ITTIANAM AND ORS.versusCHERICHI @ PADMINI

                    [2010] 8 S.C.R 1135


                      ITIIANAM AND ORS.                             A
                              v.
                    CHERICHI @ PADMINI
               (Civil Appeal No. 7226 of 2002)
                        JULY 27, 2010
                                                                    B
   [G.S~ SINGHVI AND ASOK KUMAR GANGULY, JJ.]


     Succession Act, 1925 - s. 90 - Effect of; on interpretatiort
of the Will - Held: In absence of a contrary intention in the
Will, the description of the properties in the Will would be        C
deemed to refer to and include the property answering that
description at the death of the testator - The Will would then
be deemed to speak from the date of the testator's death -
English Wills Act (U.K) - s.24.
                                                                    D
     Will - Statutory presumption against intestacy - Held:
While construing a Will, the Court should lean against any
intestacy - However, the presumption against intestacy
cannot be raised ignoring the intention in the Will.

     Interpretation of Statutes - Deeming provision -               E
Interpretation and effect of - Legal fiction.

   Words and Phrases - "deemed" and "comprise" -
Meaning of:
                                                                    F
    Dispute arose between the parties over some
properties bequeathed in terms ofa Will. In the Will, seven
items of property were bequeathed. Pursuant to an
application filed by the appellants under Section 278 of
the Indian Succession Act, 1925, the District Judge
granted the letters of administration in respect of all the         G
seven items of property in the Will, · .
    On appeal, the High Court affirmed the grant of letters
of administration in respect of items 1 to 3. It declined to
                          1135                                      H
    1136   SUPREME COURT REPORTS                [2010] 8 S.C.R.

A grant the letters of administration in respect of items 4 to
  7 on the ground that on the date of the Will, the testator's
  title over item nos.4 to 7 was not perfected; and that it
  was perfected only on the registration of the sale deed
  (executed in favour of the testator), which was after the
8 execution   of the Will.

        In the instant appeals, the question which arose for
    consideration was whether in view of the provisons of
    s.90 of the Indian Succession Act, 1925, the judgment of
    the High Court was erroneous and liable to be set aside.
c
        Disposing of the appeals, the Court

       HELD:1.1. Section 90 of the Indian Succession Act,
  1925 is based on Section 24 of the English Wills Act. Prior
  to the English Wills Act under the common law,
D testamentary disposition of real property spoke from the
  date of the Will. But the English Wills Act changed that
  by a statutory presumption to the effect, that unless a
  contrary intention appears from the recitals of the Will, the
  Will speaks from the date of the testator's death. [Para 13)
E [1142-F]

      1.2. Section 90 uses the legal fiction "deemed" and
  that is used with the specific purpose of raising a
  presumption against intestacy. On an analysis of the
F provisions of Section 90, it is clear that the property
  described in the Will shall be deemed to refer to and
  comprise the property answering that description at the
  death of the testator. In the absence of a contrary
  intention in the Will, the description of the properties in
G the Will shall be deemed to refer to and include the
  property answering that description at the death of the
  testator. [Paras 14, 16) [1142-G-H; 1143-C]
       Shorter Oxford Dictionary on Historical Principles, p.386;
    Webster's Comprehensive Dictionary Encyclopedic Edition,
H
    ITIIANAM AND ORS. v. .CHERICHI @ PADMINI              1137


p.269 and Law of Wills by Williams, 3rd edition, p.429,            A
referred:to.

      2. When the legislature uses a deeming provision to
 create a legal fiction, it is always. used to achieve a
 purpose. The obvious purpose herein is to avoid                   B
 intestacy in respect of properties referred to and
.comprised in the Will. Once the purpose is ascertained,
 the Court must,give full.effect to the statutory fiction and
 the fiction is to be carried to its logical end. Going by this
 test, the High Court. did not properly appreciate the
                                                                   0
 purport of Section 90 in.the context of the Will when it is
 common ground that the Will does not contain any
 contrary intention in respect of the bequest of items 4 to
 7 of the properties. [Paras 17, 18, 19) [1143~E-H; 1144-A-
 C]
                                                                   D
     State of Travancore-Cochin and others v. Shanmugha
Vilas Cashewnut Factory, Qui/on AIR 1953 SC 333 and State
of_Bombay v. Pandurang Vinayak and others AIR 1953 SC
.244, relied on.
                                                                   E
     East End Dwellings Co. Ld. v. Finsbury Borough Council
1952 AC 109, referred to.

