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049e3c4ea2d9-103 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 86. Whether the vendors file suits for cancellation of the instrument under Section 31 or for declaration of title under Section 34 or whether vendees file suits for cancellation of the cancellation deed, there are bound to be allegations of fraud, misrepresentation and illegality by both the parties. An elaborate procedure is available under Code of Civil Procedure, 1908 (CPC), Evidence Act, Specific Relief Act and Transfer of Property Act, which has to be followed by a civil Court. Certain issues cannot be adjudicated by resorting to summary procedure. In a writ petition, this Court decides the issues based on the affidavit evidence. Whenever affidavit evidence is not sufficient and further probe is required in the sense that persons who swear affidavits need to be cross-examined and confronted with documentary evidence, a writ petition is not a proper remedy. In a sale transaction, it is essentially a contract between two persons and if one person after conclusion of the contract goes back and makes attempt or purports to make an attempt to deny the benefit of the contract of the other party, the remedy is only in the civil Court. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-104 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 87. Registration Act would show that the registering authorities are creations of statutes and they are conferred powers under the statute to enable them to discharge statutory duties. A registering authority has a role of a catalyst in the sense of legitimizing certain transactions by registering as per law. By the action or inaction of registering authority, there is no involvement of the State or the Government as such, except to the extent of charging registration fee for the service of registration as well as keeping the registers. Therefore, any instrument between the two persons, is governed by private law principles and registration thereof does not play any pervading role in rendering the transaction legal or otherwise. For instance, if a contract is prohibited by reason of its being against public policy, the registration of the document evidencing such contract does not render it valid. Similarly, if two joint owners of immovable property decide to exchange properties and do so without going to registering authority, no law prohibits such exchange. However, if either of them wants to produce such deed as evidence, by reason of Section 49(c) of Registration Act, the same cannot be received as evidence of transaction between them. The registration in certain circumstances is notice of a transaction relating to immovable property to a limited extent. Therefore, Registration Act and registering authorities acting thereunder mainly deal and regulate transactions in the realm of private law. For this reason also, the writ petition cannot be entertained. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-105 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 88. At this stage, cases decided by this Court may be noticed. In these, a view has been taken that when once a document is registered by registering authority, the same can be nullified only by the civil Court and that at the time of registration, the registering authority has no power to make enquiry as to the competence or otherwise of the person presenting the document for registration. In Property Association of Baptist Churches (1 supra), one of us (Justice V.V.S. Rao) was dealing with a case wherein the action of the registering authority was challenged in registering the documents in respect of specified land. The case was founded on an allegation that the land was being alienated by encroachers clandestinely though they have no title to the property. The writ petition was opposed inter alia on the ground that registering authority has no jurisdiction to refuse registration of the documents. This Court referred to Part XI and Section 77 of the Registration Act as well as Rule 58 of the Registration Rules and dismissed the writ petition observing as under.
A reading of the above provisions would show that the power of the registering officer is limited to enquire into the validity of the document brought to him for registration or to enquiry into any written or verbal protest against the registration of a document based on the ground that the executing party has no right to execute the document. The limited power of the registering officer to enquire into objections that the executing party had no right to execute document get extinguished the moment the document is registered. No such power inheres in the registering officer or the District Registrar to cancel the sale deed, unless another document for cancellation is presented with proper stamp duty and registration charges. A party aggrieved by a registered document on conveyance has to file civil suit seeking appropriate declaration under Section 34 of the Specific Relief Act, read with Article 59 of the Schedule under the Limitation Act, 1963. The writ petition is not a proper remedy. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-106 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 89. Following the decision in Property Association of Baptist Churches (1 supra), another learned single Judge in Karimnagar Education Society, Karimnagar v. The District Registrar, Registration and Stamps, Karimnagar, an unreported Judgment in W.P. No. 14007 of 2004, dated 18.08.2004, dismissed the writ petition observing as under:
This Court in Property Association of Baptist Churches (1 supra) categorically held that the limited power of the registering officer to enquire into the objections that the executing party had no right to execute document get extinguished the moment the document is registered. No power inheres in the registering officer or the District Registrar to cancel the deeds, unless another document is presented with proper stamp duty and registration purpose. A party aggrieved by a registered document on conveyance has to file a civil suit seeking proper declaration under Section 34 of the Specific Relief Act.
In the present case, earlier Gift Deed, which was registered in favour of the petitioner was cancelled through Cancellation Deed and presented for registration and the same was registered. The moment it is registered, the remedy of the petitioner, if any, is to approach the civil court seeking proper declaration.
90. In K. Gopal Reddy v. Secretary and Ors. , Another learned single Judge allowed the writ petition restraining the vendors from alienating and conveying the immovable property in favour of others. The learned Judge observed as under. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-107 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | If the cancellation of sale deed is by a private individual, it hardly needs any emphasis that the necessary forum to adjudicate upon it is a Civil Court. However, where such action is resorted to by a State or its agency, the exercise partakes an administrative character. An administrative or state agency is not accorded the same latitude as a private individual in its functioning. Its acts and omissions are required to be in accordance with law, reasonable and not arbitrary.... It hardly needs any emphasis that wherever a transaction of sale, mortgage or other transfer takes place in accordance with law, it can be annulled only with the participation of parties to such transaction. If one of the parties does not co-operate for such annulment or cancellation, the only course open to the party intending such cancellation is to have recourse to an action under Section 39 of the Specific Relief Act. If unilateral cancellation of sale deeds or other instruments is permitted, there is every danger of a party to a transaction becoming an ultimate Judge in his own cause. In such cases, the sales or other transactions brought about in accordance with law, loose their significance and have to depend for their efficacy or enforceability on the mercy of the person who transferred the rights under the documents. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-108 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | (emphasis supplied) 91 Reading the above observations made by the learned Judge, this Court is not able to countenance the submission of the learned Counsel for the petitioners that the said Judgment is an authority in support of the contention that a cancellation cannot be registered. Indeed as held by learned Judge, if a cancellation deed is executed and registered by private individual, the remedy is only civil Court and a writ petition would not lie. Another aspect of the above decision is that if there is participation by all the parties to the document, there can be a cancellation deed and according to learned Judge, unilateral cancellation cannot be permitted. Be that as it is, the decisions in Karimnagar Education Society (supra) and K. Gopal Reddy (61 supra) were the subject matter of writ appeals. Writ Appeal No. 1486 of 2004 was filed against Karimnagar Education Society (supra) and Writ Appeal No. 972 of 2004 was filed against K. Gopal Reddy (61 supra). The Division Bench, by order dated 11.10.2004, dismissed the Writ Appeal No. 1486 of 2004 laying down as under: | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-109 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | The short question that falls for consideration is whether the registering authority is duty bound to make any enquiry as such before registering the deeds of cancellation. The learned Counsel for the appellant very fairly stated before us that there is no provision, which enables or obligates the registering authority to make any such enquiry before registering the cancellation deed. In such view of the matter, in our considered opinion, the public law remedy invoked by the appellant herein is ill suited to resolve the controversy between the appellant and the third respondent. The dispute essentially is between the appellant and the third respondent. The third respondent having executed the gift deed appears to have cancelled the document and according to the appellant, without any reason or justification. That dispute lies essentially in the realm of private law, which is required to be adjudicated only in a common law proceeding.... It is not as if the appellant is left without any remedy. He is always entitled to seek proper declaration under Section 34 of the Specific Relief Act as has been rightly observed by the learned single Judge. We accordingly find no merit in the appeal and the same shall accordingly stand dismissed. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-110 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 92. The writ appeal filed against K. Gopal Reddy (61 supra) was allowed by order, dated 11.10.2004, following Writ Appeal No. 1486 of 2004. However, when two writ petitions being W.P. Nos. 23005 and 23008 of 2004 were listed before the learned single Judge, who decided K. Gopal Reddy (61 supra), the matters were referred to Larger Bench observing that so as to protect the interests of both the parties whenever a deed of cancellation is presented, there should be compliance with Section 32A of the Registration Act which mandates compulsory affixing of photographs of the buyer and seller, if the document is a sale deed.
93. After considering the background of these cases, we hold that the decision of the Division Bench in Writ Appeal No. 1486 of 2004, dated 11.10.2004, is correct exposition of law having regard to various provisions of Registration Act and TP Act, which have been analysed while considering point No. 1. We, therefore, hold that whenever a person is aggrieved by a cancellation deed, the remedy is to seek appropriate relief in the civil Court and writ petition is not proper remedy. There are other reasons as well, as discussed below. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-111 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 94. As seen from the counter affidavits filed by the contesting respondent, extremely serious questions regarding right and entitlement to immovable property have been raised. With the affidavit evidence, which by no means can be treated as elaborate, if this Court decides such serious questions, it would certainly prejudice the rights of the respondents and they would be deprived of the remedy before hierarchy of civil Courts. In the considered opinion of this Court, the jurisdiction under Article 226 of Constitution of India cannot be exercised if the order passed by this Court cannot be carried out without prejudicing the rights of the others. As observed by the Supreme Court in A.R. Antulay v. R.S. Nayak , "it has been said long time ago that "Actus Curiae Neminem Gravabit", the act of the Court shall prejudice no man and that this maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law". Be it noted that even according to the petitioners, the sale deed obtained by them is valid till it is cancelled by the civil Court. Therefore, even if the cancellation deed is allowed to remain, no prejudice would be caused to the petitioners. It is also pointed out to us by the learned Government Pleader that as per the instructions issued by the IG under Section 69 of the Registration Act, the registering authority is issuing a notice to the earlier purchasers and also endorsing on the cancellation deed that such cancellation deed does not alter the rights.
95. That disputed questions of fact cannot be gone into in a writ petition is axiomatic. A copious reference to case law is not necessary. As pointed out earlier, among many; it is one of the limitations on the exercise of power of judicial review. A reference may be made to two decisions of the Supreme Court in this context. In State of Bihar v. Jain Plastics and Chemicals Limited , the law was summarized as under. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-112 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | It is to be reiterated that writ petition under Article 226 is not the proper proceeding for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226....It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in an properly instituted civil suit rather than by a Court exercising prerogative of issuing writs. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-113 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 96. In Orissa Agro Industries Corporation Limited v. Bharati Industries , after referring to State Bank of India v. State Bank of India Canteen Employees Union , Chairman, Grid Corporation of Orissa v. Sukamani Das and National Highways Authority of India v. Ganga Enterprises , while reminding that where the dispute involves questions of fact, the matter ought not to be entertained under Article 226 of Constitution of India, the apex Court observed as under:
Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. As noted above, the writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised.
(emphasis supplied) PART - VI CONCLUSION: | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-114 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | (emphasis supplied) PART - VI CONCLUSION:
97. As already referred to in these cases, there are serious disputed questions of fact regarding the allegations of fraud and misrepresentation played by the vendors as well as vendees against each other. There are also questions raised regarding the competence and entitlement of a person executing the document. In some cases (W.P. Nos. 22298, 23005 and 23088 of 2004), the sale deeds were cancelled some time in August, 2003, but the writ petitions are filed with considerable delay. In some cases, there are complaints of cancellation of deeds/instruments after lapse of ten years after execution of the original deed. In the opinion of this Court, these are the matters which are to be decided based on evidence and the affidavit evidence available on record is hardly sufficient to decide the issues in such a manner to meet the ends of justice. Indeed, in some of the matters (W.P. Nos. 879, 880, 881, 882, 979, 980 and 981 of 2006), suits are already filed for injunction and the orders of status quo are in force. Therefore, this Court is of considered opinion that the parties should be relegated to the civil Court to file suit either under Section 31 or under Section 34 of Specific Relief Act. Point No. 2 is answered accordingly. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-115 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 98. In the result, for the above reasons, all the writ petitions are dismissed subject to observations made hereinabove. Be it noted, as and when any suits are filed, the civil Court has to decide the issues regarding disputed questions of facts without in any manner influenced by the observations made in this Judgment. There shall be no order as to costs.
Bilal Nazki, J.
