# RAM SARAN LALL AND OTHERS v. MST. DOMINI KUER AND OTHERS

- **Citation:** [1962] 2 S.C.R. 474
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 104 of 1959
- **Bench:** B. P. Sinha, A. K. Sarkar, K. c. DAS GUPTA, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-saran-lall-and-others-v-mst-domini-kuer-and-others-2267
- **Pages:** 13

## Headnote

Registration-Sale-When complcle-I f complete only on date
of registration-Pre-emption-Indian Registration Act, .r908 (XVI
of I908}, ss. 47 and 6I.
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 pre-emption, 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 s. 6r of the Registration Act. The appellant filed a suit for pre-emption. 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 s. 47 f<egistration Act
a registered document operated from the time it "Wuuld 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, r946, 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 v. Gour Narain, A.LR. (1921) Pat. 150,
Nareshchandra Datta v. Gireeshchandra Das, (1935) I.L.R. 62 Cal.
979, and Gobardhan Bar v. Guna Dhar Bar, LL.R. (1940) II Cal.
270, approved.
Bindeshri v. Somnath Bhadry, A.LR. (1916) All. 199 and
Gopal Ram v. Lachmi Himir, A.LR. (1926) All. 549, distinguished.
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
2 S.C.R.
SUPREME COURT REPORTS
475
became effective and the time it could be held to be completed.
r96r
Under s. 47 the crucial test for determining the time from
which the registered document was to have effect or be deemed Ram Saran Lall
to be completed was the intention of the parties. The sale
v.
deed shows that the parties intended that the deed should beMst. Domini f(uer
effective from the date of execution.
CIVIL
APPELLATE
JURISDICTION:
Civil 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. 0. Setalvad, Attorney-General of India and R. O.
Prasad, for the appellants.
S. P. Varma, for respondent No. 1.
N. S. Bindra and D. Gupta, for Intervener.
1961.
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
Sarkar J.
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.
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-empti

