Arunachala Mudali vs Venkatachala Pillai and Others

Butler, J.—The question arising here for determination is whether where the executant of a transfer of a mortgage dies after the execution of

the transfer, and the document is presented for registration by the transferee and execution is admitted by a person purporting to be but not in fact

the representative of the deceased, the registration of the document on such admission is a nullity as made without jurisdiction, or whether the

defect was one of procedure falling within Section 87 of the Registration Act and therefore not invalidating the document. Section 35(1)(c) of the

Act provides that if the person executing the document is dead and his representative or assign appears before the registering officer and admits the

execution, the registering officer shall register the document. This appeal has been argued on the assumption that the person, who appeared before

the registering officer, was not in fact a person legally entitled to represent the deceased transferor, the transfer having been made by the widow of

the mortgagee, and execution being Admitted by the widow of the divided brother of the mortgagee. The lower appellate Court has taken the view

that admission of execution by a person who is not the representative of the deceased executant involves a defect of jurisdiction which is not cured

by Section 87. In appeal it is argued that the defect is one of procedure. It is well settled that where a document is presented for registration by a

person not entitled to do so under Sections 32 and 33, the Registrar has no jurisdiction to register, and Section 87 cannot be invoked ( 19 CWN

282 (Privy Council) ). And the former decision has been relied on for the proposition that a failure to comply with the strict terms of Sections 34

and 35 also creates a failure of jurisdiction. Sir John Edge there states:

One object of Sections 32, 33, 34 and 35 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under

the Act.

But the question there dealt with was under Sections 32 and 33, and these decisions are no authority for cases falling under Sections 34 and 35.

In (1875) L.R. 2 I.A. 210 (Privy Council) (a case falling u/s 35 of the Act) Sir Barnes Peacock stated ""innocent and ignorant persons should not

be deprived of their property through any error or inadvertence of a public officer, on whom they would naturally place reliance"". . And the

appellant argues from this that the Registrar having jurisdiction to decide whether the person admitting execution is prima facie the representative of

the deceased, had jurisdiction to decide this wrongly, and that the assignee is not to be prejudiced by his erroneous decision. But the matter need

not rest on this broad ground, as there are decisions that deal directly with cases falling u/s 35. Section 35(1)(a) provides that all persons executing

a document shall admit execution, and if any such person denies execution, the Registrar shall refuse to register. In Pakran v. Kunhammed I.L.R.

(1900) Mad. 580 it was held that where only one out of three sons, entitled to represent a deceased executant admitted execution, that assuming

all three ought to have so admitted and that the Registrar was in error in considering that the one brother was the due representative of the

deceased, such error was merely an error in procedure. To a similar effect are the observations in Rafat-un-nissa Begam v. Husaini Begam I.L.R.

(1924) All. 294 and a case more directly in point is to be found in Datlatraya Keshav Naik v. Gangabai Narayan Naik (1925) 94 I.C. 560, where

the widow of one of two executants admitted execution along with the surviving executant. The Court held that assuming the registering officer was

in error in accepting the widow as a representative for the purpose of the section, it was only a defect in procedure not sufficient to invalidate

registration. Following these authorities I hold that where a person is accepted by the registration officer as the representative of a deceased

executant, though in fact he may not be legally entitled to represent the deceased, and the document is registered, this constitutes merely an error in

procedure on the part of the registering officer, and does not invalidate the registration. The appeal will be allowed with costs, and the suit will be

remanded to the lower appellate Court for further disposal in the light of this judgment.