1. This batch of writ petitions raise same question of law and fact. Facts in different writ petitions have been noted in the opinion of my brother Mr. Justice V.V.S. Rao and I will not be dealing with the facts in detail. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-116 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 2. The question is, whether a person who sells his property and executes a sale deed and gets it registered in terms of the Registration Act, 1908 (hereinafter referred to as 'the Registration Act'), could unilaterally cancel such sale deed and whether Sub-Registrar was bound to register such a deed. In Writ Petition No. 14007 of 2004, the registration of cancellation of gift deed by Sub-Registrar, Karimnagar was challenged. A learned Single Judge of this Court, relying on an earlier judgment of Single Judge in Property Association of Baptist Churches v. Sub-Registrar, Jangoan , dismissed the writ petition holding that a party aggrieved by registration of a document, had to file a suit. This judgment was challenged in Writ Appeal No. 1486 of 2004. The Division Bench considered the question whether registration of a cancellation deed could be effected by the registering authority. The Division Bench however, by its order dated 11.10.2004, affirmed the order of the learned Single Judge and dismissed the appeal. In that judgment, it was observed that the Registration Act does not enable the registering authority to make an enquiry before registering a cancellation deed. Therefore dispute, if any, between the parties, was a dispute essentially in terms of private law which could only be agitated in common law proceedings by seeking a declaration under the Specific Relief Act. Thereafter, Writ Petition Nos. 23005 and 23088 of 2004 came up before another Judge. In these writ petitions also, registration of cancellation deeds was challenged. The learned Single Judge felt that various legal questions were not brought to the notice of the Division Bench when it decided Writ Appeal No. 972 of 2004 and referred the matters to another Division Bench. The Division Bench referred the matters to the Full Bench. This is the background in which these matters have come up before us. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-117 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 3. The learned Single Judge in Writ Petition Nos. 23005 and 23088 of 2004, was of the opinion that the law laid down by this Court in Writ Appeal No. 1486 of 2004 was sought to be applied to sale deeds whereas registration of cancellation of gift deed was the subject matter in Writ Appeal No. 1486 of 2004. The learned Single Judge in his reference order, observed-
In this regard, it needs to be noticed that a gift deed, on the one hand, and a sale deed, on the other, stand on different footing. Under Section 126 of the Transfer of Property Act, it is competent for a Donor, to suspend or revoke a gift deed, executed by him, whereas similar facility is not available, in case of a sale deed. Gift is a transfer, without any monetary consideration, whereas under a sale transaction, mutual rights and obligations exist, as between a Vendor and Vendee. Section 31 of the Specific Relief Act prescribes the manner, in which a document can be cancelled. What is required to be done through the decree of a Court, cannot be permitted to be undertaken by a party by himself.
And finally observed-
This Court is of the view that, if sale deeds, under which valuable properties are conveyed, are permitted to be cancelled unilaterally, it would not only result in several complications, unnecessary litigations, and hardship to the affected parties, but also bring about situations, having far-reaching implications and unrest in the Society. These aspects do not appear to have been brought to the notice of the Division Bench, which disposed of W.A. No. 972 of 2004. It is felt that the matter needs to be examined either by another Division Bench, or, if necessary, by a Full Bench. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-118 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 4. When the matter came up before the Division Bench, the Division Bench, by a very short order, referred the matter to the Full Bench as it thought that the questions raised were of public importance and the earlier Division Bench had not discussed all the issues which were involved.
5. My brother Mr. Justice V.V.S. Rao has written a detailed opinion and has come to a conclusion that writ petitions deserve to be dismissed. With due respects to my brother, I venture to draft an opinion which is not in conformity with the views of my brother. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-119 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 6. M/s. M.R.K. Chowdary and K. Ramakrishna Reddy, senior Advocates and N. Subba Reddy, V. Venkata Ramana, J. Prabhakar and H. Venugopal, learned counsel, have appeared for petitioners. The main thrust of their contentions is on the fact that the Registration Act has been enacted with a view to provide information to people, who may deal with property, as to the nature and extent of the rights, which, persons may have, affecting that property. They further contend that there would have been no need for having an Act like the Registration Act if it was not felt necessary that people should know and people should be able to find out whether any particular property with which they may be concerned, had been subjected to any liability or legal obligation. Therefore, the scheme of the Registration Act provides that one should give importance and solemnity to certain classes of documents by directing that they shall be compulsorily registrable and the general purpose of the Act appears to be to put on record somewhere the particulars of ownership of property where people can examine those particulars if they are interested in such properties. It also appears from the scheme of the Registration Act that the Act reduces the chances of fraud. It is further contended by the learned Counsel for the petitioners that sale is governed by the provisions of Transfer of Property Act, 1882 (hereinafter referred to as 'the TP Act') and 'sale' is defined under Section 54 of the TP Act as, ""Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. "It further lays down that in case of such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, can only be made by a reqistered instrument, and Section 17 of the Registration Act makes a sale deed compulsorily | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-120 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | reqistered instrument, and Section 17 of the Registration Act makes a sale deed compulsorily registerable. Therefore, it is contended on behalf of petitioners that it is not the registration of the document which is sought to be cancelled by preparing cancellation deeds and getting them registered, in effect, what is sought to be done is cancellation of the sale itself, which is not permissible. Sale, by its definition in the TP Act, is a transfer of ownership in exchange of consideration, which means that there cannot be a unilateral sale. A person must be owner of the property and he should sell it to another person in exchange for a price paid or promised or part-paid or part-promised. There is no concept of a unilateral sale. Sale is always bilateral. It is true there can be many owners and many purchasers but sale is incomplete unless the document is registered, which is a requirement under Section 54 of the TP Act and also under Section 17 of the Registration Act. It is well settled that transfer of ownership means a transfer by a person of his rights and interests in the property in full and permanently. A transfer of a part only of such interests or for a particular period reserving the rest for the transferor himself is not a transfer of ownership. It has also been held by Courts that where a transfer is made for a price paid or promised and the deed is registered, a sale is duly effected and the propriety interest in the property passes. In this connection, reference can be made to (1) Sahadeo Singh v. Kuber Nath Lal , and (2) Kalyan v. Mt. Desrani AIR 1927 All. 361. This Court in Kutcherlakota Vijayalakshmi v. Radimeti Rajaratnamba , even went to the extent of saying that purchaser gets title as soon as the sale deed is registered even if the consideration is not paid and it further held that the remedy for | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-121 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | the sale deed is registered even if the consideration is not paid and it further held that the remedy for the vendor was to claim consideration. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-122 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 7. The learned Counsel for petitioners would further contend that if Section 17 of the Registration Act and Section 54 of the TP Act are read together, then the effect of registration of sale deed would be that the rights of the vendor get extinguished in the property for which he executes a sale deed and if the rights of a person are extinguished and he has no rights whatsoever left in the property, there arises no question of his executing a fresh deed cancelling the sale deed. Sale is not a unilateral act, but is a bilateral act. As a result of this bilateral act, the rights of the vendors in the property get extinguished and get transferred wholly to the vendee. Vendor is left with no rights vis-a-vis the property. Therefore, if any deed styled as 'cancellation of sale deed' is executed or registered, it would amount to fraud because, by such a deed, neither rights are extinguished nor created but has the potential of creating a mischief. The deed of cancellation of sale deed which is duly registered by the Sub-Registrar, does not confer in law any rights to the erstwhile vendors. These documents are only executed for the purpose of creating a mischief and blackmailing the vendees. It was submitted that these documents, after registration, are presented to banking authorities and are given publicity so that the bankers and the prospective purchasers entertain doubts about the title of the land and the vendees-the bona fide purchasers, find difficulty in raising finances, using the property or transfer the property. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-123 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 8. The argument of the other side is that the registration officer is bound to register any document, which is presented before him. He is not supposed to conduct an enquiry whether the document confers any right on the person who presents the documents for registration or who execute such a document. It is further contended that if the petitioners are aggrieved of registration of any document, the remedy available to them is to go to a civil Court and get a declaration.
9. In the light of these submissions, this Court will have to see whether the registration authorities are duty bound to register such sham documents. Let us now see the provisions of the Registration Act. Section 17 of the Registration Act make certain documents compulsorily registrable. Section 18 of this Act mentions the documents, of which, registration is optional. Section 32 mentions the persons who can present the documents for registration. It lays down-
32. Persons to present documents for registration:- Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office:
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
Section 49 lays down-
49. Effect of non-registration of documents required to be registered:- No document required by Section 17 [or by any provision of the Transfer of Property Act, 1882], to be registered shall,-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-124 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | (b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
10. After having a glance over these provisions of the Registration Act, a glance at certain sections of the TP Act is also necessary. Section 54 has already been reproduced hereinabove. Section 4 of the TP Act lays down-
4. Enactments relating to contracts to be taken as part of Contract Act - The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (IX of 1872).
[And Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908 (XVI of 1908)] 'Transfer of property' has been defined under Section 5 as under-
In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and "to transfer property" is to perform such act.
Section 8 of this Act lays down-
8. Operation of transfer - Unless; a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-125 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;
and, where the property is machinery attached to the earth, the movable parts thereof;
and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;
and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;
and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.
Section 53 of TP Act lays down-
53. Fraudulent transfer:
(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-126 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | (2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this subsection, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.
11. The purpose of noting down these provisions of TP Act and the Registration Act is to come to a conclusion as to whether a vendor retains any interest in the property which he sold and of which a sale deed was executed and registered. The answer is emphatic 'no'. Therefore, in my view, when a person transfers all his rights, his rights in the property get extinguished and if he tries to get back the property, it has to be done by challenging the sale deed which he has executed and which is registered by the Sub-Registrar. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-127 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 12. Section 23 of the Indian Contract Act, 1872 (hereinafter referred to as 'the Contract Act') is applicable to the present controversy. It lays down that an agreement is void if it deviates from the provisions of any law. It further lays down that consideration or object of an agreement is lawful unless it is forbidden by any law or is fraudulent or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy. Therefore, such a document, in my view, is a fraudulent document within the meaning of Section 23 of the Contract Act and as such, cannot be registered. It is even against public policy. 'Public policy' was defined by Supreme Court in Murli dhar Agarwal v. State of Uttar Pradesh . In para 28, the Supreme Court discussed public policy vis-a-vis policy of law. Para 28 is reproduced hereunder-
28. The expression 'public policy' has an entirely different meaning from 'policy of the law' and one much more extensive. Nevertheless, the term 'public policy' is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute see Hollinshead v. Hazleton 1916 AC 428. Yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in Egerton v. Brownlow, (1853) 4 HLC 1 at p. 105. It seems clear that the conception of public policy is not only now quite distinct from that of the policy of law but has in fact always been so except is some exceptional instances of confusion which have had no substantial effect on the general course of authority. See W.S.M. Knight, "Public Policy in English Law", 38, Law Quarterly Rev., 207, at pp. 217-218. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-128 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 13. In para 30 of the judgment, it defined 'public policy' on the basis of the definition of Win field as a principle of judicial legislation or interpretation founded on the current needs of the community. Para 30 is reproduced hereunder- | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-129 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 30. "Public policy" has been defined by Winfield as "a principle of judicial legislation or interpretation founded on the current needs of the community". (See Percy H. Winfield, "Public Policy in English Common Law", 42 Harvard Law Rev. 76). Now, this would show that the interests of the whole public must be taken into account; but it leads in practice to the paradox that in many cases what seems to be in contemplation is the interest of one section only of the public, and a small section at that. The explanation of the paradox is that the courts must certainly weigh the interests of the whole community as well as the interests of a considerable section of it, such as tenants, for instance, as a class as in this case. If the decision is in their favour, it means no more than that there is nothing in their conduct which is prejudicial to the nation as a whole. Nor is the benefit of the whole community always a more tacit consideration. The courts may have to strike a balance in express terms between community interests and sectional interests. So here we are concerned with the general freedom of contract which everyone possesses as against the principle that this freedom shall not be used to subject a class, to the harassment of suits without valid or reasonable grounds. Though there is considerable support in judicial dicta for the view that courts cannot create new heads of public policy, see Gherulal Parakh v. Mahadeodas Maiya 1959 Supp (2) SCR 406 at p. 440 : , there is also no lack of judicial authority for the view that the categories of heads of the public policy are not closed and that there remains a broad field within which courts can apply a variable notion of policy as a principle of judicial legislation or interpretation founded on the current needs of the community. See Dennis Lloyd, "Public Policy", (1953), pp. 112-113. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-130 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | In para 31, the Supreme Court held that public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-131 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 14. One of the arguments advanced by the respondents in this case, which has found favour with my brother Mr. Justice V.V.S. Rao, is that the remedy available to the petitioners is to go to a civil Court under the provisions of Specific Relief Act. The same argument can be used against the respondents in this case, who, if aggrieved of registration of a sale deed which they had executed, themselves should have gone to the civil Court for such a remedy. I do not agree with my learned brother that the writs are not maintainable, as the remedy to the petitioners is at common law by going to a civil Court. The effect of registration of a cancellation deed is against public policy and it will create a chaos if such deeds are allowed to be registered. The purpose of registration of a document is not only to see that the rights of the vendor are extinguished and rights of the vendee are created, but the purpose is much more than that. It has been consistently held by the Courts that the purpose of registration is to inform and give notice to the world at large that such a document has been executed. Registration of a document is a notice to all the subsequent purchasers or encumbrances of the same property. The doctrine of constructive notice can be extended to others besides subsequent purchasers or encumbrances, as has been held in Tatyarao Venkatrao Vase v. Puttappa Kotrappa 12 Bom. L.R. 940. Therefore, the effect of registration of a sale deed is not effecting the rights of the present petitioners alone, but that registration is a notice to everybody in the world that the property belongs to the petitioners and if such a right is violated by subsequent registration of a cancellation deed by the Sub-Registrar, it cannot be said that writ petitions are not maintainable. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-132 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 15. If the present practice of cancelling the duly registered sale deeds as prevalent in the State of Andhra Pradesh is approved, then, the whole public policy with regard to registration of documents would get vitiated. Registered sale deeds executed duly, have some sanctity and people at large rely on them to test the title of a particular person to a particular property. If a person executes a sale deed and registers it today and then on the second day gets it cancelled, it will be simply a chaos. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-133 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 16. The object and purpose of registering the immovable property has been discussed herein above. But we think it appropriate to end this discussion on importance and need of registration of documents relating to immovable property, by referring to a judgment of Supreme Court in State of Himachal Pradesh v. Shivalik Agro Poly Products . In paragraphs 5 and 6 of the judgment, the Supreme Court recorded with approval, the legal position in the United States as is described in Corpus Juris Secundum, Vol. 76, page 525. It also took note of the position in the United Kingdom as is described in Halsbury's Laws of England, Vol. 26, Paras 701 and 705. Paragraphs 5 and 6 of the judgment are reproduced as under-
5. By the very nature of things recognition of rights or title over immovable property and transactions therein give rise to manifold problems. Movable property, depending upon its size or dimension, can be kept in absolute control in possession of its owner and a third party may not be in a position even to know where the same has been kept. But this is not so for an immovable property which lies in the open, attached to the earth at a particular place and the owner may be residing at a faraway place. The owner may give the property on lease or licence to someone else who may get physical possession thereof and enjoy the usufruct thereof. In order to get over this difficulty, a system of registration of title to immovable property has been evolved which is followed in many countries. In the United States the legal position has been described as under in Corpus Juris Secundum, Vol. 76, p. 525: | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-134 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | Systems looking toward the registration of titles to land, as distinguished from the practice under Recording Acts generally of recording or registering the evidence of such title, are in effect by virtue of statute in several of the United States, and the courts are bound by such provisions rather than by any doctrine of the common law which is in contravention thereof. These systems are quite generally known as 'Torrens systems' and the statutes providing therefore as 'Torrens Acts' from the name of the author of the Australian Act of 1857, the underlying principle of which they follow. These systems are limited in their application to titles to lane. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-135 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | The predominant object of such legislation is the establishment of a method whereby the title to a particular tract or parcel of real estate will always be ascertainable by reference to a register of conclusive veracity, maintained by the designated public official. In other words, the purpose of these laws is to simplify the transfer of real estate, and to render titles thereto safe and indefeasible through the registration of such titles, the bringing together in one place of all of the facts relative to the title to each particular tract which is registered, and the use of certificates which shall conclusively show at all times the state of such title and the person in whom it is vested. The Torrens system serves a broader purpose than merely to notify the record owner of instruments affecting the title; it is notice to all the world of the condition of the title.