## Text

1961
April 27,
474
SUPREME COURT REPORTS
[1962]
RAM SARAN LALL AND OTHERS
v.
MST. DOMINI KUER AND OTHERS.
(B. P. SINHA, c. J., A. K. SARKAR, K. c. DAS GUPTA,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Registration-Sale-When complcle-I f complete only on date
of registration-Pre-emption-Indian Registration Act, .r908 (XVI
of I908}, ss. 47 and 6I.
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 pre-emption, 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 s. 6r of the Registration Act. The appellant filed a suit for pre-emption. 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 s. 47 f<egistration Act
a registered document operated from the time it "Wuuld 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, r946, 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 v. Gour Narain, A.LR. (1921) Pat. 150,
Nareshchandra Datta v. Gireeshchandra Das, (1935) I.L.R. 62 Cal.
979, and Gobardhan Bar v. Guna Dhar Bar, LL.R. (1940) II Cal.
270, approved.
Bindeshri v. Somnath Bhadry, A.LR. (1916) All. 199 and
Gopal Ram v. Lachmi Himir, A.LR. (1926) All. 549, distinguished.
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
2 S.C.R.
SUPREME COURT REPORTS
475
became effective and the time it could be held to be completed.
r96r
Under s. 47 the crucial test for determining the time from
which the registered document was to have effect or be deemed Ram Saran Lall
to be completed was the intention of the parties. The sale
v.
deed shows that the parties intended that the deed should beMst. Domini f(uer
effective from the date of execution.
CIVIL
APPELLATE
JURISDICTION:
Civil 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. 0. Setalvad, Attorney-General of India and R. O.
Prasad, for the appellants.
S. P. Varma, for respondent No. 1.
N. S. Bindra and D. Gupta, for Intervener.
1961.
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
Sarkar J.
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.
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
476
SUPREME COURT REPORTS
[1962]
r96r
the respondent purchaser for clearing off that mortR
5L ll gage.
The deed also recited that the Pandeys had
am
~an a received Rs. 400 and "the remaining Rs. 1,400 (Rupees
Mst. Do~ini J<u" fourteen hundred) in cash at the time of exchange of
equivalents, (that is) at the time of (handing over) of
Sarkar J.
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 ]'ebruary 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 Registrar's 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 Registrar's Office on February 13, 1946.
The appellants filed their suit for pre-emption 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
wi~'-1 the result that the suit stood dismissed and
2 S.C.R. SUPREME COURT REPORTS
477
the appellants have now come to this Court in further
appeal.
I
Ram Saran Lall
The Mohammedan law of pre-emption is stated in
v.
Mulla's Principles of Mohammedan law in these Mst. Domini Ku"
terms: "The right of pre-emption arises only out of
a valid, complete and bona fide sale." This statement
Sarkar l·
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 pur.
chaser 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.
Section 54 of the Transfer of Property Act provides
that sale of tangible immovable property of the value
of rupees 100 and upwards, which the house with
which we a.re 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 m~t in the records of the Registration Office as
provided in s. 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 present case, therefore, became cqmplete 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
SUPREME COURT REPORTS
[1962]
1961
came to the conclusion that the appellants were not
entitled to enforce their right of pre-emption because
Ram Satan Lall h
h d
d
h
J"
•
d
d
ft
th
v.
t ey a not ma e t e pre 1mmary eman
a er
e
Mst. Domi"i ](""completion of the sale as the law required them to do,
but before, t.hat is, on February 2, 1946.
Sar""' J.
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
Hegistration 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 latter case his clients,
though this present suit might fail, would be entitled,
if they so desired, to enforce their right of pre-emption when the sale was completed in pursuance of
that agreement. As authority in support of his contention that in view of s. 4 7 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 (1) and Gopal Ram v.
Lachmi M is;r (').
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.
Sectioli 47 of the Hegistration Act does not, however,
say when a sale would be deemed to be complete. It
only permits a document when registered, to operate
(1) A.LR. (1910) All. 199.
\2) A.LR (1926) All. 549·
"
2 s.o.R. SUPREME COURT REPORTS
47P
from a certain date which may be earlier than the
ro6r
date when it was registered. The object of this section
•
d 'd
h' h
f t
• t
d ·
Ram Sara11 Lall
1s to em e w rc
o
wo or more reg1s ere
mstruments in respect of the same property is to h<1.ve Mst. v.,:;.; Kuer
effect. The section applies to a document only after
it has been registered. It has nothing to do with the
Sarkar J.
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. 4 7 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
takon in Tilakdhari Singh v. Gour Narain (1).
We
believe that the same view was expressed in N areshchandra Datta v. Gireeshchandra Das(') and Gobardhan
Bar v. Guna Dhar Bar(').
With regard to the two cases on which the AttorneyGeneral 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 (')
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 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.
(I) A.LR (1921) Pat. r50.
(2) (1935) I.L.R. 62 Cal. 979
(3) I.L.R. (1940) II Cal. 270
14) A.LR. (1916) All. 199.
(5) A.l.R. (1926) All 549.
480
SUPREME COURT REPORTS
[1962J
I96z
This view was taken in reliance upon s. 47 of the
R
5
L II Registration Act. We are not aware whether the law
am
aran
a
f
t"
l"
bl
t
h
· d
v.
o
pre-emp 10n app wa e
o t e case reqmre
Mst. Domini Kuer that there should be a completed lease before the
right to pre-empt could be enforced. If that law did
Sarhar J.
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 fflason 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 AttorneycGeneral
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 ].