       3. On general principles also, a Will speaks only from
  the date of.the·death of the testator. In the present case,
  assuming that.the testator had not acquired title in             F
  respect of half of the property, namely, items 4 to 7 of the
 ·pr:operty:bequeathed.by himdn the Will on.8.5.1967, but
  thee-sale.deed having.been registered: on .8.5.1967, the title
·reverts.back to the.date of execution of the . sale deed on
.2.5.67 .under·Section.47 of the Registration Act. And the         G
  testator died on 20.7 .71 :Therefore, much.before his death,
  the testator acquired full title over items 4 to 7 of the
  property. 'Therefore, the-High Court was in clear error in
·not al)preciating the effe·ct of Section 90 ·on the
·interpretation· of the Will:[Para 21) [1114'-F·H]                 H
    1138   SUPREME COURT REPORTS             [2010] 8 S.C.R.


A      4. It is one of the well established principles that
  while construing a Will, the Court should lean against any
  intestacy. The presumption against intestacy cannot be
  raised ignoring the intention in the Will. That is why
  Section 90 stipulates that the deeming clause will operate
B only where there is no contrary intention. In this case, it
  is common ground that no contrary intention could be
  discerned in the Will in respect of items 4 to 7. In
  construing a Will both the English Courts and the
  Supreme Court of India lean against any presumption
c favouring intestacy in the absence of a manifest contrary
  intention in the Will. The judgment of the High Court is
  thus set aside and that of the District Judge is restored.
  [Paras 32, 34 and 39] [1147-F-H; 1148-A, F-G; 1149-F]

       Ram Saran Lall and others v. Mst. Domini Kuer and
D others, AIR 1961 SC 1747, distinguished,

        Hamda Ammal v. Avadiappa Pathar and 3 others (1991)
    1 SCC 715, and A. Jithendernath v. Jubilee Hills Coop.
    House Building Society and another (2006) 10 SCC 96, held
E inapplicable.

      Gnambal Ammal v. T Raju Ayyar and others, AIR 1951
  SC 103; N. Kasturi v. D. Ponnammal and others, AIR 1961
  SC 1302; Pearey Lal v. Rameshwar Das AIR 1963 SC 1703
F and Navneet Lal alias Rangi v. Gokul and others AIR 1976
    SC 794, relied on.

      Alavandar Gramani Vs. Danakoti Ammal and others
  (AIR 1927 Madras 383); Abdulsakur Haji Rahimtulla and
  others v. Abubakkar Haji Abba and others AIR 1930 Bombay
G 191; Rangoo Ramji Vs. Harisa and another, AIR 1932
    Nagpur 163, referred to.

      Re Harrison Turner Vs. Hellard, (1885) 30 Chancery
  Division 390; Re Fleming's Will Trusts Ennion Vs.
H Hampstead Old People's Housing Trust Limited and Another
   ITTIANAM AND ORS. v. CHERICHI @ PADMINI          1139


(1974) 3 All ER 323 and Venkata Narasimha Appa Row vs.      A
Parthasarthy Appa Row and another 41 Indian Appeals 51,
referred to.                  ·

                    Case Law Reference:
AIR 1953 SC 333               relied on         Para 17     B
AIR 1953 SC 244               relied on         Para 18
1952 AC 109                   referred to       Para 18
(1885) 30 Chancery Division 390 referred to     Para 22
                                                            c
(1974) · 3 All ER 323)        referred to       Para 23
AIR 1927 Madras 383           referred to       P11ra 26
AIR 1930 Bombay 191           referred to       Para 27
                                                            D
AIR 1932 Nagpur 163           referred to       Para 28
41 Indian Appeals 51          referred to       Para 31
AIR 1951 SC 103               relied on         Para 32
AIR 1961 SC 1302              relied on         Para 33     E

AIR 1963 SC 1703              relied on         Para 33
AIR 1976 SC 794               relied on         Para 33
AIR 1961 SC 1747             distinguished      Para 35     F
(1991) 1 sec 115              held inapplicable Para 38
(2006) 1o sec 96              held inapplicable Para 38
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7226 of 2002 .                                              G

  . From the Judgment & Order dated 6.12.2000 of the High
:ourt of Kera la at Ernakulam in M. FA. No. 44 of 1990.

                         WITH                               H
    1140    SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A   C.A. No. 4432 of 2003

        T.L. Vishwanatha Iyer, T.G. Naray51nan Nair, K.N.
    Madhusoodanan, Romy Chacko, Jasaswini Mishra for the
    appearing parties.

B       The Judgment of the Court was delivered by

        GANGULY, J.