6. The position in the United Kingdom has been described in Halsbury's Laws of England, Vol. 26, paras 701 and 705 as under:
701. Legislation referable to centrally maintained register - The legislation relating to registration of the title is directed to the manner in which the law and practice of conveyancing are to be adapted to the use of a centrally maintained register of title to land. As the use of the register has been extended, so the successive statutes mark the historical development of a system of conveyancing, commonly known as registered conveyancing, which approached maturity as part of the real property legislation of 1925.
The result of that legislation, as respects registered land, is to produce on first registration a State-insured record of entitlement to legal estates in land, open to public inspection, which is to be kept up to date in respect of subsequent transactions in accordance with the conveyancing technique for which the legislation provides. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-136 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | Indirect reference to the earlier legislation is found at the commencement of the Land Registration Act, 1925 in the provision that requires the Chief Land Registrar to continue to keep a register of title to freehold and leasehold land.
705. The Land Registry Act, 1862 - The Land Registry Act, 1862 marked the first attempt to introduce registration of title as distinct from registration of deeds by memorial. Registration was on a voluntary basis and subject to conditions, which included conditions (1) that a marketable title should be shown; (2) that the boundaries of the land should be officially determined and defined as against adjoining owners; and (3) that partial interests should be disclosed and registered. The Act continues to apply to estates registered under it as if the Land Registration Act, 1925 had not been passed, until such time as those estates are registered pursuant to the Act of 1925. The intention that the registration of such estates is to be transferred to the modern register is confirmed by power given to the Lord Chancellor to provide by order that all titles registered under the Land Registry Act, 1862 should be registered under the Land Registration Act, 1925 without cost to the parties interested.
17. To the same effect, reference can also be made to the Supreme Court judgments in Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. and also in State of Rajasthan v. Basant Nahata . | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-137 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 18. Lastly, it was contended by the respondents that under no provision of law the Sub-Registrar is required to register a document after an enquiry as to the ownership of the property with respect to which a document is sought to be registered. It may be true that there is no such provision in the Registration Act, but if strictly interpreted, then the Registration Act would not empower the registering authority to register any document unless it falls within Section 17 or 18 of the Registration Act. Section 17 mentions those documents which are compulsorily registrable and Section 18 mentions those documents, of which, the registration is optional, but, the whole scheme of the Registration Act shows that it is incumbent upon the Registrar not to register documents that are unlawful. Obviously if a person has no right in the property and his interests in the property had extinguished, if he tries to execute any document for the same property, the document would be illegal. If 'A' executes a document with 'B' that he would kill 'C' on payment of a consideration and if such a document is presented before the Sub-Registrar, is the Sub-Registrar duty bound to register such a document? If 'A' executes a sale deed conveying the title of 'Charminar' or High Court for consideration, is the Sub-Registrar bound to register such a document? Besides, in the present case, the documents themselves show that the property had already been conveyed by a registered document, therefore, no enquiry was needed to be conducted. It is only on mere reading of the document that Sub-Registrar would come to a conclusion that the document, which was sought to be registered, was an illegal document and as such could not be registered. Therefore, the argument of the learned Counsel for respondents that the Sub-Registrar has no authority to make enquiries with regard to the title of the parties who executes the documents, would have to be accepted with exceptions. That may be true, but if the document | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-138 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | the documents, would have to be accepted with exceptions. That may be true, but if the document itself shows that the party who executes the document has no title over the property, the Sub-Registrar is not bound to register such a document. The scheme of the Registration Act shows that documents which create interest or extinguish interest are either compulsorily registrable or are to be registered at the option of the executor. Besides this, what is sought to be revoked by this cancellation deed, is the earlier registered sale deed. One of the documents we are taking as an example is the cancellation deed filed in Writ Petition No. 22257 of 2004, which reads as under- | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-139 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | CANCELLATION OF SALE DEED This Cancellation of Sale Deed is made and executed on this the 20th day of August, 2003 at Hyderabad - A.P., by::
1. DR. P.S.N. MURTHI, S/o. Sri P.V. Venkat Rao, aged about 68 years, Both R/o. 8-2-322, Road No. 7, Banjara Hills, Hyderabad-34. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-140 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 2. SMT. P. NAGESWARAMMA, W/o. Dr. P.S.N. Murthi, aged about 64 years;
Hereinafter called the "First party/party of the first part".
AND SRI CH. SURENDRA REDDY, S/o. Sri Ch. Veera Reddy, aged about 42 years, R/o. Plot No. 385, Road No. 22, Jubilee Hills, Hyderabad - A.P.
Hereinafter called the "Second party/ party of the Second part".
WHEREAS the party of the first part herein has executed a Registered Sale Deed in favour of the party of the Second part in respect of undivided share of the property bearing M.C.H. 8-2-322, admeasuring 100 Sq. yards, out of total land measuring 800 Sq. yards, situated at Road No. 7, Banjara Hills, Hyderabad - A.P., under a Regd. Sale Deed, Regd. As Document No. 3600 of 1994, Book-I, Volume : 1612, pages : 291 to 304, dated : 30th August, 1994, Regd. at the office of the Sub-Registrar, Khairatabad, Hyderabad-A.P.
AND WHEREAS due to some unavoidable circumstances not specific to mention hereunder the Sale Deed mentioned above executed by the Party of the First part in favour of the party of the Second part; could not be finalized forthe reasons mentioned hereunder:
i. That the sale consideration was not received by the first party from the second party though the same was written as received in the principal Sale Deed. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-141 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | ii. That it is hereby further declared that the physical possession of the Schedule property still vests with the first party and the same was never delivered to the Party of the Second part;
iii. That the property was not mutated in the name of the second party/Vendee and the Municipal taxes still stand in the name of the First Party/Vendors.
NOW THIS DEED OF CANCELLATION WITNESSET HAS UNDER:
1. THAT with the execution of this deed all the rights, titles, and interests vesting with the party of the Second part shall stand REVOKED & TERMINATED and cancelled, and they shall have no claim of any kind and whatsoever nature on the schedule mentioned property.
2. THAT the parties of the first part now with the execution of these presents shall become the absolute owner of the schedule mentioned property and shall be entitled to enjoy, hold, use & possess the schedule mentioned property in any manner they likes.
SCHEDULE OF THE PROPERTY All that the undivided share of the property bearing M.C.H. 8-2-322 admeasuring 100 Sq. yards, out of total land measuring 800 Sq. yards, situated at Road No. 7, Banjara Hills, Hyderabad - A.P., and bounded as under::
NORTH :: Road No. 3.
SOUTH :: Neighbours Property.
EAST :: Road NO. 7.
WEST :: Neighbours Property.
IN WITNESS WHEREOF the party of the part herein have signed on this Deed of Cancellation of Sale deed with their own free will and consent on the day, month and year above mentioned in the presence of the following witnesses.
WITNESSES::
1. xxxxxxxxx 1. xxxxxx
2. xxxxxxxxx 2. xxxxxx
FIRST PARTY | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-142 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | FIRST PARTY
19. In this document, it has been stated that all rights, titles and interests vesting with the party of the Second part shall stand revoked and terminated. Party of the Second part is not a party to the deed itself, whereas in the preamble of the deed it is stated that the document is executed between Dr. P.S.N. Murthi and Smt. P. Nageswaramma as the first party and Sri Ch. Surendra Reddy as the second party. The second party had not even executed this document and had not signed the document and registration of this document amounts to nullifying of earlier document registered by the Sub-Registrar and the Sub-Registrar does not have any power whatsoever over a document, which is already registered by him. In this connection, we are fortified in our view by a Division Bench judgment of Punjab and Haryana High Court in Ravindra Pharmaceutical Pvt. Ltd. v. State of Haryana . Since this is a small judgment, we are reproducing the whole judgment-
Order (Annexure P-6) issued by Sub-Registrar, Pehowa, on August 10, 1992, is challenged by the petitioner in this writ petition, as having been issued without any authority of law. The petitioner had taken a loan from the bank-respondent No. 4. Subsequently the bank asked the petitioner to furnish additional security that a document was prepared and submitted to the Sub-Registrar, Pehowa, for registration. It was duly registered. Subsequently this notice (Annexure P-6) was issued, calling upon the petitioner to pay deficiency of Rs. 29,000/- on the aforesaid deed. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-143 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 2. On notice of motion having been issued, written statement was filed on behalf of the official respondents, inter alia, asserting that the said deed was a mortgage-deed and required more stamp duty, for which notice was issued. Maintainability of the writ petition was also disputed.
