Kamala Kanta Haldar vs Sm. Bhola Dasi Haldar

P.N. Mookerjee, J.—This appeal is by Defendant No. 2 and it arises out of a suit for partition and accounts. The suit has been decreed in part by the learned Subordinate Judge and the Plaintiff''s claim for partition in respect of schedule ka property of the plaint has been decreed while her claim in respect of the schedule kha property has been dismissed. The claim for accounts was eventually not pressed and it was dismissed.

The Defendant No. 2, feeling aggrieved by the decree for partition, as made by the learned Subordinate Judge, in respect of the ka sch. property, has preferred this appeal. The Plaintiff has also filed a cross-objection against the dismissal of her claim in regard to the kha sch. property. The appeal and the cross-objection are now before us for final consideration and disposal.

With regard to the property of sch. ka, the Plaintiff''s case is that her father and predecessor-in-interest Mangobinda obtained it under a mourashi mokarari patta [Ex. A(l)], executed by one Bishnupada Halder, who was Mangobinda''s sister''s husband and, on Mangobinda''s death, the said property devolved on his widow (Plaintiff''s mother) Sarojini and, thereafter, on the latter''s death, the Plaintiff Bhola Dasi and her sister Satyabala (Defendant No. 1) got this property in equal shares. The Plaintiff''s specific case was that Defendant No. 2 Kamala Kanta had no interest in this property.

Kamala Kanta''s short defence with regard to this ka sch. property, so far as it is relevant for our present purpose, was that the alleged mourashai mokarari patta [Ex. A(l)] from Bishnupada to Mangobinda, which was dated November 20, 1917, was an invalid document on account of defective registration. The defect that was alleged was that the said document which, as indicated above, was marked Ex. A(l) in the court below, was registered at the Sealdah sub-registry office by inclusion of another property therein which was item No. 2 thereof, namely, 21/2 cottahs land in premises No. 3, Belliaghata, Main Road, but to which, according to this Defendant, the lessor Bishnupada had no title. It was, accordingly, contended that the registration at the Sealdah sub-registry office was invalid and, under the document [Ex. A(l)] no title passed to the lessee Mangobinda and no title, accordingly, could be transmitted to the Plaintiff and Defendant No. 1. Defendant Kamala Kanta further alleged that the disputed ka sch. property was eventually conveyed to him by Bishnupada by a kobala [Ex. C(2)], dated June 18, 1951.

The learned Subordinate Judge rejected the above defence contention of invalidity of the registration of the deed of lease [Ex. A(l)] on the finding that Bishnupada''s want of title in the 21/2 cottahs land at premises No. 3, Belliaghata main Road, had not been satisfactorily made out. On the materials before the Court that finding seems to be correct. The onus to prove want of title at least, as aforesaid, was undoubtedly on the Defendant Appellant who alleged invalidity of the registration on that ground and that onus certainly cannot be said to have been discharged by the evidence, adduced in this case. The Defendant Appellant has no doubt produced a certified copy of the relative extract of the collectorate rent roll register which has been marked as Ex. A(2) in the case and in which, of course, Bishnupada''s name does not appear but that, by itself, is not, in our opinion, sufficient to disprove his title to the above property. Bishnupada, moreover, was examined on commission by the Defendant Appellant but when he was asked whether he had any title to the said property his only answer was that he had no possession of it. He did not dare deny his title to the same. The learned Subordinate Judge had, therefore, ample justification to hold that Bishnupada''s alleged want of title in the disputed Belliaghata land had not been established.

