Kalpnath Singh vs Sheo Nath Rai

M.P. Saxena, J.

Kalpnath Singh has filed this revision application against the judgment and order dated January 18, 1977 passed by the Sessions Judge, Azarngarh.

Briefly stated the facts giving rise to this revision application are that Sheonath Rai, opposite party, was the owner of motor vehicle No. UTD 4928. He had purchased it after taking loan from the Union Bank and the car was pledged with it. He was paying the loan by installments to the Bank. He obtained possession over the vehicle and after obtaining its registration under the Motor Vehicles Act in his name started plying it. The present revisionist lodged a report under Section 379, I.P.C. alleging that he had purchased the said vehicle from Sheonath Rai on June 12, 1975 for Rs. 22,330/. He also started paying the remaining installments to the Union bank and as such, became owner of the vehicle but in the night between October 26127, 1976, Sheonath Rai took away the vehicle by force. After necessary investigation the police submitted a charge sheet against Sheonath Rai. During the pendency of the case Kaiapnath Singh moved an application under Section 451 of the Criminal Procedure Code (516A of the old Code) for release of the vehicle in his favour. After considering the case of the parties and examining the evidence on the record, the learned Magistrate came to the conclusion that prima facie Kalapnath Singh was entitled to the custody of the vehicle. Accordingly he released it in his favour. Sheonath Rai filed a revision application and the learned Sessions Judge held that even if Kalapnath Singh had paid any money to Sheonath Rai and had also paid installments of the loan to the Bank he could not become owner of the vehicle because its registration was not transferred in his name under Section 31 of the Motor Vehicles Act. In his opinion, if the registration of the vehicle stood in the name of Sheonath Rai, the original owner, he would be deemed to be its owner. He, therefore, allowed the revision application and vacated the order passed by the learned Magistrate and directed that the vehicle be given in the custody of Sheonath Rai on his furnishing a personal bond of Rs. 10,000/ and two sureties for a like amount and on giving an undertaking that the vehicle shall be made available to the court whenever called upon to do so. It is against this order that Kalapnath Singh has filed this revision application.

Several questions of interest have arisen in this revision application. In the first place, the learned counsel for the revisionist has urged that the order passed by the Magistrate was of a interlocutory nature and was not amenable to revision under the new Code. There is force in this contention because the order came into existence after the promulgation of the new Code. The order of the Magistrate was passed under Section 451 of this Code which relates to disposal of property pending trial in certain cases. An order under this section is not final order because a final order is passed when an inquiry or trial in any criminal court is concluded and at that stage the court is competent to pass a final order regarding disposal of property under Section 452 of the new Code. The order passed by the learned Magistrate being of an interlocutory nature was not open to revision and the learned lower revisional court was not competent to interfere with it.

The learned counsel for the opposite party has vehemently contended that an order under Section 451 is no doubt passed during an enquiry or trial but where it affects rights or obligations of the parties it will not be deemed to be interlocutory. In this connection reliance is placed on the case of Amarnath v. State (A.I.R. 1978 S.C. 19). There is not much substance in this contention because a final order is contemplated by Section 452 of the Code and an order passed under Section 451 of the Code, though it may temporarily affect rights or obligations of the parties is yet an interlocutory order. Even if the order passed by the learned Magistrate is held to be not of interlocutory nature and open to revision, the question would still arise whether it suffered from any such illegality or procedural error that it could be interfered with by the learned lower revisional court.

On the basis of the material on the record the learned lower revisional court came to the conclusion that there was prima facie material to establish that the vehicle in dispute was transferred by Sheonath Rai to Kalpnath Singh and that the latter had paid some money to the former and obtained possession over the vehicle yet the former continued to be the owner by virtue of Section 31 of the Motor Vehicle Act, 1939 because the transferee had not got the registration done in his name.

This view was taken on the basis of certain decisions. It will not be out of place to refer to these decisions, here. In Smt. Padamadevi and others v. GUT Bux Singh and others (A.I.R. 1973 Rajasthan 317) it was held that the provisions of Section 31 of the Motor Vehicles Act being mandatory compliance therewith is necessary for effecting legal transfer of ownership of a public vehicle. Only the ostensible owner is entered in the registration book is the legal owner though somebody else may be the real owner. This view was reiterated in Maina and others v. Niranjan Singh and others (A.I.R. 1976 Rajasthan 71) in which it was held that a mere transfer of ownership accompanied by delivery of possession of a transport vehicle registered under the Act does not confer any title on the transferee unless the registration is changed in the name of the transferee in accordance with the provisions of Section 31 of the Act. I am respectfully unable to subscribe to this view because Section 22 of the Motor Vehicles Act, 1939 lays down that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter III of that Act and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. Sections 23 and 24 of the Act prescribe the procedure how the application for registration of vehicle is to be made and the place where the vehicle is to be registered. Section 28 says that such a certificate of registration issued in respect of any such vehicle shall be effective throughout India. Section 31 of the Act provides for transfer of ownership of any such vehicle. It lays down that where the ownership of any motor vehicle is transferred the transferor shall within 14 days of the transfer report the transfer to the Registering Authority and shall simultaneously send a copy of the report to the transferee and the latter shall within 30 days of the transfer, report the transfer to the Registering Authority within whose jurisdiction he resides and shall forward the certificate of registration to the Registering Authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer and ownership may be entered in the certificate of registration. It follows from Sections 22,23, 24, 28 and 31 of the Motor Vehicles Act, referred to above, that the registration certificate is an essential necessity before any motor vehicle can be used and that any person in whose favour the certificate of registration is issued obviously would be the owner thereof. The person in whose name the vehicle stands registered with the Registering Authority under the Motor Vehicles Act is prima facie the owner of a motor vehicle and is entitled to its custody unless any other person establishes his superior title or claim over it. This view finds support from the case of Hardam Singh v. Vidya Sagar (1974 Cr.L.J. 1158).