3. We have heard counsel for the parties and we are of the opinion that after a documentis registered, the Sub-Registrar ceases to have jurisdiction over the matter. It is only before registering the document that for the reasons to be recorded, the Sub-Registrar could refuse to register it under Section 71 of the Registration Act. Such an order could be appealed before the Registrar under Section 72 of the Act. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-144 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 4. Apart from that, after registration of the document, the Sub-Registrar could not re-open the matter. It is entirely different as to whether the document was deficiently stamped and could be used as an evidence in a court or not. The Additional Advocate General, Haryana, referred to the provisions of Sections. 31 to 35 of Indian Stamp Act to support his contention that the Collector could determine about the exact amount of stamp duty payable on a document. In our view, no help could be sought from provisions of Sections 31, 33 and 25 of the Indian Stamp Act, as the Collector has not so far taken any action under these provisions. We may observe that such an action can only be taken by the Collector if his opinion is sought by any person by producing a document as to how much stamp-duty is payable on such a document. We take it that in the facts of the present case, after registration of the document the same is with the petitioner and he has not approached the Collector for his opinion under Section 31 of the Indian Stamp Act. No provision of law has been cited before us to cho the Sub-Registrar with power to issue notice for recovery of stamp-duty, if any, after registration of the document. While allowing the writ petition, we quash the notice Annexure P-6. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-145 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 20. To the same effect, there is another judgment of Supreme Court in Komal Chand v. The State of Madhya Pradesh AIR 1996 M.P. 20. In this case, after registration of a document, the registering authority had ordered an enquiry regarding the value of the property covered by the deed. But the Supreme Court found that after registration of a document, the registering authority would become functus officio and held, "After the registration of the 'Takseemnama' on 31st October 1956, the registering authority had no power to hold an enquiry regarding the value of the property covered by the deed and call upon the executant to pay the deficit stamp duty". The Supreme Court was considering this case in the light of the various provisions of Registration Act and also various provisions of the Stamp Act and it held-
Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the Registering Officer registers a document presented to him for registration, the function in the performance of which the document was produced before him is over and thereafter, becomes functus officio having no power under Section 33 to impound the instrument.
The Supreme Court, while coming to this conclusion, relied on an earlier judgment in Government of Uttar Pradesh v. Mohammad Amir Ahmad Khan . That was a case where the question arose whether the Collector had any power to impound an instrument sent to him for adjudication under Section 31 of the Stamp Act. The Supreme Court held that under that Section, the Collector had no such power, as under Section 31 of the Stamp Act, the Collector could only give his opinion as regards the duty, with which, in his judgment, the instrument was chargeable and once that duty was performed by the Collector, he would become functus officio. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-146 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 21. By registering so-called 'Cancellation of Sale Deeds', what the Sub-Registrars are doing, in effect, is that they are cancelling the registrations made earlier and once a registration is made, the Sub-Registrar has no power under the Registration Act to cancel such a registration, as he became a functus officio.
22. I am also in agreement with the judgment of a learned Single Judge of this Court in Badugu Venkata Durga Rao v. Surneni Lakshmi that a person who has executed a sale deed and got it registered cannot subsequently execute a document unilaterally cancelling the earlier sale deed.
23. For the reasons stated hereinabove, all the writ petitions are allowed.
G. Chandraiah, J. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-147 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | G. Chandraiah, J.
1. I am in complete agreement with the detailed judgment prepared by my learned brother Justice V.V.S. Rao. However, I would like to reiterate that there is no specific prohibition under the Registration Act, 1908 (for short 'the Act') to register a deed of cancellation. The registering officer can refuse registration in the situations arising under Sections 19 to 22, 32 and 35 and the relevant rules are Rules 26, 58 and 117. But in all other cases where the conditions under the Act i.e., Sections 17 and 18 of the Act are fulfilled, the registering officer is bound to register the document and it is not in dispute that the cancellation deed fulfills the conditions for the purpose of registration. However, the Act does not permit the registering officer to enquire into the title of the party presenting the document for registration and the situations mentioned in the above said provisions under which the registration can be refused are for different purpose and only under those contingencies he can refuse. This Court cannot enlarge the scope of these provisions under the guise of interpretation of statute. Further when there is no prohibition under the Act the registering officer has to register the documents presented for registration in accordance with law and this Court by judicial interpretation cannot impose the same into the statute. It is well settled that what has not been provided for in a statute cannot be supplied by Courts and to do so will amount to legislating which is not the function of the Courts. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-148 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 2. The main grievance of the petitioners is that by permitting the registration of cancellation deeds, the vendors of immovable property are misusing the provisions and allowing it would amount to abuse of process of law. This contention cannot be countenanced for the reason that admittedly there is no prohibition under the statute and if there is misuse, it is for the legislators to make necessary amendments and this Court under Article 226 of the Constitution of India cannot step into the shoes of the legislators. At this juncture it is necessary to look into the judgment of the Constitutional Bench of the Apex Court in Padma Sundara Rao v. State of T.N. . The facts in the said case reveal that a notification under Section 4(1) of the Land Acquisition Act, 1894 was issued and a declaration under Section 6(1) of the said Act was made and published in Official Gazettee within the period of three years prescribed under the proviso thereto, which was subsequently substituted by Act 68 of 1984. The notification has been quashed by the High Court. The question that arose for consideration before the Apex Court was whether after quashing of the notification under Section 6 of the said Act, fresh period of limitation was available to the State Government to issue another notification under Section 6. It was contended on behalf of the appellant therein that the declaration under Section 6 has to be issued within the specified time and merely because the court has quashed the declaration concerned, an extended time period is not to be provided. In other words, the controversy was whether the court can extend the period of limitation prescribed by the statute on the ground that the earlier notification was quashed by the Court. The Apex Court answered the issue in the negative and made the following observations with regard to interpretation of statutes: | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-149 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 12. The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.... | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-150 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 13. In D.R. Venkatchalam v. Dy. Transport Commr (1977) 2 SCC 283 it was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. .).
(Emphasis added)
3. Coming to the present case, as stated above, there is no prohibition under the Act for the vendor to get the cancellation deed registered. Therefore, this Court cannot read the same in the statute. However, the aggrieved party can always approach competent civil court. The learned Government Pleader submitted that even if the cancellation deed is registered, as per the instructions given by I.G. under Section 69 of the Act, the registering officer is issuing notice to the earlier purchaser and also endorsing on the cancellation deed that such cancellation deed does not alter the rights. Further some of the parties filed suits and obtained status quo orders.
4. It is also to be seen that there are many disputed questions of fact, which this Court cannot delve under Article 226 of the Constitution of India. Further it is not as though the petitioners are without any remedy, they have alternative remedy before the competent civil court, which will be in a position to adjudicate based on the evidence both oral and documentary available on record and, therefore, when an alternative and efficacious remedy is available, writ jurisdiction cannot be invoked. | https://indiankanoon.org/doc/803172/ |
049e3c4ea2d9-151 | Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006 | 5. For the foregoing reasons, the writ petitions deserve to be dismissed as opined by the learned brother Justice V.V.S. Rao.
JUDGMENT OF THE COURT BY MAJORITY The writ petitions are dismissed with no costs.
Since substantial questions of public importance are raised, leave to file appeal to Supreme Court, is granted. | https://indiankanoon.org/doc/803172/ |
32a51fd0b970-0 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | JUDGMENT Seshachalapati, J.
1. This is an appeal against the judgment and decree of the learned 1st Additional Subordinate Judge, Vijayawada, in O. S. No. 86 of 1949. The suit was brought by one Sree Raja Kakarlapudi Venkata Sudarsana Sundara Narasayamma Garu, for a declaration that the sale of 9,100 B-Class shares of the Andhra Cement Company Ltd., Vijayawada (3rd defendant) by the Andhra Bank Ltd., Vijayawada (1st defendant) to the Jaipur Sugar Company Ltd., Rayagaddah (2nd defendant), is contrary to law, void and did not affect her right to redeem the pledge effected by her husband in favour of the 1st defendant-Bank and for an injunction restraining the 3rd defendant from recognising and registering the shares in the name of the 2nd defendant. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-1 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | The case of the plaintiff is that to secure the due payment of certain advances made by the 1st defendant-Bank to her husband amounting to Rs. 45,000 he pledged 9,100 B-Class shares bearing Nos. 143762 to 152S61 of the 3rd defendant Company, that her husband died on 20-4-1948 at Madras and that she was his widow and nearest heir, that in spite of her intimation that she was making arrangements to pay the amounts due_to the 1st defendant Bank and redeem the pledge, the 1st defendant-Bank without notice to her sold the 9100 B-Class shares to the 2nd defendant-company, and that the sale is illegal and void and would not affect her right to redeem the pledge. She, therefore, prayed for a de deration that her right to redeem the pledge remained unaffected and for an injunction restraining the 3rd defendant company from recognising and registering the shares. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-2 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 2. The 1st defendant-Bank contended in its written statement; first, that inasmuch as on her own admissions the late R. K. N. G. Raju died leaving a will appointing her as an executrix, she was not entitled to 61e a suit without obtaining a probate or producing a succession Certificate; secondly, that her husband, the late R. K, N. G. Raju, hypothecated the shares in question on 22-9-19-17 along with blank transfers duly signed by him and that in that instrument power had specifically been given to the Bank to sell and dispose of the shares either by public auction or private treaty as the Bank might deem fit without reference to him, and thirdly, that the Bank did demand the repayment of the loans and sold them only when there was no repayment and that even if notice of sab is required, the letters written by the Bank constituted sufficient notice.
It was lastly contended that the suit for a mere declaration with regard to the sale of shares was misconceived and not maintainable in law. The 2nd defendant-company while adopting the main contentions of the 1st defendant pleaded that it is a bona fide purchase for value and that the plaintiff had no cause of action against it. The 3rd defendant Company filed a written statement pleading that it had done nothing to prejudice the interests of the parties concerned, that it was not a necessary party to the suit, that the plaintiff was not entitled to any injunction in the manner prayed for, and that it is in no way concerned with the disputes alleged in the plaint.
3. On those pleadings, the learned Subordinate Judge framed the following issues :
1. What are the terms of pledge?
2. Whether the sale of shares by the 1st defendant to the 2nd defendant is true, valid and binding on the plaintiff? | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-3 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 3. Whether the plaintiff is entitled to the declaration prayed for?
4. Whether the plaintiff cannot file this suit without obtaining probate?
5. Whether the suit is not maintainable as it is for mere declaration?
6. To what relief is the plaintiff entitled?
4. On issues, 1, 2 and 3, the learned Subordinate Judge, after a review of the evidence held that the only objection of the plaintiff that there was no notice under Section 176 of the Indian Contract Act was not tenable, as in the circumstances of this case it should be held that the pledger waived the right to receive the notice of sale, and that such a waiver was legal and valid. He also held that the sale by the 1st defendant in favour of the 2nd defendant was at the prevailing market rate and that there was no evidence of any dishonesty or fraud on the part of the 1st defendant. On those findings, the learned Subordinate Judge held that the impugned sale of shares by the 1st defendant to the 2nd defendant was binding on the plaintiff.
5. On issue 4, the learned Subordinate Judge held that inasmuch as on the admissions of the plaintiff herself, her husband the late R. K. N. G. Raju left a will appointing her as an executrix in the absence of a probate or at least the production at the will, it could not be said that the plaintiff had established her prima facie right to maintain th suit as the heir of her husband.
6. As regards the form of the suit, the learned Subordinate Judge held that a suit for declaration with an ancillary relief for injunction was maintainable in the circumstances of this case. But in view of his findings on issues 1, 2, 3 and 4, the learned Judge dismissed the suit. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-4 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 7. The plaintiff, filed the present appeal in the High Court of Madras, which eventually was transferred to this Court. During the pendency of the appeal, the appellant died and the present four appellants have been brought on record as her legal representatives.
8. In this appeal, it has been contended by Mr. Ramachandra Raju, the learned counsel for the ap* pellants that (i) there is no default in the matter of payment of the debt since neither in the instrument of pledge (Ex. B-1), nor in the subsequent letters of demand written by the 1st defendant-Bank was any specific date for the repayment mentioned; (ii) that in any event the sale is invalid, because there was no notice as required by Section 176 of the Indian Contract Act; (iii) that on tile facts of this case there was no waiver of such a notice by the plaintiff either expressly or by conduct amounting to such waiver; and (iv) that the waiver relied on by the learned Subordinafe Judge is only referable to certain expressions in the contract of pledge (Ex. B-1) which, even on the assumption that they amount to waiver are inoperative in law as they would amount to terms which cannot be legally incorporated in the contract, being manifestly opposed to the mandatory terms of Section 176. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-5 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 9. On the other hand, it has been contended by the learned counsel for the 1st defendant-Bank that (i) on a proper construction of Ex. B-1 coupled with the execution of blank transfers, the transaction would amount to mortgage of shares and that the legal estate in the shares stood transferred to the 1st defendant-Bank, with the result that when on demand the debt was not discharged, it could foreclose and sell the shares and convey a valid title to the purchaser; (ii) that even on the assumption that Ex. B-1 constitutes a pledge of the shares, the letters written by the Bank (Exs. B-5, 6 and 8) are sufficient notice; (iii) that assuming they do not constitute sufficient notice, the transaction of sale cannot be held to be invalid because in Ex. B-1 there is an express and unambiguous waiver of the right to receive such a notice.
