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Civil Revision (S. A.), No. 705 of 1959, decided on 18th December 1962.

Document executed i earlier but registered later will have precedence over document executed later but registered earlier‑Contest between two claimants claiming on basis of successive documents executed by self‑s me vendor‑Question of title to be determined with reference to Rile of vendor on dates of execution and not of registration of document.

Abu Md. Abdullah for Petitioners.

M. H. Khondakar and Nasiruddin Chowdhury for Opposite Parties 1 and 2.

SIKANDAR ALT, J.‑This second appeal, treated now as a revision under section 115 of the Civil Procedure Code, arises out of a suit for recovery of vacant possession on establishment of title and two of the defendants, i.e., defendants Nos. 1 and 2, are the petitioners. The plaintiff‑opposite‑party claimed the disputed subject‑matter, being a parcel of bhiti land together with a hat standing thereon, in Chandina jote right by purchase at Rs. 800 t from its outgoing owner, i.e., defendant No. 3 Abdur Noor alias Asgar Ali under the kabala Exh. 1(a) executed on the 21st Magh 1363 B.S. corresponding to 4‑2‑57 and registered under section 75 of the Registration Act on 25‑7‑57. It was alleged, inter alia, that according to the terms of the contract made in presence of both the defendants‑petitioners, the said owner executed the kabala on receipt of a sum of Rs. 650 out of the consideration, leaving, balance of Rs. 1f0 to be paid and received at the time of registration. Later on however it transpired that subsequent to the execution of the said kabala in his favour defendant No. 3 executed another kabala purporting to convey the subject‑matter of the former, i.e., the disputed land and hat to the defendants -petitioners. The plaintiff impeached this kabala as a fraudulent and void document ante‑dated, on old stamps for the purpose of defeating his right acquired bona fide for valuable consideration. There was also a prayer for eviction of the defendant‑petitioner No. 1 who was running a shop in the disputed hat. Defendant No. 1 contested the suit. He denied all the material allegations made in the plaint and contended inter alia that the alleged purchase of the plaintiff, being subsequent to that made by him jointly with the defendant‑petitioner No. 2 and as evidenced by their kabala Exh. A executed on the 18th Kartick 1363 B. S., corresponding to 4‑11‑56 and registered on 27‑2‑57, the plaintiff acquired no title whatever. According to him further he could not in any event be evicted as he was holding the premises as a tenant under defendant No. 3 till he parted with his interest. His co‑purchaser, i.e., the defendant‑petitioner No. 2 did not enter appearance or file any written statement but deposed as a witness at the trial. The trial Court decreed the suit in respect of the jote right claimed by the plaintiff on the finding that he had acquired valid title under the kabala executed by defendant No. 3 in his favour and that the kabala Exh. A relied on by the defence was a fraudulent, collusive ante‑dated document. The prayer for eviction of defendant No. 1 however, was declined as he was found to be bharatia, i.e., a tenant. This decision has been upheld on appeal as well whereafter the defendant‑petitioners approached this Court. In due course the case came up for hearing before a learned Single Judge who having heard the same appears to have been inclined to the view that a deed of con veyance registered earlier than another in respect of the self‑same property the vendor being common, shall, irrespective of the dates of their execution, prevail over the latter inasmuch as the property involved passes completely to the purchaser under the registered kabala immediately upon its registration, so that on the date of registration of other kabala, the vendor will have no right, title or interest left in the subject‑matter and cannot, therefore, convey any under this document even though this may be earlier in point of execution. Referring to the facts of the present case he thus observed :‑

"If, however, in a race for the purchase of the disputed property, the defendant finally succeeded in obtaining a valid sale deed in their favour, however, much I may have sympathy with the plaintiffs' case the title of the disputed property legally passed to the defendants on the 27th February 1957, namely, the date of registration of the kabala Exh. A. The result was that on the 25th July 1956, that is, on the date on which plaintiff's kabala, Exh. 1(a) was registered, defendant No. 3 was left with no title to the disputed property which he could transfer."

Evidently he was unable to agree with the contrary view taken in Fazar Ali and others v. Afzal Miah and others ((1957) 9 D L R 258), which, he said, "should be re‑examined by a larger Bench". On a reference made by him, therefore, the case has now come up for disposal by this Division Bench.

