P L D 1965 Dacca 305 (PLP)

A. M. SAYEM, J.‑

This revision arises out of a proceeding under section 26‑F of the Bengal Tenancy Act. It is the petitioner before us who initiated the proceeding, by presenting an application in the Court of the Munsif at Natore on 14‑6‑

60. The application succeeded in that Court, but was dismissed on appeal by the opposite‑party transferee. In his application the petitioner sought to pre‑empt the transfer of a portion of an occupancy holding recorded in C. S. Khatian No. 50 of Mouza Darikair, claiming that he was a co‑sharer tenant thereof, and that the transferee was a stranger purchaser. He further alleged that he was not notified of the transfer, and that he came to know of the transfer for the first time on 26‑5‑50, upon taking out a copy of the document from the office of the Sub‑Registrar at Natore. The opposite‑party purchaser objected to pre‑emption on two grounds only. He claimed that the petitioner had no locus standi to present the application, not being a co‑sharer tenant of the holding, and that the application was barred by limitation. The first ground of objection was overruled by both the Courts below, who concurrently found that the petitioner was a non‑notified co‑sharer tenant of the occupancy holding in question, and that the opposite‑party was a stranger purchaser. On the second ground they differed. Although they agreed that the limitation was of 3 years under the residuary Article 181 of the Limitation Act, and that the same would run from the date of registration of the document, they differed in their views as to when a document is registered. While the learned Munsif thought that a document is registered on the date it is copied in the register and the certificate of registration is endorsed thereon, the learned District Judge of Rajshahi, who heard the appeal, took the view that a document is registered on the date of its presentation for registration. This divergence of opinion as to when a document is `registered' led the Courts below to different findings on the question of limitation, in view of different starting points of limitation set by them. The decision of the learned Munsif, who allowed the application, was reversed by the learned District Judge. Hence this rule at the instance of the applicant. The rule originally came up for hearing before our learned brother Salahuddin Ahmed, J., sitting singly. In view of the findings of the Courts below, it was only the question of limitation that was agitated before him. On behalf of the petitioner it was contended before him that the learned District Judge's view that a document is registered on the day of its presentation when it receives the initial endorsements, was wrong. On behalf of the opposite‑party purchaser the submission was two‑fold. It was urged on his behalf that it is not the date of registration but the date of the execution of the document from which limitation would run, and that, in the alternative, if it were held that registration would be the starting point of limitation then the document should be deemed to have been registered on the date it was presented for registration. Neither of the parties having succeeded in placing before him a decision of any superior Court of Pakistan on the question as to when a document is to be considered as registered. Salahuddin Ahmed, J., referred the case to his Lordship the Chief Justice, for being placed before a larger Bench. It is thus that the rule has come up before us for disposal. Before we consider the opposing contentions of the parties to this rule, we propose to refer to certain dates in connection with the kabala in question that are not in dispute. They are gathered from the endorsements on the original document filed by the opposite‑party and the certified copy thereof filed by the petitioner. The document was executed on 7‑5‑57, and presented for registration on 8‑5‑57, and, having been copied in Book 1 of Natore Sub‑Registry on 17‑10‑58, the Sub‑Registrar endorsed on it the certificate of registration on that very date. As has already been noticed, the application for pre‑emption was presented in Court on 14‑6‑

60. For a proper appreciation of the arguments advanced before us it will be advantageous, at this stage, to refer to the relevant provisions of the Bengal Tenancy Act. Subsection (1) of section 26‑C of the Act inter alia provides that, except in the case of a bequest or a sale in execution of a decree or of a certificate signed under the Bengal Public Demand Recovery Act, 1913, every transfer of an occupancy holding shall be made by registered instrument. Subsection (4) of the said section provides that if the transfer of a portion or share of such a holding be one to which the provision of subsection (1) of section 26‑F apply, there shall be filed in the prescribed manner notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all the co‑sharer tenants of the said holding who are not parties to the transfer. Now sub section (1) of section 26‑F provides that except in the case of a transfer to a co‑sharer in the tenancy whose existing interest has accrued otherwise than by purchase, or a transfer by exchange, lease or partition, or a transfer by bequest or gift but not hiba‑bil‑ewaz), in favour of a specified class of persons; or a wakf in accordance with the provisions of Muhammadan Law, or a dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual, one or more co‑sharer tenants of the holding, a portion or share of which is transferred, may within four months