It is also argued that on the footing that the sale in favour of the 2nd defendant is invalid and inoperative, the proper remedy for the plaintiff is to sue for redemption of the shares by tendering the money or for damages on the foot of conversion. Lastly, it is argued that the plaintiff, having been appointed, on her own admissions as an executrix under the will of her husband she cannot file the present suit without obtaining a probate and without any reference to the will whatever. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-6 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 10. For appreciating the contentions raised and debated before us, it would be necessary to state in brief outline the main facts of this case. The husband of the plaintiff was one R. K. N. G. Raju. He held 9100 B-class shares in the Andhra Cement Company bearing share Nos. 143762 to 152861, stated to have been purchased by him at Rs. 12/-per share. He had an over-draft account with the 1st defendant, Andhra Bank Ltd., both in his personal capacity and as partner of Raja Industrial and Chemical Agencies. On those two accounts the 1st defendant-Bank made several advances to him, on various dates in 1947 totalling upto a sum of Rs. 45,000. In order to secure the due payment of the amounts, R. K. N. G. Raju executed an instrument of security on 22-9-1947. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-7 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | Along with the said instrument, 9100 B-class shares were delivered to the 1st defendant Bank together with blank share transfer forms duly signed by R. K. N. G. Raju. During his life time certain payments were made to the Bank. R. K. N. G. Raju died at Madras on 20-4-1948. On 25-11-1948, the counsel for the plaintiff wrote to the 1st defendant-bank a communication (Ex. B-2) stating that R. K. N. G. Raju diet! at Madras on 20-4-1948, leaving a will appointing his wife as the executrix, and that he was instructed to take steps to secure adequate iegal representation tp the estate of the deceased. In that connection the counsel requested the 1st defendant-Bank to furnish the particulars of the account of the late R. K. N. G. Raju with the 1st defendant-bank, and also the amount due to the Bank in respect of over-draft transactions covered by tide pledge of 9100 B-class shares in the Andhra Cement Company. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-8 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | la reply to that communication from the counsel, the 1st defendant-Bank wrote a letter (Ex. B-3) dated 8-12-1948 that all necessary particulars were furnished to the 1st plaintiff and advised the counsel to obtain the information from her. By a letter of even date (Ex. B-4) the Bank wrote to the plaintiff, the widow of R. K. N. G. Raju, that with respect to the over-draft accounts by her husband and the pledge of 9100 B-Class shares in the Andlira Cement Company, a sum of Rs. 37,216-8-0 was due. The Bank requested that arrangements might be made for the payment of the debts and taking the delivery of the said shares.
11. On 17-12-1948, the Bank wrote a letter (Ex. B-5) to the plaintiff giving particulars of the advances made to her husband and the amounts due and requesting her as the legal heir of the late R. K. N. G. Raju to take immediate steps to repay the outstanding amounts due to the Bank. This letter was addressed to the plaintiff C/o the Andhra Cement Company Ltd. This letter obviously did not reach the plaintiff as it was returned unserved. Thereupon the Bank wrote another letter (Ex. B-61 dated 5-1-1949 to her address at Rajahrnundry, giving the particulars of the loans and the balance due and requiring her to take immediate steps for repayment. It is not in dispute that this letter was Received by the plaintiff. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-9 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 12. On 7-1-1949, the counsel of the plaintiff from Madras wrote to the Bank asking for the particulars asked for hy him on the assumption that the widow of the deceased would have already authorised the Bank to disclose the information. Accordingly the 1st defendant-Bank wrote to the counsel a letter (Ex. B-8) dated 9-2-1949. There was no reply by the plaintiff to the 1st defendant-Bank's letter dated 5-1-1949.
13. The 1st defendant-Bank thereupon would seem to have made enquiries with Somayajulu and Co., Slock and Share Brokers, Madras as to the market price of the B-class shares of the Andhra Cement Company. By a letter dated 10-2-1949, the firm advised the 1st-defendant-Bank that it would be possible to sell the Andhra Cement Company Ltd.'s B-class shares round-about Rs. 6-4-0 per share, | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-10 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 14. On 25-3-1949, the 1st defendant-Bank sold the 9198, B-class shares of the Andhra Cement Company Ltd., at Rs. 6-5-0 per share to the 2nd defendant the Jaipur Sugar Company Ltd., and had also forwarded to them 5 transfer deeds signed by R. K. N. G. Raju for their signatures. On the same day the 1st defendant-Bank wrote a letter (Ex. B-12) to the plaintiff informing her that since no arrangements had been made by her for the adjustment of the loans, the Bank decided to realise the amounts due by the sale of the securities pledged and accordingly sold them at Rs. 6-5-0 per share. On 30-3-1949, a telegram (Ex. B-13) was sent by the plaintiff to the 1st defendant-Bank to the effect that the sale of 9100 B-class shares was illegal and that the Bank was liable in damages.
15. On 5-4-1949, the counsel for the plaintiff sent a registered notice (Ex. B-14) to the 1st defendant-Bank with a copy to the Andhra Cement Company Ltd., (3rd defendant) stating that he confirmed the telegram sent by the plaintiff on 30-4-1949, and that the sale of the shares was without notice to his client and, therefore, invalid and not binding on her.
16. The present action was then instituted by the plaintiff on or about 20-4-1949 for the reliefs already mentioned. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-11 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 17. Before dealing with the main case of the appellants, we consider it convenient to deal at the outset with a contention advanced by Mr. Somasundaram, that Ex. B-1 is not an instrument of pledge, hut a mortgage. The relevant portion of the instrument (Ex. B-1) may he extracted :
"That failing payment on demand to you by us of the amount of such advances you shall be entitled, but not hound to sell or otherwise dispose of all or any of the said moveahle properties, marketable securities and goods by public auction or private contract in such manner and upon such term and subject to such conditions as you may think fit without any reference to us or obtaining our consent and the proceeds of sale or disposal shall be applied first in payment of all costs, charges and expenses of and incidental to such sale or disposal and the enforcement of the pledge and charge in your favour hereby created."
18. Under the Indian Law, unlike in England a share is not a mere chose in action. Section 137 of the Transfer of Property Act clearly states that Chapter VIII of the Act dealing with transfer of actionable claims will not apply to stocks, shares or debentures, or to instruments which are for the time being by law or custom, negotiable. Or to any mercantile documents of title of goods. Section 2 (7) of the Sale of Goods Act defines goods as meaning 'every kind of moveable property other than shares etc.' With respect, therefore, to this class of moveable property there can be a mortgage or a pledge. This distinction between the two is clearly brought out in the following passage in Halsbury's Laws of England, Hailsham Edn. (2nd Edn.) para 300 page 226 of Vol XXIII. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-12 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | "A mortgage of personal chattels is essentially different from a pledge or pawn under which money is advanced upon the security of chattels delivered into the possession of the lender, such delivery of possession being on essential element of the transaction. A mortgage conveys the whole legal interest in the chattels; a pledge or pawn conveys only a special properly, leaving the general property in the pledger or pawnor; the pledgee or pawnee never has the absolute ownership of the goods, but has a special property in them coupled with a power of selling and transferring them to a purchaser on default of payment at the stipulated time, if any, or at a reasonable time after demand and non-payment if no time for payment is agreed upon."
19. The essential distinction, therefore, between a pledge and a mortgage is that unlike a pledgee a mortgagee acquires general property in the thing mortgaged subject to the right of redemption of the mortgagor. In other words, the legal estate in the goods mortgaged passes on to the mortgagee. But a pledgee has only the special property in the goods pledged, namely, the right of retainer of the goods as security, and in case of default he must either bring a suit against the pawnor or sell the goods after giving a reasonable notice. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-13 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 20. Whether a particular transaction is a mortgage of moveable property or a pledge can only be determined by reference to the intention of the parties, and other surrounding circumstances. (Vide Arjun Prasad v. Central Bank of India, (S) ). It is argued by Mr. Somasundaram that the execution along with Ex. B-1 of blank transfers indicates that it is a mortgage. We are unable to agree that that circumstance alone, without more will mean that the transaction is one of mortgage. A pledge of shares can also be accompanied by blank transfers as in the case of Official Assignee, Bombay v. Madholal Sindhu, AIR 1917 Bom 217. In Elaya Nayar v. Krishna Pattar, AIR 1943 Mad 74, it was held that a share in a company could be the subject matter of a pledge which can be enforced, but unless the pledgee at the time of deposit secures a deed of transfer which he can use in case of necessity or obtains one from his debtor at a later stage, he must have recourse to the court when he wishes to enforce his security.
In other words, obtaining of blank transfers is a convenient mode of exercising the right of sale when the pledgee in law is entitled to do. In any view, it seems to us that this question as to the nature of the transaction cannot be considered at this stage, because the parties throughout treated the transaction as one of pledge. In Ex. B-8 the plaintiff's counsel referred to the transaction as a pledge. In some of the letters written by the Bank the expression 'pledge' is used. The plaint proceeds upon the footing that the shares were pledged. The expression 'pledge' has a definite legal significance and there is no warrant for the assumption that the 1st defendant-Bank used the expression 'pledge' by inadvertence. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-14 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | In the written statement filed by the 1st defendant the plea that the transaction amounts to a mortgage, and not a pledge is not clearly set out. The 1st issue framed at the trial is, 'What are the terms of the pledge'? The main ease as put forward by the parties in the trial court was as to whether there was notice as required under Section 176 of the Indian Contract Act, or whether on the facts of this case there was a waiver by the pledger of the right to receive notice. There was no oral evidence adduced by either side as to the suit transaction. In those circumstances, we are of opinion that the transaction must be treated as one of pledge alone.
21. The term 'pledge' is defined in Section 172 of the Indian Contract Act as 'the bailment of goods as security for payment of a debt or performance of a promise'. The bailor is called the pawnor, and the bailee is called the pawnee.
22. Section 176 of the Act deals with the right of the pawnee or the pledgee in the case of default by the pledger. The Section is in these terms :
"If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security, or he may sell the thing pledged, on giving the pawnor rea^ sonable notice of the sale. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-15 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor."
23. On a plain reading of the section it seems to us that before exercising the power of sale the pawnee should give to the pledger reasonable notion of the sale. The contention of the Advocate for the respondent, however, is that in Ex. B-1 the pawnor had waived the right to receive such a notice and this found favour with the trial court. The learned counsel for the appellants has assailed the correctness of that finding 011 various grounds,
24. It is first contended that in the ease the waiver is not founded on an assent or affirmance of the sale by the pledger subsequent to the contract of pledge, but is referable only to the recitals of Ex. B-1, and that those recitals are not clear and unambiguous that notice has been waived. In support of that contention reliance was placed upon the decision of Wallis J., in Venkatesa Perumal Chetty v. S. Parthasarthy Iyengar, 18 Ind Cas 986 (Mad), where it was held that a party to a contract who relies upon a clause as affording him protection from liability cannot succeed unless the clause he relies on is clearly and unambiguously repressed. We do not think the expression in Ex. B-1 to the effect that the sale could be held by the pledgee without reference to the pledger is ambiguous or uncertain. It seems to vis that the expression 'without reference to us' is wide enough to include notice. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-16 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 25. But the more important argument of Mr. liamachandra Raju is that even assuming thai the expression constitutes waiver of notice, such a waiver is not permissible as it would be inconsistent with the mandatory terms of Section 176. It is argued that wherever the legislature thought that a particular term could be the subject of a contract it had said so by incorporating words such as : 'subject to the contract' or 'in the absence of a contract to the contrary'. In Section 176 there are no such qualifications. Therefore, any contract to the terms of Section 176 would be a contract contrary inconsistent with the provisions of tbe Act within the meaning of Section 1 of the Contract Act. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-17 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 26. There is considerable judicial authority in support of the above contention. In Co-operative Hindustan Bank Ltd. v. Surendra Nath Dey, AIR 1932 Cal 524 at p. 532, a Bench of the Calcutta High Court has held that Section 176 of the Contract Act unlike some other sections, such as, 163, 171, 172 does not contain a saving clause in respect of special contracts contrary to its express terms, and that inasmuch as Section 177 gives to the pawnor a right to redeem even after the stipulated time for payment but before the sale, in order that that provision should not be made nugatory, the proper interpretation to put on Section 176 is to hold notwithstanding any contract to the contrary notice has to be given. In AIR 1947 Bom 217 at p. 228, a Bench of the Bombay High Court consisting of Stone C. J. and Chagla J., took substantially the same view. The learned Chief Justice observed as follows :
"In my judgment, a notice must be given in all cases of pledge, even when the instrument of pledge itself contains an unconditional power of sale. This opinion is held by the three distinguished editors (Sir Frederick Pollock, Sir Dinshah Mulla and Sir Maurice Gwyer) of Mulla's Indian Contract Act, Edn. 7 (see p. 519). It follows that even if It is possible to regard the contract of 23rd, 24th October, 1941, as a sale by the Bank as pledgee of Mr. Nissim that sale is invalid as being in breach of Section 176. unless it could be shown that before this insolvency Mr. Nissim effectively waived the giving of notice so as to bind the Official Assignee." | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-18 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 27. This case was carried in appeal to the Federal Court. Their Lordships held by a majority that in view of the assent for sale of shares by the pledger and the acquiescence thereof by the Official Assignee the sale was good and the further questions argued heforc them as to whether the pledgor could enter into a contract contrary to the provisions of Section 176 or whether a want of notice is a mere irregularity not affecting the title of the bona fide purchaser for value did not arise for consideration. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-19 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 28. In Bharat Bank Ltd. v. Sheoji Prasad, AIR 1953 Pat 28S, a Bench of the Patna High Court has held that Section 176 is mandatory and the required notice has to be given for the right to exercise redemption, and under Section 176 it: would be rendered illusory if such notice is not given.
