Ka Plinis Myrthong vs Riang Pyrbot and Others

G. Mehrotra, C.J.—This is an appeal from the decision of the Subordinate Judge, Lower Assam Districts at Gauhati on appeal against the decision of the Sadar Munsiff, Shillong.

Briefly the facts are that the Plaintiff Respondent brought a suit in the court of the Munsiff, Shillong u/s 77 of the Indian Registration Act (heroin-after called ''the Act'') for a direction that the document be registered. One Ka Klitibon Myrthong of Laban, Shillong was the absolute owner of a certain Immovable property described in the plaint. On the 24th October 1956, she is alleged to have executed a sale deed in favour of the Plaintiff, the sale consideration of the property described in the plaint being Rs. 19,000/-. Ka Klitibon Myrthong could not present the sale deed for registration personally within the prescribed period'', of four months. She died on the 27th February, 1957. On the 6th May 1957 the deed was presented by the Plaintiff for registration before the Sub-Registrar, Shillong. The document was accepted on payment of requisite fee and penalty. The Sub-Registrar then issued notice to the various parties. Two out of the three heirs of Ka Klitibon Myrthong, namely Ka Emo and Ka Nasilda Mar-In a rig Defendants 2 and 3 admitted the due execution of the document by the deceased. But Ka Minis Myrthong Defendant No. 1 denied the execution of the document. The case was then referred by the Sub registrar to the District Registrar, who by his order dated 27th December, 1957 refused to register the sale deed. On refusal of the District Registrar to register the sale deed, the plantiff "brought the present suit for the relief''s already referred to in this judgment.

The defence taken was that Ka Klitibon Myrthong herself is not the absolute owner of the property in suit and she had no right of alienation of the afore-said (property, as it was the ancestral property of the clan. The execution of the deed by Ka Klitibort Myrthong was also denied. The plea of fraud was also taken up by the Defendant.

Both the courts below decreed the suit. The finding of the lower appellate court is that the document was duly executed by the deceased. As to the right of the deceased to execute the deed and the question of fraud, the court below observed that the title of the executrix to the property could not be inquired into in a suit u/s 77 of the Act.

In appeal before us it Is conceded that the finding of the court below that the deceased duly executed the document is a finding of fact and cannot be challenged in the second appeal. It is also admitted that the question as to whether the deceased had title to the property and was competent to execute the sale deed could not be raised in the suit u/s 77 of the Act.

Three points, however, have been urged. Firstly it is contended that u/s 35 of the Act, once the execution is denied, the Registrar is not competent to register the deed and as the Registrar himself was not competent to register the aide the court in a suit u/s 77 of the Act could also not direct the registration of the document. The court in a suit u/s 77 of the Act cannot have higher power than that of the Registrar. It is in effect an appeal on the order of the Registrar refusing to register a document. Secondly it is contended that no proper court fee was paid and the valuation of the suit was arbitrarily put at Rs. 100/- though the valuation of the suit should have been Rs. 19000/-, the consideration of the salon deed. If the proper valuation had been put in the plaint the Munsiff could not try the suit and the proper court to try the suit is the Subordinate Judge. Lastly it is urged that the property being situate at Laban, Shillong which Is that part of the Khasi and Jaintia Hills District which is known as the Administered Area of Shillong and the sale deed having been executed within that area, the Sub-Registrar of Shillong had no jurisdiction to register the sale dead and as the Sub-Registrar Shillong had no jurisdiction to register the sale deed, the Munsiff, Shillong is not com petent to entertain the suit u/s 77 of the Act.

The relevant provision of Section 35 of the Act is as follows:

(3) (a) If any person by whom the document purports to be executed denies its execution, or (b) If any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

Provided that, whore such officer is a Registrar, lie shall follow the procedure prescribed in Part All Section 72 of the Act provides for an appeal to the Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution. Section 73 provides for making an application to the Registrar by any party aggrieved when the Sub-Registrar refuses to register on the ground of denial of execution. When an application is made under. (Section 73 the procedure which the Registrar has to follow is given in Section 74. Section 74 provides:

In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document'' presented for registration to him, the Registrar ball, as soon as conveniently may be, enquire-

whether the document has been executed;

whether the requirements of the law for the time being in force have been complied with. on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.

