A.P. Subba, J.
1. This Civil Revision Petition is directed against the impugned order dated 3-5-2006, passed by the Learned District Judge, (South and West) at Namchi in Title Suit No. 5 of 2004, rejecting an application dated 24-4-2006 filed by the petitioners, seeking permission to validate an unregistered sale deed dated 6-2-1968 (Annexure-A1) by paying penalty in terms of Notification No. 2947G dated 22-11-1946.
2. The relevant facts of the case, in short, are that the principal Private Respondent Nos. 1 to 17 herein filed Title Suit No. 5 of 2004 in the Court of Learned District Judge (South & West) at Namchi against all the defendants/petitioners and the Proforma Respondents claiming partition of the suit properties covered by Plot Nos. 47, 162 and 428 situated at Mangmoo Block, P.S. Dentam, West Sikkim from the defendant/Petitioners and of plot Nos. 374 and 383 located in the same block from the Proforma Respondent Nos. 18 to 20.
3. The case of the Principal Respondent Nos. 1 to 17 as plaintiffs in the said Title Suit is that, one late Pirthidhoj Gurung had three sons namely late Kalu Singh Gurung, late Devi Prasad Gurung and late Bhakta Bahadur Gurung. The properties, which are now in dispute, are the partition share of late Bhakta Bahadur Gurung who died issueless at Kalimpong, West Bengal, where he had permanently settled down. Since they are the descendants of late Kalu Singh Gurung and Devi Prasad Gurung. they are entitled to their respective shares in the suit properties from the Petitioners and the Pro-forma Respondent Nos. 18 to 20. It is their further case that while the Proforma Respondent Nos. 18 to 20 are agreeable to share the properties with Respondents, the Petitioner Nos. 1 to 17 who are defendants in the suit are resisting the claim of the Proforma Respondents on the ground that they are the purchasers of the properties in question. Their case is that they had purchased the suit properties from late Bhakta Bahadur Gurung in the year 1968, vide sale deed dated 6-2-1968 (Exhibit A-1). However, the seller, late Bhakta Bahadur Gurung, who was old and infirm at the relevant time, died in the same year and, as such, they could not complete the formalities of registration of sale deed (Exhibit A-l) as per relevant rules. Since this unregistered sale deed was required to be produced in support of their title in the aforesaid title suit, they moved an application dated 24-4-2006 before the Learned District Judge for permission to pay penalty in terms of Notification No. 2947G dated 22-11-1946 and to exhibit the same in the suit to support their claim to the suit property. The said application was. however, rejected by the Learned District Judge vide Order dated 3-5-2006. Aggrieved by this Order the defendant petitioners have come up in the present revision petition.
4. The Respondents did not file any written reply.
5. Mr. K.T. Bhutia, learned Counsel assisted by Miss Niru Sharma and Miss Bandana Pradhan, learned Counsel appearing for the petitioners submitted that the impugned order was bad in law as well as on facts in so far as the Learned District Judge while passing the impugned order acted in exercise of its jurisdiction illegally and with material irregularity. It is the submission of the learned Counsel that the Learned District Judge erred in relying on the judgment of the Division Bench of this Court rendered in Bishnu Kumar Rai v. Mahendra Bir Lama inasmuch as the issue involved in that case was different from the issue in hand. Elaborating his submission, the Learned Counsel further submitted that in the said Bishnu Kumar Rai's case, the documents in question which was not allowed to be brought on record by paying the penalty was a mere vague money receipt not being a sale deed as in the present case. Unlike in that case the unregistered document, in question, in the present case is a sale deed. Therefore, the question considered by the Division Bench in the above case being entirely different, the ratio of that case does not apply to the facts of the case in hand.
6. Mr. N.K.P. Saraf, learned Counsel assisted by Miss Saroj Singh, learned Counsel for the Respondent Nos. 1 to 17 and Mr. J.K. Chandak, learned Counsel for the Proforma Respondent Nos. 18 to 23, on the other hand, supported the impugned order as legally sound. It was contended that this Court in Bishnu Kumar Rai's case AIR 2005 Sik 33 has declared the two Notifications as null and void and by virtue of this decision the two Notifications stand repealed and are nonest in the eye of law. In the alternative, it was also submitted that even if these Notifications were to be treated as valid and in force, they stand superceded after the enactment and enforcement of Transfer of Property Act, 1882 as Section 54 of Transfer of Property Act overrides the said Notifications.