29. In Hulas Kunwar v. Allahabad Bank Ltd., , a Bench of the Calcutta High Court has held following the decision in AIR 1932 Cal 524 at p. 532, that the obligation of the pawnee to give a reasonable notice of sale under Section 176 is mandatory and supersedes any contract to the contrary. In that case as in the case of AIR 1932 Cal 524 at pp. 525-532, the contract of pledge authorised the pawnor. It was held in both the decisions that such a clause could not relieve the pawnee from the mandatory obligation to give notice.
30. When in an enactment, in some sections the expression 'subject to the contract' or 'in the absence of the contract to the contrary' are used end in. others not, it is a well settled principle of construction that the provisions of the latter class of sections are not subject to contracts to the contrary. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-20 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 31. In Mohammed Slier Khan v. Swami Dayal, 1LR 44 All 185 : (AIR 1922 PC 17), while dealing with Section 60 of the Transfer of Property Act, their Lordships of the Judicial Committee observed as follows :
"The section is unqualified in its terms, and contains no saving provisions, as other sections do, in favour of contracts to the contrary. Their Lordships, therefore, see no sufficient reason for withholding from the words of the section their full force and effect. In this view the mortgagor's right to redeem must be affirmed, and as both suits are not before the Board there will he no difficulty in passing one decree in both so framed as to give due effect to this right." To the same effect is the observation of Srinivasan Ayyangar J., in Seeti Kutti v. Kunhi Pathumma, 1LR 40 Mad 1040 at p. 1062 : (AIR 1919 Mad 672 at p. 984) :
"The Indian Legislature in Section 60 of the Transfer of Property Act, as has been pointed out, has omitted the words 'in the absence of a contract to the contrary' with a view to prevent the mortgagor from contracting himself out of his right of redemption at the time of the mortgage.''
32. Following the decision arising under Section 176 of the Indian Contract Act and the principle of construction enunciated in the two aforesaid decisions, it seems to us that the contention of Mr. Ramachandra Raju that at the time of enter-ing into a contract of pledge the pawnor cannot agree to waive notice as it would be inconsistent with the provisions of Section 176, should prevail. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-21 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 33. Mr. Somasundaram very strenuously contended before us that the right to receive notice 35 conceived in the interests of the pawnor and when a statute gives a party certain advantage or right it is always open to him to waive it- In support of the contention he cited a large number of authorities.
34. In Wilson v. McIntosh, 1894 AC 129, the facts were that the respondent. Mclntosh lodged an application in the office of the Registrar General to bring under the Real Property Act (26 Victoria No. 9) certain lands in New South Wales. Under Section 23 of that Act every caveat shall bo deemed to have lapsed unless the caveator took the proceedings in any court of competent jurisdiction to establish his title to the estate and gave notice of that to the Registrar General and also obtained an injunction from the Supreme Court, In the case referred to above the respondent filed a case and obtained an order against the appellant to state her case both of which proceeded upon the fooling that the caveat was still in existence.
It was held that the respondent having waived her right to claim that the caveat should be regarded as having 3apsed and obtained .1 case stated by the applicant he cannot in equity plead the bar under Section 23. The decision rested on the assumption that an applicant may waive the objection of pleading lapse under Section 23 of the Real Property Act. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-22 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 35. In Toronto Corporation v. Russell. 1908 AC 493, the facts were that in the city ot Toronto a land was advertised for sale under Ontorio Assessment Act of 1897 for arrears of taxes and after an adjournment was bought by the appellant. But before the sale the appellants published their intention to purchase in case the amount fixed was less than the arrears of tax, but omitted to give the respondent a notice in writing under Section 184 to that effect. It was held by the Privy Council that the notice under that Section could be waived and that as a matter of fact, it was waived.
36. In Selwyn v. Garfit, (1888) 38 Ch D 273, the question of waiver did nut really fall to be considered as the only man, the mortgagor, who could have waived notice had already parted with his equity of redemption as has been made clear in the judgment of Bowcn L. J.
37. In Griffiths v. Earl of Dudley, (1882) 9 QBD 357, the question was us to whether a workman could agree not to claim compensation for personal injuries under the Employer's Liability Act of 1880. It was held that the widow of the workman was bound by the conditions of employment assented to by her husband and the agreement not to claim damages for personal injuries was on the facts of that case not opposed to public policy. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-23 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 38. A reference was also made to the decision of the Privy Council in Vellayan Chettiar v. Government of the Province of Madras, ILR 1948 Mad 214 : (AIR 1947 PC 197), where Lord Simonds speaking for the Privy Council held that there is no inconsistency between the proposition that the provisions of Section 80 are mandatory and must be enforced by the court, and that they may be waived by the authority for whose benefit they are provided. This decision is not directly in point, for, the question of contracting out of the mandatory terms of the section did not arise in that ease.
39. In Raja Chetty v. Jagannathadas, , a Bench of the Madras High Court held that notwithstanding the provisions of the Madras Building Lease and Rent Control Act of 1946, a landlord could contract to waive his right to evict the tenant. It was pointed out by the learned Chief Justice that no public policy, was involved in that case and a landlord could well abridge his right. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-24 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 40. The rule as to waiver is stated in Maxwell on Interpretation of Statutes p. 388 (10th Edn.) in these words:
"Every one has a right to waive and to agree to waive the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy."
41. Mr. Ramachandra Raju has contended that the terms of Section 176 are conceived in general public interest and referable to public policy. It is argued by him that in the stress of need a pledger might assent to terms so manifestly deleterious to his interest and it is to prevent such people being exploited and that some notice being given before the pledgee exercises the right of sale that advisedly in Section 176 no provision is made to contract contrary to its terms. In this contention strong reliance was placed on the observation of Farwell J. in Soho Square Syndicate Ltd. v. E. Pollard and Co. Ltd., 1940-1 Ch 638 at p. C43, to the following effect :
"If if be right to say that a mortgagee, by merely getting the consent of the mortgagor, can avoid the ..... necessity of applying to the Court. a large part of the protection which this Act was intended to provide would virtually disappear. People in the position of such persons as I have mentioned might easily be persuaded to give a consent without really knowing what exactly was involved in such consent, and an opportunity of expressing their reasons for their inability to pay, whatever they may he, and of stating their difficulties, which is now afforded to them by the necessity of an application to the court would be entirely removed. Moreover, difficult questions might also arise whether the consent had in fact been obtained, or whether it was a consent which was binding, and similar questions.'' | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-25 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 42. The point that arose for decision in that case was whether a mortgagor could under the provisions of the Courts (Emergency Powers) Act, 1939 assent to the appointment of a Receiver without the leave of the Court. The learned Judge held that he could not so assent as the provision for the leave of the court being obtained for the appointment of a Receiver was conceived in the interests of the people who had gone to war and was referable to public policy.
43. In Bowmaker, Ltd. v. Tabor, 1941-2 KB 1. Goddard L. J., has taken the same view with reference to some of the other provisions of the Courts (Emergency Powers) Act and had approved the principle of the decision of Farwell J., in the case earlier referred to.
44. It is not necessary for us to consider in this case the question further, in view of the direct decisions of the Indian High Courts, with which, we arc in agreement interpreting Section 176 of the Contract Act, and holding that its terms are mandatory and that, even if there is a term in the contract of pledgo to waive notice, still the pledgee is not relieved of his obligation to give notice before the sale.
45. We, therefore, do not accede to the contention very strenuously pressed on us by Mr. Somasundaram that in this case the objection as to want of notice is without substance by reason ot the waiver of such a notice by the pledger in Ex. B-1. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-26 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 46. But we are of opinion that the suit must fail for a different reason. In the plaint the plaintiff claims to be the widow and the heir of the late R.K.N.G. Raju and entitled to his estate including the shares in the suit. It is not in dispute that R.K.N.G, Raju died at Madras on 20-4-1948 leaving a will. The counsel of the plaintiff wrote to the 1st defendant-Bank a letter on 25th November, 1948 marked as Ex. B-2 in these terms :
"To The Agent, Andhra Bank Ltd., Bezwada.
Sir, Reference : Sri R. K. N. G. Raju Garu.
The above gentleman died at Madras on 20th April 1948, leaving a will appointing his wife as executrix. In the said will he makes a reference to the current account dealings he had with you. From a perusal of his Bank Pass Book we have the following particulars, folio No. 683/3, account 822.
I am now instructed to take steps to secure adequate legal representation to the estate of the above-named deceased. The balance of his account with you has to be disclosed to Court. I shall he highly obliged if you can furnish to me at the earliest opportunity the balance now standing to the credit of the abovenarned deceased together with accrued interest, if any. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-27 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | I further understand that he has pledged with you 9100-B, ordinary fully paid up shares which he held in the Andhra Cement Company Limited, Rezwada on 22nd September, 1947 to secure overdraft account. Kindly furnish me the particulars as to the rate of interest and the amount now outstanding to you in respect of the over-draft transactions."
47. From this letter it is clear that the plaintiff was appointed the executrix and that she was taking steps to get the estate duly represented, which in the circumstances, could only mean taking out probate. On those facts the 1st question that emerges is whether the suit could be filed without obtaining the probate.
48. It is common ground between the parties that if the will had been executed at Madras, it is necessary to obtain the probate before filing the suit. Section 213 of the Indian Succession Act inter alia provides as follows :
Section 213 (1) :
"No right as executor or legatee can be established in any court of Justice, unless a court of competent jurisdiction in British India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."
49. On behalf of the appellants it is contended that Section 213 of the Succession Act has no application to this case for two reasons : (1) that there is no proof that the will of the late R. K. N. G. Raju was executed at Madras; and (ii) that even on the footing that it was so executed, the present suit Is not filed for establishing any right as an executrix or legatee and has been instituted by the plaintiff in ber capacity as the heir of late R. K. N. G. Raju. We will now take up the first question. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-28 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 50. In Ex. B-2 there is no mention as to the place where the will was executed, though the suggestion that steps were being taken to get the estate duly represented may be suggestive of the will having been executed at Madras. On behalf of the defendant interrogatories were served on the plaintiff on 5-1-1950, under O. 12 R. 2, C. P. C. in these terms :
"The Andhra Bank Ltd., and others.
Defendants.
Notice to admit documents under O. XII, R. 3 C. P. C.
To Sri Metlapati Koteswara Rao Pantulu Gam, B.A.B.L., Advocate for plaintiff, Vijayawada.
Take notice that you are hereby required to reply to the following matters within two days of the receipt of this notice :
(1) Do you admit the execution of the will-nama by the plaintiff's husband in Madras?
