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Registration-Sale-When complete-If complete only on date of registration Preemption Indian Registration Act, 1908 (XVI of 1908), ss. 47 and 61. =P executed a sale deed on January 31, 1946, in respect of a house in favour of D and presented it for registration on the same day. On coming to know of the execution of the sale deed, the appellant who had a right of preemption, made the talab-i-mowasibat on February 2, 1946. The deed was copied out in the Registrar’s books on February 9, 1946, and thereupon the registration became complete as provided in s. 61 of the Registration Act. The appellant filed a suit for preemption. D resisted the suit on the ground that the sale was completed on February 9, 1946, and the talab had been made prematurely. The appellant contended that in view Of s. 47 Registration Act a registered document operated from the time it would have otherwise operated and the sale was completed on the date of its execution. Held (per Sinha, C. J., Sarkar and Mudholkar, jj.) that the sale was completed only on February 9, 1946, when the registration was complete, that the talab was made prematurely and that the suit must fail. Section 47 merely permitted a document when registered to operate from a date which may be earlier than the date on which it was registered, it did not say when the sale would be deemed to be complete. A sale which was required to be registered was not completed until the registration of the deed was completed. Tilakdhari Singh v. Gour Narain, A.I.R. (1921) Pat. 150, Nareshchandra Datta v. Gireeshchandra Das, (1935) I.L.R. 62 Cal. 979, and Gobardhan Bar v. Guna Dhar Bar, I.L.R. (1940) II Cal. 270, approved. Bindeshri v. Somnath Bhadry, A.I.R. (1916) All. 199 and Gopal Ram v. Lachmi Himir, A.I.R. (1926) All. 549, distin- guished. Per Das Gupta and Ayyangar, jj. –The sale was completed on the day of execution and the talab was made at the right time. Section 61 had nothing to do with the time when the sale evidenced by the registered deed became complete; it refers merely to the fact that the registering officer had completed his duty. Section 47 provided when a sale was deemed to be completed. There was no difference between the time when a sale 475 became effective and the time it could be held to be completed. Under s. 47 the crucial test for determining the time from which the registered document was to have effect or be deemed to be completed was the intention of the parties. The sale deed shows that the parties intended that the deed should be effective from the date of execution. =1961 AIR 1747, 1962( 2 )SCR 474, , ,

PETITIONER:

English: babag 1 deed of sale

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RAM SARAN LALL AND OTHERS

Vs.

RESPONDENT:
MST. DOMINI KUER AND OTHERS.

DATE OF JUDGMENT:
27/04/1961

BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
SINHA, BHUVNESHWAR P.(CJ)
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.

CITATION:
1961 AIR 1747 1962 SCR (2) 474
CITATOR INFO :
R 1969 SC 244 (11)
F 1972 SC2162 (4,5,7)
ACT:
Registration-Sale-When complete-If complete only on date of
registration Preemption Indian Registration Act, 1908 (XVI
of 1908), ss. 47 and 61.

HEADNOTE:
P executed a sale deed on January 31, 1946, in respect of a
house in favour of D and presented it for registration on
the same day. On coming to know of the execution of the
sale deed, the appellant who had a right of preemption, made
the talab-i-mowasibat on February 2, 1946. The deed was
copied out in the Registrar’s books on February 9, 1946, and
thereupon the registration became complete as provided in s.
61 of the Registration Act. The appellant filed a suit for
preemption. D resisted the suit on the ground that the sale
was completed on February 9, 1946, and the talab had been
made prematurely. The appellant contended that in view Of
s. 47 Registration Act a registered document operated from
the time it would have otherwise operated and the sale was
completed on the date of its execution.
Held (per Sinha, C. J., Sarkar and Mudholkar, jj.) that the
sale was completed only on February 9, 1946, when the
registration was complete, that the talab was made
prematurely and that the suit must fail. Section 47 merely
permitted a document when registered to operate from a date
which may be earlier than the date on which it was
registered, it did not say when the sale would be deemed to
be complete. A sale which was required to be registered was
not completed until the registration of the deed was
completed.
Tilakdhari Singh v. Gour Narain, A.I.R. (1921) Pat. 150,
Nareshchandra Datta v. Gireeshchandra Das, (1935) I.L.R. 62
Cal. 979, and Gobardhan Bar v. Guna Dhar Bar, I.L.R. (1940)
II Cal. 270, approved.
Bindeshri v. Somnath Bhadry, A.I.R. (1916) All. 199 and
Gopal Ram v. Lachmi Himir, A.I.R. (1926) All. 549, distin-
guished.
Per Das Gupta and Ayyangar, jj. –The sale was completed on
the day of execution and the talab was made at the right
time. Section 61 had nothing to do with the time when the
sale evidenced by the registered deed became complete; it
refers merely to the fact that the registering officer had
completed his duty. Section 47 provided when a sale was
deemed to be completed. There was no difference between the
time when a sale
475
became effective and the time it could be held to be
completed. Under s. 47 the crucial test for determining the
time from which the registered document was to have effect
or be deemed to be completed was the intention of the
parties. The sale deed shows that the parties intended that
the deed should be effective from the date of execution.

JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 104 of 1959.
Appeal by special leave from the judgment and decree dated
December 19, 1956, of the Patna High Court in Appeal from
the Appellate Decree No. 632 of 1949.
M. C. Setalvad, Attorney-General of India and R. C.
Prasad, for the appellants.
S. P. Varma, for respondent No. 1.
N. S. Bindra and D. Gupta, for Intervener.
1961. April 27. The Judgment of Sinha, C. J., Sarkar and
Mudholkar, JJ., was delivered by Sarkar, J. The judgment of
Das Gupta and Ayyangar, JJ., was delivered by Ayyangar, J.
SARKAR, J.-The parties to this litigation are all Hindus but
it is not in dispute that the Mohammedan law of preemption
is applicable to them by custom, nor that the appellants had
a right of preemption. The only question is whether the
first demand called talab-i-mowasibat which has to be made
after the completion of the sale in order that the right may
be enforced, was made before or after such completion. The
making of the demand is not in dispute but the dispute is as
to when the sale was completed.
The appellants had their residential house contiguous to the
house owned by certain persons whom we may call Pandeys. On
January 31, 1946, the Pandeys executed a deed of sale in
favour of the respondent purchaser in respect of their
aforesaid house. The appellants claim a right of are-
emption on account of this sale. The consideration
mentioned in the deed was Rs. 2,000. There was a subsisting
mortgage on that house and the deed provided that out of the
consideration a sum of Rs. 200 would be left with
476
the respondent purchaser for clearing off that mortgage.
The deed also recited that the Pandeys had received Rs. 400
and “the remaining Rs 1,400 (Rupees fourteen hundred) in
cash at the time of exchange of equivalents, (that is) at
the time of (handing over) of the receipt of this
deed…………… On receipt of the whole and entire
amount of consideration money we have put the said claimant
into possession and occupation of this vended property as
absolute owner in place of us, the executants and our heirs
and representatives.” The deed further stated, “this sale
deed becomes operative from the date when we the executants
affixed-our signatures thereon. Whatever title, we, the
executants and our heirs had…………. with respect to
this vended property, has become extinct, inoperative and
null and void and the same has now been transferred to and
acquired by the claimant.” By the word “claimant”, the
respondent purchaser was referred to.
The deed was presented at the registration office for
registration by the Pandeys on the day it was executed and
it was left with the Registrar in the Registration Office
for the necessary entries and copies being made, a receipt
being given to the Pandeys. On February 2, 1946, the
appellants on coming to hear of the execution of the deed of
sale made the talab-imowasibat. On February 7, 1946, the
receipt granted by the Registration Office to the Pandeys
was made over by them to the respondent purchaser who there-
upon paid the balance of the price as stipulated in the
deed. On February 9, 1946, the documents were copied in the
Registrar’s books and thereupon the registration became
complete as provided in B. 61 of the Registration Act. The
respondent purchaser thereafter received the deed of sale
from the Registrar’s Office on February 13, 1946.
The appellants filed their suit for preemption on September
9, 1946. The suit was decreed by the trial court and this
decision was maintained by the first Appellate Court. The
High Court, however, in second appeal set aside the
decisions of the Courts below with the result that the suit
stood dismissed and
477
the appellants have now come to this Court in further
appeal.
The Mohammedan law of preemption is stated in Mulla’s
Principles of Mohammedan law in these terms: “The right of
preemption arises only out of a valid, complete and bona
fide sale.” This statement of the law is accepted by both
the parties and there is no question that it is not correct.
There is furthermore no dispute that the sale to the
respondent purchaser was valid and bona fide. It is also
agreed that one of the requisites before the right of pre-
emption can be exercised is the preliminary demand by the
preemptor and that such demand must be made after the
completion of the sale. The case has been argued before us
on behalf of the appellants on the basis that the sale was
governed by the Transfer of Property Act, 1882. We will
also proceed on that basis.
Section 54 of the Transfer of Property Act provides that
sale of tangible immovable property of the value of rupees
100 and upwards, which the house with which we are concerned
is, can be made only by a registered instrument. Section 3
of this Act defines ” registered” as registered under the
law for the time being in force regulating the registration