7. The above rival contentions of the parties give rise to the following questions which fall for consideration of this Court:
(i) whether the Notification bearing No. 285/G dated 11th April, 1928 and bearing No. 2947/G dated 22nd November, 1946 stand repealed by the observations made by the Division Bench of this Court in Bishnu Kumar Rai v. Mahendra Bir Lama reported in AIR 2005 Sikkim 33 (supra).
(ii) whether the above two Notifications were in force at the relevant time and apply to the present case in view of the extension and enforcement of T.P. Act, 1882 in Sikkim, and,
(iii) whether the alleged unregistered sale deed can be validated by paying penalty in terms of the two Notifications.
8. In order to appreciate the above points, it would be appropriate to notice the two Notifications dated 11-4-1928 and 22-11-1946 at the first instance. For the sake of convenience of reference, these Notifications may be reproduced as follows:
First Notification dated 11-4-1928
'Sikkim State
General Department
Notification No. 385/G dated 11th April, 1928.To all Kaziz, Thekadar and Managers of Estates.
In continuation of the previous Rules on the subject, His Highness the Maharaja of Sikkim is pleased to order that the Law of Registration applicable in the State shall be amended. Notifications No. 314 and 2283-36/G, dated 23rd February, 1907 and 10th July, 1923 respectively shall be read and applied as under:
(i) 'Any document such as mortgage and sale deeds, and other important documents and deeds etc. will not be considered valid unless they are duly registered.'
(ii) 'The contents of an unregistered document (which ought in the opinion of the Court to have been registered) may be proved in Court but a penalty upto fifty times the usual registration fees shall be charged.
Exception : 'Hand Notes duly stamped shall be exempted from registration penalty.'
By order of His Highness the Maharaja of Sikkim.
Gangtok
The 11th April, 1928
Sd. Gyaltsen Kazi,
General Secretary to His Highness
The Maharaja of Sikkim'
Second Notification dated 22-11-1946
'Sikkim State General Department
Notification No. 2947/G dated 22nd November 1946.Amendment of para 2 of Notification No. 385/G, dated the 11th April, 1928.
An unregistered document (which ought in the opinion of the Court to have been registered) may however be validated and admitted in Court to prove the title or other matters contained in the document on payment of penalty upto fifty times the usual registration fee.
Issued by order of His Highness the Maharaja of Sikkim.
Gangtok
The 22nd November, 1946
T. Tshering,
(Offg) General Secretary to H. H.
The Maharaja of Sikkim
9. As it may be noticed, the above Notification No. 385/G dated 11-4-1928 in Clause (i) makes registration of documents such as Mortgage, and other important documents and deed etc. compulsory and provides that such documents will not be considered as valid documents unless they are duly registered. The Clause (ii) provides that the contents of an unregistered document (which ought in the opinion of the Court to have been registered), may be validated and admitted in Court on payment of penalty of 50 times the usual registration fee. This clause, as can be seen from the above, was amended in the year 1946. This amendment made the clause more intelligible by specifically providing that an unregistered document may be validated and admitted in Court to prove title or other matters contained in the document. Thus the provision contained in the second part of the Notification is an enabling provision for validation of an unregistered document which ought in the opinion of the Court to have been registered. It may be noted that these Notifications were laws in force immediately before the appointed day and thus are protected laws within the meaning of Article 371F(k) of the Constitution.
10. Having thus briefly noticed the ambit and scope of the two Notifications, we may now proceed to take up the above points in seriatim.
11. The first question is whether the two Notifications stand repealed by the observation of the Division Bench of this Court in Bishnu Kumar Rai's case (supra). It is pertinent to notice the relevant observation made by the Division Bench referred to by the learned Counsel for the Respondent on the point.
12. The observation made by the Division Bench of this Court in the above said Bishnu Kumar Rai's case AIR 2005 Sikkim 33 in paragraph 13 of the judgment is as follows:.But, in the case in hand, we are of the view that this document Exhibit D-1 could not be validated or admitted in Court to prove the title or other matters contained in the document on payment of penalty as discussed above as such document could not be registered as sale deed even the appellant desires to avail the protection of his case by the said Notifications dated 11th April. 1928 and 22nd November, 1946. According to us, such Notifications connot override the related statutory provisions of the Transfer of Properly Act, 1882, and apart from it, we do not see any reason for causing registration of the alleged money receipt dated Nil. Exhibit D-1 document as sale deed.
