MOTILAL Vs. JASWANT SINGH

JUDGEMENT

(1.) THIS is a Civil Second Appeal in a suit under Order 21, Rule 63 C. P. C. filed by the decree-holders (sic) Govind Singh and Nahar Singh and Bhagwat Singh, sons of Ugrasingh, who was the Jagirdar of Thikana Agria in Jensu Amet. Moti Lal and kesrimal (Defendants Nos. 1 and 2) had a decree against Shri Ugrasinghji, the amount of which had accumulated to the tune of Rs. 24,080/-/- in the year 1950. They put their decree in execution and attached disputed lands described in the list attached to the plaint. Thereupon, the plaintiffs filed an objection under Order 21, Rule 58 C. P. C. which was dismissed on the 19th of April 1955. The plaintiffs then brought the suit for declaration that the disputed land belonged to them on the 19th of way 1955 in the Court of the Civil Judge, Udaipur. The plaintiffs based their claim on two pattas both dated Kartik Badi 9, Sambat 2005 corresponding to the 26th of October 1948. These pattas are Exhibits 11 and 12 on the record and that both the documents are unregistered. Under Ex. 11 Bapadari rights in the land measuring 170 Bighas 6 biswas were granted to Bhagwat Singh (Plaintiff No. 3) in payment of Rs. 401/-/while under Ex. 12 Bapadari rights in the land 169 Bighas 8 Biswas were granted in favour of Mst. Ranawatji, the second wife of the said Jagirdar in consideration of rs. 301/-/ -. it may be mentioned that all the plaintiffs are the sons of Chhoti ranawatiji who died sometime after the grant of the said patta. The plaintiffs stated in the plaint that though both the pattas were unregistered, yet by application of the doctrine of part performance as enunciated in Section 53-A of the Transfer or Property Act, they had acquired right, title and interest in the said land as mentioned in the said pattas.

(2.) THE decree-holders contested the suit and denied that any patta was granted by shri Ugrasinghji either to Shri Bhagwatsinghji or to Chhoti Ranawatiji. The suit was also contested on the ground that the aforesaid pattas were made in order to defeat and defraud the creditors by the said judgment-debtor. The trial Court held that the plaintiffs could take advantage of Section 53-A of the Transfer of Property act but as in this case, the pattas were granted to defeat and defraud the creditors, the suit could not be decreed. With this finding the suit was dismissed. The plaintiffs filed an appeal before the District Judge, Udaipur. The learned district Judge took the view that because of me provisions of Sections 13 and 37 of the Rajasthan Tenancy Act, 1955, the lands were not liable to be sold in execution of the decree. He also held that the pattas granted were bonafide transfers with consideration. He decreed the suit. He, however, did not decide the question whether the pattas were required to be registered or not and whether the plaintiffs were entitled to take advantage of Section 53-A of the Transfer of property Act. The decree-holders have come in the Second Appeal to this Court. During the pendency cf the appeal, Ugrasingh died and his legal representatives have been brought on record.

(3.) IT is urged on behalf of the appellants that we aforesaid two pattas (Exhibits 11 and 12) were executed en the 27th of September 1948 after the coming into force of the United State of Rajasthan Ordinance No. 1 of 1948 (hereinafter called 'the ordinance' ). The Ordinance applied to the whole of the United State of Rajasthsn, the provisions of the Indian Registration Act with such adaptations as are mentioned in the schedule and under Section 17 of the Indian Registration Act, the pattas should have been registered. In my opinion, this contention is sound as under Section 17 (1) (b) of the Indian registration Act, the documents which transfer any right, title or interest of the value of Rs. 100/-/- or upwards and immovable are to be registered. In this case consideration for each of these two documents was more than Rs. 100/-/ -. Certain rights in the land called 'bapadari' rights were transferred by these two documents. Both of these pattas ought to have been registered.