D. Venkataravappa vs K. Hiranniah

Bhimiah, J.—The defendant has filed this second appeal against the order of the Third Additional Civil Judge, Bangalore, in R. A. 58 of 1968. affirming the judgment and decree passed by IV Addl. 1st Munsiff, Bangalore. In O. S. 1706 of 1964. decreeing the suit of the plaintiff.

The plaintiff filed a suit u/s 77 of the Indian Registration Act (hereinafter referred to as the Act) for a decree directing the defendant to get the sale deed dated 12-10-1961 as registered in the office of the Sub-Registrar, Bangalore. City South, if it is presented within 30 days after the passing of the decree by the Munsiff.

In brief, the plaintiff''s case is that the defendant who was the owner of the suit schedule property agreed on 23-4-1961 to sell the same to him for a consideration of Rs. 6.000 and executed the agreement to sell in favour of him, According to the agreement, the plaintiff had to discharge a mortgage effected by the defendant in respect of the suit property in favour of Shri Hakim Syed Abbas for Rs. 3,000 and a sum of Rs. 1.500 was paid in advance on 23-4-1961. IN pursuance of this agreement to sell, the defendant executed a sale-deed 5h respect of the schedule property in favour of the plaintiff on 12-10-1961. A sum of Rs. 1.500 was paid by the plaintiff to the defendant In the presence of the attestors. The defendant also delivered actual possession of the suit premises to the plaintiff in pursuance of the sale-deed. The plaintiff was ready and willing to perform his part of the contract The defendant failed to get the sale-deed registered, The plaintiff presented the document on 1-2-1962 before the Sub-Registrar, Bangalore City South. The Sub-Registrar issued a notice to the defendant to appear before him and have the document registered. The defendant appeared before the Sub-Registrar after due date on 13-2-1962. While admitting the execution of the document, the defendant appears to have pleaded want of consideration and alteration of the document and refused to have It registered. The Sub-Registrar referred the matter to the District Registrar to condone the delay In the appearance of the executant As the grounds required ton the condonation of delay were not satisfactorily established, the Registrar refused to register the document u/s 34 of the Act The plaintiff filed an appeal u/s 72 of the Act before the District Registrar. Bangalore. The plaintiffs appeal was dismissed by the District Registrar. Ultimately, the registering authority refused to register the sale-deed. Therefore, the plaintiff has now filed this suit for relief prayed for in the plaint u/s 77 of the Act.

The defendant resisted the suit on the ground that he did not receive the sum of Rs. 1,500 in the presence of the attestors and that material portion of the document had been forged and fabricated. He has denied the delivery of possession of the premises to the plaintiff and the payment of the Municipal taxes by the plaintiff. He has pleaded that the Sub-Registrar has rightly refused to register the document as the same was forged one. He has also pleaded that the suit does not strictly come within the purview of Section 77 of the Act and therefore the suit is not maintainable.

On these pleadings, the trial Court framed a number of issues. The relevant issues for the disposal of this appeal are at issues Nos. 7 and 8 which read;

(7) Whether the suit is not maintainable in law?

(8) Is the plaintiff entitled to the relief sought for?

The learned Munsiff answered the 7th issue against the defendant and the 8th issue in favour of the plaintiff. Aggrieved by this order, the defendant preferred an appeal against the judgment and decree passed by the Munsiff before the Third Additional Civil Judge. Bangalore, The learned Civil Judge, on a consideration of the entire evidence and bearing in mind the position of law relating to the maintainability of the suit u/s 77 of the Act, has confirmed the findings of the learned Munsiff in respect of these issues and dismissed the appeal. As already stated, aggrieved by the order passed by the Civil Judge, the present second appeal his been preferred by the defendant

Mr. D. V. Padmanabhiah. learned Advocate for the defendant mainly contended that the suit u/s 77 of the Act is not maintainable as the facts and circumstances of this case do not fall within the purview of the provisions of Section 77 of the Act He urged that the defendant did not appear before the Sub-Registrar either to deny or admit the execution of the document Therefore, he contended that his non-appearance before the Sub-Registrar amounted to denial of the execution, which does not fall within the purview of the Section 72 to maintain a suit under the provisions of Section 77 of the Act Secondly, he contended that the phraseology used in Section 72 of the Act is different from the phraseology used in Section 77 of the Act He pointed out that the words used in Section 72 are "refusing to admit a document to registration'' while in Section 77 of the Act the words used are "registrar refused to order the document to be registered". Therefore, the sum and substance of the contention of Mr. Padmanabhaiah is that the non-appearance of the defendant before the Sub-Registrar amounted to denial of execution and that ''refusing to admit a document to registration'' is different from ''refusing to order the document to be registered'' and on both the grounds according to him, the suit is not maintainable u/s 77 (1) of the Act