13. It is the specific submission of the learned Counsel for the petitioners that the above observation of the Division Bench does not apply to the present case for the reason that the documents in respect of which penalty was sought to be paid in the said case for validating it was not a sale deed, and it was on this account that the Division Bench expressed the view that the document Ex-hibit-Dl could not be validated and admitted in the Court to prove the title or other matters contained in the document on payment of penalty, and that, as such document could not be registered as sale deed even when the applicant desires to avail the protection of his case by the related Notifications.
14. It is hardly necessary to enter into the question as to whether the alleged sale deed answers the description of a sale deed or not at this stage, in so far as the relevant question on hand is whether the two Notifications stand repealed by the above observation of the Division Bench in the above referred case. Thus, leaving the above question for discussion at a later stage we may straightway proceed to notice the rival contentions raised by the Ld. Counsel on the point. The stand taken by Mr. Bhutia, the learned Counsel for the petitioner, as already noted above, is that the learned trial Court erred in relying on the judgment of Bishnu Kumar Rai's case as in that case it was found, after careful considerations, that the document in question was a vague money receipt and not a sale deed as in the present case. The contention of Mr. Saraf, the learned Counsel for the Respondents, on other hand, is that the unregistered document which has been claimed to be a sale deed cannot be treated as such. Even if it is treated as sale deed, his further contention is that the two notifications in question are non est in the eye of law, after the judgment in Bishnu Kumar Rai's case (supra). According to the learned Counsel, the two Notifications stand repealed by virtue of this decision. The learned Counsel, in support of his submission, relied on two single Bench decisions of this Court rendered in North East Finance Corporation Ltd. v. U.O.I. reported in SLJ 1999 at page 109 and Raj Kumar Rai v. State of Sikkim reported in 1978 (4) SLJ 8. A perusal of the two decisions would go to show that the implication of the word 'repeal' did not figure directly for consideration in North East Finance Corporation Ltd. It was only in the other case of Raj Kumar Rai that the question was considered in detail. The relevant paragraph of the said judgment relied on by the learned Counsel is as follows:.There can be no doubt that the expression 'repealed' in Clause (k) does not necessarily mean repeal by express legislation but also includes implied repeal or repeal by implication....The case of repeal by implication of the corresponding Sikkim law, which would admittedly and undisputedly take effect as a result of extension of another law on the same subject under Clause (n), would also come within the expression 'repealed' in Clause (n)....
15. The above observation, no doubt makes it clear that the expression 'repeal' includes implied repeal or repeal by implication. However, the point which the learned Counsel for the respondent has failed to notice is that the word 'repeal' referred to in the above Judgment relied on by him is a repeal by legislation and not by ratio of a case. It is a well-recognized position in law that the word 'repeal' connotes the abrogation of one Act by another AIR 1950 Hyd 20. As laid down by the Apex Court in Ram Krishna Prasad v. Janpad Sabha : AIR1962SC1073 the general rule is that 'the power of a legislative body to repeal a law is coextensive with its power to enact such a law' and a legislature which has no power to enact a law on a particular subject matter has no power to repeal the same. In other words, no repeal can be brought about 'unless there is an express repeal of an earlier Act by the later Act or unless the two Acts cannot stand together.' see : AIR1962SC745 .
16. There is, therefore, no doubt that the word 'repeal' implies abrogation of an enactment by a competent legislature. It is thus obvious that the ratio decidendi of a case cannot take the place of an enactment in the context of repeal of another enactment, it. is a well-settled position of law as pronounced by the Apex Court in various decisions that the judgments of Courts are not to be read asstatutes for any purpose. In this regard, the following observation made by the Apex Court in Ambico Quarry Works etc. v. State of Gujarat reported in : [1987]1SCR562 may be noted with advantage:
The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
17. It would thus be clear from the above, that the observation made by the Division Bench in Bishnu Kumar Rai's ease (supra) being against a different background, cannot be taken to have repealed the two Notifications. The first point is accordingly answered in the negative.
