Athiappa Narayana Reddy vs Audilakshmi Ammal (late a minor) declared a major and guardian on record discharged and Others

Kumaraswami Sastri, J.—This appeal arises out of a suit filed by the respondent (who was the plaintiff acting by her father and next friend)

u/s 77 of the Registration Act to direct registration of a document purporting to be a will executed by the husband of the minor plaintiff. The Sub-

Registrar to whom the document was presented for registration refused to register it on the ground that execution was not proved and his decision

was confirmed by the District Registrar on appeal. A suit was filed by the plaintiff by her father as next friend to compel registration. The

defendants were the members of the undivided family consisting of themselves and the deceased Guruswami Reddi, husband of the minor plaintiff.

The Subordinate Judge was of the opinion that execution of the document was proved and directed registration. Hence this appeal.

The document presented for registration purports to be a will executed by Guruswami Reddi, husband of the minor plaintiff. The minor plaintiff

had not attained puberty at the date of the death of her husband and was living under the protection of her father. She had not gone to join her

husband''s family. The document purports to be a will. It states that the testator while on a pilgrimage got fever, that he was suffering from fever

and was growing worse and that he was an undivided member of the joint family which consisted of Venkatasubba Reddi and Narayanappa

Reddi. It gives power to his wife to adopt; Ramachandra Reddi, the son of his sister and nobody else and says that Ramachandra Reddi should

enjoy his share of the moveable and Immovable properties. The document was presented for registration by Bala Reddi, the father of the widow,

who, under the will, is directed to make the adoption. No adoption admittedly was made at the date of the death of the deceased or at the time

when the document was presented for registration. The only person who could ordinarily present it for registration would be the widow, who was

given power to adopt but as she was a minor it was presented by her father Bala Reddi. It is contended in appeal that the presentation by Bala

Reddi was not a valid presentation under the Registration Act and that even if the Sub-Registrar registered the document the registration would be

invalid and that, therefore, no suit would lie in a Court to direct the Registrar to register the document presented by a person who had no authority

to present it. It is also contended in appeal that the Subordinate Judge''s judgment was wrong on the merits as the evidence and probabilities point

to the conclusion that the will was not executed by the deceased. Mr. Patanjali Sastri has laid stress on various circumstances which he says go to

show that the deceased could never have executed the will, but we consider that it is unnecessary to go into the question of the execution of the will

as we are of opinion that the other ground, namely that the document was not presented by a person who in law was entitled to present, is

sufficient to dispose of the appeal. Section 32 of the Registration Act provides for persons who under the Registration Act are entitled to present a

document for registration. Clause (a) refers to a person executing or claiming under the document; Clause (b) refers to the representative or assign

of any such person, and Clause (c) refers to the agent of such person, representative or assign duly authorised by power-of-attorney executed and

authenticated in the manner prescribed by the Registration Act. Section 2, Clause 10 defines a representative as including the guardian of a minor

and the committee or other legal curator of a lunatic or idiot. Section 40 deals specially with presentation of wills and authorities to adopt. It runs as

follows:

(1) The testator or after his death any person claiming as executor or otherwise under a will may present it to any Registrar or Sub-Registrar for

registration. The donor or after his death the donee of any authority to adopt or the adoptive son may present it to any Registrar or Sub-Registrar

for registration.

Section 41 provides for the registration of wills and authorities to adopt and the procedure to be followed. Section 40 contains no such

provisions as are contained in Section 32, Clauses (a), (b) and (c). It is argued for the appellant that so far as Section 40 is concerned there being

no provisions as are contained in Section 32, Clauses (a) and (c), the only persons who can present a document are, in the case of wills, the

executor or the legatees, and in the case of documents giving authority to adopt, the person who executes the document or the person to whom

power is given to adopt or the adopted son. It is argued that in the case of minority there is no power in the guardian to present a document for

registration. It is contended for the respondents that Section 40 which deals with these two classes of documents, namely wills and authorities to

adopt, must be read as subject to the general law, that in the case of minors the de facto or de jure guardian can act for a minor and that the