2. On a critical analysis of the relevant evidence including that bearing on the date of purchase of the stamp for the plaintiff's kabala, the date of application for income‑tax clearance certificate and the fact that the date of execution of the document synchronises with that of purchase of the stamp, both the Courts below have rejected the defence contention that the plaintiff's kabala Exh. l(a) was an ante‑dated one and brought into existence after registration of the defendants kabala Exh. A and taken the view that the same. i.e., Exh. 1(a) was actually executed on the date shown therein. It may be borne in mind that the vendor, i.e., defendant No. 3, did not come forward to challenge, nor could the contesting defendant himself produce any evidence worth the name to detract from, the fact that the former received out of the stipulated consideration money a sum of Rs. 650 at the time of execution of Exh. 1(a) and agreed to receive the balance of Rs. 150 at the time of its registration on receipt of the income- tax clearance certificate. Turning thereafter to the defendants' kabala Exh. A, they have similarly discussed in detail all the relevant materials on record and considering the interested and unconvincing nature of the evidence adduced together with the fact that some witnesses and materials capable of throwing much useful light on the points‑at‑issue were not produced have found concurrently that the said kabala was ante‑dated "fraudulently and collusively" i.e., with the object of defeating the claim of the plaintiff under his earlier kabala, mentioned above. In arriving at this conclusion it has been noticed inter alia that the document was drawn up on an unused stamp purchased previously, i.e., in May 1956, by some one else in connection with a proposed conveyance which did not ultimately materialise, that the defence failed to prove its story that the said stamp was purchased from a stamp vendor 4/5 months after it is said to have been returned to him and that no paper or other evidence was adduced to show the date of application for the income‑tax clearance for the transfer evidence by Exh. A. Mr. Abdullah, the learned Advocate appearing on behalf of the defendants‑petitioners has however tried to assail the decision of the learned Courts below on the contention that they failed to take into consideration either at all or in their proper perspective some of the material facts and circumstances having a most important bearing upon the main point‑at‑issue between the parties. These, according to him are (1) that the title deeds, Exhs. A(1) and A(2), of defendant No. 3 were made over, as mentioned in the kabala Exh. A itself, to the defendants‑petitioners and are coming from their custody and not from that of the plaintiff who is expected to have had those documents in this custody if his kabala were genuine document, (2) that in spite of his knowledge that defendant‑petitioner No. 1 was in actual physical possession of the disputed premises, the plaintiff avoided him instead of getting in touch with him for the purpose of ascertaining the nature of his possession, (3) that the consideration of Rs. 800 for which defendant No. 3 is said to have contracted to sell the property to the plaintiff was grossly inadequate seeing that the former made his purchase under Exhs. A(1) and A(2) at Rs. 1,800 in 1944 and the defendants- petitioners too paid as much as Rs. 1,600, (4) that although the plaintiff claimed to have procured the fund for his purchase under the kabala Exh. 1(a) dated 4‑2‑57 by .sale of some other property of his, the sale‑deed relating to that property, i.e., Exh. 1, however, appears to be a far later document, being dated 20‑7‑57, (5) that the Courts below put undue emphasis upon the fact that an old stamp was used by the defendants‑petitioners for the purpose of their kabala Exh. A(6) that non‑production of the income‑tax clearance certificate by the defence has been made much of against them completely over‑looking the admitted fact that the said certificate was actually obtained by them and (7) that, as the learned Single Judge has put it, "both the Courts below have failed to take into consideration that on 25‑7‑57 when the plaintiffs' Exh. l(a) was registered, defendant No. 3 had no right, title and interest left in the subject‑matter of the kabala to transfer."

3. So far as the contention as to the custody of the title deeds is concerned suffice it to point out that the sale in favour of the plaintiff under the kabala Exh. l(a) did not fully exhaust the interest of defendant No. 3 covered by the said deeds and as such the latter could not be expected to part with those deeds and make over the same to the plaintiff. It is also difficult to follow how or why any enquiry as to the nature of the possession of defendant No. 1 was at all called for when it was already known to the plaintiff that he was holding the premises under defendant No. 3. In any event such an enquiry could hardly serve any purpose at all in view of the fact that his kabala was executed on 4‑2‑57 and the defendants‑petitioners' kabala, as has been established to the satisfaction of both the Courts below, was brought into existence subsequently. Similarly the argument as to the alleged inadequacy of the consideration money for Exh. l(a) does not appear to have any substance in that, a scrutiny of the relevant documents shows that the plaintiff purchased for Rs. 8C0 half or possibly a little less than half of what defendant No. 3 acquired for Rs. 1,400 under Exhs. A(1) and A(2). The defendants‑petitioners, kabala of course mentions sum of Rs. 1,600 as the consideration but even apart from the fact that the property involved in it appears to be more than what was conveyed under Exh. l(a) as well the view taken by the Courts below that the defence failed to prove the actual passing of any consideration, that cannot be taken as a criterion in this behalf, particularly when there is no other independent or dependable evidence to show that the property in question was worth more than Rs. 900 according to the prevailing market rate at the time. Coming next to the contention of Mr. Abdullah that the plaintiff claimed to have made his purchase under the kabala Exh. 1(a) on 4‑2‑57 with the fund procured by selling some other property by the kabala Exh. 1, dated 20‑7‑57, which is absurd, it may be pointed out that this does (not) appear to have (been) put to the plaintiff during his cross‑examination in order to afford him an opportunity to offer whatever explanation he might. In our opinion, therefore, this contention cannot really be entertained. However, payment of the consideration money or a substantial portion thereof ahead of the execution of the deed of conveyance is not at all uncommon and as such from the mere fact that the kabala was executed on a particular date, it cannot be said to follow that its consideration money also must have been paid and received on that date and not earlier. Such conclusion may be warranted only when the person concerned has been confronted with the seeming inconsistency, referred to above, and fails to offer any explanation, or the explanation offered by him is found to fall short. We are also not at all impressed with the argument that the learned Courts below put an undue emphasis upon the use of the old stamp by the defendants‑petitioners or their failure to produce the income‑tax clearance certificate. In the facts and circumstances disclosed the comments made upon the former and the inference drawn therefrom appear to be perfectly opposite and justified while what appears to have been noticed in connection with the latter is that the defence failed to produce anything to show when exactly the application for income‑tax clearance certificate relating to Exh. A was sent or submitted, which has nothing to do with the admitted fact as to the receipt or date of receipt of the said certificate.