18. Having thus answered the first point in the negative as observed above, we may now pass on to the second point.
19. It may be noted at the very outset that the transaction between the parties relates to the year 1967-1968 i.e. during the time when the two Notifications held the field. As already noted above, it Is not disputed by the parties that the two Notifications were laws In force and thus protected under Article 37 IF of the Constitution. The only contention of Mr. Saraf is that, these laws stood superseded after the extension and enforcement of T. P. Act 1882 to Sikkim with effect from 1-9-1984 and therefore do not govern the present case. The question whether the two Notifications are superseded now, after the extension and enforcement of T. P. Act in the State, even though a pertinent one, it is settled position of law that there can be no repeal by implication in absence of repugnancy between the two Acts. A Division Bench of this Court relying on the law laid down by the Apex Court in M. Karunanidhi v. Union of India : 1979CriLJ773 has held in Nima Ongdi Lepcha v. State of Sikkim W.P. (C) No. 7 of 2005 decided on 12th May 2006 reported in . that there can be no repeal by implication unless the repugnancy between the Acts appears on the face of the two statutes. In the present case on hand there is no question of such direct and irreconcilable inconsistency in so far as Section 54 of the T. P. Act only makes registration of sale deed up to the value of rupees one hundred and upwards compulsory, the two Notifications deal with the question of admitting unregistered documents in evidence for certain purpose on payment of penalty prescribed therein, it thus follows that even though the two statutes operate in the same field, no irreconcilable repugnancy results and question of repeal of the Notifications in question on and after the coming into effect of the T.P. Act in the State does not arise. Even otherwise, the validity of (he two Notifications on the date the transaction was entered into, is not at all in question. It is not theraze of either of the parties that the enforcement of the T.P. Art has been made in the State with retrospective effect and the two statutes are in conflict with each other. It is thus evident that the provisions contained in the two Notifications which were laws in force at the relevant time continue to remain in force in the State and thus apply to the present case in hand.
20. Having thus found that the two Notifications apply to the case in hand we may now proceed to take up the third point in relation to validation of an unregistered document on payment of a penalty.
21. It is the submission of Mr. K.T. Bhutia, learned Counsel, that the two Notifications in question, in clear and simple words, make It plain that unregistered documents such as mortgage deeds or sale deeds, which ought to have been registered in the opinion of the Court, can be validated on payment of penalty up to 50 times the actual registration fee, and as such, the alleged sale deed which is unregistered one, falls within the purview of the provisions contained in the two Notifications, and accordingly the same could be validated on payment of prescribed penalty. It is needless to observe that the above interpretation placed on the two Notifications, by the learned Counsel is in conformity with the well recognized rule ofliteral interpretation. As laid down by the Apex Court in Chandrasekar Sita Ratna Rao v. Ashalata S. Gurum : [1986]3SCR866 the golden rule of interpretation is that the words of a statute must prima facie be given their ordinary meaning. Thus interpreted, the language of the Notifications makes it clear that unregistered documents can be validated on fulfilment of the conditions prescribed therein. Indeed, the question whether an unregistered document can be validated on payment of penalty under the provisions of these Notifications is no longer res integra after the decision of a Division Bench of this Court in Bishnu Kala Karki Dholi v. Bishnu Maya Darjeeni reported in SLJ Vol I 1978 at page 23. Referring to and relying on the observations made by the Privy Council in Maharaja Rajunder Kishwur v. Sheopursun (10, Moore's Indian Appeals 438 at 452), to the effect that 'before shutting out. a document from evidence on the ground of non-registration, a party should be allowed an opportunity to pay the penalty', the Division Bench in clear terms observed that 'in Sikkim, however under Notification No. 2947/G dated 22nd November, 1946 an unregistered document may be validated and admitted in Courts to prove the title or other matters contained in the document on payment of a penalty up to 50 times of the usual registration fee.' Thus after this pronouncement of the Division Bench, there can be no room for any controversy regarding right of a party to seek validation of unregistered documents for any of the purposes mentioned in the Notification subject to the condition prescribed therein.
Keeping in view the above position in law, we may now notice the impugned order. A perusal of the same goes to show that the above decision of the Division Bench was duly taken note of while considering the submissions made by the learned Counsel for the present appellants in the matter. The only reason why the learned trial Court could not follow the above Division Bench decision is that the law laid down in the above decision was, in its view, no longer good law having regard to the extension and enforcement of the Transfer of Property Act to Sikkim in the year 1984. The following observation of the learned trial Court will bear out the above conclusion:
I have carefully perused the notification and the two judgments of our own High Court cited by the learned Counsel for the parties. I am of the view that I have to go by the judgment passed by the Hon'ble High Court in Bishnu Kumar Rai (supra) for the reason that when the judgment of Bishnu Kala Karki Dholi (supra) was passed the Transfer of Property Act was not enforced in the State of Sikkim. Hence, it could be argued at that time that the said notification had the force of law being protected by Article 371-F(k) of the Constitution of India. However, now the Transfer of Property Act. 1882 has been extended and enforced in the State of Sikkim. Section 54 of Transfer of Property Act makes registration of lnstrument in case of tangible immovable property of the value of Rs. 100/-and above compulsory. In the case at hand the consideration value as shown in exhibit A-l is more than Rs. 100/-. Hence, in the presence of Section 54 of Transfer of Property Act defendant Nos. 1 to 7 cannot avail of the provision of the said Notification keeping in view of the judgment passed by the Hon'ble High Court in Bishnu Kumar Rai (supra). Hence, the petition filed by the defendant Nos. 1 to 7 stands rejected.
