M NARAYANASWAMI KONE Vs. ARIGONDA NARAYANASWAMI MUDALIAR
HIGH COURT OF MADRAS
ARIGONDA NARAYANASWAMI MUDALIAR
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(1.) ON 5-8-1947, one Narayanaswami Mudaliar and his younger brother Ramakrishna Mudaliar executed two mortgage deeds one for Rs. 10,000 and the other for Rs. 27,500 in favour of one Sundararaja Iyengar. Both these documents were presented for registration on 1911-1947. They were registered so far as one of the mortgagors, Ramakrishna is concerned, on 8-12-1947 and it was compulsorily registered as regards the other mortgagor Narayanaswami on 17-21948. On 14-4-1948, that is to say more than three months after the date on which the documents were presented for registration, but less than three months from the date on which the documents were registered as regards Narayanaswami, two creditors filed a petition under Section 9, Provincial Insolvency Act, to adjudicate Narayanaswami, Ramakrishna and three other members of their family as insolvents. This petition was dismissed by the learned Subordinate Judge on the ground that so far as Ramakrishna was concerned the petition had been presented more than three months after the date of the registration of the document. He dismissed the petition so far as Narayanaswami is concerned on the ground that he had already been adjudicated insolvent in the Sub Court of Guntur. On appeal, the learned District Judge agreed with the conclusion of the learned Subordinate Judge that the documents must be deemed to have been registered on 19-11-1947 and since, computing from that date, the petition had been presented more than three months later, it was out of time.
(2.) MR. Umamaheswaram, the learned advocate for the petitioning creditors contended that this view of the court below is wrong. According to him the date from which time must be computed is 17-21948 the date on which the document was registered so far as Narayanaswami the first respondent, is concerned. I shall examine how far this contention is sound. Section 54, Provincial Insolvency Act, provides: "every transfer of property. . . . . . . . . . . . made. . . . . . by any person unable to pay his debts as they become due from his own money in favour of any creditor. . . . . . . . . shall if such a person is adjudged insolvent on a petition presented within three months after the date thereof, be deemed fraudulent and void as against. . . . . . . . . " Now it is obvious that before this section can be availed of, there must be a transfer which is legally complete and which the law will recognise and take notice of. It follows, therefore, that where the law enjoins that before a transfer can be effective, the document in question must be registered, the transfer would become complete in the eye of the law only on the date the document is registered. It will be noticed that in the expression "the date thereof" the word "thereof" relates to "transfer" so that time must be computed not from the date which the instrument bears, but from the date when the instrument becomes effective as a transfer. If authority were required for this position it may be found in -- 'iswarayya v. Subbanna', AIR 1934 Mad 637 (2) (A) and -- 'venkatadri Somappa v. Official Receiver, Bellary', A. I. R. 1938 Mad 801 (B ). These decisions lay down that if the date of the execution of the document is different from the date on which it is registered, then the date on which it is registered shall constitute the starting point for the computation of time.
(3.) THE difficulty in this case arises out of the fact that the date of registration is different not merely from the date of the execution of the document but also from the date on which the document was presented for registration. In such a case from what point should time be computed? Section 75 (3), Registration Act, provides, it seems to me, clear guidance in this matter. Dealing with cases where compulsory registration is ordered by the District Registrar, this sub-section provides that such registration shall take effect as if the document had been registered when it was first duly presented for registration. The effect of this provision is that the statute fixes the date of presentation as the date of valid registration. On that date, the transfer would become complete. For purposes of Section 54, Provincial Insolvency Act, the date of the transfer referred to in it, would therefore, be the date on which the document is presented for registration, which date by force of the statute is deemed to be the date of the registration. Authority for this position is to be found in -- 'air 1938 Mad 801' (B ). In that case a mortgage was executed on 5-3-1933. The document was presented for registration on 27th of June. The mortgagor denied registration and the Sub-Registrar refused to register the document. The District Registrar directed the document to be registered and this was finally done on 11-12-1933. After referring to the provisions of Section 75 (3), Registration Act, the Court held that the mortgage deed must be deemed to have been registered on 27th June.;
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