of the service of the notice under section 26‑C, apply to the Court for the said portion or share to be transferred to himself or themselves. Subsection (2) of the said section provides that the application shall be dismissed unless the applicant or applicants at the time of making it, deposit in Court the amount of the consideration money or the value of the transferred portion or share of the holding, as stated in the said notice, together with compensation at the rate of ten per centum of such amount. It has not been disputed before us that in view of the provi sion of subsection (1) of section 26‑C of the Bengal Tenancy Act, quoted above, the transfer in question could not have been made except by a registered instrument. Nor has it been disputed that the petitioner, being a co‑sharer tenant of the holding, was entitled to notice prescribed under subsection (4) of section 26‑C of the Act, and also that the petitioner, not having been so notified, was entitled to the benefit of the residuary Article, namely, Article 181 of the Limitation Act, as was held in the pre‑Partition Special Bench decision of the Calcutta High Court, reported in 52 C W N 64, which has been consistently followed by this Court in its numerous decisions. The dispute relates to the effect of the decision on the question as to the point of time from which the limitation of 3 years is to run, in view of the wording of the last clause of the Special Bench's conclusion on the point, which is as follows:‑ "We hold, therefore, that an application by a non‑notified co -sharer for pre‑emption under section 26‑F of the Bengal Tenancy Act is governed by Article 181 of the Limitation Act, and the applicant has 3 years' time from the date of transfer when the right to apply accrues." On behalf of the petitioner it has been submitted that since the transfer could not have been made except by registered instrument, in view of subsection (1) of section 26‑C of the Bengal Tenancy Act, by `date of transfer' the Special Bench must have meant the date of registration of the deed of transfer. On behalf of the opposite‑party transferee, on the other hand, it has been submitted that in the opinion of the Special Bench the co‑sharer's right to apply for pre‑emption accrues on the date of the execution of the document which must be considered to be date of the transfer, although the document has to be registered in view of section 26‑C (1) of the Act. It has been contended that so far as the transferor was concerned his part was complete with the execution of the document, since he could not have prevented the registration by refusing to take steps for getting it registered. Reliance has been placed on section 47 of the Registration Act in support of this proposition, which has further been sought to be supported by the reasonings appearing in the minority judgment of the Supreme Court of India in the case of Ram Saran v. Domini Kuer (A I R 1961 S C 1747), where Ayyanger and K. C. Das Gupta, JJ., took the view that it is section 47 of the Registration Act which must determine the time from which the transfer should be held to be complete. We will have occasion later to refer to this decision of the Indian Supreme Court. Suffice it to say at this stage that in that case, in their short judgment, the majority of the learned Judges refused to apply the provision of section 47 of the Registration Act, holding that the only object of the section is to decide which one of two or more registered documents in respect of the same property is to have effect. In this connection they added that the section only permits a document, when registered, to operate from a certain date, which may be earlier than the date when it was registered. The contention of the opposite‑party purchaser that upon registration of a compulsorily registrable deed of transfer the transfer becomes complete from the date of its execution is in line with the view adopted in a series of cases where, relying upon section 47 of the Registration Act, the executant of a deed of transfer, or persons claiming through him, wanted to take advantage of the incompleteness due to want of registration. Their Lordships of the Privy Council having had occasion to consider the provision of this section of the Registration Act, in similar context, in the case of Kalyanasundaram Pillal v. Karuppa Mooppanar (31 C W N 509), which came up before their Lordships on appeal from Madras, observed that incompleteness due to want of registration is not a thing of which the executant can take any advantage, since registration does not depend upon his consent but is the act of an officer appointed by law for the purpose. In that case a Hindu made a gift of certain immovable properties by a deed executed and delivered to the donee who accepted the same, but the executant adopted a son before it was registered. It was contended on behalf of the adopted son that the grant was void against him, inasmuch as the gift could not be complete before registration, and that before it could be so completed the adopted son's rights had intervened. In rejecting this contention their Lordships expressed themselves thus: "They are unable to see how the provision of section 123 of the Transfer of Property Act can be reconciled with section 47 of the Registration Act, except upon the view that, while registration is a necessary solemnity in order to the enforcement of a gift of immovable property, it does not suspend the gift until registration actually takes place." It was held that the