Mr. H. R. Venkataramanaiah learned Advocate for the plaintiff, sought to support the findings of the first appellate Court and contended that the nonappearance of the defendant before the Sub-Registrar to admit or deny the execution of the document for registration did not in law amount to denial of the execution. He nextly contended that the words ''refusing to admit the document to registration'' found in Section 72 and the Registrar refuses to order the document to be registered'' found in S. 77 of the Act have the same meaning without any difference.

There is no force in the contentions raised by Mr. Padmanabhiah on behalf of the defendant while I gee a great deal of force in the contentions urged on behalf of the plaintiff.

Section 72 (1) lays down:

Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order.........

From the provisions of Section 72 of the Act it is clear that no appeal shall be preferred u/s 72 (1) on the ground of denial of execution, but in all other cases, the executee can prefer an appeal as provided in Section 72 (1) of the Act.

Section 73 (II) of the Act provides that where the executant denies its execution, an executee should file an application to the Registrar where the Sub-Registrar refuses to register on the ground of denial of execution relying upon the provisions of this Section. Mr. Padmanabhiah contended that since the defendant having appeared before the Sub-Registrar after the due date denied the execution of the document, the remedy open to the plaintiff was to file an application as required u/s 73 of the Act and not an appeal u/s 72 (1) of the Act He further urged that the plaintiff having failed to make an application u/s 73 (1) of the Act and having wrongly preferred an appeal against the order of the Sub-Registrar refusing to register the document in question u/s 72 (1), the suit filed by the plaintiff u/s 77 (1) is not maintainable. The argument of Mr. Padmanabhiah firstly assumes that the defendant had appeared before the Sub-Registrar within the due date allowed u/s 23 of the Act and denial of the execution of the document Further, it also ignores the position that the Sub-Registrar had power to record the statement of the defendant when the defendant appeared before the due date. It is not disputed that the plaintiff presented the document for registration within four months from the date of the execution as required u/s 23 of the Act It is also not disputed that the defendant appeared four months thereafter on 13-12-1962 and that lie failed to make an application for condonation of delay as required under the provisions of sub-section (4) of Sec. 34 of the Act If the defendant had filed an application for condonation of delay and got the delay condoned and after payment of the penalty prescribed under that section and had made a statement before the Sub-Registrar there would have been some force In the contention of Mr. Padmanabhiah that the defendant made the statement denying the execution of the document When the defendant has failed to comply with the requirements of law, whatever statement he made subsequent to the date, cannot have any legal effect Therefore, it must be taken that as matters stood before the due date, there was no denial of the execution by the defendant before the Sub-Registrar. Therefore, the consequent refusal to register the document by the Sub-Registrar must be said to be on a ground other than the denial of execution. Therefore, it is a case which clearly falls within the provisions of Section 72 (1) of the Act.

There is another circumstance pointed out by Mr. Venkataramaniah which supports the contention that the defendant had not denied the execution of the sale-deed at any stage in the proceedings before the registering authority. He relied upon the endorsement made by the Sub-Registrar on the original of Exhibit P-3 wherein the Sub-Registrar has endorsed that the executant while admitting the execution of the document refused to sign on the endorsement on the plea of want of consideration. This endorsement clearly establishes that there is no denial of the execution of the document as required u/s 72 (1) of the Act Further, the orders passed by the Registrar and also the Sub-Registrar in the proceedings pending before them, clearly show that the registration was refused. In these circumstances, h is not possible to come to the conclusion that the registration was refused on the ground of denial of the execution of the document, but on the ground other than the denial of the execution of the document namely, that the defendant did not appear before the Sub-Registrar within the time stipulated by law and further that he did not take action to get the delay condoned as required under Sec. 34 (4) of the Act to appear before the Sub-Registrar either to deny or to admit the execution of the sale-deed.

