Krishnan vs Sivalinga Gounder and another

S.S. Subramani, J.—In Second Appeal No. 161 of 1990, first defendant in O.S. No. 722 of 1980, on the file of the District Munsif''s

Court, Tindivanam, is the appellant. In Second Appeal No. 446 of 1996 the sole defendant in C.S. No. 905 of 1987, who happens to be the first

defendant in the earlier suit is the appellant. Plaintiff in both the suits is one and the same. Decision in S.A. No. 161.of 1990 will have bearing on

S.A. No. 446 of 1996. Hence even though both the suits were not jointly tried, with the consent of parties, both the Second Appeals were heard

together. Defendants 2 and 3 in O.S. No. 722 of 1980 were the owners of the plaint property and as per Ex.A-1 dated 4-8-1979, plaintiff

purchased the same from them. It is alleged by the appellant that defendants 2 and 3 have sold the property to him on 11-7-1979 as evidenced by

Ex. B-3 in this case. The question that has to be decided is, which is the valid document which confers title over the plaint property. Both the

courts below have held that the plaintiff who purchased the property on 4-8-1979 as evidenced by Ex. A-1 is the owner. There is a mortgage

outstanding in the property and the mortgagee is none other than the appellant. The subsequent suit was filed by the plaintiff which has given rise to

the other Second Appeal, namely, S.A. No. 446 of 1996. wherein the courts below have allowed redemption. There also, the only question is,

whether the sale deed in favour of the plaintiff is valid or not.

Admittedly, defendants 2 and 3 are owners of the properly. It is also not in dispute that they have executed Ex. A-1 in favour of the plaintiff. So,

the genuineness of Ex. A-1 is not in doubt. The execution of the document and the registration are on the same date, namely, 4-8-1979. It is said

that subsequent to the purchase, a notice was issued to the defendant as evidenced by Ex. A-3 for which a reply was sent under Ex. A-4 wherein

an allegation was made that they have purchased the property. The suit O.S. No. 722 of 1980 was, therefore, filed by the plaintiff for declaration

of title.

In the written statement filed by the appellant, he contended that he has purchased the property as early as on 11-7-1979 even though the same

was registered long thereafter. According to him, the registration after 81 days after execution of documents relates back to the date of execution

and, therefore, title must be deemed to have vested in him on 11-7-1979. He, therefore, contends that the plaintiff has no title to the property, and

he is the absolute owner.

The trial court, after taking evidence, both oral and documentary, came to the conclusion that the appellant has not proved the execution of

Ex.B-3 on 11-7-1979 and, therefore, he may not have a valid title as against the plaintiff. The concurrent finding is challenged in these Appeals.

In Second Appeal No. 161 of 1990, the following substantial questions of law have been raised for consideration:-

Whether any explanation is necessary for the period between the date of execution and registration when the document is registered within the

period fixed from the date of execution as provided by Section 23 of the Registration Act? and

Had not the registered document Ex.B-4 commenced to operate from the time of its execution dated 11-7-1979 and not from the time of its

registration dated 27-10-79 by reason of Section 47 of the Registration Act?

u/s 47 of the Indian Registration Act, if a document is registered within the time allowed by law, it shall operate from the time it would have

commenced to operate. The learned counsel for the appellant argued that in view of the deeming provision u/s 47 of the said Act, he becomes the

absolute owner with effect from 11-7-1979.

Even though the document purports to have been executed on 11-7-1979, it is seen that it has been registered only on 27-10-1979. In the

meanwhile Ex.A-1 has come into existence, i.e., sale deed in favour of the plaintiff on 4-8-1979, which was registered on the same date.

When the execution of the document Ex.B-3 is challenged by the plaintiff, the defendant cannot rely on Section 47 of the said Act, for the

purpose of proving the execution. He has to substantiate before court that the document was in fact executed on 11-7-1979 and the parties

intended to convey title on that date.