transfer was binding on the adopted son, since the executant was to be regarded as having done, prior to the adoption, everything that was within his powers to complete the transfer and make it effective. On a careful examination of the provision of the section, it appears to us that section 47 of the Registration Act has little to do with the completeness or incompleteness of a transfer, as it has nothing to do also with the completeness or incompleteness of registration. The incompleteness in the context of section 47 is the incompleteness of a document and not of the transfer as such. It cannot be disputed that a transfer which is incomplete by reason of breach of any statutory provision specifying the mode of its completion cannot be completed by registration. The Privy Council case cited above furnishes an illustration on the point. Had not the deed of gift, duly executed and attested, been delivered to the donee, by reason of the provisions of sections 122 and 123 of the Transfer of Property Act, its registration could not have completed the transfer. The sole purpose of the section, in our view, is to meet objections touching the incompleteness of a document during the period it remained incomplete due to want of registration. The rule as to commencement of operativeness contained in the section, is, in terms, to be confined, in its application, to the document. Its impact on the transfer can affect only the transferor and the transferee. It has no relation to the rights of a person who is not a party to the document. He comes into the picture only after the registration, i.e., when a deed of transfer duly completed by registration comes into existence. The petitioner is not a party to the kabala in question, nor does he, in any respect, claim through its executant. He is claiming pre‑emption in his own right as a co‑sharer tenant of the holding. Nor is he challenging the title of the opposite‑party which the latter claims under the kabala, or, in other words, the petitioner is not taking advantage of the incompleteness due to want of registration, as was sought to be done in the Privy Council case. The opposite‑party's contention based on section 47 of the Registration Act, therefore, judged by whichever test, is out of place. The opposite‑party transferee did not care to see that notice of transfer was served on the petitioner. Subsection (4) of section 26‑C of the Bengal Tenancy Act, quoted above, required filing of such notices for service on co‑sharer tenants, giving particulars of the transfer in the prescribed form. This is how a co‑sharer tenant comes to know of the nature of the transfer and the amount of consideration money which he has to deposit in Court, along with compensation at the specified rate. A mere induction of a stranger gives no notice of his status, which may as well be that of a lessee, or even of a bargadar. It can at best afford a reason for inquiry as to the nature of the transfer in the Registration Office, having jurisdiction. But that office can be of no assistance unless the document is registered. How can a co‑sharer tenant then, prior to registration of the document, get himself informed of the nature of the transfer which may or may not entitle him to apply for pre‑emption? Giving effect to the contention of the opposite‑party that limitation would run from the date of the execution of Deed of Transfer will amount to an arbitrary curtailment of the three years' limitation, by a period which would intervene between the execution and the registration of the document. It may be noted here that section 25 of the Registration Act, in certain circumstances, permits presentation of a document for registration within 8 months of its execution. Section 26‑F of the Bengal Tenancy Act which confers on a co‑sharer tenant the right to apply for pre -emption has fixed the date of service of notice as the starting point of limitation, so far as a notified co‑sharer tenant is concerned. There is no indication in the Act as to when limitation will commence in relation to the application for pre‑emption by a. non‑notified co‑sharer tenant. We have, therefore, to see when a non‑notified co‑sharer tenant's right to apply accrues. As we have already observed, it has not been disputed before us, as it could not be, that the transfer in question could only be made by registered instrument, that is, by a document duly completed by registration, in view of subsection (1) of section 26‑C of the Bengal Tenancy Act. How can then a non‑notified co‑sharer tenant apply for pre‑emption under the Act before the registration of the deed of transfer? If he does so, there will be no answer to the objection that the application is pre mature, there being no transfer by registered instrument. Indeed, there can be no question that the primary consideration for the Court in entertaining his application will be the registration, since he comes into the picture only upon registration of the document. The date of transfer, so far as he is concerned, must, therefore, be the date of the registration. We have thus no hesitation to hold that the right of a non‑notified co‑sharer tenant to apply under section 26‑F of the Bengal Tenancy Act accrue only upon registration of the deed of transfer. On a reasonable construction put on its conclusions, it seems to us to be the view of the Special Bench also in 52 C W N