of documents. This, in the present case, means the Regis-
tration Act of 1908. It is not in dispute that the
registration under the Registration Act is not complete till
the document to be registered has been, copied out in the
records of the Registration Office as provided in s. 61 of
that Act. It was therefore con. tended in the High Court
that when a sale had to be made by a registered instrument
it became complete only on the instrument of sale being
copied in the books of the Registration Office. The High
Court accepted this view and held that the sale in the pre-
sent case, therefore, became complete on the completion of
the registration of the instrument of sale which was done on
February 9, 1946 when the instrument was copied out in the
books of the Registration Office. In this view of the
matter, the High Court
61
478
came to the conclusion that the appellants were not entitled
to enforce their right of preemption because they had not
made the preliminary demand after the completion of the sale
as the law required them to do, but before, that is, on
February 2, 1946.
In answer to this view of the High Court, the learned
Attorney-General appearing for the appellants says that the
High Court overlooked s. 47 of the Registration Act the
effect of which was to make a registered document operate
from the time from which it would have commenced to operate
if no registration thereof had been required and not from
the time of its registration. His contention is that once a
document is registered, as the deed of sale in this case
was, it begins to operate from the time it would have
otherwise operated and therefore, the position in this case
is that the sale became operative and hence complete on
January 31, 1946. The learned Attorney-General further
contends that the proper construction of the deed of sale
was that it became operative from the day it was executed
and that if it was not so, it was not a sale but could only
be an agreement to sell in which latter case his clients,
though this present suit might fail, would be entitled, if
they so desired, to enforce their right of preemption when
the sale was completed in pursuance of that agreement. As
authority in support of his contention that in view of s. 47
of the Registration Act the sale in the present case must be
deemed to have been completed on the day the instrument was
executed, the learned Attorney-General relied on Bindeshri
v. Somnath Bhadry (1) and Gopal Ram v. Lachmi Misir (2).
We do not think that the learned Attorney-General’s
contention is well founded. We will assume that the learned
Attorney-General’s construction of the instrument of sale
that the property was intended to pass under it on the date
of the instrument is correct. Section 47 of the
Registration Act does not, however, say when a sale would be
deemed to be complete. It only permits a document when
registered, to operate
(1) A.I.R. (1916) All. 199.
(2) A.I.R. (1926) All. 549.
479
from a certain date which may be earlier than the date when
it was registered. The object of this section is to decide
which of two or more registered instruments in respect of
the same property is to have A effect. The section applies
to a document only after it has been registered. It has
nothing to do with the completion of the registration and
therefore nothing to do with the completion of a sale, when
the instrument is one of sale. A sale which is admittedly
not completed until the registration of the instrument of
sale is completed, cannot be said to have been completed
earlier because by virtue of s. 47 the instrument by which
it is effected, after it has been registered, commences to
operate from an earlier date. Therefore we do not think
that the sale in this case can be said, in view of s. 47, to
have been completed on January 31, 1946. The view that we
have taken of s. 47 of the Registration Act seems to have
been taken in Tilakdhari Singh v. Gour Narain (1). We
believe that the same view was expressed in Nareshchandra
Datta v. Gireeshchandra Das (2) and Gobardhan Bar v. Guna
Dhar Bar (3).
With regard to the two cases on which the Attorney General
has relied, it has to be observed that they were not
concerned with a right of pre-emption arising on a sale of
property. Bindeshri Prasad’s case (4) was concerned with a
suit for zar-i-chaharum. It does not appear from the report
what that right was or when it arose. It is not possible
therefore to derive much assistance from it. Gopal Ram’s
case(‘) was concerned with a right of pre-emption arising on
the grant of a lease and the question was whether the suit
for the enforcement of such a right was barred by
limitation. It appears that Art. 120 was applied to that
suit and it was held that the cause of action for the
excrcise of the right of pre-emption arose as soon as the
lease was executed and even before it was registered though