(2) Do you admit the registered notice, dated 25th November, 1948, caused by the plaintiff to be issued by Sri P. Satyanarayana Raju Garu, Advocate, Madras, to the first defendant-Bank after giving instructions?
The said notice has been filed in the court."
These interrogatories were not answered,
51. On 14-12-1950, a notice was served on the counsel appearing for the plaintiff in these terms :
"O. S. No. 86 of 1949. Between :
Sri Rajah Kakarlapudi Venkata Sudarsana Sundara Narasayamma Garu..... Plaintiff.
And The Andhra Bank Ltd., and Others.
Defendants. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-29 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | And The Andhra Bank Ltd., and Others.
Defendants.
NOTICE TO PRODUCE DOCUMENTS To Sri Metlapalli Koteswara Rao Pantulu Garu, B,A., B.L., Vijayawada.
Take notice that you are required to produce on 16th December 1950 the hearing date, the will-nama alleged to have been executed by late Sri R.K.N.G. Raju Garu and referred to in the ietter Written On 25th November, 1948 by the plaintiff's advocate at Madras, to the 1st defendant-Bank. Batta of Re. 1/- is sent herewith.
Sd./-
K. Nagabhushana Rao Advocate for 1st Defendant.
14-12-1950.
Received copy and batta of Re. 1/-, Sd./-
M. Koteswararao, Advocate,"
52. The will was not produced. Even during the course of the arguments before us the counsel for the appellants could not give information as to where exactly the will was executed. In the circumstances, of this case, therefore, we are of opinion that this vital information was withheld because, if given it would be detrimental to the interests of the appellant. We would be justified in drawing inferences' adverse to the plaintiff. We are, therefore, of the view that the will should have been executed at Madras in which case Section 213 of the Succession Act would he a bar for the institution of this suit. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-30 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 53. The second argument is that the suit is filed by the plaintiff not for establishing any right as executor or legatee under the will, but as the heir of her husband. In support of his contention, the learned counsel of the appellants laid strong reliance on a decision of the Full Bench of the Madras High Court in Ganshamdoss Narayandass v. Gulab Bi Bai, ILR 50 Mad 927 : (AIR 1927 Mad 1054) (FB), and Western India Insurance Co. Ltd. v. Asima Sirkar, AIR 1942 Cal 412. The point referred to the Full Bench of the Madras High Court was this :
"Can a defendant resisting a claim made by the plaintiff as heir-at-law rely in defence on a will executed in his favour at Madras in respect of property situate in Madras when the will is not probated and no letters of administration with the will annexed have been granted."
It was held that a defendant resisting a claim made by the plaintiff as heir-at-law cannot rely in defence on a will which required to be probated, but which has not been, and Section 187 of the Indian Succession Act XXXIX of 1925 is a bar to every one claiming under such a will, whether a plaintiff or defendant. But what is relied upon by the learned counsel are certain observations of Phillips Offg. C. J. to the following effect : | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-31 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | "The plaintiff is suing as heir-at-law but he was resisted by the defendants who claim under a will of which no probate has been taken. It is argued that it is a sufficient answer to the plaintiff's case to allege and prove the existence ot a will; for in that case the plaintiff, who would be the heir in case of intestacy, would no longer have any right. This rather ignores one point which, I think is important namely, that the plaintiff being the heir under intestacy, which must be presumed until a will is proved, is entitled to succeed to the property, unless it can be shown that his title has been displaced. If the defendant merely proves that a will is in existence and does not prove the terms of that will, that is not necessarily inconsistent with the plaintiff's title. In the first place, the will may not be a valid will, and, in the second place, the plaintiff may be a legatee under the will. The mere existence therefore, ot a will does not necessarily displace the plaintiff's title. It is necessary for the defendant to go further and to prove that some one other than the plaintiff has title under the will. This he cannot do by virtue of the provisions of Section 187."
Anantakrtshna Ayyar J., observed as follows : | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-32 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | Anantakrtshna Ayyar J., observed as follows :
"Thus where a plaintiff makes out a prima facie title in himself to the property in dispute, the defendant has to show a better title either in him-self or in some third person. If what is stated above be the correct principle of pleading applicable to such cases, it follows that when the plaintiff in the present case shows a prima facie title in himself to the property in dispute -- as the admitted heir-at-law of the last owner -- the defendant has 'to show a better title' either in himself or in some third person xx xx The general law would seem to he that the defendant's plea of jus tertii cannot be entertained when he does not state in whom the right resides. The defendant must trace the title to a third party Other than the plaintiff. A mere suggestion that there may he a third party with better title is nothing."
54. To the same effect is the decision in AIR J942 Cal 412. We are unable to appreciate the bearing of these decisions on the facts of the present case. This is not a case where the defendant is setting up the rights under the will, or setting up jus tertii for the purposes of non-suiting the plaintiff who has shown a prima facie title as the heir-at-law of the deceased. The real question in this case is whether the plaintiff who on statements made on her behalf is the executrix appointed under the will of her husband can maintain the present action as an heir as if on intestacy. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-33 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 55. That the plaintiff was appointed as an executrix under the will of her husuand is beyond all doubt. That being so, under Section 211 of the Succession Act, the entire property of the testator vests in the executor or executrix, as the case may be, from the time when the will takes effect. Section 211 (1) of the Act is in these terms :
"The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such."
Even before the obtaining of the probate on the death of the testator, the property vests in the executrix 'as such'. It is not Section 213 which deals with the vesting of the property of the deceased persons, but Section 211. The vesting of the property of the deceased persons in the executor as such does not arise from the probate. The executor derives his title from the will. Immediately upon the testator's death his property vests in the executor, for, the law knows no interval between the testator's death and the. vesting of the property (vide Whitehead v. Taylor, 1839-10 Ad and El 210 and Raja Rama v. Fakuruddin Sahib, 38 Mad LJ 210: (AIR 1930 Mad 218)). Therefore, even without obtaining the probate of the will, the executor becomes the representative of the estate of the deceased. All that the grant of the probate does is not to give him title; but only to make his title certain (Vide Hewson v. Shelley, 1914-2 Ch. 13 at p. 38). | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-34 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 56. Even in cases where the will has been executed outside the limits of the presidency towns the position is the same. In Ramiah v. Venkata Subbamma, AIR 1926 Mad 434, a Full Bench of the Madras High Court held that in the case of a Hindu will executed in the mofussil to which the Hindu Wills Act does not apply, the estate vests in the executor, who accepts office, from the date of the testator's death, This decision is later affirmed by the Privy Council in Venkata Subamma v. Ramayya, AIR 1932 PC 92. It seems to us, therefore, that on the date of the testator's death the property of the late R.K.N.G, Raju vested in the plaintiff as an executrix.
57. In Parlhasarathy Aiyar v. Subbaraya Gramany, AIR 1924 Mad 07 at p. 70, it was observed by Schwabe C. J., that
"It is not right, as has been suggested in some cases, to treat a will of which probate has not been ranted as non-existent and the property passing y intestacy."
This will of course depend upon the fact whether the plaintiff has accepted the office as an executrix. The learned counsel for the appellant has placed strong reliance on certain observations in the judgment of the Madras Higb Court in Parthasarathy Appa Rao v. Venkatadri Appa Rao, 43 Mad LJ 486 at p. 515 : (AIR 1922 Mad 457 at pp. 469-470). But that case obviously has no application, because on the facts of that case it was found that the executor died without accepting the office or showing any indication that he took upon himself the duties of executor. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-35 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | Whether the executor has accepted the office or not will ^depend upon the facts of each case. In this case the plaintiff has not given evidence and no oral evidence was at all tendered by her. We can only, therefore, deduce the fact of her acceptance from the record available. In Ex. B-2, the counsel of the plaintiff stated that his client was appointed as an executrix under the will of her husband and that he was instructed to take adequate legal steps to have the estate duly represented. We are of opinion that this letter written obviously on behalf of the plaintiff is enough to constitute acknowledgment or the acceptance of the plaintiff of her office as an executrix. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-36 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 58. The following passage in Williams on the Law of Executors and Administrators (13th Edn. 44 para 60) is directly in point:
"Where a man who was named as one ot several executors, in answer to an inquiry who were the executors, wrote a letter saying that he and others were executors, this was held to afford sufficient evidence that he had acted as executor. The insertion of an advertisement calling on persons to send in their accounts, and to pay money due to the testator's estate, to A and B. 'his executors in trust', was held to make them compellable to take probate, and to subject them personally to the costs occasioned by their resistance (the estate being small, and left for two years and a half without a representative)."
59. The above passage is founded on two cases : Vickers v. Bell, (1863) 4 De G. J and Sm. 274 and Long and Feaver v. Symes and Hannam, (1832) 3 Hag Ecc 771 : 162 ER 1339. The facts of the 1st case are as follows : The defendant's solicitor wrote to the plaintiff's Solicitor in answer to a query on behalf of a creditor as to who had proved the will. The defendants' Solicitor replied that the executors of the will are his widow and daughter and Robert Smith, thus acknowledging himself to be an executor. Turner L. J. held that that letter was enough to indicate that there was an acceptance of the office of the executor. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-37 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 60. In the second case ; (1832) 3 Hag Ecc 771 : 162 ER 1339, certain persons, Symes and Hennam published an advertisement in the paper that all persons who have any claim on the estate of late John Feaver were requested to send their respective accounts due without delay to Symes or Hannam, his executors in trust. It was held that the conduct of those two persons amounted to an absolute acceptance of the executorship.
61. In Jnanandra Nath v. Jitendra Nath, AIR 1928 Cal 275, a Bench of the Calcutta High Court has held that :
"The office of executor being a private office of trust named by the testator and not by the law, one named executor may refuse the office or renounce. It is, however, too late to refuse or renounce when one has once elected to act as executor, and he may determine such election by acts which amount to an administration,"
One of the acts which amounts to administration so that the executor cannot afterwards refuse is something done by him with relation to the estate of the testator which shows an intention in him to enter upon the office of the executor.
62. In view of these authorities, we are of opinion that the plaintiff had accepted the office of the executrix, and it is not open now to the appellants' counsel to contend that she did not accept the office, that the will is of no avail whatever and that she is entitled to file and sustain the action as an heir of her husband as if on intestacy.
63. We, therefore, hold that the present suit filed by the plaintiff as the heir of her husband is incompetent and should fail. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-38 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 64. It is contended by Mr. Somasundaram that the suit in any event for a declaration and injunction in terms prayed for is incompetent. It is argued that a pledgor who impugns the sale by the pledgee of the pledged goods must either seek to redeem or sue for damages on the foot of conversion. This contention finds support in the decision of the Privy Council in Neckram Dobay v. Bank of Bengal, ILR 19 Cal 322. In that case the facts were that the plaintiff Dobay deposited with the Bank of Bengal certain Government promissory notes for the purpose of securing loans.
A part of those securities were sold lawfully by the Bank, upon the borrower failing to comply with the terms of the agreement, As to the rest, the pledgor redeemed a part, but was led to believe that the Government papers that were actually delivered back to him were on the securities which remained unsold in the Bank's possession. But it was found as a fact that the Bank had taken over considerable portion of those securities and sold them to itself, crediting the borrower, however, with the price of the sale. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-39 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | On those facts, the contention advanced before the Judicial Committee was that the sale by the pledgee-bank to itself was illegal and, therefore, the plaintiff was entitled to a declaration that what purported to have been the sale to the Bank itself, was no sale at all and that the plaintiff was entitled to redeem according to the terms of his pledge. The Privy Council, however, held that :
"It would be inequitable to allow the Bank, after this transaction, to treat the securities, which it had sold to itself, and then had in its hands, as still subject to the pledge. In their Lordships' opinion, the Bank should be held to he no longer a pledgee of these notes, and to have converted them to its own use, and to be liable in damages for the value of them, including the interest thereon."
65. In S. L. Ramaswamy v. M. S. A. P. L. Palaniappa, AIR 1930 Mad 364, a Bench of the Madras High Court has held that in case of an improper sale of the pledged goods by the pawnee the remedy of the pledgor is to get damages for the improper sale.
66. In Cooverji v. Mawji, AIR 1937 Bom 26, Wadia J., held that the sale of pledged goods without proper notice does not render the sale void but by analogy to Section 69 (3) of Transfer of Property Act, the remedy of the pawnor for an improper sale of the mortgaged property is damages for conversion to the pawnor, and the correct measure of damages is the loss which the pawnor has actually sustained, taking into account the pawnee's interest in the goods at the time of the conversion. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-40 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 67. In a Bench of the Patna High Court held that if the sale of the pawned article is wrongful, the pawnor has got the remedy to sue the pawnee for having converted his goods to his own use.
