Anwara Khatun vs Sogra Khatun Bibi

B. Banerji, J.—The short but interesting point of law raised by this appeal is : must fraud on registration that renders a document void, be patent on the face of it?

Before we proceed to answer this question, it is necessary at this stage to recall the material facts. The Appellant Chaudhury Abdul Haque, is the Plaintiff of T.S. No. 9 of 1951 in the Court of Second Munsiff, Katwa. He filed the suit against the Respondent Sogra Khatoon praying for recovery of joint possession upon establishment of title. The property which formed the subject-matter of this suit originally belonged to Chaudhury Khodadad. He died childless leaving Abdul Haque and Sogra Khatoon as his legal heirs. The term of the present litigation lay in a sale deed dated Agrahayan 8, 1345 B.S. (corresponding to November 24, 1939). It is marked Ex. A(2). By this kobala Khodadad purported to sell certain lands of mouza Palisgram and mouza Khudran within Mongalkot Sub-Registry besides a small portion measuring 03 decimal of C.S. plot No. 1435 of mouza Karajgram within the Sub-Registry of Katwa to his wife Sogra Khatoon in lieu of dower debt. The present litigation is with respect to all the lands of the sale deed : Exhibit A(2) excepting the C.S. plot No. 1435 of Karajgram. In the T.S. No. 9 of 1951 Abdul Haque, as brother of Khodadad, claimed 12 as title and possession in the suit property on the footing that the sale deed dated Agrahayan 8, 1345 B.S. executed by Khodadad in favour of Sogra Khatoon was void on the ground of fraud on registration. His case is that Khodadad did neither own nor possess'' any portion of C.S. plot No. 1435 of mouza Karajgram and what is more the parties to the sale deed dated Agrahayan 8, 1345 B.S. did not intend to transfer the said land. And yet 03 decimal of C.S. plot No. 1435 was included in the sale deed, Ex. A(2), dated Agrahayan 8, 1345 B.S. just to get it registered at Katwa although the lands which were really intended to be sold were all within the jurisdiction of Mongalkot Sub-Registry. Sogra Khatoon contested the suit by filing a written statement in which she roundly denied the plaint allegations and asserted that Khodadad did intend to sell 03 decimal of C.S. plot No. 1435 which he, at the relevant time, possessed on the basis of purchase from the admitted owner Moinuddin under an unregistered deed of sale, marked Ex. A. The learned Munsiff found that Khodadad did not under Ex. A acquire title in any portion of C.S. plot No. 1435 of mouza Karajgram because the seller Moinuddin was then a minor and also because the land, being agricultural land governed by B.T. Act,, the deed of sale Ex. A was void and ineffectual on the ground of non-registration. He further found that Khodadad did not possess the land of Ex. A and consequently he did not intend to transfer the same to his wife under the kobala Ex. A(2). He, accordingly, held that the deed of sale, Ex. A(2), was void on the ground of fraud on registration. Even so, the learned Munsiff eventually dismissed the suit, as he was of the opinion that the claim of the Plaintiff for recovery of possession was barred both u/s 53A of the T.P. Act and under the principle of adverse possession twelve years having elapsed during the pendency of the suit. On appeal the learned Sub-Judge held that Section 53A of the T.P. Act could not apply when Sogra Khatoon was claiming under a registered document and that the question of limitation too did not arise seeing that twelve years had not elapsed before the filing of the suit. He, too, came to the conclusion that Khodadad had no title or possession in any portion of C.S. plot No. 1435 of mouza Karajgram. He also held that the parties to Ex. A(2) did not intend to transfer the land of the said plot which was incorporated in the kobalik just to avoid the provision of Section 28 of the Registration Act and therefore, the kobala ex, A(2) was void on the ground of fraud on registration. He, accordingly, gave the Plaintiff the desired decree in respect of the suit lands excepting the land of C.S. plot No. 2471 of mouza Palaspur. Against this decision, Sogra Khatoon preferred an appeal to this Court. It is numbered S.A. No. 1187/54 in which Abdul Haque preferred a cross objection. Both the appeal and the cross objection were heard by Chatterjee J., who by his judgment, dated December 8, 1959, allowed the appeal and dismissed the suit as also the cross objection. The relevant portion of the judgment is reproduced below:

Whether there has been fraud or not would ordinarily be considered to be an inference from facts but this inference is sometimes made under circumstances which might enable a Court of second appeal to interfere. In this connection I must refer to a decision of Lord Simmonds where he observed : If it should appear to the appellate Court that no person, if properly instructed in the law and acting judiciously could have reached that particular determination, the Court may proceed on the assumption that a misconception of law has been responsible for the determination.

This observation is from the decision of the House of Lords in Edward v. Bairatow (1955) 3 All E.R. 49 and this has been approved by our Supreme Court in a rather recent decision in Oriental Investment Company Ltd. v. The Commissioner of income tax Bombay (1958) S.C.R. 49 : (1958) S.C.A. 839. This matter came up for consideration in this High Court in Amaresh Chandra Dey v. Jamini Kanta Nandy S.A. 43 of 1955 by K.C. Das Gupta, JJ. On June 11, 1958; their Lordships have approved this and interfered in second Appeal.

