the title, that title dates back to the date of the agreement on which the suit is based and that the Court will not permit its decree to be rendered nugatory by intermediate conveyances.
It is to be remarked that if that proposition is accepted at its face value, it renders Section 52 of the Transfer of Property Act, 1882, largely, and Section 91 of the Trusts Act, 1882, entirely redundant, since it extends the doctrine of lis pendens in such a case beyond the actual pendency of the suit to the period between the date of the agreement on which a suit for specific performance is based and the date of the institution of the suit.
It is only by some such extension of the doctrine of lis pendens that the suggested distinction can be maintained, because the suit and decree for specific performance against the vendor is res alios inter acta qua the subsequent purchaser and cannot otherwise affect his rights, but, the doctrine never has and, within the ordinary meaning of the expression lis pendens, never could be so extended.
Both in the law of India as set out in Section 52 of the Transfer of Property Act, 1882, and in the law of England, upon which the section is based, as enunciated by Turner L.J, in (1857) 1 De. G. &, J. 566,( 9 )the operation of the doctrine is restricted to the period of the lis.
Nor can it be suggested that having obtained the decree for specific performance against the vendor, the purchaser under the decree in instituting a suit for possession against the original subsequent purchaser on the basis of the decree is doing no more than enforcing his original contract for the enforcement of which the subsequent purchaser holds the property in trust.
The original con-tract with the vendor has merged in the decree and in such a suit it is not his original contract which the purchaser under the decree is seeking to enforce but the decree itself which he has obtained in a suit to which the subsequent transferee was not a party.
The point is really elemental and looking at the actual decision in 34 C.L.J 79
I am very doubtful if Mookerjee, J. really intended to do more than enunciate the ordinary doctrine of lis pendens, because it was not necessary for the purposes of that case in any way to extend the doctrine, the subsequent purchase there in question being clearly effected after the date of the suit for specific performance, as was also the case in 17 C.L.J 427( 10 )on which the learned Judge specifically relied for the proposition he enunciated.
9. For the above reasons, I would dismiss the appeal with costs.
Beevor, J.:— I agree.
D.H
10. Appeal dismissed.
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A. I. R. 1927 PC 42
Bombay High Court
Kalvanasundaram Pillai vs Karuppa Mooppanar
on 13, December, 1926
Equivalent citations: (1927) 29 BOMLR 833
Author: Salvesen
Bench: Sinha, Blanesburgh, Salvesen, J Wallis
JUDGMENT Salvesen, J.
1. These are two consolidated appeals from a judgment and two decrees dated November 13, 1922, of the High Court of Judicature at Madras.
It is unnecessary to restate the prior procedure or judgments which dealt with a number of contentions in law, and questions of facts now either finally disposed of or no longer insisted upon.
It is sufficient to say that when leave to appeal was granted by the order of the High Court of April 19. 1923. it was on the specific ground that it raised the substantial question of law, namely, "whether an adoption of a son by a Hindu made after the execution and delivery of a deed of gift, but before registration thereof, renders a deed void as against the adopted son."
This is the only ground of appeal which is set forth in the appellant's case. and respondents in their case, paragraph 2, take up the same position.
Although, therefore, other grounds were indicated in the argument addressed to the Board which might have been equally fatal to the appeal their Lordships think it right, in all the circumstances, to deal only with that which was the ground of judgment of the High Court, and in respect of which leave to appeal was given.
2. The relevant facts, which are no longer disputed, lie within short compass.
On September 9. 1891. a certain Vaithilingam Pillai executed a trust deed by which he appointed trustees to administer a trust for charity in the wide sense, including the maintenance of religious services at certain temples.
In order to provide the necessary funds for the maintenance of these services, and for discharging the other duties imposed upon the trustees he set apart certain immovable properties belonging to him, the income of which was to be devoted to the purposes of the trust. At the date of the deed, Vaithilingam had no son.
The deed, however, was executed on the footing that it was his immediate intention to adopt a son for the perpetuation of his lineage, as although he had two wives, one of whom was living with him at the time, he was still childless and despaired of having issue.
There is no question now that this constituted a gift of immovable property within the meaning of Section 123 of the Transfer of Property Act, 1882, nor is there any question that the trust deed, on the day of its execution, was duly delivered to the trustees named therein.
3. On September 10. 1891, Vaithilingam, by a deed executed on that day, adopted the appellant, then five years old, as his son. On September 11, he executed a deed of guardianship to the newly adopted son, and on the 12th, a partition deed between himself and the guardian of that son, the effect of which need not, for the purpose of this judgment, be further referred to.
On September 15, three days later, the deed of gift was registered.
On this it was contended for the appellant that the deed of gift was not complete until registration, and that, as the grantor had before registration adopted the appellant as his son, the latter's rights in the family property had intervened so as to revoke or invalidate the gift.