In M. J. V. Mudaliar v. V. Finance Corporation (A.I.R. 1971 A.P.63) lays down that all that Section 31 requires is that after the transfer the authorities concerned must be informed about the change of the ownership. If there is an omission in that regard certain penalties are enacted, but the omission to do so does not make the transfer itself illegal. The same view was taken by Madras High Court in Murthyasami Gounder v. Thulasi Ammal (1970 (1) M.L.J.). In that case it was held that there is no foundation for the submission that the delivery of the vehicle to the hirer is illegal without any intimation of the transfer of ownership to the authorities concerned. Obviously, this view was based on the ground that change of registration is entirely distinct from the transfer. Merely by transfer the purchaser of vehicle does no become entitled to ply the vehicle. He will have to comply with the requirement of Section 31 and then alone he will be able to ply the vehicle. Failure to do so does not affect transfer. The same view was taken in the case of Sudarshan v. Chuha Singh (A.I.R. 1956 H.P. 28). It was held that the contention that sale of a vehicle is not complete unless the registration certificate as transferred is not correct. Under Section 31 of the Motor Vehicles Act the registration certificates can be transferred only after the ownership of the vehicle has been, transferred. I am therefore of the view that for transfer of ownership of vehicle fulfilment of condition prescribed in Section 31 of the Motor Vehicles Act is not necessary though without complying with it transferee will not be able to ply the vehicle. Where there is no evidence of transfer the person in whose name the registration exists will prima jade be deemed to be the owner of the vehicle and entitled to ply it. In this view of the matter it will have to be examined whether there is any material on the record to prove that Kalapnath Singh had purchased the vehicle. He filed a receipt purporting to have been executed by Sheonath Rai about transfer of this hide. It is dated June 12, 1975. In the opinion of the learned trial court it was genuine but the learned lower revisional court was inclined to the view that it was of a suspicious character. I would not express any opinion about it because its validity .is yet to be considered in the course of the trial. I would suffice it to say that even if this document is at present ruled out of consideration there is ample material to show that Sheonath Rai had transferred the disputed motor vehicle to Kalapnath Singh. Admittedly Sheonath Rai had originally purchased this vehicle after taking loan from the Union Bank of India. The vehicle was pledged with the Bank and the loan was being paid by instalments. Sheonath Rai himself had paid some of the instalments. According to the revisionist, he purchased the vehicle for Rs. 223,301 and paid part of this consideration to Sheonath Rai. On the date of purchase Rs. 10,500/ were due to the Bank which he started paying in instalment on behalf of Sheonath Rai. His son made the payment and obtained as many as 11 receipts. These receipts are no doubt in the name of Sheonath Rai as they could not be issued in the name of Kalapnath Singh but the name of latter''s son is mentioned as the, person who had paid the amount. These 11 receipts were filed by Kalapnath Singh. He could not be in possession of them if the payment was made by Sheonath Rai. The latter offered a most untenable explanation about its possession by Kalapnath Singh. He gave out that the latter had stolen them from the vehicle. He never lodged a report about it and failed to explain the circumstances under which these receipts were kept in the vehicle when other papers about it remained in his custody. He also failed to explain as to how Kalpnath Singh succeeded In taking away these receipts. Therefore, this story was far from convincing.

In the second place the revisionist filed a letter written by Sheonath Rai to the President, Zila Parishad on October 6, 1975 clearly stating that he had transferred this vehicle and he was not liable to pay its taxes. This letter was written after June 12, 1975 when the transfer is said to have been effected. No satisfactory reason for writing this letter is forthcoming. Thereafter the revisionist started paying the taxes. He also filed a letter dated November 15, 1976 issued by the new Agarwal Agencies to show that the latter was plying the vehicle on his behalf. For purpose of an order under Section 451 of the Code these documents amply established that the motor vehicle in dispute was transferred by Sheonath Rai to Kalar nath Singh. The latter could not get the registration done in his name because the vehicle was pledged with the Union Bank of India. Unless all the instalments were paid Sheonath Rai was not competent to effect transfer and unless transfer was done registration under Section 31 of the Act could not be changed. I am, therefore, in judgment that the view taken by the learned Map was correct and the learned Sessions Judge should not have interfered with it and more so when no procedural error or illegality was committed by the learned Magistrate in passing it.

The result is that the revision application is allowed and the order dated January 18, 1977 passed by the learned Sessions Judge is set aside and the order dated December 21, 1976 passed by the learned Magistrate is restored. It may, however, be stated that possession of the vehicle will be given to Kalapnath Singh on his furnishing a personal bond and two sureties for a sum of Rs. 10,000/each and also on giving an undertaking that the vehicle will be produced in court whenever he is required to do so.