ARUMUKHAPERUMAL NADAR Vs. DWARAPANDYA NADAR

JUDGEMENT

(1.) THE question raised in this appeal is as to which of the two rival sales in respect of the equity of redemption of the suit property has to prevail. THE property originally belonged to one Ponnayya Nadar who had mortgaged it in favour of one Perumal Nadar under Ext. VIII dated 22-5-1103. Perumal Nadar assigned his mortgage right in favour of one Devianayagam Nadar under Ext. VI dated 10-4-1106. While the property was thus outstanding on mortgage, the decree in O. S. No. 1520 of 1107 on the file of the Nagercoil district Munsiff's Court was obtained by one Arumugham Pillai against Ponnayya nadar for recovery of a certain sum of money due to the former from the latter. In execution of that decree, Ponnayya Nadar was arrested and brought before court. At that stage himself and the decree-holder entered into a compromise by which the latter agreed to the judgment-debtor being released from custody on his giving security for the decree amount. Accordingly Ponnayya Nadar executed a bond in favour of the Court on 30-11-1108 securing the equity of redemption of the property covered by the mortgage deed ext. VIII, for the due payment of the decree-debt in O. S. No. 1520/1107. Ext. D is copy of that bond wherein Ponnayya Nadar had expressly agreed that the amount due from him under the decree may be realised by the sale of the secured property, in execution of the decree. On 31-11-1108 the Court passed an order accepting the security bond and releasing Ponnayya Nadar from arrest as agreed to by the decree-holder. Subsequently on 4-6-1110 Ponnayya Nadar executed a hypothecation bond, copy of which is Ext. V, in favour of the present defendants 1 and 2 wherein the equity of redemption of the suit property was also included. THEse defendants sued on that bond and obtained the decree in O. S. No, 705/1111 and in execution of it brought to sale such equity of redemption and they themselves purchased it on 5-12-1114. This sale was followed by a formal delivery of possession also through Court. Ext III is copy of the sale certificate and Ext. II is copy of the delivery kychit in favour of defendants 1 and 2. On the strength of such sale and delivery, they obtained a release of the mortgage Ext. VIII from Deivanayagam Nadar. Ext. VII is copy of the release deed dated 4-9-1116 executed by Deivanayagam Nadar. Since Ponnayya nadar failed to discharge the decree-debt in O. S. No. 1520/1107, the security bond Ext. D was enforced against him in execution of that decree by the present plaintiff who had taken an assignment of that decree. THE equity of redemption of the suit property was thus sold in Court auction and was purchased by the present plaintiff on 4-11-1119. Ext. A is the sale certificate in his favour. THE right purchased by him under Ext. A was delivered over to him through Court on 16-12-1119 and Ext. B is copy of the delivery report. On the strength of exts. A and B the plaintiff instituted the present suit for redemption of the mortgage Ext. VIII and for recovery of the property from the defendants. THE defendants resisted the suit and contended that they have acquired title to the property by virtue of the court sale Ext. III in their favour and that they are not liable to surrender possession of the property. THEy further contended that the security bond Ext. D not having been registered did not create any charge on the suit property and that therefore the court sale evidenced by Ext. A is invalid and inoperative. THE trial Court upheld these contentions and dismissed the suit. THE lower appellate Court came to a different conclusion and held that the security bond Ext. D did not require registration for creating a valid charge on the property and that therefore the court sale Ext. A in favour of the present plaintiff is valid and has to prevail over the sale in favour of defendants 1 and 2. THE suit was accordingly remanded to the trial Court for fresh disposal after a due consideration of the other questions involved in the suit. THE defendants have therefore preferred this appeal, challenging the correctness of the view taken by the lower appellate court regarding the validity of Exts. D and A.

(2.) THE first point urged on behalf of the appellant is that the security bond Ext. D not having been registered as required by the provisions of the Registration Act, it was unenforceable as against the immovable property dealt with in it and that therefore the proceedings conducted on the basis of Ext. D are all invalid and inoperative. THEse proceedings were conducted at a time when the Travancore Registration Act, Act II of 1087 was in force. THE property dealt with under Ext. D is also immovable property situated in the former State of Travancore. THE question whether Ext. D required registration or not, has to be decided with reference to the relevant provisions of the Travancore Registration Act.

(3.) ANOTHER contention urged on behalf of the appellant is that the non-compliance with the direction contained in Section 15 of the Travancore registration Act has rendered the bond Ext. D ineffectual and inoperative as against the immovable property comprised in it. Section 15 of the Travancore registration Act directs that "when any civil Court shall, by a decree or order, create, declare, transfer, limit or extinguish any right, title or interest of any person to or in any immovable property situate in any part of travancore, such Court shall cause a memorandum of the said decree or order to be sent to the Sub-Registrar" within whose sub-division the whole or any portion of the property is situate and such memorandum shall describe the property in the manner required by section 14 and that the memorandum so received shall be filed in Book 1 maintained in the Sub-Registrar's Office. The question is whether the failure to send such a memorandum to Sub-Registar's office in respect of the older of the court passed on Ext. D has rendered the order invalid or inoperative. There is no such provision in section 15 or in any of the other sections of the Registration Act. In fact there is nothing in the Act to indicate as to what would be the consequence of the non-compliance with the direction contained in Section 15. In spite of such non-compliance the decree and order referred to in the section which are otherwise valid and operative would continue to be so. They would not cease to be decrees or orders passed by the civil courts, merely because the memorandum as contemplated by section 15 is not sent to the Sub-Registrar's office. It is as decrees and orders of the civil court that they gain their force and validity. The provision contained in section 10 clause 2 sub-clause (v) of the Act exempting such decrees and orders affecting immovable property from the rule regarding compulsory registration, cannot be deemed to have been nullified or taken away by section 15. Section 42 of the Act lays down that no document, the registration of which has been made obligatory by section 10, shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless the document has been registered. It is obvious that this provision does not apply to decrees or orders of court affecting immovable property. It is also significant to note that section 42 is not made to govern decrees or orders in respect of which no memorandum as contemplated by section 15 has been sent to the Sub-Registrar's Office. It has therefore to be taken that decrees and orders of civil courts will be valid at d effective as against the immovable property comprised therein even if no memorandum as required by section 15 in respect of such decrees and orders has been forwarded to the Sub-Registrar's Office. The effect of sections 10,15 and 42 has been consistently construed in this manner by the erstwhile Travancore high Court in the rulings reported in Narayanan v. Poothathan Avel (1 T. L. J. 265), Chidambara Iyen v. Krishna Iyen (10 T. L. J. 22), Abraham v. Chacko (28 t. L. J. 1229) and Mani v. Narayani Iyer (30 T. L. J. 690 ). We are in respectful agreement with the view taken in these cases. Thus the objection urged on behalf of the appellant on the basis of section 15 of the Travancore registration Act also fails.