Appeal No 104 of 1959
Appeal by special leave from the judgment and decree dated December 19 1956 of the Patna High Court in Appeal from the Appellate Decree No 632 of 1949
M C Setalvad Attorney General of India and R C Prasad for the appellants
section P Varma for respondent No 1
N section Bindra and D Gupta for Intervener
April 27
The Judgment of Sinha C J Sarkar and Mudholkar JJ was delivered by Sarkar J
The judgment of Das Gupta and Ayyangar JJ was delivered by Ayyangar J SARKAR J
The parties to this litigation are all Hindus but it is not in dispute that the Mohammedan law of preemption is applicable to them by custom nor that the appellants had a right of preemption
The only question is whether the first demand called talab i mowasibat which has to be made after the completion of the sale in order that the right may be enforced was made before or after such completion
The making of the demand is not in dispute but the dispute is as to when the sale was completed
The appellants had their residential house contiguous to the house owned by certain persons whom we may call Pandeys
On January 31 1946 the Pandeys executed a deed of sale in favour of the respondent purchaser in respect of their aforesaid house
The appellants claim a right of are emption on account of this sale
The consideration mentioned in the deed was Rs 2000
There was a subsisting mortgage on that house and the deed provided that out of the consideration a sum of Rs 200 would be left with 476 the respondent purchaser for clearing off that mortgage
The deed also recited that the Pandeys had received Rs 400 and the remaining Rs 1400 Rupees fourteen hundred in cash at the time of exchange of equivalents that is at the time of handing over of the receipt of this deed  
On receipt of the whole and entire amount of consideration money we have put the said claimant into possession and occupation of this vended property as absolute owner in place of us the executants and our heirs and representatives
 The deed further stated this sale deed becomes operative from the date when we the executants affixed our signatures thereon
Whatever title we the executants and our heirs had   with respect to this vended property has become extinct inoperative and null and void and the same has now been transferred to and acquired by the claimant
 By the word claimant the respondent purchaser was referred to
The deed was presented at the registration office for registration by the Pandeys on the day it was executed and it was left with the Registrar in the Registration Office for the necessary entries and copies being made a receipt being given to the Pandeys
On February 2 1946 the appellants on coming to hear of the execution of the deed of sale made the talab imowasibat
On February 7 1946 the receipt granted by the Registration Office to the Pandeys was made over by them to the respondent purchaser who there upon paid the balance of the price as stipulated in the deed
On February 9 1946 the documents were copied in the Registrar s books and thereupon the registration became complete as provided in B 61 of the 
The respondent purchaser thereafter received the deed of sale from the Registrar s Office on February 13 1946
The appellants filed their suit for preemption on September 9 1946
The suit was decreed by the trial court and this decision was maintained by the first Appellate Court
The High Court however in second appeal set aside the decisions of the Courts below with the result that the suit stood dismissed and 477 the appellants have now come to this Court in further appeal
The Mohammedan law of preemption is stated in Mulla s Principles of Mohammedan law in these terms The right of preemption arises only out of a valid complete and bona fide sale
 This statement of the law is accepted by both the parties and there is no question that it is not correct
There is furthermore no dispute that the sale to the respondent purchaser was valid and bona fide
It is also agreed that one of the requisites before the right of pre emption can be exercised is the preliminary demand by the preemptor and that such demand must be made after the completion of the sale
The case has been argued before us on behalf of the appellants on the basis that the sale was governed by the 
We will also proceed on that basis
Section 54 of the provides that sale of tangible immovable property of the value of rupees 100 and upwards which the house with which we are concerned is can be made only by a registered instrument
Section 3 of this Act defines  registered as registered under the law for the time being in force regulating the registration of documents
This in the present case means the Regis tration Act of 1908
It is not in dispute that the registration under the is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in section 61 of that Act
It was therefore con
tended in the High Court that when a sale had to be made by a registered instrument it became complete only on the instrument of sale being copied in the books of the Registration Office
The High Court accepted this view and held that the sale in the pre sent case therefore became complete on the completion of the registration of the instrument of sale which was done on February 9 1946 when the instrument was copied out in the books of the Registration Office
In this view of the matter the High Court 61 478 came to the conclusion that the appellants were not entitled to enforce their right of preemption because they had not made the preliminary demand after the completion of the sale as the law required them to do but before that is on February 2 1946
In answer to this view of the High Court the learned Attorney General appearing for the appellants says that the High Court overlooked section 47 of the the effect of which was to make a registered document operate from the time from which it would have commenced to operate if no registration thereof had been required and not from the time of its registration
His contention is that once a document is registered as the deed of sale in this case was it begins to operate from the time it would have otherwise operated and therefore the position in this case is that the sale became operative and hence complete on January 31 1946