This principle is all the more applicable to a case like the present one, where in order to understand whether there has been fraud or not. I have been referred to at least four decisions of the Privy Council stated above and also to decision of this High Court.

Coming now to the finding, the finding of the trial Court is : Khodadad intended the deed Ex. A(2) to be acted upon and the Defendant sold some property of this kobala in the life-time of her husband and to the knowledge of her husband. Then the learned Judge observes ''this plot'', namely Karajgram plot, ''was included with a motive so that the deed might be registered at Katwa''. The appeal Court has also observed that the Karajgram property was included for the purpose of registering the deed at Katwa with no intention of transferring the same to his wife and therefore, they conclude that there has been fraud on the law of registration. The question is how to arrive at a decision as to whether Khodadad intended to transfer the property or not. It may be that Khodadad purchased from somebody so that the purchase might have been void. But yet Khodadad might have believed that the transfer to him was good and might have included the property with an honest intention to transfer.

Turning now to the law laid down by the Judicial committee we find in AIR 1914 67 (Privy Council) , the property complained of was non-existent. Therefore, it was patent that the fraud was intended.

In Biswanath Prasad v. Chandra Narayan Choudhury (1922) L.R. 49 IndAp 127 the transaction related to a mortgage on one kouri share in a village, a property which for all practical purposes must be considered as non-existent and it h quite patent from the nature of the transaction as it appears from the deed itself that fraud was intended on the law of registration.

In (1934) L.R. 61 I.A. 286 (Privy Council) the deed of transfer referred to was with reference to share of a garden room and even to that 1/3 share the purchasers had no access. Here also the fraud was patent from the document itself.

Coming now to Raja Inuganti Venkatarama Raw v. Raja Sobhanadri Appa Rao Bahadur Garu and Ors., (1936) L.R. 63 I.A. 169, 178: ILR (1936) 59 Mad. 39 , the property transferred was one yard of certain land. The intention in this case is, on the face of the document, clear, i.e. to create jurisdiction where there is none.

In all these cases, from the very face of the document, fraud was patent. If we look at the documents we would find the property not to be fictitious and there can be no motive of a fraudulent transfer by a husband to a wife, specially when the husband has accepted the transfer later on, whereas we can imagine various suspicious things with reference to a mortgage. Secondly, the transferee comes to the Court and accept the transfer as valid. Thirdly, the nature of the document shows that the inclusion of the item of property is not an after-thought to enable jurisdiction. The item of the property is somewhere in the middle. Had fraud been the intention, it might have been entered as the first or the last or even annexed to another sheet, which was done in one of Privy Council cases. Fourthly, both the doner and the donee were living in the same village Karajgram where the property in question was situated. Finally, Plaintiff instituted the suit eight years after the death of Khodadad. In case like this to depend upon oral evidence regarding transactions eight years old unsupported by documentary evidence is neither sure nor a proper guide. The principle that I get from the Privy Council cases stated above is that the fraud must be patent on the face of the document itself. Applying that principle, I should hold that fraud is not patent so far as the present document is concerned.

It is against the legality and propriety of the aforesaid decision of Chatterjee J. that Abdul Haque has come up on appeal before us under Clause 15 of the Letters Patent after obtaining the necessary leave.

A preliminary objection has been raised by Mr. Chittatosh Mookerjee against the competency of the appeal preferred to this. Court by Sogra Khatoon. He has argued that the questions whether Moinuddin was a minor at the time of Ex. A; whether Chaudhuri Khodadad had any possession in C.S. plot No. 1435 and whether the parties to Ex. A(2) intended to transfer any portion of the said plot are all questions of fact upon which concurrent findings have been arrived at by the learned Munsiff and the learned Sub-Judge and as such, in view of the express bar created by Sections 100 and 101 of the Code of Civil Procedure, no second appeal lay to this Court against such findings of fact. This branch of argument appears to have been foreshadowed in the judgment delivered by our learned brother Chatterjee J. Anticipating this he has referred to the observation of Lord Simmonds quoted earlier and also to the Supreme Court decision in the case of Oriental Investment Company Ltd. v. The Commissioner of income tax Bombay Supra. We do not for a moment dispute the correctness of the preposition that a question of fact may be open to attack in second appeal as erroneous in law when there is either no evidence to support it, or if it is perverse. The instant case, however, does not come within that rule. Here the findings arrived at by the primary Court and the Court of appeal are backed by legal evidence. They are by no means unreasonable or perverse. The law is now well-settled that u/s 100 of the CPC High Court cannot entertain an appeal upon any question as to the soundness of findings of facts by the second Court, however unsatisfactory it might appear to the third Court unless they are visited by some error of law. Be that as it may, we find that our learned brother Chatterjee J. has not disturbed the findings of the Courts below to the effect that the C.S. plot No. 1435 was included, with the motive that the deed might be registered at Katwa and that there was no intention of transferring the same to Sogra Khatoon. So long as these findings are allowed to stand, it is indeed difficult to draw the inference as has been done by our learned brother, that Khodadad might have believed that the transfer to him by Moinuddin was good and that he might have included the property or C.S. plot No. 1435 with an honest intention to transfer.