    CIVIL APPEAL N0.7226 OF 2002

C        1. This appeal is directed against the judgment of the
    Division Bench of the Kerala High Court dated 6th December,
    2000 rendered in Miscellaneous First Appeal No. 44 of 1990.

        2. The dispute is over some of properties bequeathed by
    the Will dated 8.5.1967 by one Kakkassery lppuru.
0
       3. The material facts on which there is not much dispute
  are that the testator lppuru's first wife Kunhiri died, leaving
  behind daughter Molutty and son Vareed who died on 8.1.86.
  The wife and children of Vareed, since deceased. are the
E plaintiffs. The second wife of lppuru, Kunjila, is the 7th plaintiff.
  She has two daughters Mariyamma, the 8th plaintiff and the
  other daughter is Padmini @ Cherichi, the defendant and
  respondent herein.

F      4. By a sale deed, being Exhibit-B1, dated 2.5.67, Kunjila,
  the second wife of lppuru, sold to lppuru half of her rights in
  respect of item Nos. 4 to 7 of the properties in the Will
  beQueathed by lppuru. The other half of the property belonged
  to her son Vareed. Both the sale deed and the Will were
G registered on 8.5.1967, lppuru died on 20.7.71.

        5. In the Will of lppuru, seven items of properties were
    bequeathed and out of which items 1 to 3 were given to. one
    Molutty, daughter of the testator by his first wife. Items 4 to 7 of
    the properties were previously owned in equal moieties by
H
    ITTIANAM AND ORS. v. CHERICHI@ PADMINI                   1141
           [ASOK KUMAR GANGULY, J.]

Vareed and Kunjila, the second wife of lppuru. Kunjila, as noted     A
above, sold her share to lppuru on 2.5.67 but the sale deed was
registered on 8.5.67, the same day when the Will was
registered.

     6. After the death of Vareed on 1.8.1986, his wife and          B
children appellants, 1 to 5 herein, jointly applied under Section
278 of the Indian Succession Act (the Act) for grant of Letters
of Administration of the Will of the testator. That petition was
contested by the Padmini @ Cherichi, one of the daughters of
the testator's second wife. Thus the proceeding became               C
contentious and was registered as a suit being O.S. 10 of 1988
in the District Court, Thrichur.

     7. The District Judge granted the letters of administration
in respect of all the items of property in the Will. An appeal was
taken to the High Court whereupon by the impugned judgment           D
the High Court upheldthe genuineness of the Will but modified
the grant of letters of administration only to items 1 to 3. The
High Court declined to grant the letters of administration in
respect of items 4 to 7 and the reasoning given by the High
Court inter alia was that on the date of the Will i.e. 8.5.67 the    E
testator's title to half of the property, namely over item Nos. 4
to 7 was not perfected. It was perfected only on the registration
of sale deed, which is after the execution of the Will, even
though the sale deed was executed on 2.5.1967. The
correctness of the finding of the High Court is questioned in this   F
appeal.

      8. When the appeal was taken up for hearing on
25.2.2010, the learned counsel for the appellant urged that in
view of provisions of Section 90 of the Act, the judgment of the
High Court is erroneou~. But that point was not specifically taken   G
either before the High Court or in the Special leave petition.
As such the learned counsel for the appellant prayed for leave
to file an application for urging additional grounds.

     9.· Since the question is purely one of law and is arising      H
    1142    SUPREME COURT REPORTS                   [2010) 8 S C.R


A   from the records of the case and can be urged without raising
    any new factual controversy, this Court granted leave to urge
    the additional grounds. The respondents were granted liberty
    to file its response to the application for additional grounds.

B        10. Pursuant thereto, application for urging additional
    grounds was filed and the respondent, though was given
    opportunity to file response to those grounds, did not choose
    to do so. But the respondent's counsel was heard on those
    grounds and he sought to controvert those grounds orally.

C       11. Admittedly, the parties are Christians and are
    governed by the Act. Along with the application for additional
    grounds a translated copy of the Will was also filed.

         12. Section 90 of the Act provides:
D
        "90. Words describing subject refer to property answering
        description at testator's death. - The description contained
        in a Will of property, the subject of gift, shall, unless a
        contray intention appears by the Will, be deemed to refer
        to and comprise the property answering that description
E       at the death of the testator."

         13. This Section is based on Section 24 of the English
    Wills Act. Prior to the English Wills Act under the common law,
    testamentary disposition of real property spoke from the date
F   of the Will. But the English Wills Act changed that by a statutory
    presumption to the effect, that unless a contrary intention
    appears from the recitals of the Will, the Will speaks from the
    date of the testator's death.

