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Judgment
We must accept the finding of the Subordinate Judge that the one cent. of land in Amalapur was included in the sale-deed Exhibit A purely for
the purpose of getting the deed registered by the Sub-Registrar of that place without any intention of passing title in it to the vendee. That finding is
supported by the evidence and no valid objection has been urged against it. On that finding we must hold following the case in Rama Naik v.
Nagamuthu Nachiar 43 Ind.Cas. 315 : 22 M.L.T. 516 that the present case falls within the principle enunciated by the Privy Council in Harendra
Lal Roy Chowdhuri v. Hart Dasi Debt ILR (1914) C. 972 . The action of the parties in this case was a fraud on the registration law. The fact that
there was land corresponding to the one cent. included in the deed, belonging to the vendor is not sufficient to take it out of that principle as the
finding is that it was not intended that the deed should affect the land in any way.
On this view the sale-deed, Exhibit A, must be taken to have not been properly registered; and the title to A Schedule properties was therefore
not validly conveyed to the 8th defendant.
The next question is as to limitation. Article 44 does not apply as there was no sale at all in law to be set aside. See Narayanan v. Lakshman
ILR 39 M. 456 and Petherperumal Chetty v. Muniandy Servai ILR (1908) C. 551 The article really applicable is Article 144 but the period
required for it has not expired yet. There is thus no bar by limitation.
Plaintiff is therefore entitled to have the A Schedule properties also included in the partition, But as pointed out by the respondent''s Vakil the
sum of rupees 6,000, the consideration for Exhibit A, was utilised to pay off a mortgage and for other purposes binding on the estate. This was
found by the Munsif and the point was not controverted in the Lower Appellate Court as the Subordinate Judge notes. We think an equity arises in
favour of the 8th defendant against the plaintiff on that finding which we adopt, that on the sale to him being invalidated the plaintiff should pay him
a proportionate share of the moneys so utilised, viz., of the sum of rupees 6,000.
This second appeal must be allowed and the decree of the Lower Appellate Court must be modified as stated above. Each party will bear costs
throughout with regard to A schedule properties.