before the actual registration the suit for pre-emption
could not have been maintained.
(1) A.I.R (1921) Pat, 150.
(2) (1935) I.L.R. 62 Cal. 979
(3) I.L.R. (1940) II Cal. 270
(4) A.I.R. (1916) All. 199.
(5) A.I.R. (1926) All 549.
480
This view was taken in reliance upon s. 47 of the
Registration Act. We are not aware whether the law of pre-
emption applicable to the case required that there should
be a completed lease before the right to pre-empt could be
enforced. If that law did so require, then we do not think
that the case was rightly decided. It was said in that case
that “When the law has given to a transaction a
retrospective effect, it must have that effect.” We do not
think that a transaction which when completed has a retros-
pective operation can be said for that reason to have been
completed on the date from which it has that operation.
In the view that we have taken, it is not necessary to
discuss the question of the construction of the instrument
of sale in this case, that is, to decide whether on its
proper reading the transfer was intended to take immediate
effect on its execution or later on after the balance of the
purchase money had been paid. Nor do we think it necessary
to pronounce on the other argument of the learned Attorney-
General that a transfer which does not convey the property
immediately can only be an agreement to transfer.
We think that for these reasons this appeal must be
dismissed and we order accordingly. The appellants will pay
the costs of this appeal.
AYYANGAR, J.-We regret that we are unable to agree to the
order dismissing this appeal.
The facts have been very fully set out in the judgment of
Sarkar, J. and it is therefore unnecessary to repeat them.
The following matters are beyond dispute: (1) that the law
that is applicable to govern the right of the appellant
before us is the law of pre-emption as understood in
Mohammedan law, (2) that according to the principles of
Mohammedan law, the right of pre-emption arises and the 2
talabs have to be performed immediately on the completion of
a valid, and bona fide sale, and (3) that the two talabs
which are required to be performed by a person claiming the
right of pre-emption have been performed by the appellant.
There being further no dispute that a sale did take
481
place, the only point in controversy in the appeal is as to
whether the talabs which were performed on February 2,1946
were performed by the appellant after the right of pre-
emption accrued to her, viz.,, after the sale in favour of
the respondent was effected or were they premature.
At one time there was a controversy as to whether it was the
principle of the Muslim law that would determine the point
of time when a sale should be taken to be complete (under
which system crucial significance was attached to two of the
ingredients of a sale, viz., payment of consideration and
delivery of possession) or whether after the enactment of
the Transfer of Property Act it was to the statute and to
the creteria laid down by it that one has to turn to
determine when a sale should be held to have taken place.
The former view found favour with the majority of the Full
Bench of the Allahabad High Court in Begam v. Muhammad (1),
Justice Banerjee dissenting from the majority. This
controversy, however, is long past and it has now been
decided by this Court in Radha Kishan v. Shri Dhar Ram
Chandra (2) that the provisions of the Transfer of Property
Act supersede the principles of the. Mohammedan law as to
sale and it was to the statute that one should look to find
out whether, and if so when, a sale was complete in order to
give rise to a right of pre-emption.
Turning now to the provisions of the Transfer of Property
Act, in the case of a sale of immovable property of the
value of Rs. 100 or over (as in the case before us) s. 54 of
the Act enacts that it could be effected only by a
registered instrument; sale itself being defined as
“transfer of ownership in exchange for a price paid or
promised or part paid and part promised”. In other words,
the essence of a transaction of sale consists in the
transfer of ownership and this transfer has to be effected
by “a registered instrument”. The Transfer of Property Act
while prescribing the formalities of writing and
Registration, does not itself determine the point of time
when a sale becomes complete. “Registered” under the
Transfer
(1) I.L.R. 16 All. 344.
(2) [1961] 1 S.C.R. 248
482
of Property Act means: “registered under the law for the
time being in force regulating the registration of
documents” (s. 3). When one turns to the Registration Act,
provision is made, inter alia for the time within which
after its execution a document could be presented for
registration, the persons who could so present, the office
in which the document could validly be presented and
registration effected and sub-Part B of Part 11 starting
from s. 58 deals with the procedure on admitting documents