64. We have, therefore, no manner of doubt that the limitation of 3 years to which a non‑notified co‑sharer tenant is entitled is to run from the date of registration of the deed of transfer, no other starting point o limitation having been fixed by the Act in respect of such a co- sharer tenant's application. This view, it may be mentioned here, is in accord with the view taken by our learned brother Sattar, J., sitting singly, in the case of Noab Mian v. Golam Hossain (P L D 1963 Dacca 89). The next point for consideration is as to when a document is to be considered as registered. Consistent with the view taken by the Court of appeal below, it has been contended on behalf of the opposite‑party transferee that it is the endorsements required to be made under certain sections of the Registration Act, ending with section 59, that constitute a valid registration, and that upon receiving such endorsements a document is to be regarded as a registered document. In this connection it is sections 34, 35, 58 and 59 of the Registration Act that have been mentioned by the opposite‑party. On behalf of the petitioner, however, our attention was drawn to the majority judgment in the aforesaid Indian Supreme Court case where the learned Judges accepted the view that registration under the Registration Act is not complete before compliance with the provisions of section 61 of the said Act, which provides that the registration of a document shall "be deemed to be complete" only after the endorsements and certificate referred to and mentioned in sections 59 and 60 are copied into the margin of the Register‑book, and the copy of the map or plan (if any) mentioned in section 21 are filed in Book No.

1. We will revert later to the petitioner's contention on the point. We feel it necessary first to dispose of the opposite‑party transferee's contention which requires a considera tion of sections 34, 35, 58 and 59 of the Act. Section 34 of the Registration Act provides that no document shall be registered unless the persons executing such document, or their representatives, assigns or duly authorised agents appear before the registering officer within the time allowed for its presentation. Then there is the power to enlarge the time, and the provision that the appearances may be simultaneous or at different times. Then the section requires the registering officer to enquire whether or not the document was executed by the persons by whom it purports to have been executed and to satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document, and, in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. Section 35 provides that if all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or if in the case of a person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive. Then there is the provision as authorising the registering officer to examine any one present in his office with a view to satisfying himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by the Act. The section then provides that if any person by whom the document purports to be executed denies its execution, or if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the persons so denying, appearing or dead. Section 58 provides that there shall be endorsed certain particulars on every document admitted to registration, on presentation. They are the signature and admission of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, those of such persons, and also those of every person examined in reference to such document under any, of the provisions of the Act. It also requires such an endorsement in respect of any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. The section further provides that if any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal. The next section, namely, section 59 provides that the Registering Officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day. It should be added here that the endorsements required to be made under section 52, as referred to in section 59, are as to the day, hour and place of presentation, and signature of every person presenting the document for registration. It is clear from the above recital of the provisions of sections 34 and 35 of the Registration Act that they relate to the procedure to be followed by the Registering Officer, on appearance of the executant of a document presented for registration, or his representative, assign or agent, for satisfying himself on certain points, with a view to arriving at a decision as to whether or not admit the document to registration. Section 58, the first section in the Chapter under heading "As to the procedure on admitting to Registration", requires the making of certain endorsements on the document, upon admitting it to registration, and section 59 does no more than make it obligatory on the registering officer to affix the date and his signature to those endorsements and also others made under section 52, on the very day the endorsements are made. It is indeed difficult to follow the logic of the contention made on behalf of the opposite‑party that as soon as the aforesaid endorsements on a document are signed and dated by the registering officer the document is to be regarded as registered, as if there is a magical significance attached to the touch of a registering officer's pen. No such thing, however, can be inferred from the scheme of the Registration Act, which requires the registering officer to copy every document that is admitted to registration in the appropriate Register‑book. The Act further provides that "there shall be prepared current indices of the contents of such books and that every entry in such indices shall be made, so