Case: Ram Saran Lall And Others Vs. Mst. Domini Kuer And Others

Sarkar, J.1. The parties to this litigation are all Hindus but it is not in dispute that the Mohammedan law of pre-emption is applicable to them by custom, nor that the appellants had a right of pre-emption. 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.2. 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 pre-emption on account of this sale. The consideration mentioned in the deed was Rs. 2,000/-. 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 the respondent purchaser for clearing off that mortgage. The deed also recited that the Pandeys had received Rs. 400/- and"the remaining Rs. 1,400/- (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."the 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.3. 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-i-mowasibat. On February 7, 1946, the receipt granted by the Registration Office to the Pandeys was made over by them to the respondent purchaser who thereupon paid the balance of the price as stipulated in the deed. On February 9, 1946, the documents were copied in the Registrars books and thereupon the registration became complete as provided in S. 61 of the Registration Act. the respondent purchaser thereafter received the deed of sale from the Registrars Office on February 13, 1946.4. The appellants filed their suit for pre-emption of 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 the appellants have now come to this Court in further appeal.5. The Mohammedan law of pre-emption is stated in Mullas Principles of Mohammedan law in these terms: "The right of pre-emption 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 pre-emptor 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 Transfer of Property Act. 1882. We will also proceed on that basis.6. Section 54 of the Transfer of Property Act provides that sale of tangible immovable property of the value of Rs. 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 Registration Act of 1908. It is not in dispute that the registration under the Registration Act is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in S. 61 of that Act. It was therefore contended 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 present 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 came to the conclusion that the appellants were not entitled to enforce their right of pre-emption 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, 1946.7. In answer to this view of the High Court, the learned Attorney-General appearing for the appellants says that the High Court overlooked S. 47 of the Registration Act 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 later 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 S. 47 of the Registration Act 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 v. Somnath Bhadry, AIR 1916 All 199 and Gopal Ram v. Lachmi Misir, AIR 1926 All 549.8. We do not think that the learned Attorney-Generals contention is well founded. We will assume that the learned Attorney-Generals 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 Registration Act does not however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate 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 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 S. 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 S. 47, to have been completed on January 31, 1946. The view that we have taken of S. 47 of the Registration Act seems to have been taken in Tilakdhari Singh v. Gour Narain, AIR 1921 Pat 150 . We believe that the same view was expressed in Nareshchandra Dutta v. Girishchandra Das, ILR 62 Cal 979 : (AIR 1936 Cal 17 ) and Gobardhan Bar v. Gana Dhar Bar, ILR (1940) 2 Cal 270 : (AIR 1941 Cal 78 ).9. 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 Prasads case, AIR 1916 All 199 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 Rams case AIR 1926 All 549 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 Art. 120 was applied to that suit and it was held that the cause of action for the exercise 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. This view was taken in reliance upon S. 47 of the Registration Act. 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 retrospective operation can be said for that reason to have been completed on the date from which it has that operation.10. 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.

Decision:
0[ds]We will assume that the learned Attorney-Generals 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 Registration Act does not however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate 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 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 S. 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 S. 47, to have been completed on January 31, 1946.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 Prasads case, AIR 1916 All 199   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 Rams case AIR 1926 All 549 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 Art. 120 was applied to that suit and it was held that the cause of action for the exercise 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. This view was taken in reliance upon S. 47 of the Registration Act. 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 retrospective operation can be said for that reason to have been completed on the date from which it has that operation.10. 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.