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 ta.labs have to be performed
immediately on the completion of a valid, and bona
fide sale, and (3) that the two tala.bs which are required
to be performed by a person claiming the right of
precemption have been performed_ by the appellant.
There being further no dispute that a sale .did take
2 S.C.R. SUPREME COURT REPORTS
481
place, the only point in controversy in the appeal is
'96'
as to whether the talabs which were performed on
1
f
d b
h
Ram Saran Lal
February 2, 1946 were per orme
y t e appellant
v.
after the right of pre-emption accrued to her, viz., Mst. Domini {(uer
after the sale in favour of the respondent was effected
or were they premature.
Ayyangar .J.
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
Transfer of Property Act 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 v. Muhammad('), Justice Banerjee dissenting from the majority. This controversy, however, is
long past and it has now been decided by this Court
in Radha Kishan v. Shri Dhar Ram Chandra(') that
the provisions of the Transfer of Property Act 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 Transfer of Property Act, in the case of a sale of immovable property
of the value of Rs. 100 or over (as in the case before
us) s. 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 Transfer of Property Act 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
(•) l.L.R. 16 All. 344·
482
SUPREME COURT REPORTS
[1962)
x96x
of Property Act means: "registered under the law for
Ram Saran Lall the time being in force regulating the registration of
v.
documents" (s. 3).
When one turns to the RegistraMst. Domini Kuer tion Act, provision is made, inter alia for the time
within which after its execution a document could be
Ayyangar J. 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 Part 11 starting from s. 58 deals with
the procedure on admitting documents to registration.
Section 60( 1) 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 s. 61 which follows makes provision for the copying of documents in Public registers from which t.he
word "registration" is derived and enacts:
"61. (1). The endorsements and certificate referred to and mentioned in sections 59 and 60 shall
thereupon be copied into the margin of the Registerbook, and the copy of the map or plan (if any) mentioned in section 21 shall be filed in Book No. 1.
(2) The 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-s. (2) of s. 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
2 S.C.R. SUPREME COURT REPORTS
483
our opinion, these words have nothing to do with the
'96'
time from which the transaction covered by the rcgisRam Saran Lall
tered document operates or with reference to the prev.
sent context, when the sale evidenced by the deed Mst. Domini Kuer
becomes complete. Specific provision is made for these
ins. 47 of the Registration Act which reads:
Ayyangar J.
"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 ss. 61(2) and 47 are not
divergent. It is not as if, that any delay by the registering 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 Transfer of Property
Act and the Registration Act, but yet the provision
contained in s. 4 7 of the Registration Act 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 com;se on any rule of
interpretation of statutes. In our opinion no distinc.
tion 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 pre-emptor receives information of the sale, the view we take
of the applicability of s. 47 of the Registration Act,
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
SUPREME COURT REPORTS
[1962]
r96r
entitle the pre-emptor to perform the talabs should be
determined by the application of the principle of inRam Saran Lall
v.
tention laid down in s. 47 of the Registration Act
Mst. Domini g,,,, which is as much a part of the positive law governing
the right of pre-emption as the provision of s. 54 of
Ayyangar J.
the Transfer of Property Act which requires a registered instrument to effect a sale which gives rise to a
right of pre-emption.
If, therefore, s. 4 7 of the Registration Act 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 Ex. 'A'
dated January 31, 1946 recites the consideration for.
the same. This was to consist of Rs. 2,000. 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. 1,400 the recital reads:
"and received the remaining sum of Rs. 1,400 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. 1,400 had not
been received on January 31, 1946, the date of the
execution of the document and that it was agreed
that 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. 1,400 as the consideration for the execution of the
2 S.C.R. SUPREME COURT REPORTS
485
document on January 31, 1946, as tantamount to an
z96z
actual payment. In other words, in terms of s. 54 of
-
the Teansfer of Property Act it was a transaction Ram Sara" Lall
under which the property in the house was to be Mst. Dui~iini H11er
transferred in exchange for a price "part paid and
part promised". Paragraph 4 and the recital there
Ayya11gar .f.
do not indicate any intention that the title to the
property was to be conveyed only on the payment of
Rs. 1,400 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. 2,000 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. 2,000 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 re-inforced by paragraph 7 in which dealing
62
486
SUPREME COURT REPORTS
[1962]
z96r
with the title of the vendors, it is stated that the said
title with respect to the vended property "has become
Ram Saia" Lall
t"
t ·
t"
d
JI
d
"d
d th
ex me , mopera 1ve an nu an vo1
an
e same
Mst. oo:ini Kuer has now been transferred to and acquired by the claimant". In the face of these recitals, convenants and
Ayyanga. J.
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 tho terms
of s. 61 of the Indian Registration Act or to February
7, 194 7 wben on the registration receipt having been
handed over to the vendee, the vendor received the
balance of Rs. 1,400 is hardly tenable.
If this were the true legal effect of the deed and if
by virtue of the provisions of the Transfer of Property
Act read in conjunction with those of the Indian
Registration Act, 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 deedEx. '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.