Mohammad Khaja vs Monappa

Manohar Pershad, J.—Mohd. Khaja filed a suit for possession of the land bearing survey No. 72 and of the house situated in Shahpur, against Monappa, alleging inter alia that the Plaintiff is the owner of the suit property and was in possession but was wrongfully dispossessed by the Defendant during the Police Action. Plaintiff relied upon a registered sale-deed dated 13th Dai 1349-F.

Defendant in his written statement denied the execution of the sale-deed and also that ho possessed any house at Rangampet. He further denied that the Plaintiff was in-possession and claimed that he is in possession in his own right. A legal objection was also raised that the registration of the document is not valid since no part of the property mortgaged is situate within the jurisdiction of the Sub-Registrar who registered the document.

Plaintiff in reply denied the allegations of the defendant. The court of the first instance, on these pleadings, framed certain issues and parties led their evidence. On the evidence, the court decreed the Plaintiff''s suit.

Defendant went in appeal which was allowed. Hence this second appeal on behalf of the Plaintiff. In this appeal it is urged before me first that the registration is valid and the appellate court has erred in holding otherwise. The second contention is that unless the Defendant establishes; fraud which he has not, he cannot deprive the''Plaintiff'' of the benefit of the mortgage. Reliance is placed on the following cases: Sri Rajah Dantuluri Devi Prasada Satyanarayana Veerabhadra Venkata Lakshmikantaraju Garu Vs. Sri Rajah Dantuluri Peda Venkata Jagannatharaju Garu and Others, (A), Ramanathan Chetti and Others Vs. Delhi Badaha Tevar and Others, (B), (Varnasi) Venkata Sastrulu and Another Vs. Kalluri Veerabhadrudu, (C), Taluk Board Vs. Srimanth Raja Yarlagadda Mallikarjuna Prasada Naidu Bahadur, (D), Gnanaprakasam Pillai and Another Vs. Parasakthy Ammal and Others, (E), Muhammad Yakub Vs. Abdul Manan and Others, (P), Rukhama Bai v. Krishna Rao AIR 1952 Nag. 145 (PB) (G), and Chandi Prosad. v. Hrishikesh Shah AIR 1946 Cal. 465 (H).

Thirdly, it is argued that since both the- courts on the evidence have, held the execution of the document as proved, it is not necessary for the- Plaintiff to prove the further fact that the Defendant is the owner of the property and mere failure- to establish title would not invalidate the registra- tion of the document. It is urged, however, that- as a matter of fact, there is sufficient evidence pro- duced on behalf of the Plaintiff, to establish that the Defendant is the owner of the house at Ran-gampet and the court below has erred in holding: that the Plaintiff has failed to prove this fact.

On behalf of the Defendant-Respondent, it is-urged that no question of fraud on registration law arises in the case. The case of the Defendant is-that he (Defendant) does not own any house at Rangampet; as such the Sub-Registrar was not- competent to register the document, and the registration cannot be held to be valid. Following: up the contention it is urged that there is no evidence either to show that the Defendant owned a- house at Rangampet or that the parties intended, to effect the transfer of, any, in the absence of which the registration of the document cannot be held to be valid. Reliance is placed on the case of - Harendralal v. Haridasi Debi AIR 1914 PC 67 (I), - Mathura Prashad v. Chandra Narayan AIR 1921 PC 8 (J), - AIR 1934 157 (Privy Council) (K) and - AIR 1936 91 (Privy Council) (L). I find sufficient force in the contention of the Respondent.

The sale-deed is compulsorily registrable u/s 10 of the Hyderabad Registration Act corresponding to Section 17, Indian Registration Act. Section 22 corresponding to Section 28 of the Indian Registration Act requires that every registrable document shall be presented for registration in the office of the Sub-Registrar within: whose sub-district the whole or some portion of the property to which such documents relate is situate, while Section 49 enacts that:

No registrable instrument shall affect any immovable property comprised therein, unless im-has been registered in accordance with the provisions of the Act.