Section 74 clearly lays down the ambit and scope of the Registrar''s power both in cases where an application is made u/s 73 to him on the refusal of the Sub-Registrar to register a document on the ground of the denial of the execution and also when the denial is made before the Registrar himself. Reading Section 35 and Section 74 together, it will be clear that Section 35 is a complete bar to the Sub-Registrar registering tin document if the execution has been denied by the heirs of the deceased executants. But there is no such resection to the powers of the Registrar when an application Is made to him u/s and also when the denial is made before him, as according to Section 35 itself if the denial is made before a Registrar, he has to follow the procedure laid down in part XII. The denial of execution before- the Sub-Registrar gives the party aggrieved a right to approach the Registrar. If the denial itself was a complete bar to the registration of a document, then there was no question, of giving any power to the Registrar either when the denial is made before him or when an application is made before him u/s 73 to inquire about the due execution of the document. The powers of the Registrar in case of denial before him are also embodied in Section 74 and the only two things which the Registrar is to inquire into under these circumstances are whether the document has been duly executed and whether the requirements of the law have been complied with on the part of the Petitioner or person presenting the document for registration. Section 75(1) lays down that if the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered. On the finding that the document has been duly executed and the requirements of law have been complied with, the Registrar is bound to register the document.

Under Section 76 In case of refusal the Registrar has o prepare an order of refusal and thereupon under sec-ion 77 a right is given to the party to file a suit. In suit u/s 77, it cannot be doubted that the owner of civil court cannot be larger than that of the registrar and if u/s 75 on the finding that the document was duly executed and the requirements have been complied with, the Registrar could not refuse registration, the court u/s 77 cannot refuse registration on similar findings. As I have already dilated, Section 35 does not dubar the Registrar from restoring the document on the denial of the heirs of the executants. Unless it can be said that Section 35 is a amplete bar to the Registrar registering the document, the execution of which has been denied by the representative, it cannot be said that the court, can also refuse registration as soon as the court finds that the execution has been denied.

Reliance is placed on Rule 71 of the rules framed under the Indian Registration Act. This rule provides:

If some of the heirs of a deceased executants admit execution and the others do'' not appear, or, having appeared, do hot admit execution of a document, registration thereof shall be refused.

This rule in the context lays down the power of the registering officer, but cannot override the provlsions of the Act. This rule only embodies the provisions of Section 35 and cannot go beyond that section.

At this stage it will be convenient to refer to some of the authorities cited by the counsel for the Appellant.

Reliance is placed on the case of Abdul Aziz Khan Vs. Mt. Kaniz Fatima and Another, The cass arose out of a suit between the Plaintiff-Respondents for possession of a half share of the property which they claimed as the heir of their father, mother and deceased brother and for a declaration that the deed of wakf alleged to have been executed by their deceased father was not genuine and was not executed by him. In the appeal the main question was whether the wakf deed was a genuine document and was executed by their father. The finding of the High Court in first appeal was that the wakfnama must fail on three grounds, namely (1) that the execution was not proved, (2) that it was not properly registered and (3) that it does not bear any signature or thumb impression of the alleged executants. The question thus which the High Court considered in this case was the due execution and the genuineness of the document and in considering the question of due execution, the Improper registration was also taken into consideration. Hut this case does not lay down that in a suit u/s 77 once the court finds that the execution is denied, it has no power to order registration even though it finds due execution of the document proved.

The next case is Mahaliram Singhania and Others Vs. Upendra Nath Pandey and Others, This case arose out of an application for a direction to the Sub-Registrar to pass an order refusing the registration. The document was presented for registration, the executants were dead and some of the representatives denied the execution. The Sub-Registrar, however, postponed passing orders till the valuation of the document was inquired into by the Deputy Magistrate. It was against this order that a number of petitions were filed before the High Court. The High Court held that the Registrar had no jurisdiction to inquire into the correct valuation of the property which was the subject matter of the transaction. The High Court further held that once the execution was denied by the representative of the deceased executants, the Sub-Registrar was bound to refuse registration and thus a direction was Issued to the Sub- Registar to pass an order refusing the registration. This case also does not decide the question of the power of the civil court in a suit brought u/s 77 of the Act and that section 35 is a complete bar to the court ordering registration as soon as the execution is denied by the heirs of the deceased executant.

In the case of Saiyed Mahmud v. Muhammad Zubair ILR All 523 in a suit u/s 77 of the Registration Act, the registration was refused on the ground that the document contained no description of the property. Section 21 of the Registration Act is obligatory and it lays down that no document which does not contain sufficient description of property can be accepted for registration.

Kellance la then placed on the ease of Sayyaparaju Surayya Vs. Koduri Kondamma, In this casa the executant stated that she had affixed her thumb impression to a blank paper, in order to enable the Plaintiff''s husband to file a petition before the Tahsildar to get the contribution to the War Fund reduced and it was held that this constitutes a denial of execution of the document and not an admission of execution. The registering authority had refused to register the deed on .the ground of denial and the contention was that it constituted an admission of execution and thus the registering authority was bound to register, it. This contention was negatived. In this case reference was made-to the case of M. Ramaswami Chettiar Vs. Srinivasa Pillai and Others, and it was observed as follows:

It was a case in which the execution of the document was admitted and no difficulty arose regarding its registration. The learned Judges pointed out that the Jurisdiction of the Court u/s 77 being analogous to that of the Registrar functioning under the Registration Act, it was not open to the Court to go into those questions and it should confine its attention only to the question of the execution of the document. No exception can tie taken to this judgment and we do not think that that decision throws any light or supports the contention of the Appellant.