far as practicable, immediately after the registering officer has copied" the document (section 54), and that the index of the entries made in the Register‑book for non‑testamentary documents relating to immovable property "shall contain the names and additions of all persons executing and of all persons claiming under every such document" (section 55). Section 57 of the Act provides that "subject to the previous payment of fees payable in that behalf" the said register‑book for non‑testamentary documents relating to immovable property and also the relative index "shall be at all times open to inspection by any person applying to inspect the same", and that "copies of entries in such books shall be given to all persons applying for such copies", which "shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original document". In view of these provisions there can be no doubt that registration is meant, in the main, to give notoriety to a document, by making its contents accessible for all times to all persons, who may even take out copies in proof of the contents of the original document. The signing and dating of the endorsements mentioned in section 59 of the Act, that are made before the document is copied in the Register‑book, can therefore, signify nothing more than that the document has qualified for being registered. They, by themselves, cannot be presumed to confer on the document the character of a registered instrument. It is section 60 9f the Registration Act which supplies the answer to the question as to when a document is to be considered as registered. This section provides: "(1) After such of the provisions of sections 34, 35, 58 and 59 as applied 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 that (2) such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned." In our view, the language of the section admits of no doubt that it is the certificate in compliance with the provisions of this section that makes a document, a registered document. The document cannot be regarded as registered before the certificate is endorsed thereon and signed, sealed and dated in terms of section 60, nor has it to wait for acquiring the character of a registered document till after compliance with the other provisions that follow section

60. Their Lordships of the Privy Council having had an occasion to refer to this section in the case of Muhammad Ewaz v. Birj Lal (I L R 1 All. 405), observed that "the certificate is that which gives the document the character of a registered instrument". That being so there can be no substance in the contention of the opposite-party that upon the registering officer having complied with the provisions of sections ' 34, 35, 58 and 59 the document is to be regarded as registered. For the same reason we are unable to accept the petitioner's contention that unless and until the provision of section 61 is complied with the document cannot be regarded as having been registered, as was held in the aforesaid Indian Supreme Court Case Ram Saran v. Domini Kuer (A I R 1961 S C 1747) Indeed, we are not concerned here with the completion of the registration. It is the completion of the document by registration, with which we are instantly concerned. That happened in the present case on 17‑10‑58, when the certificate in terms of section 60 was endorsed on the document and signed, sealed and dated by the registering officer. The application for pre‑emption having been filed on 14‑6‑60, the same was well within three years thereof. We hold, therefore, that the petitioners' application was within time. This disposes of the only question at issue, namely of limitation in favour of the petitioner. Before we part with this rule we need mention here that the case of Ram Saran v. Domini Kuer arose out of a suit for pre‑emption under the Muhammadan Law. The Indian Supreme Court dismissed the suit on a finding that the requisite `talabs' having been made before the registration of the deed of sale, were pre‑mature, upon the view they took, namely, that section 54 of the Transfer of Property Act superseded the rule of Muhammadan Law, inasmuch as no such sale could be effected except by registration. We do not like to express any opinion on this point in view of the observations of their Lordships of the Privy Council in the case of Sitaram Bhanrao Deshmukh v. Syed Jinul Hasan Khan (26 C W N 221), where their Lordships quoted with approval an extract from the judgment of Chief Justice Edge in the Full Bench case of Begam v. Muhammad Yaqub (I L R 16 All. 344), which is as follows:‑ "I cannot think that it was the intention of the Legislature, in passing Act IV of 1882, (the Transfer of Property Act), to alter directly or indirectly the Muhammadan Law of pre‑emption as it existed and was understood for centuries prior to the passing of Act IV of 1882." and then their Lordships of the Privy Council went on to say in formulating their own conclusion thus:‑ "The conclusion is, that you are to look at the intention of the parties in determining what system of law was to be taken as applying and what was to be taken to be the date of the sale with reference to which the ceremonies were performed." Having regard to our finding that the petitioner's application for pre‑emption was within time we accept this revision, make the rule absolute, set aside the judgment and order of the Court of appeal below and restore those of the Court of first instance. There will, however, be no order as to costs. K. M. HASAN, J.‑

I agree. S. Q. Revision accepted.