It has been argued by the learned Advocate for the Respondent that failure on the part of the Courts below to consider the evidence of Sogra Khatoon and to record a positive finding that Sogra Khatoon had no intention to transfer C.S. plot No. 1435 constitute a substantial error of law which would justify interference with the concurrent findings of fact on second appeal. We are not impressed by this argument. We find that Sogra Khatoon was no doubt examined on commission. But no attempt was made to get rid of the bar created by Order 26, Rule 8 of the CPC in order to make her evidence available at the trial. Nobody has said that she was ill or that she was pardanasin lady. That explains why the trial Court did not take into consideration the evidence of Sogra Khatoon. The Court of appeal, in spite of this legal infirmity, had in fact considered the evidence of Sogra Khatoon for what it was worth. So, the case of non-consideration of evidence goes. As for the other matter, the Court of appeal, at p. 28 of the paper book, writes thus:

It appears, in the circumstances, that the Defendant cannot be held to have reasonably believed that the Karajgram property was really the property of her husband or that her husband intended to transfer it to her.

This, in our opinion, is tantamount to saying that Sogra Khatoon did not intend to transfer C.S. plot No. 1435. We are, therefore, of the opinion that the preliminary objection raised by Mr. Mookerjee that in the instant case Section 100 read with Section 101 of the CPC debarred our learned brother from entering into the question of fact on second appeal, should prevail.

But the important question of law, agitated before us, still remains unanswered. That question is : granting this Court has jurisdiction to interfere with the findings of fact on second appeal, did our learned brother correctly lay down the law when he said that, in order to constitute fraud on registration, fraud must be patent on the face of a document? So far as this Court is concerned, the matter appears to be one of first impression. We shall, therefore, approach the problem and try to solve it in our own way without the aid of any authority. Fraud, as we know, is infinite in variety. The fertility of man''s invention in devising schemes of fraud is so great that the Courts have always felt chary of defining it. To a layman fraud is something which has been denounced as ''wicked balance'' and as ''bag of deceitful weight''. For legal purpose, it is difficult to say what fraud really is. Speaking in a general way, fraud in the contemplation of the Court of justice may be described as procuring an advantage to oneself, or to further some purpose of one''s own, by causing a person with whom one deals to act upon a false belief. Of course, there may be fraud without seeking any personal advantage. There may as well be practices which border on actual deception and often include in it, matter of which full proof is exceedingly difficult. This is then the general concept of fraud. Remembering that fraud is intended to deceive the injured, that object of deceiving another will be defeated if the fraud is patent on the face of it. This, we think, will be the position in majority of the cases that come to Courts of law. We do not rule out the possibility of fraud being sometimes patent. But we do not find any good reason to think why fraud on registration must, in all cases, be patent to render a document void. If fraud on registration is patent on the face of it, that undoubtedly simplifies the task of the Court and lightens its burden. If, on the other hand, fraud is hidden and concealed, then it can be unearthed only after sifting the evidence and scrutinising the circumstances of a particular case. It is obvious that the legal consequences must be the same whether the fraud is patent or latent. Our learned brother Chatterjee J. has referred to the case of Harendra. Lal Roy Chowdhuri v. Hari Dasi-Debi Supra and the other Privy Council cases cited earlier. According to our learned brother, those cases supply an authority for proposition of law that in order to invalidate a document for contravention of Section 28 of the Registration Act, fraud must be patent on the document itself. We, however, respectfully differ from the view taken by our learned brother. In fact, the Judicial Committee have themselves clarified the position by saying that the word ''fictitious'' used in Harendra Lal''s case Supra is not confined to non-existent property, but is satisfied if the deed does not relate to a specified property for any effective purpose of enjoyment or use. In Biswanath''s case Supra, the Judicial Committee distinguished the cases of fraud on the law of registration from those case where both parties intended to transfer a property to which the transferee was not able to make out a good title. We are, therefore, inclined to think that Chatterjee J. laid down the law much too wide. To us, the correct position appears to be that any fraud, be it patent or latent, intentionally made use of by the parties for the purpose of obtaining registration at a place in violation of the provisions of Section 28 of the Registration Act, would constitute a fraud on registration and as such, registration obtained by means thereof will be invalid. Therefore, looking at the whole case together, there is no question whatever with respect to the principles of law which ought to be applied to the case. It appears that Chatterjee J. rated too highly what was necessary to be shown in order to induce him to reverse the decisions of the concurrent finding of fact arrived at by the two Courts. We cannot, therefore, attribute quite so much effect to his judgment as we otherwise should have done if the case had been originally before him. As matter stands, with great respect to our learned brother Chatterjee, J., we are of the opinion that the decision arrived at by him is erroneous and ought, therefore, to be reversed. We would, accordingly, allow the appeal.

In the result, the appeal is allowed. We affirm and restore the judgment and decree passed by the learned Sub-Judge, Additional Court, Burdwan, in appeal No. T.A. 146/52 and set aside those passed by Chatterjee J. in S.A. No. 1187/54. Parties will, however, bear their own costs throughout.

Anil K. Sen, J.

I agree.