FAIYAZUDDIN KHAN Vs. MUSAMMAT ZAHUR BIBI

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the Additional Subordinate Judge of Gaya affirming the judgment and decree of the Munsif of Aurangabad in a suit brought by the respondent under Order XXI, Rule 63, Civil Procedure Code. It appears that the appellant had brought a contribution suit against the husband of the plaintiff (respondent) in 1926 but he withdrew it on December 21, 1927, having obtained the permission of the trial Court to bring a fresh suit. He did bring a fresh suit on June 22, 1928, and also obtained an order of attachment before judgment against the property which is the subject matter of the present litigation on August 27, 1928. It appears, however, that on July 19, 1928, that is to say, some time before the date of the attachment, the husband of the respondent had executed a batmok as a deed in respect of the same property in her favour and this deed was registered on January If, 1929. The appellant's suit was ultimately decreed and he proceeded to execute his decree against the properly in dispute whereupon the responded preferred a claim under Order XXI, Rule 58. This claim being negatived, the respondent brought the present suit under Order XXI, Rule 63.

(2.) The main question which arises in this case is whether the deed of baimokasa executed by the plaintiff's husband in her favour on July 19, 1928, will pravail against the attachment of tie same property effected on August 27, 1928. Both the Courts below have answered this question in the affirmative on the ground that though the baimokasa deed was registered after the attachment, it must under Section 47, Registration Act, be held to operate from the date of its execution. This view is assailed by the learned Counsel for the appellant as erroneous in law, and he refers us in support of his contention to the decision of a Division Bench of this Court in Tilakdhari Singh, V/s. GOUR Narain 5 P.L.J. 715 : 59 Ind. Cas. 290 : A.I.R. 1921 Pat. 150 : 2 P.L.T. 95, as an authority for the proposition that where an instrument which purports to transfer the title to property requires to be registered, the title aces not pass until the registration has been effected. It has been pointed out to us on behalf of the respondents that the correctness of this view has been doubted by the Madras Court in Venkataramana Reddi V/s. Rangiah Chetti A.I.R. 1922 Mad. 249 : 70 Ind. Cas. 212 : 41 M.L.J. 399 : (1922) M.W.N. 15, Akki Guru Basappa V/s. Santhappa A.I.R. 1925 Mad. 359 : 83 Ind. Cas. 133, and Akki Guru Basappa V/s. Santhappa A.I.R. 1925 Mad. 710 : 87 Ind. Cas. 568 : 48 M.L.J. 496, but it appears to me to be unnecessary to examine these cases as the matter seems to have been settled once for all by the decision of the Privy Council in Kalyansundaram Pillai V/s. Karuppa Mooppanar 50 M. 193 : 100 Ind. Cas. 105 : A.I.R. 1927 P.C. 42 : 54 I.A. 89 : 25 A.L.J. 113 : (1927) M.W.N. 149 : 4 O.W.N. 197 : 25 L.W. 336 : 52 M.L.J. 346 : 38 M.L.T. 87 : 31 C.W.N. 509 : 8 P.L.T. 327 : 29 Bom. L.R. 833 : 45 C.L.J. 435(P.C.). In that case a day after a Hindu male had executed a deed of gift in respect of part of his immovable property and delivered it to the donee, he adopted a son and three days later the document was registered. A. question then arose as to whether the deed of gift took effect from the date of execution or from the date of registration. The Privy Council answered the question by laying down affirmatively that the deed became effectual from the date when it had been executed and the gift accepted by (he donee In delivering the judgment of the Board, Lord Salvesen remarked as follows: They (their Lordships) are unable to see how the provisions of Section 123, Transfer of Property Act, can be reconciled with Section 47, Registration Act. except upon the view that, while registration is necessary solemnity in order to the enforcement of a gift of immovable property, it does not sustend the gift until registration actually takes place. When the instrument of gift has been handed by the donor to the donee and accepted by him, the former has done everything in his power to complete the donation and to make it effective. Registration does not depend upon his consent, but is the act of an officer appointed by law for the purpose, who if the deed is executed by or on behalf of the donor and is attested by at least two witnesses, must register it if it is presented by a person having the necessary interest within the prescribed period.

(3.) His Lordship then observed: Their Lordships apprehend that the Judges of the High Court of Madras in allowing leave to the appellant in the present case desired to elicit an authoritative opinion as to the soundness of the two latest decisions in the Madras Courts, and their Lordships think it desirable that a point which has occasioned so much controversy in the past should be settled by a decision which will apply to the whole of India.