Jiwan Ram Bageria @ Agrawala vs Smt. Kasturi Debi Katesaria

Lalit Mohan Sharma and S. Shamsul Hasan, JJ.—This appeal arises out of a suit filed by the plaintiff respondent u/s 77 of the Indian Registration Act for a decree directing the District Sub-Registrar. Dhanbad to register a sale deed dated the 31st January, 1966, executed by the defendant in favour of the plaintiff. The document was executed by three persons, the defendant and his two brothers and was presented before the Sub-Registrar for registration. The defendant''s brothers appeared and admitted the execution but so far the defendant is concerned he did not appeal at all. Notice was issued on the defendant and ultimately on the 13th of June. 1966, the Sub-Registrar refused to register the document. On the 1st of July, 1966, the plaintiff appealed u/s 72 of the Indian Registration Act before the Deputy Commissioner, Dhanbad. The Deputy Commissioner held that the impugned order was not appealable and the remedy of the plantiff was by way of an application u/s 73. He refused to treat the appeal as an application and dismissed the appeal. This suit was thereafter filed by the plaintiff. Both the Courts below have decreed the suit and the defendant has appealed.

Mr. N.K. Agrawal, the learned Counsel for the appellant, has pressed only one point in support of the appeal, namely, that the suit is not maintainable as the plaintiff failed to avail of the remedy available to him u/s 73 of the Indian Registration Act. He argued that the Courts below were right in assuming that the remedy of the plaintiff against the order of the Sub-Registrar refusing to register the document was not u/s 72. The result is that the plaintiff must be held to have failed to avail of the remedy provided under the Act u/s 73 and cannot, therefore, maintain the suit. The question which, therefore, arises is whether the appeal filed by the plaintiff before the appellate authority was maintainable or not.

The provisions of Section 72(1) of the Indian Registration Act is in following terms:

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: and the Registrar may reverse or alter such order.

The language in the section makes it clear that the only exception where an appeal u/s 72 does not lie it is where order of the refusal of registration is made on the ground of denial of the execution on the document in question. In the present case the defendant did not appear before the Sub-Registrar at any stage nor did he deny the execution of the document by him. The Deputy Commissioner, Dhanbad as also the Courts below have assumed that since the defendant did not appear before the Sub-Registrar to admit or deny the execution of the document, it must be held that in substance he denied the execution. This view does not appear to be correct. Unless a person who on the face of the document is an executant thereof makes a statement that he has not executed the document it cannot be said that he has denied the execution. The expression ''the denial of execution'' requires a positive assertion to that effect and cannot be inferred by the mere fact that the executant does not appear in the registry office. In that view the order of the Sub-Registrar cannot be taken as one of refusal on the ground of denial of execution and it must be held that the appeal filed by the plaintiff u/s 72 of the Indian Registration Act was maintainable. Our view is supported by the decision in Sri Ram Gopal and Another Vs. Surendra Kumar and Others, . It follows that the objection raised by the defendant to maintainability of the suit has no merit and must be rejected.

No other question was raised by the learned Counsel for the appellant before us in support of the appeal. In the result the appeal must be dismissed with costs. Hearing fee Rs. 32/-.