In Ramaswami Pillai Vs. Ramasami Naicker and Others, a learned Judge of this Court has held (at page 397) that when two documents of

transfer are both registered, the priority of the one over the other must be determined with reference to the time of its ''execution'', and not to the

date of its registration: a document executed earlier, though registered later, than another, has therefore, priority over that another executed later.

The facts of that case are also similar to the one on hand. Regarding the execution of a sale deed, the provisions of Transfer of Property Act

applies. Execution of a document contemplates a case of prior contract between the seller and the purchaser which is subsequently put down in

writing and signed by the seller. There must also be a concluded contract for payment of consideration. It is this contract which is put down in

writing, that conveys the title. Even though registration is required, that is for the purpose of validating the contract u/s 17 of the Indian Registration

Act. Registration by itself will not convey title. It only validates or gives a legal title to the purchaser.

Even though it can be presumed that a document was executed on that date on which it purports to have been executed and bears the date,

that is only a weak presumption. When the execution is challenged, and the allegation is that it is ante-dated, it is for the person claiming under the

document to prove that it was executed on the date which it bears. Even the weak presumption will apply only between the parties to the

transaction and not against the third person.

In (1916) 44 Indian Appeals 72 = (1917)5 L.W. 717 (Mina Kumari Bibi v. Bijoy Singh Dudhuria), it was held thus:-

It is a general, though not a conclusive, presumption that a document was made on the day of the date it bears, so that for what it is worth the

plaintiff starts with that in her favour; but her case does not rest there, for, such oral evidence as there is on the point supports the presumption, and

was not seriously challenged by the cross-examination. It has been suggested that the plaintiff should have called other witnesses to the date of

execution. But her advisors had no reason to apprehend that this contention would be advanced. It is not pleaded in the written statement, it is not

raised in the issues, and the judgment of the first court certainly does not suggest that it was given prominence even at the trial.

From the above passage, it is clear that the presumption is of very weak type and the same can be applied only in case where it is not

challenged.

In 1963 K.L.T. 252 (Krishna Iyer v. Chandy) a learned judge of the Kerala Court had occasion to consider a similar question. The learned

Judge said that the word ''execute'' under the Indian Law is used in the sense of ''signing'', and the execution of a document therefore means signing

it. Learned Judge further held that before the date of signing or execution need not necessarily be the date on which the deed was written up, since

when once the executant affixes his signature, the deed will speak from the date of its execution and not from the. date apparent on the face of it.

Under the Indian Registration Act, Section 24 provides for the execution of a document by several persons. It also provides for executing a

document at different times. That Section enables to get the document registered within four months from the date of each execution. When one

document is executed by several persons at different times, the document will bear only one date. The said provision also makes it clear that the

date which is shown in the document need not correspond to the date when the document is signed. It is in this context we will have to consider the

scope of Section 47 of the Indian Registration Act, as contended by the learned counsel for the appellant.

In this case, to prove the execution of Ex.B-3, the attestors have not been examined. A stranger who claims himself to be present at the time of

execution was examined as D.W.2. The reason for non examination of the attestors is not explained. Defendants 2 and 3 who are supporting the

appellant were also not examined to prove the execution. It is not a case where defendants 2 and 3 are not available for examination. We find that

in the subsequent suit filed by the plaintiff, the vendor was examined, but his evidence was disbelieved by the courts below. Learned counsel for

the appellant submitted that the vendors being defendants who remained ex parte in the suit and they being parties to the action, they cannot be

examined as his witnesses.

Such contention cannot be accepted. Defendants 2 and 3 are not claiming any adverse right against the appellant and they are also arrayed as

co-defendants. It is not an opposite party claiming adverse title against defendants 2 and 3. Under the Transfer of Property Act, the vendors are

bound to protect the title of the transferee and the CPC also does not bar the examination of a co-defendant. The non-examination of the

defendants or attestors to the document was taken as a strong circumstance against him by the courts below in holding that the document might

have been ante-dated. The said circumstance cannot be simply ignored.

