RAMSARAN JHA Vs. JOKHAN JHA

JUDGEMENT

(1.) This is a reference by the learned Subordinate Judge of Samastipur under Section 113 of the Code of Civil Procedure read with order 46 of the said Code. The appeal before that court arises out of a suit filed by the plaintiffs under Section 77 of the Registration Act for registration of a sale deed dated the 7th September 1953, said to have been executed by defendant No. 1 in favour of the plaintiffs. The executant of the sale deed is a Mushar by caste and has been found to be a protected tenant to whom restrictions on alienation of land would apply under Chapter VII A of the Bihar Tenancy Act, 1885, hereinafter called the 'Act'. The question before the Subordinate Judge was whether even if the transfer was in violation of Section 49C of the Act, could the Civil Court refuse to direct its registration in view of the provision of law contained in Section 49J of the Act. The learned Subordinate Judge has expressed the view that an inhibition as to registration of the document of transfer executed in contravention of the provisions contained in Chapter VIIA of the Act encroaches upon and is repugnant to the law engrafted in the Indian Registration Act, 1908. Hence the court of appeal below is of the opinion that the said inhibition engrafted in Section 49J of the Act is ultra vires and should be declared so. It is for that purpose that under the proviso to Section 113 of the Code of Civil Procedure, the learned Subordinate Judge has made this reference to this Court.

(2.) This reference came before us for hearing on an earlier occasion on the 12th of October 1966. It was stated at the bar that the vires of Section 49C of the Act was in question in the case of C.W.J.C. No. 134 of 1965 pending hearing before another Bench of this court. Prima facie the sale deed is said to have been executed to contravention of the provision of Section 49C of the Act, we, therefore thought that if Section 49C itself would be declared ultra vires, there will be no contravention of the provisions of Chapter VII A of the Act in so far as the impugned sale deed is concerned and that being so, the question which has been referred for answer to this court in this case will be academic. This court, as usual, will not determine the validity of any section of am statute if the question has become academic. Since then the case in C.W.J.C. No. 134 of 1965 has been decided on the 9th of December 1966, and the constitutional validity of Section 49C of the Act has been upheld. That now necessitates an answer to the question referred for our determination.

(3.) It is true that neither the District Registrar nor the Sub-Registrar in a proceeding for compulsory registration of a document nor the Civil Court in a suit under Section 77 of the Registration Act, is concerned with the validity or invalidity of the document on a ground of the kind which is involved in the present case. In all probability, therefore, if the inhibition in Section 49J would not have been there directing that no transfer by a protected tenant in contravention of the provisions of Chapter VIIA of the Act shall be registered, the court would not have refused to direct its registration if otherwise the suit was found fit to be decreed under Section 77 of the Registration Act. But, the inhibition is there. The question is whether it is repugnant to the law of registration contained in the Indian Registration Act, 1908 and whether it is ultra vires because of non-fulfilment of the requirements of Article 254 of the Constitution of India.