Section 65 provides for the transmission of copies to the office of other districts in which any of the mortgaged property is situate. Section 54, Transfer of Property Act, requires that a transfer on. sale of tangible immovable property of a value less than Rs. 100/- may be made either by a registered, instrument or by delivery of property while if it is of the value of Rs. 100/- or more the transfer must be by a registered instrument. Thus, it would follow that according to Section 28, Registration Act, "every registrable document has to be presented for registration in the office of the Sub-Registrar within whose sub-district the whole or-some portion of the property to which such document relates is situate."

It would follow, therefore, that if no part of the property is situate in the sub-district, the registration would be void. In other words, the Sub-Registrar gets the jurisdiction to register the document provided the property is situate within his jurisdiction. In order to prove the validity of the document, the Plaintiff will have to establish the existence of the property itself. The contention of the Plaintiff is that the burden of proof is on the Defendant to show why the document is invalid. l do not agree with the contention of the learned advocate for the Plaintiff.

The Defendant has denied the execution of the document. Had the Defendant admitted the execution of the document and raised the plea that he has-no-interest in the house at Rangampet, or that the said house was included in the sale-deed for the purpose of its being registrable in the Sub- district, the burden of proof would have been on the Defendant. But even in that case the Defendant would not have succeeded in his plea unless he had established the collusion of the parties.

In the case before me, two distinct properties: (1) the land bearing survey No. 72 at Shahpur and (2) the house situated at Rangampet, are said to have been transferred by a sale-deed dated 13th Dai 1349-F Ex. 21, and this document has been presented and registered by the Sub-Registrar, Shorapur. The Defendant has denied that he owns any house at Rangampet. The Sub-Registrar of Shorapur would get jurisdiction u/s 28, Registration Act, only if it is established that the Defendant possessed a house at Rangampet. It sometimes happens that the parties to a deed include in the deed a parcel described as situated in a particular place but which does not in fact exist & get the document registered in the office of the Sub-Registrar within whose sub-district the parcel is alleged to be situated. In such cases the question arises whether the fictitious entry was intentionally made use of by the parties for the purpose of obtaining registration in a sub-district -where no part of the property actually transferred and intended to be transferred, in fact, exists. Such a transaction would be deemed to be a fraud on the Registration Law and no registration obtained by such means can be valid. The leading case on the subject is - AIR 1914 P. C. 67 (I)''. In that case a mortgage-deed executed in 1913 purported to mortgage various properties including one described as No. 25 Gurdas street in Calcutta and also described by metes and bounds. There was, as a matter of fact, no property of that description in Calcutta and the mortgagor never had any title to the property as described by metes and bounds. Nor was any of the other properties included in the mortgage situate in. Calcutta, although the mortgage-deed was registered in the office of the Sub-Registrar, Calcutta. There was no evidence either that the said property had been included in the mortgage by mistake. It was held by their Lordships that:

The parcel of the land is in fact a fictitious entry and represents no property that the mortgagor possessed or intended to mortgage or that the mortgagee intended to form part of the security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a Sub-District where no part of the property charged or intended to be charged exists, is a fraud on the Registration Law and no registration obtained by means thereof is valid.

Their Lordships also pointed out that apart from the question of fraud on the Law of Registration the Registration is invalid as no portion of the property, mortgaged was situated within the jurisdiction of the Sub-Registrar as required by Section 28 of the Act.(11) The second case on the point is that of-AIR 1921 P. C. 8 (J)''. In this case, the property to be Tnortgaged was situated at Dharbanga. But in order to get it registered at Muzafarpur, the mort-gagor made a, pretence of purchasing one ''cowri'' share in a village in Muzafarpur and included it in the mortgage-deed. No possession was given to the mortgagor of the ''Cowri'' share. The mortgagor had, in fact, no interest in it nor did the mortgagor ever intend that it should form part of the security. It was held by their Lordships that the case stood on the same basis as that of - ''Herenderlal''s (I) for the purpose of the Registration Act.