Be that as it may, this appeal must, in any event, fail, as, even apart from the said finding on the question of title, there are many circumstances in this case which militate against the Appellant''s contention that the registration of the patta [Ex. A(l)] was invalid. In view of those circumstances, it is really unnecessary to go into the question of Bishnupada''s alleged want of title in the Belliaghata land and, at any rate, no further discussion of that question is at all necessary. To the said circumstances we shall presently turn but, before we do that, we would state the relevant law in a few words and as briefly as possible.

u/s 28 of the Indian Registration Act registration of a document is required to be made "in the office of the sub-"registrar within whose sub-district the whole or some portion "of the property (which in the context, means immoveable property), to which such document relates, is situate." Prima facie, therefore, where no part of the property comprised in the document is situate within the sub-district or territorial jurisdiction of a particular sub-registry office, the particular sub-registrar will have no jurisdiction to register it and its registration by him will be invalid [vide, Ma Pwa May and Anr. v. S.R.M.M.A. Chettiar Firm (1929) L.R. 56 IndAp 379 : ILR (1929) Ran. 624]. At any rate, it will not affect any immovable property, comprised in the document (vide Section 49). In applying, however, the above law to a document in which a fictitious property [which would include a property to which the executant has no title or interest and which the parties never intended to transfer or deal with effectively [vide, (1921) ILR 48 509 (Privy Council) . 569] or to put it in another, way, a specified property to which the deed did not relate for any effective purpose of enjoyment or use vide, Collector of (1934) L.R. 61 I.A. 286 (Privy Council) , has been included and upon and by virtue of which inclusion registration has been effected in a particular sub-registry office, the Privy Council appears to have recognised a very reasonable exception, namely, where the inclusion was by mistake [vide, AIR 1914 67 (Privy Council) ] or, as their Lordships apparently intended in their later decision [vide, 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 ] where the inclusion was not a mere device to evade Section 28 and there was no fraud on the law of registration. In other words, it is only where the inclusion amounts to a device or fraud, as stated above, that the registration would be invalid and the test for finding such device or fraud would be whether the parties intended to transfer or deal with effectively the particular property. Intention of the parties is, therefore, the criterion or the crucial point for enquiry. Indeed, as the Privy Council put it in the decision already cited, namely, Raja Inuganti Venkatarama Rao v. Raja Sobhanadri Appa Rao Bahadur Garu and Ors. (Supra) "the motive may be immaterial,... if the requirements of the law have been complied "with; but of this the intention is critical". [See also Premsukh Mahata v. Mangal Chand Maloo and Anr (1937) 41 C.W.N. 854.]

Bearing the above in mind let us examine the position in the present case. We are, of course, assuming for this purpose that Bishnupada had no title or interest in the disputed Belliaghata land but even that assumption would not be enough and would not, by itself, invalidate the registration in view of the statement of law, made above. [Vide also in this connection Brojo Gopal Mukherjee v. Abhilash Chandra Biswas (1910) 14 C.W.N. 532 and Pahladi Lal v. Musammat Laraiti and Ors. (1919) I. L. B. 48 All. 22.] For such invalidity it is necessary to establish fraud on the law of registration in the sense that there was no intention to transfer or deal with the particular property effectively by the disputed document and that its inclusion therein was a mere device to circumvent Section 28 of the Act. This aspect has now to be examined in the light of the facts and circumstances of this case but, before we proceed to do so, we shall say something on the question of onus to assist us in making the proper approach.