omission of Clauses (a), (b) and (c) does not restrict but on the contrary enlarges the scope of persons who are entitled to present a document for

registration. Reference has been made to Venkalappayya v. Venkataranga Rao ILR (1919) M. 288 : 1919 38 M.L.J. 149, where it was held that

a document containing authority to adopt presented for registration by the natural father of a minor was validly presented. Sadasiva Aiyar, j.,

though he thought that it was unnecessary to go into these questions because of the other findings, still referred to some English authorities and

thought that the presentation by a natural guardian was sufficient. This decision was given in May 1919. Reference has also been made to an earlier

decision of Ayling and Napier, JJ., in Appeal No. 200 of 1908. The document there was a will and it was held that Section 40 was wide enough

to cover the presentation of a document by the guardian of thi minor interested under the will. This decision was given ii October, 1912. These

decisions no doubt support the contention of Mr. Krishnamachariar, but we think that the matter is coneluded by the decision of their Lordships of

the Privy Council in Amba alias Padmavathi v. Srinivasa Kamathi 26 C.W.N. 369. This decision was an appeal from a decision of Abdur Rahim

and Oldfield, JJ., in Appeal No. 24 of 1916 which is reported in Padmavathi v. Srinivasa Kamathi (1917) 7 L.W. 339. The facts of that case, so

far as registration is concerned, are similar to the facts of the present case. There the donor was a member of an undivided family. The property

was given to the minor daughter-in-law of the donor and the gift deed was presented for registration by the natural father of the minor. The minor

had not joined her husband and she was under the protection of her natural father who would be the de facto guardian of the minor. The only

difference is that that case would fall u/s 32 of the Registration Act because it was a deed of gift and although Section 32 makes provisions for

presentation of documents in the case of minors, the question was still raised whether the father of a married minor could be the guardian entitled to

present a document u/s 2, Clause 10 and Section 32 of the Registration Act. Oldfield, J. in that case was of opinion that the presentation by the

natural father of the minor was invalid u/s 32. The learned Judge observed:

I should moreover be ready to hold that they were invalid because u/s 32 of the Registration Act the documents could be presented only by

plaintiff''s representative or assign and P.W. 7 who presented them was not her assign, or her representative u/s 2(10) since he had ceased to be

her natural guardian on her marriage and had not been appointed her legal guardian.

Abdur Rahim, J.

Did not go into this question as in his view of the facts the document was invalid. Oldfield, J., differed from him on the facts, but they both

agreed that, as the document had been revoked before it was presented for registration, the plaintiff-donee got no title. On these facts the case

went to the Privy Council, the donee being the appellant. Their Lordships set out the facts in detail and the view of the learned Judges and

considered it unnecessary to go into the question as to which there was a difference of opinion as they thought that the document conveyed no title

as the registration was invalid owing to the document being presented for registration by the natural father of a married girl who was not her

guardian. Their Lordships observed as follows:

Their Lordships do not think it necessary to pronounce any decision on the question upon which these two learned Judges differed. It was not and

is not disputed that these two deeds cannot be given in evidence or enforced if they have not been duly registered. Their Lordships are clearly of

opinion that as the appellant was not only a minor but a married woman, her father had ceased to be her natural guardian and was not therefore her

assignee or representative within the meaning of Section 31 of the Registration Act, 1877. He was not an executant of the said deeds or either of

them; neither was he within the meaning of Section 34 of that Act, the representative, assign or agent duly authorised on behalf of Krishna

Kamathi, the only executant. The presentation by him of the two deeds for registration was in direct conflict with the express provisions of this 34th

section. The deeds were consequently never legally registered. The registration of them which was procured was illegal, invalid and a nullity, and if

that be so, as in their Lordships'' opinion it must be held to be, it is not disputed that the, deeds would be void and unenforceable, and this apart

altogether from the question whether they have not been impliedly revoked by the agreement, dated the 9th of June 1908, entered into between

Krishna Kamathi and the respondent, and duly registered by the former on the 12th of June, 1908. It is therefore unnecessary for their Lordships

to expressly decide this latter question. They are of opinion that owing to the invalidity of the registration of the two deeds of May, 1908 the appeal

fails and must be dismissed.