G        14. Section 90 of the Act uses the legal fiction "deemed"
    and that is used with the specific purpose of raising a
    presumption against intestacy. Therefore, on an analysis of the
    provisions of Section 90 it is clear that the property described
    in the Will shall be deemed to refer to and comprise the
    property answering that description at the death of the testator.
H
    ITTIANAM AND ORS. v. CHERICHI@ PADMINI                        1143
           [ASOK KUMAR GANGULY, J.]

    15. In the context of Section 90, the word 'comprise' will             A
obviously mean 'to include, embrace, to comprehend
compendiously, to contain, to consist of, to extend, cover" (See
Shorter Oxford Dictionary on Historical Principles, page 386).
In Webster's Dictionary the word 'comprise' means to "include
and contain, consist of and embrace". (Webster's                           B
Comprehensive Dictionary Encyclopedic Edition, page 269).

     16. Therefore, on a plain reading of the Section, the
meaning is clear. It is, that in the absence of a contrary intention
in the Will, the description of the properties in the Will shall be        C
deemed to refer to and include the property answering that
description at the death of the testator.

      17. It is well known when legislature uses a deeming
provision to create a legal fiction, it is always used to achieve
a purpose. In State of Travancore-Cochin and others Vs.                    D
Shanmugha Vilas Cashewnut Factory, Qui/on, reported in AIR
1953 SC 333, the Constitution Bench opined, when a legal
fiction is created, one· is led to ask at once for what purpose it
is created (see para 38 page 343).
                                                                           E
      18. In this case the obvious purpose is to avoid intestacy
in respect of properties referred to and comprised in the Will.
Once the purpose is ascertained, the Court must give full effect
to the statutory fiction and the fiction is to be carried to its logical
end. In State of Bombay Vs. Pandurang Vinayak and others,
reported in AIR 1953 SC 244, this Court laid down the aforesaid            F
propositions at page 246 of the report. In doing so, this Court
relied on the famous dictum of Lord Asquith which has virtually
become locus classicus on statutory interpretation of 'deeming'
provisions. Lord Asquith's formulations in East End Dwellings
Co. Ld. Vs Finsbury Borough Council, 1952 AC 109 are:                      G

     "If you are bidden to treat an imaginary state of affairs as
     real, you must surely, unless prohibited from doing so, also
     imagine as real the consequences and incidents which, if
     the putative state of affairs had in fact existed, must               H
    1144    SUPREME COURT REPORTS                   (2010] 8 S.C.R.


A       inevitably have flowed from or accompanied it.. .... The
        ~tatute says that you must imagine a certain state of
        affairs; it does not say that having done so, you must cause
        or permit your imagination to boggle when it comes to the
        inevitable corollaries of that state of affairs."
B
         19. Going by this test, in our judgment, the High Court did
    not properly appreciate the purport of Section 90. In the context
    of the Will when it is common ground that the Will does not
    contain any contrary intention in respect of the bequest of items
    4 to 7 of the properties.
c
      20. The principle of Section 90 which, as noted above, has
  been taken from Section 24 of the English Wills Act has been
  very lucidly discussed in Williams, Law of Wills (3rd Edition).
  At page 429 of the treaties. the learned author by properly
D appreciating the deeming clause commented:

         "A Will must be construed with reference to the property
        comprised within it, to speak and to take effect as it has
        been executed immediately before the date of death of the
        testator and as if the conditions of things to which it refers
E
        in this respect is that existing immediately before the date
        of the testator, unless a contrary intention appears from the
        Will".

       21. On general principles also a Will speaks only from the
F date of the death of the testator (See AIR 1964 SC 136). In
  this case assuming but not admitting that the testator had not
  acquired title in respect of half of the property, namely, items 4
  to 7 of the property bequeathed by him in the Will on 8.5.1967,
  but the sale deed having been registered on 8.5.1967, the title
G reverts back to the date of execution of the sale deed on 2.5.67
  under Section 47 of the Registration Act. And the testator died
  on 20.7.71. Therefore, much before his death, the testator
  acquired full title over items 4 to 7 of the property. Therefore,
  the High Court was in clear error in not appreciating the effect
H of Section 90 on the interpretation of the Will.
    ITTIANAM AND ORS. v. CHERICHI @ PADMINI                  1145
           [ASOK KUMAR GANGULY, J.]