The third case on the point is of - AIR 1934 157 (Privy Council) (K). In this case the vendor in order to secure registration in Gorakhpur entered in the sale-deed, a small covered platform, situated in a walled garden to which there was no access and It was not capable of being utilised by the purchaser. It was not intended by either party that the platform should be the subject of the sale. It was held by their Lordships that the deed was not valid as required under the Registration Act as the parties did not intend that the share in the garden room should really be conveyed. Its inclusion in the deed was merely to evade the Act. It was further held that the word ''fictitious'' as used in the case AIR 1914 P. C. 67 (I) was not confined to non-existing property, but would cover cases of a deed which does not relate to a specified property for any effective purpose of enjoyment or use. The last decision of the Privy Council on the point is that of - AIR 1936 91 (Privy Council) (L). In this case a one-fourth share in the village of Soma-varam in the Krishna District and one yard of vacant site in the village of Guntur in the Godavari District were sold by one registered sale-deed and the document was presented and registered by the Sub-Registrar of Somarlakota. On a claim by the Appellant to recover the possession of the suit property .the question arose "whether the vacant site (one yard) included in the sale-deed belongs to the Plaintiffs (Appellant''s father) and whether it was included in the sale-deed to give jurisdiction to the Sub-Registrar to register the deed and was not intended to be conveyed if it was so, whether it was a fraud on the Registration Law and the deed was void. It was held by their Lordships that in determining the requirements of law as to registration having been complied with, the intention of the parties is the criterion by which the matter must be decided. There was no intention in this case that one yard of land should pass under the deed and the alleged sale of it was a mere device to evade the Registration Act. There was no effective registration of the conveyance.

With regard to the question of the existence-, of the house, it is contended on behalf of the Appellant that it is not denied. Even if it is taken'' that he has denied, there is sufficient evidence to prove the existence of the house. As regards the intention of the parties, it is contended that both the courts have held the execution of the document to be proved which is sufficient to hold that the mortgagor did intend to transfer the said property. So far as the question of the existence of the property is concerned, I do not agree with the contention of the learned Advocate for the Appellant that the Defendant has admitted the existence! of the house at Rangampet. The Defendant in para (1) of the written statement has clearly denied, that he owns any house at Rangampet. The learned District & Sessions Judge has held that the Plaintiff has not produced any evidence to show that the Defendant is the owner of the house at Rangsmpet. The learned advocate for the Appellant drew my attention to the depositions of Ahmed Hussain and Abdul Ghani and urged that from the statements the fact of the Defendant owning a house at Rangampet can be proved. I went through their statements. Ahmed Hussain who is the scribe of the document, has deposed that the Defendant has transferred one house and one land. The house was at Rangampet and the land was of Shahpur. This is all what he has said. It is not clear from his statement that the Defendant was the owner of the house at Rangampet.

P. W. 5 Abdul Ghani only says that the Defendant sold one house and one land to the Plaintiff. In his cross-examination he says that in the sale-deed it is written that the house at Rangampet was sold. Prom his statement also it is not clear whether the Defendant is in fact the owner of the house at Rangampet. Further, these wit nesses have not deposed that, as a matter of fact, there is any house of the Defendant at Rangampet.

When the Defendant has denied in toto that he owns any house at Rangampet, it was the duty of the Plaintiff to have proved this fact. The evidence led, in my opinion, is not at all suillcient to establish that the Defendant did own a house at Rangampet. When this is the position the case clearly comes within the principle laid down by their Lordships of the Privy Council in - AIR 1914 P. C. 67 (I). Even assuming for arguments sake that there exists a house at Rangampet, still the plainitiff would not succeed unless he esta blishes that the Defendant has interest in or title to that property as laid down by their Lordships in the Privy Council case - AIR 1921 P. C. 8 (J) There is not an iota of evidence in the case to show that the Defendant has any right or interest in the property. The important test in such cases is the intention of the parties as has been pointed out in the Privy Council case - AIR 1938 P. C. 91 (L), The motive is immaterial.

