P L D 1957 Dacca 165 (PLP)

RAHMAN, J.

This appeal is against the decision of the Subordinate Judge, 3rd Court, Comilla, affirming that of the Munsif, 4th Court, Comilla, in Title Suit No. 237 of 1946. This suit was instituted by the respondents before me for a declaration of their raiyati right by purchase and khas possession of the properties in dispute. The said respondents, who were the plaintiffs in the suit, claimed that they had purchased the suit lands by two registered deeds of sale, Exhs. I and 1 (a), in 1351 B, S. Exh. I was executed by Sekandar Ali, defendant No. 2 in the suit, and his brother Abdur Razak, defendant No. 3, and Exh. 1 (a) was executed by defendants Nos. 2 to

6. Exh. 1 related to dag No. 479 which, it appeared, had been purchased by the plaintiff's vendors, defendants Nos. 2 and 3, from defendant No. 1 in 1326 B. S. by a kabala, Exh. 1 (b), and the document, Exh. I (a) related to dag No. 462/2. The suit was contested by defendants Nos. 1 and 7 alone who are husband and wife. Defendants Nos, 2 to 6 are the brothers of the said defendant No.

7. These two defe dants contended that the plaintiffs had acquired no right or title to the suit lands of dag No. 479 by their purchase under Exh. 1, because the kabaia, Exh. 1 (b), by which defendants Nos. 2 and 3 claimed to have acquired title to dag No. 479 was a benami document by which no right, title or interest passed to defendants Nos. 2 and

3. As regards dag No. 462/2, these defendants contended that Ismail Mir, the father of defendants Nos. 2 to 7, was the owner of that land and defendants Nos. 2 to 7 inherited the said lands from the said Ismail Mir jointly. Hence, since defendant No. 7 was not a party to the kabala, Exh. 1 (a), the interest of defendant No. 7 had not, in any event, passed to the plaintiffs. These defendants further contended that as defendant No. 1 had taken dar raiyati settlement in respect of this dag No. 462/2 in the year 1346 B. S. at an annual rental of Rs. 10 from all the heirs of the said Ismail Mir under an oral agreement, defend ants Nos. 2 to 6 had no right to sell the lands covered by dag No. 462/2. On these pleadings, some six issues were raised of which issue No. 5 was as follows :- "Have the plaintiffs their alleged right and title to the suit land? 1s the (cabala in favour of the plaintiffs by defendants Nos. 2-6 a collusive document without con sideration?" It might be mentioned here that prior to this suit, sometime in 1944, defendant No. 1 had filed a suit under section 9 of the Specific Relief Act against plaintiff No. I and one Wahidur Rahman who is the latter's maternal uncle on the allegation, that they had dispossessed him from I kani 6 gandas of dag No. 462/2 and from dag No.

479. In this proceeding, defendant No. 1 was successful and took delivery of possession as a result thereof. This present suit was instituted as a consequence of that section 9 proceeding. Both the Courts below came to the conclusion; after considering the evidence adduced in this case, that the kabala, Exh. 1 (b), was not a benami document; that defendant No. I never took settlement of or possessed the lands of dag No. 462/2 and lastly that the plaintiffs had satisfactorily established their title to the suit lands and hence decreed the suit and granted khas possession of dag No. 479 but only joint possession of dag No. 462/2 with defendant No.