22. We have already come to a conclusion above that the decision in Bishnu Kumar Rai's case AIR 2005 Sikkim 33 (supra) cannot be taken as repealing the Notifications in question. It is hardly necessary to reiterate the reasons given in support of such aforesaid conclusion. Similarly, it has also been observed that the two Notifications held the field at the relevant time and since the Transfer of roperty Act was not brought into force with retrospective effect, the transaction between the parties fell within the purview of the two Notifications and even otherwise, there is now inconsistency on the face of the two statutes. These foregoing observations therefore fully demonstrate the fallacy of the reasoning given by the learned trial Court in support of the impugned order for rejecting the prayer for permitting the present Appellants to validate the unregistered document on payment of penalty prescribed in the Notifications. Therefore, the impugned order cannot be accepted as legally sound.
23. One more point raised by the learned Counsel for the respondents that is yet to be considered is that, the alleged sale deed Ex. A-1 sought to be validated by payment of penalty is not at all a sale deed in the eye of law. It was contended that this document can at best be taken as an advance receipt for payment of money in pursuance of the transaction of sale of the land and thus would not fall within the purview of the Notifications. This contention of the learned Counsel does not seem to be well founded in view of the interpretation that can be given to the words 'unregistered documents' used in the Notification. The relevant Clause (ii) of the Notifications in question only speaks of unregistered documents which ought in the opinion of the Court to have been registered. This goes to show that the expression 'unregistered documents' is wide enough to include every unregistered document effecting immovable property. Therefore, the plain language employed in the Notification makes it amply clear that an unregistered document cannot be excluded from the purview of the Notification on the ground that it does not answer the description of sale deed, as contended by the learned Counsel for the Respondents. Therefore, this contention raised by the learned Counsel for the respondent also deserves to be rejected.
24. Before coining to the final conclusion it is also appropriate to deal with yet another submission made by the Ld. Counsel for the respondent. It is contended that the petitioners having failed to gel the so-called sale deed registered for more than 37/ 38 years, the same cannot, now be validated by payment of penalty under the Notifications in question, as it is hit by Rule 20 of the Sikkim Slate (Registration of Documents) Rules, 1930, which prescribes a period of four months and not exceeding six months for obtaining registration of documents, it was further pointed out that under the provisions of Rule 25 of the Sikkim State (Registration of Documents) Rules, 1930, the sub-Registrar has been empowered to refuse registration of documents where the executant is dead and may refer the same to the Registrar. This provision, according to the learned Counsel, also comes in the way of the present petitioners in so far as the executant of the so-called sale deed has been dead since long and no recourse to this rule was ever taken by the Petitioners in the past over 37/38 years. Therefore, even if the document is allowed to be registered by payment of penalty, it was contended that a question as to who will receive the unpaid sale price on his behalf since all the respondents including the petitioners are entitled under the law to be the successors of late Kalu Singh Gurung, the father of Bhakla Bahadur Gurung would arise.
25. No doubt, the above legal technicalities as pointed out by the Ld. Counsel would be relevant if we were considering a question of registration of a document under the Registration Rules. It is hardly necessary to clarify that the question on hand relates to validation of unregistered documents so as to admit the same in evidence for certain purposes. It is, therefore, clear that failure to notice and appreciate the difference between registration proceedings under the Registration Rules and proceedings for validation under the related Notifications seem to be at the root of the above submission. As already noted above, the expression 'unregistered document' is of wide amplitude and covers every unregistered document effecting immovable property. Having regard to such wide amplitude of the expression 'unregistered document' it follows that the related Notifications also include a document, not at all presented for registration besides a document not registered in accordance with the mandatory provisions of the Registration Rules. Therefore this contention raised by the Ld. Counsel should also meet with the same fate as that of the previous contentious on the preceding various points.
26. Hence, for the foregoing reasons and observations, I am of the view that the impugned order is vitiated by legal infirmity and interference of this Court is called for in exercise of revisional jurisdiction vested in this Court under Section 115 of the Code of Civil Procedure.
In the result, the impugned order is hereby set aside and the matter is remanded back with directions to the learned trial Court to dispose of the matter in the light of the observations made above and according to law.
The records of the lower Court may be sent back forthwith.