Decided on August 22,1967

AMAR KANWAR Respondents

Referred Judgements :-


Cited Judgements :-



KAN SINGH, J. - (1.)-
(2.)THIS is an appeal by an unsuccessful defendant and is directed against an appellate judgment and decree of District Judge, Jodhpur, dated 17-1-67, by which the learned Judge in dismissing the defendant's appeal, affirmed the judgment and decree of the learned Additional Civil Judge, Jodhpur. I may refer to only such facts as are essential for the proper understanding of the questions canvassed before me.
The defendant had taken on rent a house described in para 1 of the plaint from one Raghunath Dass on a monthly rental of Rs. 20/-. By a registered sale deed dated 15-4-64, Raghunath Dass sold this house to the plaintiff Mst. Amar Kanwar. The sale deed was actually registered on 27-6 64. As this house was the property of a trust, Shri Raghunath Dass applied for the sanction of the Assistant Commissioner, Davasthan, in accordance with sec. 31 of the Rajasthan Public Trust Act, 1959 ( Act No. 42 of 1959 ). The sanction was obtained on 27-6-64. It also came in evidence and which fact is not disputed before me that Raghunath Dass after he had got the sale-deed registered intimated the defendant that he had sold the house to Mst. Amar Kanwar and hence forward he should pay the rent of the house to her. On 7-1-65, plaintiff Mst. Amar Kanwar commenced the action out of which this second appeal has arisen, in the court of Munsif, Jodhpur City. She inter alia averred that the house was required by her for her personal and bona fide use. She also took the ground in her plaint that the defendant had committed default in the payment of rent and he was also denying her title to the house. The defendant, in his written statement denied that the plaintiff required the house for her own personal and bona fide necessity. He, however, averred that the sale of the house in favour of the plaintiff by Mahant Raghunath Dass was void for want of the prior sanction from the Assistant Commissioner, Davasthan, as required by sec. 31 of the Rajasthan Public Trust Act, 1959. He also stated that he had sent the rent by money order to Raghunath Dass who was his landlord, but the latter had refused to accept the same. The trial court framed a number of issues. In the light of the evidence produced before it by both the parties, the trial court decreed the suit for ejectment as well as for the arrears of rent on the ground of denial of the landlord's title by the defendant-tenant.

I have heard Shri Jangid for the appellant. He has argued before me, as was done before the court below that the plaintiff had not acquired any right, title or interest in the property, as prior to the execution of the sale-deed the sanction from the Asstt. Commissioner had not been obtained as required by S. 31 of the Rajasthan Public Trust Act, 1959. According to the learned counsel, obtaining of the sanction before the actual registration of the sale-deed was of no avail as on registration the same shall be operative from date of the execution of the sale-deed viz. 15-4-64 and as the sanction was undoubtedly obtained after the execution of the sale-deed the same was of no effect and the sale made by Raghunath Dass in favour of the plaintiff was consequently null and void. He next contended that the learned District Judge was in error in coming to the conclusion that the defendant appellant had denied the title of the plaintiff. He also raised a plea that the tenancy had not been properly terminated as it was done from the date of the registration of the sale-deed. I may deal with these points one by one.

It will be convenient at this stage to read sec. 31 of the Rajasthan Public Trusts Act, 1959: "Sec.31. Previous sanction to be obtained for certain transfers - (1) Subject to the directions in the instrument of trust or any direction given under this Act or any other law by any court - (a) no sale, exchange or gift of any immovable property exceeding five thousand rupees in value, and. (b) no lease, for a period exceeding five years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building. belonging to a public trust shall be valid without the previous sanction of the Assistant Commissioner (2) An application for the sanction of the Assistant Commissioner under sub-sec. (1) shall be made in the prescribed manner and form. (3) Where on an application duly made for sanction in respect of any transaction specified in sub-sec. (1), the Assistant Commissioner does not within two months of the receipt thereof, pass final orders it shall be presumed that he has accorded sanction in respect of that transaction, provided that the application describes the transaction with sufficient accuracy. (4) The Assistant Commissioner shall not refuse to accord sanction in respect of any transaction specified in sub-section (1) unless such transaction is, in his opinion, likely to be prejudicial to the interests of the public trust, and no order refusing to accord sanction shall be passed unless the working trustee of such public trust has had a reasonable opportunity of being heard."