This decision in our view applies exactly to the facts of the present case and the fact that the present case falls u/s 40 which makes no provision

for presentation by legal representatives makes the case stronger. In order to hold that the document was properly presented for registration, we

have got to hold that u/s 40 it is open to the guardian of a minor girl to present a document for registration and further hold that a de facto guardian

who will not come u/s 2, Clause 10, can present a document for registration when there is a de jure guardian in existence. Even if a guardian can

do so we are bound by the decision of their Lordships of the Privy Council to hold that the father of a minor married girl is not a guardian

competent to present a document for registration on her behalf. There are no facts to distinguish the present case so as to render the decision

inapplicable. It has been urged by Mr. Krishnamachariar that it does not appear that the rights of a de facto guardian in cases where the interests of

the de jure guardian were adverse to those of the minor, and he was disputing the document, were pressed before their Lordships, but we cannot

say that this aspect of the case was not presented to their Lordships in the course of the argument or was not considered by them as it was obvious

from the facts set out by their Lordships. It is no doubt true that for some reason or other the Legislature has omitted to provide for cases where

the donee having power to adopt is the minor widow of a member of an undivided family and the legal guardians of the donee, namely, the other

coparceners, are interested in denying the authority to adopt. In such cases the only person who can represent the minor effectively would be the

father or other relations of the minor who before the marriage would be her legal guardian or would be her legal guardian at the date of

presentation if she remained unmarried. Seeing that authorities to adopt unlike wills require registration, the hardship is not imaginary but one of

considerable weight, but we think this is a question for the legislature and not for us. We are of opinion that, having regard to the terms of Section

40, Section 2, Clause 10, and the decision of their Lordships of the Privy Council, the presentation by the father of the minor girl was not a proper

presentation by one who was entitled to present the document under the Registration Act. It would be, therefore, useless to direct the Registrar to

register the document which if registered would be inoperative and on this ground we think that the plaintiff''s suit for registration u/s 77 of the

Registration Act should be dismissed.

We may point out that we do not decide any question as regards the factum or validity of the will. The suit is a narrow one u/s 77 and the only

question that we have to decide is whether the Registrar is bound to register the document if presented. As he is not bound to register a document

which is presented by a person not entitled to present it under the Registration Act, a suit u/s 77 asking him to register it would not lie. It is no

doubt true that this point was not taken before the Sub-Registrar or before the Subordinate Judge, but it is a pure question of law and the fact that

it was not taken before the Sub-Registrar or the Subordinate Judge would not enable us to direct an act to be done which will be in contravention

of the provisions of the Registration Act, especially when the suit is one u/s 77 of the Act. We are, however, of the opinion that having regard to

these facts this is a proper case where each party should bear his costs throughout. We reverse the decree of the Subordinate Judge and dismiss

the plaintiff''s suit, each party bearing his own costs.

Reilly, J.

I agree. The decision of their Lordships of the Privy Council in Amba v. Srinivasa Kamathi 26 C.W.N. 369 appears to me to suggest that it is

only by virtue of Clause (b) of Section 32 of the Registration Act that a guardian can present a document for registration on behalf of a minor under

that section. That gives some support to Mr. Patanjali Sastri''s contention that u/s 40 of the Act which contains no similar clause a will or an

authority to adopt cannot be presented by a guardian at all. I prefer not to express a definite opinion upon that question on this occasion; but it

appears to me quite clear that the decision of their Lordships in Amba v. Srinivasa Kumathi 26 C.W.N. 369 is authority for the proposition that the

only kind of guardian who can present a document for registration on behalf of a minor at all is either a guardian according to the personal law of

the minor concerned or a guardian legally appointed under the Guardians and Wards Act or otherwise. That is sufficient to dispose of the present

case, and I agree, therefore, that the plaintiff''s suit must be dismissed, though in the circumstances of the case it is appropriate that each party

should bear his own costs. This restriction of the persons who can present document for registration on behalf of minors appears to me obviously

likely to work great and unnecessary hardship in some cases and I think that is a matter to which the attention of the Legislature might well be

drawn.