The learned Attorney General further contends that the proper construction of the deed of sale was that it became operative from the day it was executed and that if it was not so it was not a sale but could only be an agreement to sell in which latter case his clients though this present suit might fail would be entitled if they so desired to enforce their right of preemption when the sale was completed in pursuance of that agreement
As authority in support of his contention that in view of section 47 of the the sale in the present case must be deemed to have been completed on the day the instrument was executed the learned Attorney General relied on Bindeshri vs Somnath Bhadry 1 and Gopal Ram vs Lachmi Misir 2
We do not think that the learned Attorney General s contention is well founded
We will assume that the learned Attorney General s construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct
Section 47 of the does not however say when a sale would be deemed to be complete
It only permits a document when registered to operate 1 AIR 1916 All 199
2 AIR 1926 All 549
479 from a certain date which may be earlier than the date when it was registered
The object of this section is to decide which of two or more registered instruments in respect of the same property is to have A effect
The section applies to a document only after it has been registered
It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale
A sale which is admittedly not completed until the registration of the instrument of sale is completed cannot be said to have been completed earlier because by virtue of section 47 the instrument by which it is effected after it has been registered commences to operate from an earlier date
Therefore we do not think that the sale in this case can be said in view of section 47 to have been completed on January 31 1946
The view that we have taken of section 47 of the seems to have been taken in Tilakdhari Singh vs Gour Narain 1
We believe that the same view was expressed in Nareshchandra Datta vs Gireeshchandra Das 2 and Gobardhan Bar vs Guna Dhar Bar 3
With regard to the two cases on which the Attorney General has relied it has to be observed that they were not concerned with a right of pre emption arising on a sale of property
Bindeshri Prasad s case 4 was concerned with a suit for zar i chaharum
It does not appear from the report what that right was or when it arose
It is not possible therefore to derive much assistance from it
Gopal Ram s case  was concerned with a right of pre emption arising on the grant of a lease and the question was whether the suit for the enforcement of such a right was barred by limitation
It appears that article 120 was applied to that suit and it was held that the cause of action for the excrcise of the right of pre emption arose as soon as the lease was executed and even before it was registered though before the actual registration the suit for pre emption could not have been maintained
1 AIR 1921 Pat 150
2 Cal
979 3 ILR 1940 II Cal
270 4 AIR 1916 All 199
5 AIR 1926 All 549
480 This view was taken in reliance upon section 47 of the 
We are not aware whether the law of pre emption applicable to the case required that there should be a completed lease before the right to pre empt could be enforced
If that law did so require then we do not think that the case was rightly decided
It was said in that case that When the law has given to a transaction a retrospective effect it must have that effect
 We do not think that a transaction which when completed has a retros pective operation can be said for that reason to have been completed on the date from which it has that operation
In the view that we have taken it is not necessary to discuss the question of the construction of the instrument of sale in this case that is to decide whether on its proper reading the transfer was intended to take immediate effect on its execution or later on after the balance of the purchase money had been paid
Nor do we think it necessary to pronounce on the other argument of the learned Attorney General that a transfer which does not convey the property immediately can only be an agreement to transfer
We think that for these reasons this appeal must be dismissed and we order accordingly
The appellants will pay the costs of this appeal
AYYANGAR J We regret that we are unable to agree to the order dismissing this appeal
The facts have been very fully set out in the judgment of Sarkar J and it is therefore unnecessary to repeat them
The following matters are beyond dispute 1 that the law that is applicable to govern the right of the appellant before us is the law of pre emption as understood in Mohammedan law 2 that according to the principles of Mohammedan law the right of pre emption arises and the 2 talabs have to be performed immediately on the completion of a valid and bona fide sale and 3 that the two talabs which are required to be performed by a person claiming the right of pre emption have been performed by the appellant
There being further no dispute that a sale did take 481 place the only point in controversy in the appeal is as to whether the talabs which were performed on February 21946 were performed by the appellant after the right of pre emption accrued to her viz after the sale in favour of the respondent was effected or were they premature
At one time there was a controversy as to whether it was the principle of the Muslim law that would determine the point of time when a sale should be taken to be complete under which system crucial significance was attached to two of the ingredients of a sale viz payment of consideration and delivery of possession or whether after the enactment of the it was to the statute and to the creteria laid down by it that one has to turn to determine when a sale should be held to have taken place
The former view found favour with the majority of the Full Bench of the Allahabad High Court in Begam vs Muhammad 1 Justice Banerjee dissenting from the majority
This controversy however is long past and it has now been decided by this Court in Radha Kishan vs Shri Dhar Ram Chandra 2 that the provisions of the supersede the principles of the
Mohammedan law as to sale and it was to the statute that one should look to find out whether and if so when a sale was complete in order to give rise to a right of pre emption