This section occurs in Chapter VI of the Act which is about management of trust property. Sec. 30 is about the investment of public trust moneys. Sec. 31 is about the obtaining of previous sanction for certain transfers. Sub-sec.(5) (1) (a) of this section inter alia provides that no sale belonging to a public trust shall be valid without the previous sanction of the Assistant Commissioner. Sub-sec.(2), (3) and (4) lay down the procedure for the malting of an application for sanction and as to how it has to be dealt with. Sub-sec. (3) provides that if the application is not decided within two months then it shall be presumed that a valid sanction has been created in respect of the transaction. This sub-section gives a clue to the purpose underlying this section. It is, to my mind, with a view to enabling the officers of the Devasthan Department to exercise proper control over trust properties that the provision is made. In order to ensure that trust properties are not unjustifiably transferred, the requirement of a previous sanction before the making of such transfers has been imposed, but this requirement has not been made too rigid. The section envisages that whenever such an application has been made before him, the Assistant Commissioner will make up his mind about the necessity or desirability of sale or transfer within two months and if he does not dispose of the matter within that period, a party has been left free to construe the in-action of the Assistant Commissioner as the according of sanction. Now, the learned counsel for the appellant has contended that the sale will be taken to have been made on the date the sale-deed was executed and that is on account of sec. 47 of the Indian Registration Act. It will be pertinent to refer to sec. 47 and of the Indian Registration Act. These sections run as follows: Sec.47. Time from which registered document operates - A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration." "Sec, 49 No document sequired by sec. 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall - (a) affect any immovable property comprised therein, or (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 : Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882) to be registered may be received as evidence of a contract in suit for specific performance under Chapter II of the Specific Relief Act, 1877(1 of 1877), or as evidence of part performance of a contract for the purposes of sec. 53A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument."

I may also refer to the definition of the term "sale". Sec. 34 of the Transfer of Property Act defines "sale" as a transfer of ownership in exchange for a price paid or promised or part paid and part promised."It also lays down that such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards can be made only by way of a registered document. Therefore, for a valid sale in respect of immovable property exceeding rupees one hundred in value there must be. (1) a proper sale deed, and (2) its registration. In the present case it is not in dispute that the property was over Rs. 100/- in value. Therefore, a valid sale, to my mind, can come into existence only with the registration of the sale-deed and prior to that stage no right, title or interest in the property can be said to have passed from the hand of the vendor to that of the vendee. Sec. 49 of the Registration Act also clearly lays down that the document which is not registered as required by sec. 17 of the Registration Act shall not affect any immovable, property comprised therein. Thus, a valid sale can be said to have taken place only when the sale-deed is registered. It is true, on registration the document shall operate from the time it was executed, but the distinction between the coming into existence of a sale or, in other words, the making of a valid sale and its then operating from an anterior date is very well known. We have to see whether according to sec. 31 of the Rajasthan Public Trusts Act the sanction has to be taken before the actual making of a valid sale which is registration or it is to be taken even before the execution of the sale deed itself. Sec.31 strikes me as a declaratory provision to the effect that no sale of any immovable property shall be valid without the previous sanction of the Assistant Commissioner. Here the word "sale" denotes a complete sale in which all the formalities required by law including the formality of registration have been completed. Therefore, if anterior to that there has been a sanction of the Assistant Commissioner for the sale, then to my mind, the requirements of sec. 31 of the Rajasthan Public Trusts Act, 1959, have been met. If the intention of the Legislature underlying sec. 31 of the Rajasthan Public Trusts Act, 1959 were to prohibit even the execution of a sale-deed, then explicit language would have been employed. The use of the word "sale" does not necessarily mean the execution of a sale-deed, with out it being registered. Here the word "sale" has been used comprehensively to embrace all the steps that are required to be taken before a valid sale comes into being. Therefore, if before the registration of the sale-deed a valid sanction from the competent authority has been obtained then the sale cannot be said to be wanting in the necessary formality of obtaining of the sanction before the sale. I, therefore, do not find any substance in the contention raised by the learned counsel.