4. For the reasons indicated above we are not pursuaded to think that the afore‑mentioned facts and circumstances are such as, even if they were taken into consideration, might lead the learned Courts below, to come to a conclusion different from that at which they have arrived or that any useful purpose is likely to be served if the case were remitted for rehearing on the ground of non‑consideration thereof. On the other hand, we feel satisfied, as has already been made clear hereinbefore, that the finding of the learned Court below that the plaintiff's kabala Exh. 1(a) is a genuine document and that Exh. A was fraudulently ante‑dated with a view to scoring march over the plaintiff is based on evidence and supported by sound reasons'. We, therefore, find no ground for interference with the same in revision.

5. It remains only to consider the contention of Mr. Abdullah that his clients' kabala having been registered earlier must prevail over the plaintiff's kabala irrespective of the dates of their execution. His argument in support of this contention is that by operation of section 47 of the Registration Act the disputed property vested absolutely in his clients immediately upon the registration of their document so that there was nothing left with the vendor that could pass to the plaintiff on the registration of his kabala at a later date. According to him, registration shall operate retrospectively in favour of a purchaser from the date of execution of this kabala provided no other kabala executed by the vendor in respect of the self‑same property has been registered in the meantime but where such a registered document has come to intervene, there is no scope at all for such retrospective operation inasmuch as subsequent registration can not divest the other purchaser of the right that has already vested in him on the basis of his document registered earlier. In other words, a purchaser who has perfected his title by having his document registered acquires an indefeasible title as against anyone claiming under a document, registered on a later date, even though that might have been executed earlier. We cannot, however, see our way to accept this contention, which, we are afraid is not warranted by the language of section 47 ibid. That section provides :‑

"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."

6. It is thus clear that a document that has been registered relates back to the date of its execution so that the question of title as between two contestants claiming on the basis of successive documents executed by the self‑same vendor or vendors must be determined with reference to the title of the latter on the dates of execution and not of registration thereof. In this connection reference may also be made to the decision of this Court in the case of Fazar All and others v. Afzal Mia and others already mentioned above. The relevant proposition has been laid down therein as follows :‑

"A document executed earlier but registered later will have precedence over a document which though registered earlier in point of time was in fact executed later on the principle that it is execution and not registration that determines the precedence of one document over another."

Mr. Abdulla, however, disputes the soundnesses of this proposition and contends that section 47 contemplates one single transfer and has no application to such cases as involve more than one transfer, i.e., successive transfers. In other words, he seeks to restrict the operation of the said section to the parties to the same document or those claiming through them on that basis and contends that purchasers under different kabala, even though executed by the same vendors, are third parties with respect to the documents of one another, to whom, therefore, the principles of section 47 cannot be extended. It appears to us clear that section 47 is intended to safeguard the interest of a bona fide vendee under an instrument, which though only executed, is waiting registration by ensuring that he is not deprived of the property in case his vendor turns round to take advantage of the fact that the said instrument is still unregistered and executes a fresh kabala and gets it registered as well purporting to convey the self‑same property in favour of another. To accept the aforementioned argument of Mr. Abdulla and hold that section 47 operates as between the vendor and vendee in respect of a single transfer only and is inapplicable to successive transfers, therefore, would be defeating the very purpose of that section. The consensus of the authorities on the point, too, is that in the case of successive transfers of the self‑same property in favour of different persons by a common vendor by registered documents, the dispute as to the precedence of one document over the other has to be determined in accordance with the principles laid down in section 47 and the learned Advocate failed to lay his hand on any decision laying down a contrary proposi tion. As to the second branch of his argument on the score of third parties, the learned Advocate has referred to two decisions of the Calcutta High Court, to wit Gobardhan Bar v. Gunadhar Bar (44 CWN 802) and Gosto Behari Das v. Razabala Del and another (60 CWN 57) both of which, it may be borne in mind, related to cases under section 26‑F of the Bengal Tenancy Act. It is true, as has been observed therein, that the date of registration is the material date as transfer can only be made by registered document and title cannot possibly pass to the transferee till registration effected but a‑sale under a document registered after another kabala has been registered in the meantime is also a sale by a registered document or in other words cannot be said to be a sale other wise than by a registered document for the reason that regis tration happens to be effected some time after execution of the deed of conveyance and in a conflict between such documents, as has already been observed, section 47 shall apply. In support of his contention to the contrary, however, Mr. Abdullah relied particularly upon the observations appearing in the following passage in Gosto Behari Das v. Rajabala Del :‑