     22. It is one of the well established principles that while      A
construing a Will, the Court should lean against any intestacy.
This has been put beyond any doubt by Lord Esher, Master of
Rolls in Re Harrison Turner Vs. Hellard, reported in (1885) 30
Chancery Division 390 wherein learned Master of Rolls held:
                                                                      B
     " ...... when a testator has executed a will in solemn form
     you must assume that he did not intend to make it a solemn
     farce,- that he did not intend to die intestate when he has
     gone through the form of making a will. You ought, if
     possible, to read the will so as ~o lead to a testacy, not ari   C
     intestacy."

    23. The learned counsel for the appellant in support of his
argument on Section 90 of the Act relied on a decision in the
case of Re Fleming's Will Trusts Ennion Vs. Hampstead Old
People's Housing Trust Limited and Another (1974) 3 All ER            D
323).

     24. In that case by a Will made in September 1969, the
testator bequeathed to the first defendants his leasehold house
at 54 Narcissus Road when the testator had his house under            E
a lease term expiring on 28th September, 2008 subject to
covenants to repair. In April 1971, the testator purchased the
freehold and that was registered with acquisition of title.

     25. The leasehold interest was unregistered and the
testator died in February, 1973. As a sole executor of the Will,      F
the plaintiff applied for determination of interest that passed on
to the first defendants. The residuary beneficiaries under the
Will claimed that the first defendants was only entitled to
leasehold interest. Repelling that contention, Templeman J,
while delivering the judgment helrt:                                  G

    "In my judgment, a gift of property discloses an intention
    to give the estate and interest of the testator in that
    property at his death; a mere reference in the will to the
    estate and interest held by the testator at the date of his
                                                                      H
    1146    SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A       will is not sufficient to disclose a contrary intention. It
        follows that the freehold in. the case passes to the first
        defendants. (page 326 Placitum g)

         26. The learned counsel for the appellants also relied on
B   the decision in the case of Alavandar Gramani Vs Danakoti
    Ammal and others (AIR 1927 Madras 383). Construing
    Section 90 of the Act. the Division Bench of Madras High Court
    held:

        " ... Under Section 90 of the Succession Act. XXXIX of
C       1925, there is a presumption, unless a contrary intention
        appears by the Will, that it comprises all property as at the
        testator's death ... "

        27. The learned counsel also relied on the decision of
0   Bombay High Court in the case of Abdulsakur Haji Rahimtulla
    and others Vs. Abubakkar Haji Abba and others reported in
    AIR 1930 Bombay 191. At page 196 of the report, Bombay
    High Court decided:

        " ... In this connection it is necessary to remember certain
E       general principles that attach to wills. A will speaks from
        the date of the death of the deceased. There might be
        accretions to or diminutions from the property of the testator
        as they existed at the date of the will. Another principle to
        remember in this connection is that a testator is presumed
F       to dispose of all the property that he may die possessed
        of and not only what he possessed at the date of the will ... "

        28. Reliance was last placed on the decision of the Nagpur
  High Court in the case of Rangoo Ramji Vs. Harisa and
G another reported in AIR 1932 Nagpur 163. Explaining the
  purport of Section 90, the High Court observed that Section 90
  is in accordance with Section 24 of the English Wills Act of
  1837. According to such principle "the Will has to be construed
  with reference to the real estate and personal estate comprised
H in it to speak and to take effect, as if it had been executed
    ITTIANAM AND ORS. v. CHERICHI@ PADMINI                   1147
           [ASOK KUMAR GANGULY, J.]

immediately before the death of the testator, and as if the           A
condition of things to which it refers in this respect before the
death of the testator unless contrary intention appears by the
Will" (page 165 of the report). The decision in Rangoo Ramji
(supra) was based on the Madras High Court decision in
Gramani (supra).                                                      B

    29. All the decisions discussed above, namely those of
English Court and of the High Courts of Madras, Bombay and
Nagpur support the contention of the appellants.

     30. Faced with this argument the learned counsel for the         C
respondent wanted to rely on the observatiorr of the Privy
Council and contended that this leaning towards intestacy is
purely a product of British Jurisprudence based on English
necessities and English habit of thoughts and there would be
no justification in taking them as guide in the case of Indian        D
Wills.

     31. The aforesaid observations were made by Lord
Moulton while considering the effect of adoption in the context
of an Indian Will in the case of Venkata Narasimha Appa Row           E
Vs. Parthasarthy Appa Row and another reported in 41 Indian
Appeals 51 (at page 71 of the report). These observations
were by way of obiter dicta by the learned judge and were
made in 1913 when the Act was not there.