7. It has also to be mentioned here that although there was no specific plea raised in the written statement as to the validity of the registration of the documents, Exhs. 1 and 1 (a) and although no specific issue was raised with regard to it, apart from issue No. 5 set out above, yet considerable arguments were advanced on this question during the hearing of the case in both the Courts below and it was contended that the documents, Exhs. 1 and 1 (a), had not been shown to be validly registered and hence could not, in any event, pass effective title to the plaintiffs in the suit. The contention of the defendants was that both these documents were registered at the Noakhali Registration Office and the way in which jurisdiction was sought to be given to the said Registrar of Noakhali was by including in each of these documents, Exh. 1 and 1 (a), two plots measuring 2 karas each and appertaining to the same dag No. 28 in the district of Noakhali. It was, therefore, argued that this should be held to be a fictitious plot included into these two deeds for the purpose of perpetrating a fraud on the registration law and, therefore, the registration itself was invalid and ineffective unless the plaintiffs proved affirmatively that the land existed, was capable of effective enjoyment and was owned by the transferors. Both the Courts below came to the conclusion that these documents were genuine; that the plots in Noakhali included in these documents, even though small were not fictitious and that they were in fact being enjoyed by the plaintiffs through their korfa tenant and, therefore, the documents validly passed title to the plaintiffs. In view of the concurrent findings of fact of both the Courts below, the learned advocate appearing on behalf of the appellants has frankly conceded that in this appeal he can neither raise the question of the benami nature of the document, Exh. 1 (b), nor of the dar raiyati settlement in respect of dag No. 462/2 but he can and has raised, firstly, the question of the validity of the registration as a question of law and, secondly, he has contended that the findings of the lower appellate Court are not sufficient in law to maintain the kabalas, Exhs. 1 and 1 (a). The argument of the learned advocate with regard to the first point is that the Courts below have failed to appreciate what `fictitious' in law means when considering the question of the validity of the registration under section 28 of the Registration Act. According to the learned advocate, if on the face of the registered document, it appears that the bulk of the properties comprised in the document are not situated within the jurisdiction of the Registrar registering the document, then the onus is on the person, seeking to rely upon that document, to prove: (1) that the property included for giving jurisdiction to the Registrar of the district where it is actually registered is not non-existent or merely an insignificant property; (2) that such property is not incapable of effective enjoyment ; (3) that both .the transferor and the transferee intended that the property should be conveyed and (4) that the transferor was legally competent to transfer the property. Until, it is urged, the person relying upon such a document has established all these facts, no onus falls upon the other side to show that the property is in any way fictitious, for, the document, in the absence of such proof by the person relying upon it, must be held to be invalidly registered and, therefore, inoperative under section 49 of the said Act. In support of his contention that the Courts below have misappreciated and misunderstood what fictitious in this context means, the learned advocate has relied on the cases of Harendra Lai Roy Choudhury v. Hari Dasi Debi and others (41 1 A 110), Biswanath Prasad and others v. Chandra Narayan Choudhury and others (48 1 A 127 : 25 C W N 985), Collector of Gorakhpur v. Ram Sundar Mal and others (61 1 A 286) and Raja Inaganti Venkatarama Rao v. Raja Sobhanadari Appa Rao Bahadur Garu and other (63 1 A 169). In none of these decisions did the question of onus actually fall to be considered, but their Lordships did lay down the principle that the word `fictitious' is not confined merely to non-existing or insignificant property but included properties which could not be capable of effective enjoyment or did not belong to the transferor and furthermore that the question was a material question to be considered in these cases. If the con duct of the parties showed that it was a mere device to evade the Registration Act, then the registration cannot be effective and this would also, in any view, be the result in a case where, both the parties, knowing that the property included for the purpose of jurisdiction did not belong to the vendor, included it in the document. This would clearly be a case where it would be a device to evade the Registration Law, for, really the property, so far as the vendor would be concerned, would be non-existing. With the contention, however, of the learned advocate that the onus of proving all these things is on the person seeking to rely on the document, I am unable to agree. I seems to me that no such wide proposition of law can be laid down that in every case the person relying on the document must first discharge the onus of establishing that there has been no evasion of the registration laws. I am prepared to concede that in a case where the document ex facie discloses that the property is so insignificant that it is hardly capable of effective enjoyment, the onus would, by reason of that fact alone, be shifted upon the person seeking to rely upon that document to show that it was nevertheless a validly registered document. But in a case where the property does exist and is capable of effective enjoyment, I cannot agree that even in such a case the onus would still be upon the person relying upon the document to prove that the transferor has also title to transfer the property. In this connection, I may refer to the case of Irshad Ali v. Mst. Nadari Begum (A I R 1941 All. 179), where it was held that if the property actually exists within the jurisdiction of the registering officer and the parties intended to transfer it, the registration would not be affected merely because the mortgage or transferee fails to prove the title of the mortgagor or the transferor. The distinction which, I think, should be made in such cases has been well brought out in the case of Chhotabhai Motibhai and others v. Dadabhai Narandas and others (A I R 1935 Bom. 54), where a Division Bench of the Bombay High Court, when dealing with the contention made before them, as here before me, that the burden was on the person relying on the document to prove that the property belonged to the transferor and, if that was not done, the deed was inoperative, held as follows:- "Various circumstances may arise in case of unwarranted inclusion of property in a deed. For instance, a property may not in fact exist at all and still be included to enable registration being effected in a particular place and may be fictitious inclusion in that sense. In such a case, registration is invalid: 1914 P C