Turning now to the provisions of the  in the case of a sale of immovable property of the value of Rs 100 or over as in the case before us section 54 of the Act enacts that it could be effected only by a registered instrument sale itself being defined as transfer of ownership in exchange for a price paid or promised or part paid and part promised
In other words the essence of a transaction of sale consists in the transfer of ownership and this transfer has to be effected by a registered instrument
The while prescribing the formalities of writing and Registration does not itself determine the point of time when a sale becomes complete
Registered under the Transfer 1 ILR 16 All 344
2  482 of Property Act means registered under the law for the time being in force regulating the registration of documents section 3
When one turns to the  provision is made inter alia for the time within which after its execution a document could be presented for registration the persons who could so present the office in which the document could validly be presented and registration effected and sub Part B of starting from section 58 deals with the procedure on admitting documents to registration
Section 601 enacts After such of the provisions of sections 34 35 58 and 59 as apply to any document presented for registration have been complied with the registering officer shall endorse thereon a certificate containing the word registered  together with the number and page of the book in which the document has been copied and section 61 which follows makes provision for the copying of documents in Public registers from which the word registration is derived and enacts 61
The endorsements and certificate referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Register book and the copy of the map or plan if any mentioned in section 21 shall be filed in Book No 1
2The registration of the document shall thereupon be deemed complete and the document shall then be returned to the person who presented the same for registration or to such other person if any as he has nominated in writing in that behalf on the receipt mentioned in section 52
 Much reliance has been placed by learned Counsel for the respondent and indeed in the judgment of the High Court on the words the registration of the document shall thereupon be deemed complete occurring in sub section
2 of section 61
But in the context of the fasciculus of sections in which it appears it is clear that it refers to the fact that the registering officer had completed his duty and had no more to do with the document presented to him beyond returning the original to the party entitled to receive the same
In 483 our opinion these words have nothing to do with the time from which the transaction covered by the registered document operates or with reference to the present context when the sale evidenced by the deed becomes complete
Specific provision is made for these in section 47 of the which reads A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration
 The principles underlying sections 612 and 47 are not divergent
It is not as if that any delay by the regis tering officer which might take place owing to the pressure of work in his office or for other reason has any effect on the rights of parties quod their property or the time from when the deed operates or as regards the effectiveness of the transaction or the priority of transactions inter se
It is not as if documents executed on different dates the parties intending them to operate at different times have their intentions modified if not nullified by the action or inaction of the registering officer or any delay that might take place in his office
A contention that though the Muslim law of sale is superseded by the and the  but yet the provision contained in section 47 of the is inapplicable to determine when a sale effected by a registered instrument should be complete could not be sustained on any principle or logic or of course on any rule of interpretation of statutes
In our opinion no distinction is possible to be drawn between a sale which is effective and one which is complete since they are merely different forms of expressing the same concept and for the same reason between the time from when a sale becomes effective and when it should be held to be complete
As under Muslim law the talabs have to be performed only immediately after the preemptor receives information of the sale the view we take of the applicability of section 47 of the  introduces no element of hardship in the exercise of the option
We are therefore clearly of the opinion that the time when the sale becomes complete so as to 484 entitle the preemptor to perform the talabs should be determined by the application of the principle of intention laid down in section 47 of the Which is as much a part of the positive law governing the right of preemption as the provision of section 54 of the which requires a registered instrument to effect a sale which gives rise to a right of preemption
If therefore B 47 of the should apply to determine the time from which the registered document should have effect or in other words the time from which the sale should be held to be complete the intention of the parties would be the crucial and only test
That has to be gathered by reference to the document itself read in the light of the surrounding circumstances with however a proviso that if the document were clear and its terms explicit no evidence to contradict them would be admissible
Paragraph 4 of this document of the sale deed exhibit A  dated January 31 1946 recites the consideration for the same
This was to consist of Rs 2000
Out of this it states that the vendors had received Rs 400 in cash at the time of the execution of the document and that Rs 200 had been left with the purchaser for payment to a previous possessory mortgagee
In regard to the balance of Rs 1400 the recital reads and received the remaining sum of Rs 1400 in cash at the time of exchange of equivalents that is at the time of handing over of the receipt of this deed
In this manner we have received the entire amount of consideration money for this vended property from the claimant and brought the same to our possession and use
 It is no doubt true that the sum of Rs 1400 had not been received on January 31 1946 the date of the execution of the document and that it was agreed that sum would be paid in exchange for the delivery of the receipt obtained from the Registrar in respect of the sale deed presented for registration
