Judgement

Appeal (No. 110 of 1932) from a decree of the High Court (August 20, 1930) reversing a decree of the Additional Subordinate Judge of Bezwada (September 20, 1924).

In 1910 the appellants father, acting as his guardian, sold to the father of the respondents a quarter share in the village of Somavaram, in the Kistna district, which had been given to the appellant in 1900, when a minor, by the late Maharaja of Venkatagiri. With a view to effecting registration of the sale deed in the Godavari district one yard of a vacant site in the village of Vundoor, in the Godavari district, was included in the sale deed, which was registered on February 14, 1911, by the Sub-Registrar of Samarlakota. Upon a partition after the death of the respondents father the suit property came to the first respondent.

On a claim by the appellant to recover possession of the suit property the main question, as set out in the issues framed by the Subordinate Judge, was " whether the vacant site [the one yard] included in the sale deed belongs to the plaintiffs [appellants] father, and whether it was included in the sale deed to give jurisdiction to the Sub-Registrar to register the deed and was not intended to be conveyed, and if so, whether it is a fraud on the registration law, and the deed is void."

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the yard of land included in the sale deed belonged neither to the plaintiff nor to his father; that it was included merely to get the document registered at Samarlakota and was never intended to be conveyed; that both parties were fully aware of that; that there was thus a fraud upon the registration law, and that the deed was void.

An appeal by the first respondent to the High Court (Wallace and Bardswell JJ.) was allowed. They held that the sale deed was validly registered, and that therefore the appellant could not recover possession of the property without setting aside the conveyance, and that that relief was time barred. The appeal is reported at ( 1931) I. L. R. 54 M. 352.

1935. Nov. 22, 25. De Gruyther K.C. and J. E. Godfrey for the appellant. "Some portion of the property" in s.28 of the Indian Registration Act, 1908, does not mean a substantial portion, but a portion however small Hari Ram v. Sheodial Ram.(( 1888) L. R. 16 I. A. 12.) The effect of Harendra Lal Roy Chowdhuri v. Hari Dasi Debt (( 1914) L. R. 41 I. A. 110.); Biswanath Prashad v. Chandra Narayan Chowdhuri (( 1921) L. R. 48 I. A. 127.) ; and Collector of Gorakhpur v. Ram Sundar Mal (( 1934) L. R. 61 I. A. 286.), however, is that if there is no real intention to pass the title in the small portion of the registered property there is a fraud on the registration, and it is bad. It has been held that if the deed is void it is not necessary to file a suit to set it aside. It is a nullity. The view taken in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (2) is that previously taken in India, and that case was followed in Biswanath Prashad v. Chandra Narayan Chowdhuri. (3) The first thing to be ascertained is whether the appellants father did in fact own a plot of land which can be identified as part and parcel of the land that was sold. But that is not enough under Collector of Gorakhpur v. Ram Sundar Mal (4) if it is found that this yard of land can be identified as part and parcel of the land that was intended to be sold, but that, after the sale, nobody had the least intention of taking possession of that yard, then obviously it was not intended to be part and parcel of the

Law. Rep. 63 Ind. App. 169 ( 1935- 1936) Raja Inuganti V. Rao v. Raja Sobhanadri Appa Rao

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general transaction under which the title in the land passed.

[LORD MACMILLAN. I should have liked to have had the purchaser in the witness-box and asked him " what did you buy this land for?, what have you done with it?, and when did you last see it ? "]

The actual language of the Registration Act is that the deed must "relate” t