These observations show that the Jurisdiction of the courts u/s 77 of the Act is analogous to that of the Registrar and if the Registrar cannot refuse the registration on the mere denial of the execution but has to order registration on the finding that it was duly executed, then the court cannot have greater power than that of the Registrar.

The next case referred to Is Purna Chandra Ghose Vs. Sm. Kiran Bala Ghose, . This case has been cited by both the parties. What it lays down is that in ''effect the civil suit filed u/s 77 of the Act is of the nature of an appeal against the decision of the registration authorities. The sect ion docs not merely give an abstract right of suit on the happening of certain events: it provides for a further stage of proceedings, of which the previous course has been dealt with by the previous sections. No objection can be taken to this proposition. But the only question Is whether the Registrar himself was bound to refuse the registration only if the execution has been denied.

Mr. Goswami for the Respondent refers to the case of Abdul Gafur Bhuiya Vs. Badial Haque and Others, This case does not go beyond the express language of Section 74 of the Act. In a suit u/s 77 the court has the power analogous to that of the Registrar and u/s 74 the registrar has firstly to inquire whether the document has been executed and secondly to inquire whether certain requirements of the law as to presentation for registration In due time to the proper of lee and in the manner generally prescribed by the Registration Act have been complied with by the person presenting the document for registration. In such suit the court is not competent to go into the validity of the document.

The next case referred to is Krishnaswami Naicker Vs. Nalla Gounder, wherein it has been laid down that Section 74 (a) of the Act gives-greater power to the District Registrar than to the Sub-Registrar. The Sub-Registrar cannot register a document if a party denies execution, while the District Registrar can do so.

In my opinion, therefore, It cannot be said that because one of the heirs denied the execution, the Registrar was not competent to register It even though the finding is that the document was Cult executed, and If Section 35 of the Act is no bar to the Registrar inquiring into the question of due execution, ten court in a suit u/s 77 can Inquire into the due execution of the document and grant a decree to the Plaintiff. Section 35 does not debar the court from refusing a decree (stc) to the Plaintiff If he had succeeded in proving that the document has been duly executed.

The next point urged is that the suit should have been valued on the consideration of the sale deed. The point was never taken before any of the courts below. u/s 11 of the Suits Valuation Act, the point about the undervaluation of the suit has to be raised at tho first instance. Mr. Lahiri contends that on the allegations made in the plaint and on admitted facts the suit was undervalued and this Court can in second appeal go into that question. In the case of Kiran Singh and Others Vs. Chaman Paswan and Others, it was held that the words ''unless the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on Its merits'' must be directly attributable to over valuation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or under valuation. '' Reliance is placed by the counsel for the Appellant In the case of ''Rajalakshmi Dassee v. Katyayani Dassee ILR Cal 639. That was a case where the suit was intentionally undervalued and if the suit had been properly valued, the appeal would have been filed before the High Court and as a consequence of the undervaluation the appeal was filed before the District Judge who decided the appeal. It was held that if the court had no jurisdiction over the subject-matter of the litigation, its judgments and orders are mere nullities and not only avoidable but void. We do not think that the point can be allowed to be raised at this stage as no prejudice has been caused to the Appellant. The argument of the counsel for the Appellant that on the face of it the suit was under-valued, cannot be accepted.

The last point urged was that as the property Is situate within the administered area of Shillong, the District Registrar of Shillong had no jurisdiction to register the document. This question was never raised before the courts below and unless the different notifications were examined, it cannot be said on the face of it that the District Registrar, Shillong had no jurisdiction to register the document. If the point had been raised before the courts below, the matter would have been examined by the courts. The document was presented to the Registrar whose office is located within the jurisdiction of the Munsiff of Shillong and u/s 77 of the Act it Is only the Minsiff of Shillong who was thus competent to entertain the suit. It is not denied by the Appellant that the office of the Registrar before whom the document was presented for registration, is situate within the jurisdiction of the Munsiff and thus if the Plaintiff asks for a direction to the Registrar of Shillong, the only court, which was competent to try the suit was the Munsiff''s court of Shillong. If ultimately the document is registered by the authority which has no jurisdiction, such a document may be a nullity. But the point not having been taken in the courts below, at this stage the Appellant cannot be allowed to raise that point. In effect the argument of the Appellant is that the order of the Registrar refusing registration can be supported also on the group; in that the Registrar will have no jurisdiction to register if and this Court in a suit u/s 77 of the Act will not direct the Registrar to do a thing which has not competent to do. The decision on this question will depend upon the decision as to whether the Registrar of Shillong was or was not competent to register the document. This being a mixed question of law and fact, cannot be allowed to be raised at this stage. In the result, therefore, the appeal fails and is dismissed with cost.