There is no evidence that the Defendant mis-represented to the Plaintiff that he owned a house at Rangampet. The rulings cited by the learned Vakil for the Appellant are not applicable to the facts of the case and do not help his con- tention. In all the cases cited by him the prin- ciple laid down in the Privy Council cases has been accepted.

Sri Rajah Dantuluri Devi Prasada Satyanarayana Veerabhadra Venkata Lakshmikantaraju Garu Vs. Sri Rajah Dantuluri Peda Venkata Jagannatharaju Garu and Others, (A), was a case in which the Plaintiff claimed a declaration that the auction sale of the Gundepalli Estate in O. Section No. 25 of 1910 and all execution proceedings relating to that are null and void as the Plaintiff who was a minor was not represented properly; that the guardian was guilty of misrepresentation and that the motgage-deed was not valid, not having been legally registered. It was held by Odgers and Hughes JJ, that the appointment of a clerk of a court as a guardian was valid; that there was no collusion between the mortgagee and the mortgagor and there was no intention on the part of the mortgagee to include a land not belonging to the morgagors and registration is not vitiated by the fact that property, not in existence, was included in the deed to effect registration at a particular place. It was further held that in the case the evidence is that the mortgagor himself verbally mentioned this (one acre) when the mortgage-deed Was being drawn up and that, as a matter of fact, it is a mistake for 548 which admittedly belongs to the family of the Defendant Nos. 1 and 2 in suit No. 25 of 1910. This was a clear case where the mortgagor represented to the mortgagee that he owned the property and the property actually existed and there was no collusion of the mortgagee in Including the property. It was rightly held that the, registratlon is not vitiated. It is not so in the present case.

(Varnasi) Venkata Sastrulu and Another Vs. Kalluri Veerabhadrudu, (C) was a case where the Plaintiff said that the sale-deed comprised an item of a small house which did not belong to the widow Gangammal and that therefore the parties committed a fraud on the Registration Law.

The Plaintiff alleged in the plaint that, plot did not belong to Gangammal but to Defendant No. 1. When the plea is that the vendor is not the owner of the property and the property has been wrongly included in the mortgage-deed, the mortgagee cannot be deprived of the mortgage unless collusion between the mortgagor and the mortgagee is established. This would be a clear case of fraud and as in the case of every other kind of fraud, the party who sets up a defence in a case of registration, law, is bound to make it out by clear and cogent evidence.

In the present case, the defence of the Defendant was not what has been laid down in this case.

- Irshad Ali Vs. Mt. Nadari Begam, (M) was a case where the property actually existed within the jurisdiction of the Registration Officer and the parties intended to transfer it. It was held by Mohd. Ismail J. that in such cases, the registration would not be affected merely because the mortgagee or the transferee fails to prove the title of the mortgagor or the transferor. This case also is distinguishable from the facts of the present case.

In - Superintendent and Remembrancer of Legal Affairs Vs. Amari (Charan) Tikadar and Others, (H) Biswas and Chakravarti JJ. have held that the crucial test to to be applied in order to find out whether the registration law is evaded or defrauded is whether or not the parties intended that the property m question, on the basis of which the document was registered, should form part of the transaction. In order to find out the intention, the fact whether the property admits of physical enjoyment may; no doubt, be sometimes relevant: but it is not the crucial test.

The test laid down in this ruling is the same which has been pointed out in the Privy Council case - AIR 1936 91 (Privy Council) (L). This ruling in" my opinion, does not help the contention of the learned advocate for the Appellant. The same prin- ciple has been decided in the other cases cited on behalf of the learned advocate for the Appellant and so I do not wish to discuss them in detail.

Thus, after giving a careful consideration to the authorities cited on behalf of the parties, and going through the entire record, I am of the opi- nion that the Plaintiff has failed to establish that the Defendant owned a house at Rangampet, and that he intended to transfer the same. Therefore the document could not be registered at Shorapur and the Sub-Registrar, Shorapur, was not compe- tent to register the same. In the result, the regis- tration of the document would be invalid and the Plaintiff would not acquire any title. The appellate court has come to the same conclusion and I see no reason to differ. This appeal is, therefore, dismissed with costs.