68. In AIR 1947 Bom 217 Chagla J., after a review of English authorities held as follows :
(i) "that althoughthe pledgee may sell the goods unauthorisedly or unlawfully, the contract of pledge is not put an end to and the pledgor does not become entitled to the possession of the goods pledged without tendering the amount due on the pledge; or, in other words, without seeking to redeem the pledge, and;
(ii) that without a proper tender of the amount due on the pledge, the only right of the pledger in respect of an unlawful or unauthorised sale is in tort for damages actually sustained by him." We are in accord with the view of Chagla J., that in case of an unauthorised sale by a Pledgee the relief that the pledgor can seek is to file a suit for redemption by depositing the money, treating the sale as if it had never taken place, or where the suit for redemption is not filed, to ask for damages on the foot of conversion. The present suit is neither the one nor the other. It is a suit merely for a declaration with an ancillary relief for an injunction restraining the 3rd defendant from registering the shares in the name of the 2nd defendant. We are of the opinion that the suit as framed is not sustainable. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-41 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | 69. The learned Subordinate Judge has taken the view that a suit for declaration and injunction in terms prayed for was not incompetent. But it: seems to us that in view of the fact of the admitted existence of the will the plaintiff who has filed the action as the heir of her deceased husband has not the legal character or right to the property as such, so as to justify her to seek the present reliefs within the scope of Section 42 of the Indian Specific Relief Act, (Vide the decision of the Privy Council in Sheoparsan Singha v. Ramnandan Prasad Singh, ILR 43 Cal 694; AIR 1916 PC 78). On this ground also, it seems to us that the suit should fail.
70. Mr. Kuppuswamy, the learned counsel for the 2nd defendant has urged that the 2nd defendant is a bona fide purchaser for value and that no relief could be claimed, in any event, against the 2nd defendant. He contends that the shares accompanied by blank transfers were sold for proper value and when once a Bank who was in the nature of a mercantile agent sells the shares without anything to put the purchaser on notice as to any infirmity of title, the registered holder of the shares is estopped from questioning the title of the purchaser. | https://indiankanoon.org/doc/641816/ |
32a51fd0b970-42 | Sri Raja Kakarlapudi Venkata ... vs Andhra Bank Ltd., Vijayawada And ... on 17 October, 1959 | He placed strong reliance on the decisions in Colonial Bank v. Cady and Williams, (1890) 15 AC 267, Fazal v. Mangaldas, ILR 46 Bom 489: (AIR 1922 Bom 303) and Abdul Vahed Abdul Karim v. Hasan Ali Alibhai, AIR 1926 Bom 338. The view of Kanga J., in ILR 46 Bom 489: (AIR 1922 Bom 303) was, however, dissented from by a Bench of the Bombay High Court in ILR 50 Bom 229: (AIR 192G Bom 338), where it was held that a registered owner of shares does not by handing over the share certificates and blank transfers signed by him to another person, make a representation to the world that such person is entitled to deal with the shares and, therefore, there is no question of any estoppel against the registered owner of the shares. But in the view we have taken that the suit filed by the plaintiff must fail, it is not necessary to pursue the question further.
71. For these reasons, we hold that the appeal should fail and it is accordingly dismissed with costs, one set. | https://indiankanoon.org/doc/641816/ |
b0b5f7363af5-0 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | JUDGMENT Y.V. Anjaneyulu, J.
1. All these writ petitions raise a common question of law for consideration of this Court. It will be convenient to dispose them of together.
2. The Constitution (Forty-sixth Amendment) Act, 1982 inserted through section 4, clause (29-A) in Article 366 relating to definitions of certain expressions occurring in the Constitution of India. The said clause (29-A) may be reproduced below for the purpose of convenient reference :
"(29-a) 'tax on the sale or purchase of goods' includes -
(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration;
(b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;
(c) a tax on the delivery of goods on hire-purchase or any system of payment by instalments;
(d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;
(e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; | https://indiankanoon.org/doc/1788622/ |
b0b5f7363af5-1 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made;".
The above clause came into force on 2nd February, 1983. The Seventh Schedule to the Constitution consists of Lists I, II and III setting out the subject-matter of laws which the Parliament and the Legislature of the States have the power to make. List II is the State List and it contains the matters upon which the State has the exclusive power to make laws. Entry 54 of List II conferred power on the States to levy taxes on the sale or purchase of goods. Pursuant to the power conferred by entry 54, the State Government enacted the Andhra Pradesh General Sales Tax Act (hereinafter referred to as "the Act") to levy tax on the sale or purchase of goods in the State of Andhra Pradesh. On the Forty-sixth Amendment to the Constitution inserting clause (29-A) in article 366, consequential amendments were made to the Act. By the Andhra Pradesh General Sales Tax (Amendment) Act No. 18 of 1985, explanation IV was added in section 2(n) of the Act which defines the expression "sale". Explanation IV, which was inserted by Act 18 of 1985, was brought into force retrospectively from 2nd February, 1983 and it is extracted below : | https://indiankanoon.org/doc/1788622/ |
b0b5f7363af5-2 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | "Explanation IV. - A transfer of right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration shall be deemed to be a sale."
By the same Act 18 of 1985, the definition of the expression "dealer" occurring in section 2(e) of the Act was also amended with effect from 13th September, 1985. By the said amendment, the expression "dealer" is defined to include "any person, who may transfer the right to the use of any goods for any purpose whatsoever (whether or not for a specified period) in the course of business to any other person". Section 5-E of the Act was also inserted by the same Act 18 of 1985 with effect from 1st July, 1985. It is relevant to refer to the same :
"Section 5-E. Tax on the amount realised in respect of any right to use goods. - Every dealer who transfers the right to use any goods for any purpose, whatsoever, whether or not for a specified period, to any lessee or licensee for cash, deferred payment or other valuable consideration, in the course of his business shall, on the total amount realised or realisable by him by way of payment in cash or otherwise on such transfer or transfers of the right to use such goods from the lessee or licensee, pay a tax at the rate of five paise in every rupee of the aggregate of such amount realised or realisable by him during the year :
Provided that no such tax shall be levied if the total turnover of the dealer including such aggregate is less than Rs. 1,00,000."
We may, for the sake of convenient reference, sum-up the legislative changes :
------------------------------------------------------------------------
S. No. Particulars Date of coming
into force
------------------------------------------------------------------------ | https://indiankanoon.org/doc/1788622/ |
b0b5f7363af5-3 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | S. No. Particulars Date of coming
into force
------------------------------------------------------------------------
1. Clause (29-A) of article 366. 2-2-83
2. Explanation IV to section 2(n) through
Act 18 of 1985. 2-2-83
3. Clause (iii-b) inserted by Act 18 of 1985 in
section 2(e) defining the expression "dealer". 13-9-85
4. Section 5-E levying tax on the amount realised
in respect of right to use goods inserted by
Act 18 of 1985. 1-7-85
------------------------------------------------------------------------ | https://indiankanoon.org/doc/1788622/ |
b0b5f7363af5-4 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | 3. In view of the power conferred on the State Governments to levy tax on the transfer of the right to use any goods for any purpose and following the amendments made to the Andhra Pradesh General Sales Tax Act referred to above, the sales tax authorities felt that banks which provide safety-lockers for the use of customers are liable to pay tax on the charges realised. In that view, notices were issued to various banks by the Commissioner of Commercial Taxes to show cause why sales tax should not be levied at 5 per cent on the charges realised by hiring lockers which, in law, amounted to transfer of the right to use goods by the customers. In some cases notices related to the years commencing from 1983-84 and in some other cases the notices pertained only to the year 1984-85 and 1985-86, etc. The notices issued by the Commissioner pointed out that the banks failed to submit appropriate returns and consequently an estimate of hire charges was made in the notices for the purpose of levy of tax. After receipt of the aforesaid notices the banks filed writ petitions in this Court questioning the validity of the proposal of the sales tax department to levy tax on the charges realised by hiring lockers to customers. | https://indiankanoon.org/doc/1788622/ |
b0b5f7363af5-5 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | 4. Before we proceed to deal with the matters we may refer only to one more fact. In exercise of the powers conferred by section 9(1) of the Act, in G.O. Ms. No. 1091, Revenue, dated 10th June, 1957, the Governor of Andhra Pradesh directed exemption from all taxes payable under the Act to the banks in the State of Andhra Pradesh, except when they act as buying or selling agents of a dealer as specified in the explanation to clause (e) of section 2 or in section 11 of the Act. This notification continued to be in force until it was rescinded by G.O. Ms. No. 794 dated 19th August, 1987. By the aforesaid notification dated 19th August, 1987, the Governor of Andhra Pradesh rescinded the notification issued in G.O. Ms. No. 1091, Revenue, dated 10th June, 1957 and published in the Andhra Pradesh Gazette on 15th June, 1957. The date of publication of G.O. Ms. No. 794 dated 19th August, 1987 in the Gazette is not furnished to this Court.
5. Sri Ananta Babu led the arguments on behalf of the State Bank of India in W.P. No. 10983 of 1987. Learned counsel for the other petitioners M/s. K. Srinivasa Murthy, B. K. Seshu, L. P. R. Vittal, G. V. Seetharama Rao, V. R. Reddy, A. Ramalingeswararao and D. Hanumantharao adopted the arguments of Sri Ananta Babu, although some of them made a few submissions supplementing the arguments of Sri Ananta Babu. | https://indiankanoon.org/doc/1788622/ |
b0b5f7363af5-6 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | 6. We may first clear the ground proceeding on the assumption that there is conferment of power to levy tax on charges realised from customers by the banks for providing safety-lockers. It is urged that even if there is conferment of power, the power cannot be exercised so long as the Notification G.O. Ms. No. 1091, Revenue, dated 10th June, 1957 issued under section 9(1) of the Act was in force. We have already referred to the aforesaid notification in para 4 supra under which exemption was granted from all taxes payable to the banks in the State of Andhra Pradesh. This notification continued to be in force till it was rescinded by G.O. Ms. No. 794 dated 19th August, 1987. We find considerable force in the contention of the learned counsel for the petitioners that in any case, no tax can be levied till the date of publication of G.O. Ms. No. 794 dated 19th August, 1987 rescinding the earlier notification dated 10th June, 1957. The notices issued by the department to the bankers proceeded to state that tax is leviable from the year 1983-84, obviously for the reason that the Forty-sixth Amendment to the Constitution inserting clause (29-A) in article 366 of the Constitution of India, came into force on 2nd February, 1983. We must, however, point out that the insertion of clause (29-A) in article 366 of the Constitution did not automatically confer power on the State Government to levy tax. Consequential steps have to be taken by effecting necessary amendments to the Sales Tax Act at the State level. Those amendments were made by Act 18 of 1985 whereunder explanation IV was added to section 2(n) of the Act containing the definition of the expression "sale". Clause (iii-b) was also | https://indiankanoon.org/doc/1788622/ |
b0b5f7363af5-7 | State Bank Of India And Ors. vs State Of Andhra Pradesh on 9 March, 1988 | of the Act containing the definition of the expression "sale". Clause (iii-b) was also inserted by the same Act amending the definition of the expression "dealer" in section 2(e). That provision came into force only on 13th September, 1985. The charging section empowering the levy of tax at 5 paise, which was also inserted by Act 18 of 1985, vide section 5-E of the Act, came into force on 1st July, 1985. If regard be had to these consequential amendments it is clear that until the definition of the expression "dealer" is amended by the Act 18 of 1985 which came into force on 13th September, 1985, it is not open to the authorities to levy tax, because the liability to pay the tax under the Act arises only if a person is a dealer and not otherwise. Thus till 13th September, 1985 there could be no levy of tax. We may also point out that the charging section 5-E itself came into force on 1st July, 1985 and there could be no levy of tax prior to section 5-E coming into force. Even after the necessary amendment came into force and there is full conferment of power to levy tax, the notification dated 10th June, 1957 issued under section 9(1) of the Act directing exemption from all taxes payable under the Act to the banks in the State of Andhra Pradesh, continued to be in force. The notification would, therefore, have the effect of exempting the tax which might otherwise be leviable with effect from 13th September, 1985. Obviously it escaped the notice of the Government to withdraw the notification dated 10th June, 1957 issued under section 9(1) of the Act and that was done through G.O. Ms. No. 794 dated 19th August, | https://indiankanoon.org/doc/1788622/ |