"Where different properties have been transferred by different instruments or where the contest is with a third party the decisions have been in accordance with the plain meaning of section 40 of the Registration Act or the relevant section of the Transfer of Property Act. Those decisions proceed on the view that where title to immovable property cannot be effected except by a registered instrument an instrument purporting to affect title can only operate when registration has been com pleted and, therefore, when there is competition between two documents executed on different dates, but concerning different properties, each should be taken as taking effect from the date of its registration. Decisions which have taken this view are the cases of Gobardhan Bar v. Gunudhar Bar 44 C W N 802 and Naresh Chandra Dutt v. Girlsh Chandra Das 61 C L J 360. In fact the former followed the latter. The case in 61 C L J 360, is in its own turn based, so far as this point concerned, upon decision of the Madras High Court in the case of Veerappa Chetly v. Kadirsan Chety (1913) 24 M L J 664.

I confess that the question is not free from difficulty. If section 47 of the Registration Act is treated as limited to successive transfers of the same property the difficulty un doubtedly disappears, but the language of the section is sufficiently wide to cover transfers of different properties as well. Again, if the principle of the section is to apply as between the vendor and the vandee, there must be some good reason as to why it should not apply as against third parties. I invited the learned Advocates to furnish the reason, but they were unable either to find it in the reported cases or to supply it themselves. The difficulty to my mind remains unsolved."

7. Having regard to the context it appears to us unambig uously clear that the expression "third party" occurring fn the above passage has been used in the sense of strangers claiming on some basis other than successive transfers of the self‑same subject matter by a common vendor e.g., purchasers of different properties by different instruments. The learned Judges have merely posed a question without actually deciding as to why the operation of section 47 instead of being limited to successive transfers of the same property by common vendor should not be extended to such third parties as well. So far as applicability of section 47 to successive transfers of the same property is concerned the learned Judges do not appear to have entertained any doubt at all. On the other hand, they appear to have referred with approval to the construction to that effect uniformly put upon section 47 in all the decided cases and have actually adopted the same themselves. For our present purpose that suffices and it is not necessary for us to attempt a solution of the difficulty that the learned Judges in the above case have left unsolved i.e., why the principle of the said section should not be extended to the third parties, such as have been indicated above, as well. The only other observation we would like to add in this connection is that the case of Gobardhan v. Gundha cited by Mr. Abdullah is, also clearly against him, as may be seen from the following extract therefrom :‑

" . . . . It is undoubtedly true that as between the transferor and the transfree the registered document takes effect from the date of execution, and if there is a competition between two documents relating to the same property both of which are registered, the one executed earlier in point of time will have priority, but as regards a third party, the point of time at which the deed is to be effective is when it is registered."

8. It may be mentioned that the learned Advocate appearing for the plaintiff‑opposite‑party also placed his reliance upon the above case and further referred to another authority, i.e., Jeo Narayan Matho v. Budhan Matho and others (A I R 1941 Pat. 247). Like the present case before us, that case, too, appears to have come on reference by a Single Judge to a Division Bench. In the judgment delivered by Harris, C. J., the relevant proposition has been laid down as follows

"Where a land is sold to A by executing a sale deed which is unregistered and subsequently the same land is sold to B by registered deed, and sale deed executed in favour of B, the sale deed in favour of A operates not from the date of its execution. Hence sale in favour of B which is subsequent to execution of sale deed in favour of A does not give B good title against A."

9. Thus on a consideration of the authorities cited before us together with the language of section 47, we are in agreement with the principle enunciated in Fazar Ali and others v. Afzal Miah and others and other earlier cases on the point. The contention urged by Mr. Abdullah has, therefore, no force or substance at all.

10. It follows that the dispute has been correctly decided by the learned Courts below and there is nothing to call for any interference.

The second appeal, which has since been converted into a revision, is, therefore, dismissed with cost.

s. B./g. B. A.

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