ANWARA KHATUN Vs. SOGRA KHATUN BIBI

JUDGEMENT

(1.) The short but interesting point of law raised by this appeal is : must fraud on registration that renders a document void, be patent on the face of it?

(2.) Before we proceed to answer this question, it is necessary at this stage to recall the material facts. The Appellant Chaudhury Abdul Haque, is the Plaintiff of T.S. No. 9 of 1951 in the Court of Second Munsiff, Katwa. He filed the suit against the Respondent Sogra Khatoon praying for recovery of joint possession upon establishment of title. The property which formed the subject -matter of this suit originally belonged to Chaudhury Khodadad. He died childless leaving Abdul Haque and Sogra Khatoon as his legal heirs. The term of the present litigation lay in a sale deed dated Agrahayan 8, 1345 B.S. (corresponding to November 24, 1939). It is marked Ex. A(2). By this kobala Khodadad purported to sell certain lands of mouza Palisgram and mouza Khudran within Mongalkot Sub -Registry besides a small portion measuring 03 decimal of C.S. plot No. 1435 of mouza Karajgram within the Sub -Registry of Katwa to his wife Sogra Khatoon in lieu of dower debt. The present litigation is with respect to all the lands of the sale deed : Exhibit A(2) excepting the C.S. plot No. 1435 of Karajgram. In the T.S. No. 9 of 1951 Abdul Haque, as brother of Khodadad, claimed 12 as title and possession in the suit property on the footing that the sale deed dated Agrahayan 8, 1345 B.S. executed by Khodadad in favour of Sogra Khatoon was void on the ground of fraud on registration. His case is that Khodadad did neither own nor possess' any portion of C.S. plot No. 1435 of mouza Karajgram and what is more the parties to the sale deed dated Agrahayan 8, 1345 B.S. did not intend to transfer the said land. And yet 03 decimal of C.S. plot No. 1435 was included in the sale deed, Ex. A(2), dated Agrahayan 8, 1345 B.S. just to get it registered at Katwa although the lands which were really intended to be sold were all within the jurisdiction of Mongalkot Sub -Registry. Sogra Khatoon contested the suit by filing a written statement in which she roundly denied the plaint allegations and asserted that Khodadad did intend to sell 03 decimal of C.S. plot No. 1435 which he, at the relevant time, possessed on the basis of purchase from the admitted owner Moinuddin under an unregistered deed of sale, marked Ex. A. The learned Munsiff found that Khodadad did not under Ex. A acquire title in any portion of C.S. plot No. 1435 of mouza Karajgram because the seller Moinuddin was then a minor and also because the land, being agricultural land governed by B.T. Act,, the deed of sale Ex. A was void and ineffectual on the ground of non -registration. He further found that Khodadad did not possess the land of Ex. A and consequently he did not intend to transfer the same to his wife under the kobala Ex. A(2). He, accordingly, held that the deed of sale, Ex. A(2), was void on the ground of fraud on registration. Even so, the learned Munsiff eventually dismissed the suit, as he was of the opinion that the claim of the Plaintiff for recovery of possession was barred both under Sec. 53A of the T.P. Act and under the principle of adverse possession twelve years having elapsed during the pendency of the suit. On appeal the learned Sub -Judge held that Sec. 53A of the T.P. Act could not apply when Sogra Khatoon was claiming under a registered document and that the question of limitation too did not arise seeing that twelve years had not elapsed before the filing of the suit. He, too, came to the conclusion that Khodadad had no title or possession in any portion of C.S. plot No. 1435 of mouza Karajgram. He also held that the parties to Ex. A(2) did not intend to transfer the land of the said plot which was incorporated in the kobalik just to avoid the provision of Sec. 28 of the Registration Act and therefore, the kobala ex, A(2) was void on the ground of fraud on registration. He, accordingly, gave the Plaintiff the desired decree in respect of the suit lands excepting the land of C.S. plot No. 2471 of mouza Palaspur. Against this decision, Sogra Khatoon preferred an appeal to this Court. It is numbered S.A. No. 1187/54 in which Abdul Haque preferred a cross objection. Both the appeal and the cross objection were heard by Chatterjee J., who by his judgment, dated December 8, 1959, allowed the appeal and dismissed the suit as also the cross objection. The relevant portion of the judgment is reproduced below:

(3.) This observation is from the decision of the House of Lords in Edward v/s. Bairatow, (1955) 3 All E.R. 49 and this has been approved by our Supreme Court in a rather recent decision in Oriental Investment Company Ltd. v/s. The Commissioner of Income -tax Bombay, (1958) S.C.R. 49 : (1958) S.C.A. 839. This matter came up for consideration in this High Court in Amaresh Chandra Dey v/s. Jamini Kanta Nandy S.A. 43 of 1955 by K.C. Das Gupta, JJ. On June 11, 1958; their Lordships have approved this and interfered in second Appeal.