But the use of the past tense clearly indicates that the vendor agreed to the promise to pay the balance of Rs 1400 as the consideration for the execution of the 485 document on January 31 1946 as tantamount to an actual payment
In other words in terms of section 54 of the it was a transaction under which the property in the house was to be transferred in exchange for a price part paid and part promised
Paragraph 4 and the recital there do not indicate any intention that the title to the property was to be conveyed only on the payment of Rs 1400 on the surrender of the registration receipt
If however there was any doubt as to what the intention of the parties was it is made clear by the other stipulations and recitals which follow
Paragraph 5 opens with the words On receipt of the whole and entire amount of consideration money we have put the said claimant into possession and occupation of this vended property as absolute owner in place of us the executants and our heirs and representatives
 The reference to the receipt here is obviously based upon treating the entire consideration of Rs 2000 as having been received on the day of the execution of the document
In other words part of the consideration was paid and part promised and the promise was treated as the consideration in respect of the balance unpaid
Besides and as if to reinforce their intention the deed goes on to state after the words of conveyance I have executed the deed of absolute sale and jointly received Rs 2000 as per recitals in the body
 That the title of the vendee was not to be postponed to any date beyond the date of the execution of the document is made clear by the further words in para 5 It is desired that the said claimant should enter into and remain in possession and occupation of the vended property as an absolute owner which was to be from and after the date of the execution of the deed
Turning next to paragraph 6 there is an express stipulation as regards when the transfer should be deemed effective
It says This sale deed becomes operative from the date when we the executants affixed our signatures thereon a recital which is repeated and reinforced by paragraph 7 in which dealing 62 486 with the title of the vendors it is stated that the said title with respect to the vended property has become extinct inoperative and null and void and the same has now been transferred to and acquired by the claimant
In the face of these recitals covenants and stipulations which clearly express the intention of the parties that the deed should have effect from the date of its execution it seems to us that the argument that it could be postponed to a later date either the date when the registration was complete under the terms of section 61 of the Indian or to February 7 1947 when on the registration receipt having been handed over to the vendee the vendor received the balance of Rs 1400 is hardly tenable
If this were the true legal effect of the deed and if by virtue of the provisions of the read in conjunction with those of the Indian  the title to the property was transferred to the vendee immediately on the execution of the document on January 31 1946 the performance of the two talabs by the appellant on February 2 1946 would be in time legal proper and effective to clothe her with a right to demand a conveyance in her favour
It is only necessary to add that learned Counsel for the respondent did not contest the position that if on a proper construction of the sale deed exhibit A  read in the light of its recitals and the relative statutory provisions there was a sale effective on January 31 1946 the talabs performed by the appellant would not suffice to clothe her with the right which she claimed in the suit out of which this appeal arises
We would accordingly allow the appeal and decree her suit with costs throughout
By COURT
In accordance with the opinion of the majority the appeal is dismissed with costs


Summary:
P executed a sale deed on January 31 1946 in respect of a house in favour of D and presented it for registration on the same day
On coming to know of the execution of the sale deed the appellant who had a right of preemption made the talab i mowasibat on February 2 1946
The deed was copied out in the Registrar s books on February 9 1946 and thereupon the registration became complete as provided in section 61 of the 
The appellant filed a suit for preemption
D resisted the suit on the ground that the sale was completed on February 9 1946 and the talab had been made prematurely
The appellant contended that in view Of section 47 a registered document operated from the time it would have otherwise operated and the sale was completed on the date of its execution
Held per Sinha C J Sarkar and Mudholkar jj that the sale was completed only on February 9 1946 when the registration was complete that the talab was made prematurely and that the suit must fail
Section 47 merely permitted a document when registered to operate from a date which may be earlier than the date on which it was registered it did not say when the sale would be deemed to be complete
A sale which was required to be registered was not completed until the registration of the deed was completed
Tilakdhari Singh vs Gour Narain AIR 1921 Pat 150 Nareshchandra Datta vs Gireeshchandra Das Cal 979 and Gobardhan Bar vs Guna Dhar Bar ILR 1940 II Cal
270 approved
Bindeshri vs Somnath Bhadry AIR 1916 All 199 and Gopal Ram vs Lachmi Himir AIR 1926 All 549 distin guished
Per Das Gupta and Ayyangar jj
The sale was completed on the day of execution and the talab was made at the right time
Section 61 had nothing to do with the time when the sale evidenced by the registered deed became complete it refers merely to the fact that the registering officer had completed his duty
Section 47 provided when a sale was deemed to be completed
There was no difference between the time when a sale 475 became effective and the time it could be held to be completed
Under section 47 the crucial test for determining the time from which the registered document was to have effect or be deemed to be completed was the intention of the parties
The sale deed shows that the parties intended that the deed should be effective from the date of execution