Mr. Venkataramaniah relied upon two decisions of the Madras High Court in support of Ms contention that where the defendant does not deny the execution of the document and states that there Is want of consideration, such a case falls within the purview of Section 72 (1) of the Act In V.K. Manikka Mudaliar Vs. K. Mahammad Ziavuddin Saheb, it has been held as follows :

The plaintiff presented a document executed In his favour before Sub-Registrar for registration within four months of the date of its execution. The Sub-Registrar ordered notice to the executant who appeared beyond the four months, The Sub-Registrar referred the matter to the Registrar u/s 34 (4) of the Registration Act forwarding the document also to the Registrar. The Registrar passed an order "Registration refused" and gave reasons in which he held that the delay of the parties in appearing beyond four months did not ''come under urgent necessity or unavoidable accident. The document was then returned to the Sub-Registrar, who furnished to the plaintiff a copy of the order. The Sub-Registrar did not follow up the order of the Registrar by passing an order "Registration refused".

In a suit instituted by the plaintiff W obtain registration of the document u/s 77 of the Registration Act held, that the suit was maintainable and that the plaintiffs remedy was not merely to appeal against the order of the Sub-Registrar u/s 72 or to apply to the District Registrar u/s 78 of the Act.

The order passed by the Registrar fell u/s 76 (a) of the Act which is wide enough to cover all orders of the Registrar refusing registration whether such orders are passed on documents presented to him in the first Instance on otherwise.

Procedure proper to be followed by the Registrar on a matter being referred to him is u/s 34 (4) and proviso to Section 34 (1) of the Act.

In another decision of the same High Court in Ranjithammal Vs. Sowbagyathammal, Kailasam, J., has observed in paras. 4. 6 and 6 as follows :

Provisions of Section 34 of the Registration Act are subject to S. 77 which nowhere provides for time within which the parties should appear to admit execution. In order to maintain a suit u/s 77 all that is required is that there must be a refusal to register by the Sub-Registrar, an appeal within time to the Registrar, a refusal by the Registrar and a suit filed in the Civil Court within one month from the order of the Registrar refusing registration. Where all these conditions are satisfied, the registering authority cannot refuse So register the documents.

Where a document was presented for registration within four months of its execution, and the executant admitted its execution after expiry of four months but refused to register it on the ground that he had not received the consideration and the Sub-Registrar and on appeal, the District Registrar refused to register it.

Held that the order of the registering authority refusing to register was erroneous. The Registrar was bound to register.

I am in respectful agreement with the ratio of these decisions. It is clear from the decision cited above, facts of which are more or less similar to the facts in the instant case, that the plaintiff was entitled to prefer an anneal to the Registrar against the order passed by the Sub-Registrar. Further, the provisions of Section 34 of the Act are subject to the provisions of Section 77 of the Act, and, therefore, the plaintiff, in order to maintain a suit u/s 77 is required to show that there is a refusal by the Sub-Registrar or the Registrar and the suit was filed within one month from the date of the order of the Registrar refusing to register. In the instant case, the plaintiff referred an appeal against the order of the Sub-Registrar refusing to register the document the Registrar dismissed the appeal and ordered refusal to register the document and a suit was filed within one month from the date of the order passed by the Registrar. Therefore, the facts as proved in this suit have satisfied the requirements of the provisions of Section 77 of the Act In this view of the matter also, the suit is maintainable. Therefore, the contention of Mr. Padmanabhiah that the plaintiff should have filed en application under the provisions of Section 73 of the Act and not an appeal u/s 72 (1) of the Act is devoid of force.

Now. turning to the contention that the phraseology used in Ss. 72 and 77 of the Act Is synonymous and that they cover two different types of cases, the answer is found in the decision in Maneklal Mansukhabhai v. Kasturbhai Manibhai, AIR 1929 Bom 365. Murphy, J., at page 368. column No. 1 has observed as follows :

The ruling in this case does not make the distinction in question between "accepting for registration" and "refusing to register", and the argument against the applicant''s case, as put before us in appeal, is based on this ruling. As against it we have been referred to Fattechand Anandram Marwadi Vs. Umaji Valuji Mahar, Gangadhara v. Sambasiva, AIR 1918 Mad 1082 (SB) and Hossein Abdul Rehman & Co. v. Lachmichand, AIR 1925 Bom 34 where the ruling in Gangava v. Savava. ILR (1896) Bom 699 has been distinguished, and its authority has been doubted. It seems to me that it is not possible, on the construction of the relevant sections of this Act really to draw a share distinction between "refusal to accept for registration" and "a refusal to register."

I am in respectful agreement with the observations made by their Lordships of the Bombay High Court In view of the law laid down in the said decision, the second contention of Mr. Padmanabhiah also fails.

No other error of law has been raised in this appeal.

For the reasons stated above all the contentions raised on behalf of the defendant fail. The appeal is dismissed. In the peculiar circumstances of the case, each party to bear his own costs of this Court.