67. Secondly, the property may exist, but the grantor has no title to it, and neither party to the deed intends to include it as a fact as a subject-matter of the deed. In such a case also, registration is invalid: 1921 P C

8. Thirdly, the property exists but is not proved to belong to the grantor and still there is a bona fide belief at least on the part of the grantee that it belongs to the grantor. In such a case, registration is not invalid, and the burden is on the party challenging the validity to prove that the inclusion of the property was intended to be fictitious by both the parties . . . . . . . . ." In addition to these decisions, my attention has also been drawn by the learned advocate appearing for the respondents to the case of Sudhir Chandra Sett and another v. Syed Abdulla ul-Musavi and others (22 C W N 894), where, after considering the question as to whether an evidence which would result in invalidating the document itself or could not be given under section 92 of the Evidence Act, their Lordships took the view that in such a case the onus lay upon the defendant who challenged the validity of the registration to disprove the existence of the land included in the document for the purpose of giving jurisdiction to the Sub-Registrar. Again in the case of Gopi Nath and another v. Rup Ram and others (A I R 1930 All. 786). Sulaiman and Kendal, JJ., held that the burden of establishing fraud in such cases undoubtedly lies on the party who pleads it, the presump tion of law being in favour of the validity of the registration. The learned advocate had also relied on the case of Sultan Ahmad Khan v. Sirajul Hugue and others (A I R 1938 All. 170), where the view was taken that the question as to whether the parties intended to commit fraud on the law of registration was really a question of fact and like every other question of fact it has got to be pleaded and proved. In the present case, as pointed out to me by the learned advocate for the respondents, there is in the written statement filed in the case no averment whatsoever, either specific or general, which can even remotely be said to raise this question of validity of the registration of the document. All that has been said in paragraph 10 of the written statement is that the document is collusive and without jurisdiction and in this, it was sought to be argued on behalf of the appellants, all other questions relating to the validity of the registration were also incorporated. This argument is, in my opinion, wholly unfounded, for, if it is an allegation of fraud on the law of registration, then it should, like other allegations of fraud, have been pleaded with sufficient particularity and should have also been proved by cogent evidence before it could be given effect to. In the present case, both the Courts below have pointed out that there is not an iota of evidence to suggest that the property was either infinitesimal in size or incapable of effective enjoyment or that the parties did not intend that title to it should pass or that the property did not belong to the transferors. As a matter of fact, I find that the plaintiff himself in his cross-examination stated cate gorically that he had purchased this one ganda of land of Sekandar, namely, defendant No. 2, in Noakhali. No sugges tion, however, was made to him that the land did not in fact belong to Sekandar. Then again, one of the other witnesses, P. W. 3, has given evidence, which both the Courts below have accepted, that he actually cultivated this one ganda of land as korfa tenant under the plaintiffs. This clearly shows that the land was not only capable of enjoy ment but also that it was being in fact effectively enjoyed. In the circumstances, I do not find any substance in the contention of the learned advocate that the Courts below have erred in holding that the documents were validly registered and that they lawfully passed title to the plaintiffs in respect of the properties in dispute. As far as I was able to understand, the second ground as to the insufficiency of the findings was also really linked up with the first ground. If, as contended by the learned advocate for the appellants, it had been held by me that the onus was on the plaintiffs, then there would be no doubt that the findings of the Courts below would be insufficient. So far, how ever, as the validity of the kabalas are concerned, the Courts below have taken the view, and in my opinion rightly, that the onus lay upon the defendants who were challenging the validity of these kabalas to show that they were fictitious, in the sense in which I have indicated earlier, and since they failed to do so they had not been able to rebut the presump tion of the validity of the registration, which presumption was further strengthened, in the present case, by the positive evidence of plaintiff No. 1 and one of the other witnesses, P. W.

3. In the circumstances, this appeal must fail and is dismissed with costs. K. B. A. Appeal dismissed.