I may next turn to the question whether there has been disclaimer or denial of the landlord's title. Learned counsel has invited my attention to a number of cases such as R. Vanthyanatha Aiyar vs. Subramaniya Ayyar (1), Mohamed Golam Rabbani Chowdhury vs. Taranath Deb.(2) Asfiulla vs. Mohammed Muslim (3), Salla Edu Musalman vs. Jainab Bi(4) and Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur (5). In the Supreme Court case(5), just now mentioned, the decision of their Lordships turned on the language of the written statement filed by the defendant wherein the defendant had said that the property belonged to him. In that case the dispute related to the claim of one Mohammad Amir to an area of 16 Bighas in a plot lying within the municipal limits, Mohammad Amir claimed to be the Taluqdar of the Mahmudabad estate. The property was nazul property and the question that arose for consideration was whether he had forfeited his leasehold interest by reason of his acts and conduct. In the light of the data placed before their Lordships, their Lordships held that the word "belonging" was certainly capable of denoting an absolute title, but it was at the same time not confined to that sense as that word may signify even possession of an interest less than that of full owners. Having devoted respectful consideration to this case, I am unable to find that it is of much help in this case. Whether there has been denial of title of the landlord by a tenant in a particular case will depend on the facts and circumstances of that case and no formula of general application to cover all kinds of cases can be pressed in service.

In R. Vaithyanatha Aiyar vs. Subramaniya Ayyar (1), the learned officiating Chief Justice had considered the applicability of sec. 1 16 of the Evidence Act and it was observed that a person, who was put in possession of certain lands belenging to a charity by the manager, could dispute that the executors had no title to sue for the reason that the testator had no power of disposition over the lands in suit.

In Abdullah vs. Mohammad Muslim (3) it was observed that the denial of the right of an assignee from the original lessor by the tenant does not work a forfeiture of the tenancy.

Now it is understandable that a tenant from whom rent is demanded by a transferor or an assignee may not be convinced that the latter had the right to demand the rent and, therefore, in order to safeguard his own interest so that he may not have to pay rent to a wrong person he may dispute the title of the assignee and put him to proof, but the present is not a case of that type. In this case before the filing of the suit Raghunath Dass, who was undoubtedly the landlord of the defendant, had informed him by a notice about his having transferred the house to the plaintiff and he also directed or desired the defendant to pay the rent thereafter to the plaintiff. The written notice by the defendant's previous landlord was sufficient to safeguard his legitimate interests regarding the payment of rent. To my mind, therefore, he had no business to deny the payment of rent to the plaintiff. As I have already observed, it will depend on the facts and circumstances of each case whether a tenant could be said to have denied the title of the landlord. In my view, the giving of the notice by the erstwhile landlord to the defendant clinches the issue. Therefore, in the facts and circumstances disclosed in the present case there was no justification whatsoever for the tenant for disputing the right of the plaintiff to recover the rent from him. I need not refer in detail to the other two cases cited by the learned counsel, as they again turn in their own facts.

I am therefore satisfied that the courts below were right in holding that there has been denial of the plaintiff landlord's title by the defendant. I may observe that according to sec. 13(f) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1959, denial of the title of the landlord by the defendant-tenant was sufficient to disentitle him from claiming the protection of section 13 of this Act. The Legislature has not qualified or conditioned the expression "denied the title of the landlord" by providing for any consideration such as of there being any honest belief in the mind of a tenant that the assignee was not his landlord. The denial of the title of the landlord is a fault condonable at the hands of the landlord, but the present is not a case of waiver and, therefore, there is no occasion to examine whether there was any waiver or not by the landlord..

Regarding the third point raised by the learned counsel it is sufficient to say that this plea does not appear to have been raised by him before the learned District Judge and I am therefore not inclined to entertain it in the second appeal.

(3.)IN view of what I have discussed above, I do not find any force in this appeal which I hereby dismiss with costs.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.