     32. Section 90 of the Act is on the principles of English        F
Law and this Court in Gnambal Ammal Vs. T Raju Ayyar and
others (AIR 1951 SC 103) speaking through Justice B.K.
Mukherjea (as His Lordship then was) clarified the position.
This Court considered the decision of Privy Council in Venkat
Narasimha (supra) and held th::it the presumption against             G
intestacy may be raised if it is justified from the context of the
document or the surrounding circumstances and where there
is ambiguity about the intention of the testator (see para 11
page 106 of the repoi:t). It is true that presumption against
intestacy cannot.be raised ignoring the intention in the Will. That   H
                                                                 .•
    1148     SUPREME COURT REPORTS                  [2010] 8 S.C R


A   is why Section 90 stipulates that the deeming clause will
    operate only where there is n9 contrary intention. In this case it
    is common ground that no contrary intention could be discerned
    in the Will in respect of items 4 to 7.

B      33. In subsequent decisions while discussing presumption
  against intestacy this Court made the position further clear in
  N. Kasturi Vs. D. Ponnammal and others, reported in AIR
  1961 SC 1302. Justice Gajendragadkar, as His Lordship then
  was, speaking for the Bench, opined if two constructions are
  reasonably possible and one of them avoids intestacy while the
C other suggests it, "the Court would certainly be justified in
  preferring that construction which avoids intestacy" and the
  decision rendered in Gnambal Ammal (supra) was relied upon .
  (para 15 page 1307 of the report). Same-view was endorsed
  by this Court in Pearey Lal Vs. Rameshwar Das reported in
D AIR 1963 SC 1703 wherein'Justice Subba Rao, as His
  Lordship then was, speaking for the Bench observed where one
  of the two reasonable constructions would lead to intestacy that
  should be discarded in favour of the construction which
  prevents the hiatus (para 7 page 1706 of the report). The same
E principle has been quoted with approval by this Court in the
  case of Navneet Lal alias Rangi Vs. Gokul and others
  reported in AIR 1976 SC 794. Speaking for the Bench, Justice
  Goswami, at para 4 page 797 of the report, quoted the
  aforesaid principle laid down in Pearey Lal (supra).
F
       34. Therefore, both the English Courts and this Court in
  construing a Will lean against any presumption favouring
  intestacy in the absence of a manifest contrary intention in the
  Will. The argument on behalf of the learned counsel for the
G respondent has therefore no substance.

         35. The learned counsel also relied on the decision in the
    case of Ram Saran Lall and others Vs. Mst. Domini Kuer and
    others, reported in AIR 1961 SC 1747.

H        36. A perusal of the decision in Ram Saran (supra) makes
    ITTIANAM AND ORS. v. CHERICHI@ PADMINI                   1149
           [ASOK KUMAR GANGULY, J.]

it clear that the same was rendered on totally different facts and    A
against a completely different legal background. In Ram Saran
(supra), parties were Hindus, but,they were governed by the
Mohammedan Law of pre-emption as available to them by
custom. The main question discussed in Ram Saran (supra)
was when can the demand for pre-emption be exercised. The             B
majority opinion of the Court, by a 3:2 verdict, decided that such
demand can be made only after completion of the sale. The
majority was of the view that a sale is comp)ete not only after
registration of the sale deed under Section 47 of the
Registration Act but it is complete only after the registered         c
document is copied in the Registration Office, as provided
under Section 61 of the Registration Act.
    37. We fail to appreciate the relevance of the ratio in Ram
Saran (supra) to the facts of the present case.
       38. Two other judgments cited by the learned counsel for       D
the respondent rendered in the case of Hamda Ammal Vs.
Avadiappa Pathar and 3 others reported in (1991) 1 SCC 715,
and that of A. Jithendernath Vs. Jubilee Hills Coop. House
Building Society and another reported in (2006) 10 SCC 96,
are on Section 47 of the Registration Act to the effect that the      E
title passes retrospectively with effect from the date of execution
and not from the date of registration. These are accepted legal
principles on which there can be no debate but they have no
application to the facts of this case.
                                                                      F
     39. For the reasons discussed above the appeal is
allowed. We are constrained to set aside the judgment of the
High Court and restore that of the District Judge. No order as
to costs.
CIVIL APPEAL N0.4432 OF 2003                                          G
    40. For the reasons discussed above and in view of the
order passed in Civil Appeal No. 7226 of 2002, this appeal is
dismissed. No order as to costs.
B.B.B.                                      Appeal disposed of.       H