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

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/-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 furthersale 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 thethe 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.

Reasoning:
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.