Even though the stamp papers were purchased on 11-7-1979, the stamp value was not sufficient for conveying title under the Tamil Nadu

Stamp Act. We find that the deficient stamp duty was paid only at the time of registration and the document was presented before the Sub

Registrar on 26-10-1979. Why the deficient stamp duty was paid only on 26-10-1979 is also not explained by D.W.1. The stamp papers also do

not seem to have been purchased in the name of the appellant. When the person intends to purchase a property and a contract is concluded, under

normal circumstances, stamp papers are purchased according to the rates provided under the Stamp Act. Why stamp paper for Rs. 100/- alone

was purchased on 11-7-1979 is not explained by the appellant by satisfactory evidence. The only argument put forward by the learned counsel for

the appellant was that the appellant did not have sufficient funds to purchase the entire stamp papers and present the document for registration on

11-7-1979. We also do not have any evidence to show that the defendants 2 and 3 signed on insufficient stamp paper on 11-7-1979 with intent to

convey title to the appellant.

As stated earlier, Section 47 of the Indian Registration Act can be relied on only if the appellant proves that the execution was on 11-7-1979.

Once that evidence is lacking, he cannot rely on that Section and claim priority over Ex.A-1. In this connection, it is better to rely on the decision

reported in 1963 K.L.T. 252 (supra) where the learned Judge followed an earlier decision, namely Aithroa Haji v. Sekharan Nair (6 Cochin 345)

wherein it was held thus:-

There is also provision in the Registration Act for registering a deed executed by several persons at different times. (S. 24 of Act XVI of 1908).

Such provision clearly shows that the date of execution of a deed need not necessarily be the date appearing on the deed so for as persons

executing the deed subsequently. Hence it is very doubtful that proving the execution of a deed in any way implies the inference that execution was

on the date appearing on the face of the document. In my opinion on the mere proof that a person admits the execution of a document does not in

any way necessarily lead to the inference that the signature was affixed on the date appearing on the document or that the date appearing on a

deed was the date on which it was really written. The one need not have any connection with the other. In a case therefore where the genuineness

of a deed is impeached by a third party on the ground that it was not really executed on the date appearing on the deed it is not enough for the

party who relies on the deed to prove merely its execution since as already remarked, the date of execution may be quite different from the date

apparent on the face of the deed. Hence proof of genuineness of a deed, when its genuineness is impeached not merely on the ground that that it

was not really executed but also not on the date the deed bears must consist of evidence of persons who are in a position to say not merely that

they saw the executants sign the deed but also that they signed it on the date the deed was written up. In the absence of such evidence no inference

can be drawn that the date of execution is identical with the date appearing on the deed.

Both the courts below have concurrently held that the appellant has not proved the execution of Ex.B-3 on 11-7-1979. It is purely a finding of

fact based on appreciation of evidence.

On the first question of law, I answer the same as follows: - An explanation is necessary by the purchaser to show why the registration was not

effected on the date of execution of the document since the contention raised by the plaintiff is that it is ante-dated. The presentation of a document

for registration within four months as provided u/s 23 of the Indian Registration Act will not absolve a person from proving the date of execution. In

cases where the date of execution of the document is challenged, it is the bounden duty of the purchaser to prove by the best evidence that the

document was executed on the date it bears.

On question No. 2, I hold that Section 47 of the Indian Registration Act cannot be relied on by the appellant when he has not proved that the

document was executed on 11-7-1979.

Both the substantial questions of law framed in Second Appeal No. 161 of 1990 are found against the appellant. Accordingly, Second Appeal

No. 161 of 1990 is dismissed. Second Appeal No. 446 of 1996 relates to a suit for redemption filed by the plaintiff on the basis of Ex.A-1. The

only question that is raised in that Second Appeal is the title of the plaintiff. It is said that there was a prior mortgage which was taken on

assignment by the defendant, who is claiming a rival title. In view of the judgement in Second Appeal No. 161 of 1990, I hold that the appellant

cannot deny the title of the plaintiff and refuse to surrender the property on the basis of his title, which is found to be invalid. Second Appeal No.

446 of 1996 is also dismissed. In both the Second Appeals, the respondent/plaintiff (Sivalinga Gounder) is entitled to costs.