Dattatraya Keshav Naik vs Gangabai Nakayan Naik

Norman Macleod, Kt., C.J.—recorded a judgment dismissing the appeal on its merits. COYAJEE J. concurred in the judgment, and added :] It was however contended before us, on behalf of the plaintiff, that the document Exhibit 67 was not registered in accordance with the provisions of Section 85 of the Indian Registration Act, 1908, it did not therefore affect any of the properties comprised therein, and was not receivable in evidence. The facts material to a correct appreciation of this contention are briefly these. On April 10, 1890, Keahav and Gopinath signed the document and it was also duly attested. In May 1890 Keshav died, before the document was registered, On August 11, 1890, a fresh Clause was added giving a more detailed description of the properties. This was signed by Gopinath for himself, and Bai Gopikabai, the widow of Keshav, as the guardian of the plaintiff and his brother Shripad, both of whom were then infanta, This was attested by the same set of attesting witnesses. The document was then duly registered. It is contended that it was not competent to Gopikabai, who was the step mother of the plaintiff and Shripad to represent them, for their own mother Bhagirathibai was then, and is still, alive, and that this circumstance renders the registration invalid. The trial Judge has, in paragraph ''23 of his judgment, given his reasons for rejecting this contention. In my opinion, he was right, The document was executed by Keshav himself. The material portion of Section 35 is : "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 d+ocument." The question is whether Gopikabai was competent to represent her husband Keshav for the purpose of admitting the execution of the document. The definition of the word "representative" as given in Section 3 of the Act is not exhaustive. In the circumstances of the case, I think, she was competent But assuming that the registering officer was in error in accepting her aa Keshav''s "representative" for the said purpose, it was only a defect in procedure which was not sufficient to invalidate the registration. [Reference may be made to (1) Section 87 of the Act; (2) the observations of the Judicial Committee in (1875) L.R. 2 I.A. 210 (Privy Council) ; (3) Pakran v. Kunhamned I.L.R.(1900) Mad. 580

For these reasons I agree in the order proposed by the learned Chief Justice.