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IN THE HIGH COURT OF MARAS
A J Collins, K M Ayyar, Parker, Wilkinson, Handley
Krishnamma
Versus
Suranna And Ors.
Decided On : 16 December, 1892
REGISTRATION ACT - SECTION 50 - NOTICE OF PRIOR UNREGISTERED ENCUMBRANCE - EFFECT.
Fact of the Case:
The question referred to the Full Bench is whether, when it is proved that a subsequent encumbrancer under a registered conveyance had notice of a valid prior unregistered encumbrance and of possession by such encumbrancer, or of such conveyance without possession, the Courts are bound to interpret Section 50 of the present Registration Act so as to defeat the title of the prior encumbrancer.
Finding of the Court:
The Court held that the doctrine of notice is applicable in all those cases in which its operation is not excluded by a special provision of the Indian Legislature to the effect that an unregistered document shall not generate a right.
Issues: Whether the Courts are bound to interpret Section 50 of the Registration Act so as to defeat the title of the prior encumbrancer, when it is proved that a subsequent encumbrancer under a registered conveyance had notice of a valid prior unregistered encumbrance and of possession by such encumbrancer, or of such conveyance without possession.
Ratio Decidendi: The Court held that the doctrine of notice is an equitable doctrine which exists altogether independently of statutory sanction, and will continue to exist so long as it is not expressly prohibited by law. The Court further held that Section 50 of the Registration Act must be interpreted as having been intended to apply to the case of two innocent purchasers or mortgagees, and as giving the preference to the one who took the precaution to secure his title by registration, but not as intended to apply to the case of a subsequent registered purchaser or mortgagee who, at the date of his purchase or mortgage, had notice of a prior unregistered purchase or mortgage.
Final Decision: The Court answered the question referred to the Full Bench in the negative and held that notice saves the prior title or interest.
Arthur J.H. Collins, Kt., C.J.
1. The question referred to the Full Bench is whether, when it is proved that a subsequent encumbrancer under a registered conveyance had notice of a valid prior unregistered encumbrance and of possession by such encumbrancer, or of such conveyance without possession, the Courts are bound to interpret Section 50 of the present Registration Act so as to defeat the title of the prior encumbrancer.
2. The first attempt to compel the registration of deeds, etc., in Madras was by Regulation XVII of 1802, a regulation for establishing a registry for wills and deeds for the transfer or mortgage of real property, and it was enacted by Section 6, Clause 3, that " it being the object, however, of the rules in the two preceding clauses, to prevent persons being defrauded by purchasing, or receiving in gift, or taking in mortgage, real property which may have been before sold, given, or mortgaged, subsequent to the period fixed for the operation of this regulation; and as persons can never suffer such imposition when they are apprized of the previous transfer or mortgage of the property; it is to be understood, that if any person shall purchase, receive in gift., or take in mortgage, any real property, knowing such property to have been previously sold, given, or mortgaged, to any other person subsequent to the above period; and that the deed of sale, gift, or mortgage, has not been registered; and shall register his own deed, in such case the deed of sale, gift, or mortgage of such subsequent purchaser, donee, or mortgagee, which may have been registered, shall not, from the registry of it, invalidate, or be discharged, in preference to the unregistered deed of sale, gift, or mortgage, first executed, provided the authenticity of the latter be established to the satisfaction of the Court.
3. Act I of 1843 repeals all provisions in any regulation touching knowledge or notice of unregistered conveyances, and enacts that unregistered titles shall be void as against any person claiming under a subsequent registered title, notwithstanding notice of a prior unregistered title.
4. Act XIX of 1843 repeals Act I of 1843 except so far as it repeals provisions touching knowledge or notice of the existence of unregistered instruments, and enacts that deeds of sale or gift of real property, if registered, shall invalidate other deeds of sale or gift which have not been registered, and registered deeds of mortgage, and certificates of discharge of encumbrances shall be satisfied in preference to any other, and that no conveyance, etc., affecting title to land other than such deed or certificate as aforesaid shall be void for want of registration.
5. Act XVI of 1864 repeals Regulation XVII of 1802 and Acts I and XIX of 1843 and enacts by Section 68 that registered instruments described in Clauses 1 and 2 of Section 16 of the Act shall have priority over unregistered instrument Section
6. Act XX of 1866, a Consolidation Act, recites the expediency of consolidating the law relating to the registration of assurances, and by Section 50 enacts that instruments of the kind mentioned in Clauses 1, 2 and 3 of Section 18 shall, if registered, take effect against every unregistered instrument relating to the same property.
7. Act VIII of 1871 repeals Act XX of 1866 and is repealed by Act III of 1877, the Registration Act now in force, but Section 50 of Act VIII of 1871 is re-enacted, and is as follows: " Every document of the kinds mentioned in clauses (1) and (2) of Section 18 shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not."
8. The first reported case under Act III of 1877, Nallappa v. Ibram I.L.R., 5 Mad., 73 was decided in 1881 by turner, C.J., and innes, J., who held that " Section 50 affects alike documen
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