to registration.
Section 60(1) enacts:
“After such of the provisions of sections 34,
35, 58 and 59 as apply to any document
presented for registration have been complied
with, the registering officer shall endorse
thereon a certificate containing the word
registered’, together with the number and page
of the book in which the document has been
copied.”
and s. 61 which follows makes provision for the copying of
documents in Public registers from which the word
“registration” is derived and enacts:
“61. (1). The endorsements and certificate
referred to and mentioned in sections 59 and
60 shall thereupon be copied into the margin
of the Register book, and the copy of the map
or plan (if any) mentioned in section 21 shall
be filed in Book No. 1.
(2)The registration of the document shall
thereupon be deemed complete, and the document
shall then be returned to the person who
presented the same for registration, or to
such other person (if any) as he has nominated
in writing in that behalf on the receipt
mentioned in section 52.”
Much reliance has been placed by learned Counsel for the
respondent and, indeed, in the judgment of the High Court,
on the words the “registration of the document shall
thereupon be deemed complete” occurring in sub-s. (2) of s.
61. But in the context of the fasciculus of sections in
which it appears it is clear that it refers to the fact that
the registering officer had completed his duty and had no
more to do with the document presented to him, beyond
returning the original to the party entitled to receive the
same. In
483
our opinion, these words have nothing to do with the time
from which the transaction covered by the registered
document operates or with reference to the present context,
when the sale evidenced by the deed, becomes complete.
Specific provision is made for these in s. 47 of the
Registration Act which reads:
“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.”
The principles underlying ss. 61(2) and 47 are not
divergent. It is not as if, that any delay by the regis-
tering officer which might take place owing to the pressure
of work in his office or for other reason, has any effect on
the rights of parties, quod their property or the time from
when the deed operates, or as regards the effectiveness of
the transaction, or the priority of transactions inter se.
It is not as if, documents executed on different dates, the
parties intending them to operate at different times, have
their intentions modified, if not nullified by the action or
inaction of the registering officer, or any delay that might
take place in his office. A contention that though the
Muslim law of sale is superseded by the Transfer of Property
Act and the Registration Act, but yet the provision
contained in s. 47 of the Registration Act is inapplicable
to determine when a sale effected by a registered instrument
should be complete could not be sustained on any principle
or logic, or of course on any rule of interpretation of
statutes. In our opinion no distinction is possible to be
drawn between a sale which is effective and one which is
complete since they are merely different forms of expressing
the same concept and for the same reason between the time
from when a sale becomes effective and when it should be
held to be complete. As under Muslim law the talabs have to
be performed only immediately after the preemptor receives
information of the sale, the view we take of the
applicability of s. 47 of the Registration Act, introduces
no element of hardship in the exercise of the option. We
are, therefore, clearly of the opinion that the time when
the sale becomes complete so as to
484
entitle the preemptor to perform the talabs should be
determined by the application of the principle of intention
laid down in s. 47 of the Registration Act Which is as much
a part of the positive law governing the right of preemption
as the provision of s. 54 of the Transfer of Property Act
which, requires a registered instrument to effect a sale
which gives rise to a right of preemption.
If, therefore, B. 47 of the Registration Act should apply to
determine the time from which the registered document should
have effect or, in other words, the time from which the sale
should be held to be complete, the intention of the parties
would be the crucial and only test. That has to be gathered
by reference to the document itself read in the light of the
surrounding circumstances, with however a proviso that if
the document were clear and its terms explicit, no evidence
to contradict them would be admissible. Paragraph 4 of this
document of the sale-deed Ex. ‘A’ dated January 31, 1946
recites the consideration for the same. This was to consist
of Rs. 2,000. Out of this, it states that the vendors had
received Rs. 400 in cash at the time of the execution of the
document, and that Rs. 200 had been left with the purchaser