The leading statutory provisions on which the solution of the question depends are Sections 122 and 123 of the Transfer of Property Act. 1882, and Sections 47 and 49 of the Indian Registration Act 111 of 1877. Section 122 of the Transfer of Property Act is as follows :-
'Gift' is the transfer of certain existing movable or Immovable property made voluntarilv and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Such acceptance must be made during the life-time of the donor and while he is still capable of giving.
If the done dies before acceptance, the gift is void.
4. Section 123 is in these terms :-
For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalt of the donor, and attested by at least two witnesses
5. The controversy in the numerous cases in the Courts of India which have dealt with this point has always centred round the words in this section :-
The transfer must be effected by a registered instrument, and it has been forcibly argued that, until registration, there is no complete gift, and that if the donor dies or revokes or becomes incapable of making the gift before registration, it cannot take effect. On the other hand, attention must be directed to Section 47 of the Indian Registration Act of 1877, which is in these terms :-
A registered document shall operate trom the time from which it would have commenced to operate if no registration thereof had bean required or made, and not from the time of its registration.
6. The learned Chief Justice in the Court below, after referring to the above sections, said :-
The effect of these sections in my judgment is that if a title is complete except for registration, no subsequent alienation or dealing with the property by the vendor or donor as the case may be can defeat the title which on registration becomes an absolute title dating from the date of the execution of the document.
7. The other two Judges concurred in this view, making special reference to the case of Venkati Rama Reddi v. Pillati Rama, Reddi (1916) I.L.R. 40 Mad. 204, F.B., which, being a decision of the Full Bench, was binding upon them.
In that case the donor died on the day following the execution of the deed of gift, and the deed was not presented for registration until a period of six months had elapsed from the date of his death: facts which, as it appears to their Lordships, were cartainly not less cogent in favour of imcompleteness than are those in the present case; and there the District Judge held that the gift deed, not having been registered by the donor during her lifetime, was void. and that the post-mortem registration was of no effect.
This judgment was, however, reversed on appeal by the unanimous decision of the Full Bench.
There was no express finding of fact, so far as appears from the report, that the deed of gift had been delivered to and accepted by the done prior to the death of the donor, although, perhaps, this may be implied from the ciroumstances.
In the present case, fortunately, there is no room for doubt on this point, because the learned Judges of the High Court remitted this question of fact to the Subordinate Judge and he reported that the deed had been delivered over, on the day of its execution, to one of the trustees appointed under it on behalf of himself and the other trustee.
The decision of the Full Bench in Venkati Rama Reddi's case is thus summarized in the head-note :-
There is nothing in Section 123 of the Transfer of Property Act which requires the donor to have the deed registered; all that is required is that he should have executed the deed.
Once such an instrument is duly executed, the Registration Act allows it to be registered even though the donor may not agree to its registration, and upon registration the gift takes effect from the date of execution.
8. Their Lordships think that this statement of the law needs qualification by reference to Section 122 of the Transfer of Property Act, and is only correct upon the footing that the gift had been accepted by or on behalf of the donce during the lifetime of the donor.
A deed of gift executed in accordance with the terms of Section 123 of immoveable property but never communicated to the intended donee, and remaining in the possession of the grantor, undelivered, would, in their Lordships' opinion, not come within the ruling of the Full Bench in the case in question.
9. The only other case to which it is necessary to refer is a Full Bench decision of the High Court of Bombay in 1924, namely, Atmaram Sakharam v. Vaman Janardhan (1924) I.L.R. 49 Bom. 388: s.C.27 Bom. L.R. 290, F.B.
The circumstances in that case were very much the same as in the present, and the decision is thus correctly expressed in the head-note :-
Where the donor of immovable property has handed over to the donee an instrument of gift duly executed and attested, and the gift has been accepted by the done, the donor has no power to revoke the gift prior to the registration of the instrument.
10. This case was very fully argued and the argument on behalf of the appellant in the present appeal could not be better stated than it was in the dissenting judgments of Shah Acting C.J. and Mulla J.: and these arguments were all brought very forcibly under their Lordships notice, and supplemented by the learned counsel for the appellant.
Their Lordships, however, cannot accept them.
They are unable to see how the provision of Section 123 of the Transfer of Property Act can be reconciled with Section 47 of the Indian Registration Act, except upon the view that, while registration is a necessary solemnity in order to the enforcement of a gift of immoveable 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 done 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.
Neither death, nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with.
Their Lordships accordingly find themselves in complete agreement with the judgment of the Full Bench of the Bombay High Court in the case cited.
As this decision, and the similar decision of the Full Bench of the Madras High Court, had settled the law for these Presidencies, it is unnecessary to refer to the various conflicting decisions of inferior tribunals which were overruled, Their Lordships apprehend that the Judges of the High Court of Madras, in allowing leave to the appellant in the present case to proceed with his appeal, desire 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.
11. Their Lordships will accordingly humbly advise His Majesty that the judgment and decrees of the High Court should be affirmed, and that this appeal should be dismissed.
The appellant must pay the costs.
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