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IN THE HIGH COURT OF PATNA
AMRESHWAR PRATAP SAHI, CHAKRADHARI SHARAN SINGH, SUDHIR SINGH, JJ.
Kusum Sharan, Wife Of Shambhu Sharan - Appellant
Vs.
Additional Member, Board Of Revenue, Bihar, Patna - Respondent
Civil Writ Jurisdiction Case No. 943 of 1987
Decided on : 04-02-2019
Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 – r/w Section 54 of the Transfer of Property Act, 1882 and Section 18 of Registration Act, 1908 – Whether transaction of oral sale of agricultural land after commencement of Ceiling Act can be taken notice of for purpose of Section 16 of the Ceiling Act – Matter coming on reference to test the correctness of Division Bench decision in Basudeo Rai & Ors. Vs. Altan Rai & Ors. (1984 BBCJ 302).
Per C.J.—The right of pre-emption is a restrictive right and, therefore, to keep an oral transfer out of the transaction would be negating the option which stands protected under the statute – The 1961 Act clearly therefore intends to protect such rights and not to prohibit the consideration thereof in accordance with law – Therefore, any transfer of land of the value of less than Rs. 100/- cannot be ignored for the want of compulsory registration in proceedings under the 1961 Act on the ground of being an unregistered transaction – Power of the ceiling authorities to investigate and adjudicate upon an oral transfer being still available, the 1961 Act acknowledges transfers in accordance with law which includes the option of non-registration in respect of land the value whereof is less than Rs. 100/- – Judgment in the case Basudeo Rai does not lay down the correct law. (Paras 18, 19 & 20)
Per Chakradhari Sharan Singh, J. – On harmonious construction of the provisions under clause (ii) of sub-Section 2 of Section 16 and Sub-Section (3) of said Section, no land can be transferred, exchanged, leased, mortgaged bequeathed or gifted without a document is registered, even if such document is not essentially registrable under the Indian Registration Act – No transaction of oral sale of agricultural land after commencement of Ceiling Act can be taken notice of for purpose of Section 16 of the Ceiling Act – Such transaction would be hit by the statutory stipulation under clause (iii) of Sub – Section (2) of Section 16 of the Act – The D.B. in case of Basudeo Rai correctly laid down the law. (Paras 50, 55 & 56)
Per Sudhir Singh, J. – It would be not right to say that clause (iii) of sub-Section (2) of Section 16 of the Act necessarily nullifies the oral sale of land of a value less the one hundred rupees, not with standing it being made in terms of the provisions engrafted under Section 54 of the Transfer of Property Act, 1882 for which registration of document relating to transfer of land has been made optional as envisaged under Section 18 of the Registration Act, 1908 – Plea of transferee of being himself an adjacent raiyat to the land transferred by virtue of an oral sale of land of a value less than Rs. 100/- (one hundred rupees) made in his favour is tenable provided such acquisition of land by virtue of oral sale being made on the date of transfer of the land under pre-emption which would be reckoned in terms of Section 47 of the Registration Act, 1908 – Decision in Basudeo Rai & Ors. case does not lay down the correct law. (Paras 74 & 81)
1984 BBCJ 302, 2011 (2) PLJR 216, AIR 1964 SC 244, (1987) 3 SCC 279, AIR 1920 PC 181, 1949 AC 530 – Referred.
1. This reference arises out of a claim made by the petitioner on the strength of an oral purchase of a very small piece of land measuring 2 dhurs (0.0104 Acres), the value whereof is stated to be less than Rs.100/-, for resisting a counter claim of preemption.
2. The transaction of land in terms of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 read with Section 54 of the Transfer of Property Act, 1882 and Section 18 of the Registration Act, 1908 are the relevant provisions on the strength whereof the correctness of a Division Bench judgment in the case of Basudeo Rai & Ors. vs. Altan Rai & Ors. reported in, (1984) BBCJ 302 has been doubted.
3. The petitioner claims his right under an oral purchase in relation to a small piece of land for a sum of Rs.90/- only. The question is as to whether such an oral sale could be ignored under the provisions of 1961 Act which is a transaction not being a registered document as the sale consideration is less than Rs.100/-.
4. The Division Bench in the case of Basudeo Rai (supra) held that no transfer by way of sale could be taken cognizance of under the 1961 Act unless such transfer is made through a registered instrument, duly registered under the Indian Registration Act.
5. One of the decisions that have been cited by the learned Additional Advocate General of Bihar is the case of Bibi Jubeda Khatoon and Anr. Vs. The State of Bihar & Ors. reported in, (2011) 2 PLJR 216 wherein it was held that an oral gift of land would not amount to a transfer in terms of Section 16 of the 1961 Act.
6. It is in these circumstances, the Full Bench has been called upon to answer the reference keeping in view the doubt expressed about the correctness of the judgment in the case of Basudeo Rai (supra).
7. To my mind, on a perusal of the aforesaid provisions, the answer to the query would lie in the meaning of the words assigned by the Legislature under the 1961 Act in relation to transfers of land under the 1961 Act. This has to be understood in the light of the fact that under Section 16(2) (iii) of the 1961 Act, transfer of land has further been qualified by the words “in accordance with the provisions of Indian Registration Act”. Section 18 of the Indian Registration Act in its turn clearly provides for an option in relation to transactions of tangible immovable property, the worth whereof is less than Rs.100/- and which clearly indicates that the same does not require any compulsory registration.
8. On the other hand, the provisions of the 1961 Act, particularly, Section 16(2) (iii) prohibits transfer without the registration of a document. The same provision, however, clarifies that the registration has to be “in accordance with the provisions of the Indian Registration Act, 1908”.
9. The same is capable of being interpreted to mean that in order to constitute a transfer under the 1961 Act, the registration of a document in accordance with the Indian Registration Act is compulsory which therefore necessarily means the execution of a registered document in respect of any transaction irrespective of the value of the property.
10. On the other hand, it is also evident that under the same provision of the 1961 Act registration is contemplated “in accordance with the provisions of the Indian Registration Act, 1908”. The provisions under the 1961 Act do not specifically provide for the compulsory registration of transfer of land even if it is less than the value of Rs.100/- because the words “in accordance with” do not appear to eliminate the option as provided for under Section 18 of the Registration Act which is acknowledged in law to be a valid option as existing on date. By acknowledging the process of registration under the Indian Registration Act, 1908 as specified in the 1961 Act, it will not be possible for the Court to eliminate the option and to adopt a restrictive meaning by ignoring the option as engrained in Section 18 of the Act. The
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