for payment to a previous possessory mortgagee. In regard
to the balance of Rs. 1,400 the recital reads:
“and received the remaining sum of Rs. 1,400
in cash at the time of exchange of
equivalents, (that is) at the time of handing
over of the receipt of this deed. In this
manner we have received the entire amount of
consideration money for this vended property
from the claimant and brought the same to our
possession and use.”
It is, no doubt, true that the sum of Rs. 1,400 had not been
received on January 31, 1946, the date of the execution of
the document and that it was agreed that sum would be paid
in exchange for the delivery of the receipt obtained from
the Registrar in respect of the sale-deed presented for
registration. But the use of the past tense clearly
indicates that the vendor agreed to the promise to pay the
balance of Rs. 1,400 as the consideration for the execution
of the
485
document on January 31, 1946, as tantamount to an actual
payment. In other words, in terms of s. 54 of the Transfer
of Property Act it was a transaction under which the
property in the house was to be transferred in exchange for
a price “part paid and part promised”. Paragraph 4 and the
recital there do not indicate any intention that the title
to the property was to be conveyed only on the payment of
Rs. 1,400 on the surrender of the registration receipt. If,
however, there was any doubt as to what the intention of the
parties was, it is made clear by the other stipulations and
recitals which follow. Paragraph 5 opens with the words:
“On receipt of the whole and entire amount of
consideration money we have put the said
claimant into possession and occupation of
this vended property as absolute owner in
place of us the executants and our heirs and
representatives.”
The reference to the receipt here is obviously based upon
treating the entire consideration of Rs. 2,000 as having
been received on the day of the execution of the document.
In other words, part of the consideration was paid and part
promised and the promise was treated as the consideration in
respect of the balance unpaid. Besides and as if to
reinforce their intention the deed goes on to state after
the words of conveyance “I have executed the deed of
absolute sale and jointly received Rs. 2,000 as per recitals
in the body.”
That the title of the vendee was not to be postponed to any
date beyond the date of the execution of the document is
made clear by the further words in para 5-“It is desired
that the said claimant should enter into and remain in
possession and occupation of the vended property as an
absolute owner”-which was to be from and after the date of
the execution of the deed. Turning next to paragraph 6,
there is an express stipulation as regards when the transfer
should be deemed effective. It says: “This sale-deed
becomes operative from the date when we, the executants
affixed our signatures thereon”-a recital which is repeated
and reinforced by paragraph 7 in which dealing
62
486
with the title of the vendors, it is stated that the said
title with respect to the vended property “has become
extinct, inoperative and null and void and the same has now
been transferred to and acquired by the claimant”. In the
face of these recitals, covenants and stipulations which
clearly express the intention of the parties that the deed
should have effect from the date of its execution it seems
to us that the argument that it could be postponed to a
later date-either the date when the registration was
complete under the terms of s. 61 of the Indian Registration
Act or to February 7, 1947 when on the registration receipt
having been handed over to the vendee, the vendor received
the balance of Rs. 1,400 is hardly tenable.
If this were the true legal effect of the deed and if by
virtue of the provisions of the Transfer of Property Act
read in conjunction with those of the Indian Registration
Act, the title to the property was transferred to the vendee
immediately on the execution of the document on January 31,
1946 the performance of the two talabs by the appellant on
February 2, 1946 would be in time, legal, proper and
effective to clothe her with a right to demand a conveyance
in her favour. It is only necessary to add that learned
Counsel for the respondent did not contest the position that
if on a proper construction of the sale deed Ex. ‘A’-read in
the light of its recitals and the relative statutory
provisions-there was a sale effective on January’31, 1946
the talabs performed by the appellant would not suffice to
clothe her with the right which she claimed in the suit out
of which this appeal arises.
We would accordingly allow the appeal and decree her suit
with costs throughout.
By COURT.-In accordance with the opinion of the majority,
the appeal is dismissed with costs.
487

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