For convenience the point of onus may be considered in two parts. It has first to be established that the relevant property was either non-existent or one in which transferor had no title or interest. So far as this is concerned, the onus is undoubtedly on the person who claims the registration to be invalid. Once, however, this is established, a question may arise whether the onus shifts and it becomes the duty of the person who affirms validity of the registration to prove that the property was really intended to be dealt with or transferred and its inclusion was not a mere device to evade Section 28 of the Act and there was no fraud on the law of registration. On this point there is some divergence of judicial opinion and while the theory of shifting of onus may be supported by reference to some of the observations of the Judicial Committee in Harendra''s case [vide, Harendra Lal Roy Chowdhury v. Ran Dasi Devi and Ors. (Supra) at 118, 119] and some of the other decisions, e.g., Mussammat Surja v. Bijai Bahadur Singh and Anr. (1922) 73 I.C. 13 and Marella Akshayalingm and Anr. v. Donepudi Ramayya and Anr. (1928) 120 I.C. 876, 878 there is a current of authority [vide, Pahladi Lal v. Mussammat Laraiti and Ors. ILR (1919) All. 22, Brojo Gopal Mukherjee v. Abhilash Chandra (Supra), Mussammat Ram Dai v. Ram Chandrabali Devi (1919) 4 Pat L.J. 433, (Varnasi) (Varnasi) Venkata Sastrulu and Another Vs. Kalluri Veerabhadrudu, , Irshad Ali Vs. Mt. Nadari Begam, and Mirza Mohammed Kazim Hussain v. Mt. Nadri Begam and Anr. AIR [1941] Ori 348] which may lend support to the opposite point of view. For purposes of this appeal, it is not necessary to go into the above conflict but we may just point out that the observations of the Judicial Committee, often relied on for this purpose, do not clinch the issue and the question may require further consideration on an appropriate occasion in the light of the above decisions and some other pronouncements of the Judicial Committee. Granting, however, that the onus usually shifts this much cannot be disputed that there may be circumstances, disclosed in a particular case, which may prevent such shifting or, at any rate, may at once lead to an inference of discharge of such onus by the party, relying on the deed.

Turning now to the facts of the present case, it will be clear at once that there are, at least, two circumstances which would make it extremely unjust to apply here the theory of shifting of onus. The first is that, of the parties to the disputed document, the Plaintiff''s predecessor Mangobinda is dead and he died long ago when the Plaintiff was just a small child and the second is that the surviving party Bishnupada has deposed on behalf of the Defendant Appellant but nothing has been elicited from him to justify the inference that the inclusion of the Belliaghata portion in the deed [Ex. A(l)] was not bona fide. Indeed, Bishnupada''s evidence seems to support the view that the parties really intended an effective transfer of the said property upon the honest belief that it belonged to the transferor Bishnupada. We do not think, therefore, that this is a case where the onus should be held to have shifted on the Plaintiff upon mere proof-which also we have merely assumed in this case-of Bishnupada''s want of title in the Belliaghata land. The Appellant there was bound to prove that the parties to the disputed document [Ex. A(l)] did not really intend to transfer or deal with effectively the said Belliaghata property and that its inclusion in the said document was a mere device to have it registered at the Sealdah sub-registry office or that, in other words, it was a fraud on the law of registration. This, however, the Appellant has signally failed to do. Bishnupada, as we have said above, was examined by him but the only relevant question that was put to him on the point was whether he had any title to the said Belliaghata land and, even to that, his only answer was that he had no possession of it. It was not put to him whether he had any knowledge of any absence or defect of title in him. so far as that property was concerned, at the time of granting of the mokarari mourashi patta [Ex. A(l)] nor was it asked of him or even suggested to him that the parties to that document did not really intend to grant or take settlement of the said Belliaghata Main Road property and its inclusion in the deed [Ex. A(l)] was a mere device to have registration made at the Sealdah sub-registry office which, in the words of the Privy Council, would amount to a fraud on the law of registration. That, indeed, was not also the suggestion in the Appellant''s written statement.

In the above state of the records, it is difficult to hold that the onus if it lay on the Appellant has been discharged. On the other hand, from the circumstances aforesaid, it is reasonable to conclude that the onus, if it lay on the Plaintiff Respondent, has been sufficiently discharged. The Appellant''s contention that the document [Ex. A(l)] was invalid on account of defective registration must, therefore, fail.

We, accordingly, hold that the learned Subordinate Judge was right in rejecting the Appellant''s above contention and we dismiss this appeal.

The cross-objection has not been pressed before us and it is also dismissed.

In the circumstances of this case and having regard to the relationship between the parties, we do not think that we should make any order for costs in this Court. We, accordingly, direct that the parties would bear their own costs in this appeal.

Sarkar, J.

I agree.