Keshwar Mehra vs Rajeswari Pershaa Singh and others

Fazl Ali, J.—This appeal arises out of a suit instituted by the plaintiff-respondents for the compulsory registration under S. 77, Registration Act, of a kobala which purported to have been executed by the appellant and one Gopal Mehra, father of defendant 2. It appears that Gopal Mehra duly appeared and admitted execution before the Sub-Registrar, but as defendant 1 failed to appear before him, the Sub-Registrar refused to register the document in so far as he was concerned. The plaintiffs thereupon filed an application under S. 73, Registration Act, to the District Registrar of Muzaffarpur but their application was rejected. Thereupon they instituted the present suit and the important question which was discussed during the trial of the suit was whether the document had in fact been executed by defendant 1 or not. On this point the Courts below came to different conclusions. The Munsif held that the plaintiff had failed to prove that the document had been duly executed by defendant 1, whereas the learned Subordinate Judge held on appeal that in his opinion the document had been executed by defendant 1. The learned Subordinate Judge thus reversed the decree of the Munsif and passed a decree in the following terms:

It be declared that the kobala in suit was executed both by defendant 1 and Gopal and defendant 1 is bound to have it registered. It is also ordered that the sale deed be registered as against Keshwar (defendant 1) also on its being presented for registration within thirty days from this date.

It appears that in pursuance of this decree the plaintiffs made an application to the learned Subordinate Judge on 6th September 1932, praying that the document might be either sent to the Sub-Registrar for registration or it might be returned to them for presentation before the Registrar. This was, in my opinion, a very proper application, but curiously enough the learned Subordinate Judge rejected it as premature. After this order was passed no steps were taken by the plaintiffs until 2nd November 1932, on which date they made another application in the same terms as the previous application which had been rejected and on 4th November the learned Subordinate Judge directed that the sale deed be made over to the plaintiffs so, that it might be duly presented before the Sub-Registrar. The document was subsequently registered, but as will appear from the facts which I have already narrated, it was not registered within thirty days of the decree of the learned Subordinate Judge. The question which has been raised by Mr. Mitra on behalf of the appellant is that the registration is invalid because it contravenes the provisions made in S. 77, Registration Act, which limits the scope of the suit to be brought for the compulsory registration of a document and describes it as a

suit for a decree directing the document to be registered, if it be duly presented for registration within thirty days after the passing of such decree.

It must be stated that Mr. Mitra''s contention finds support from a decision of this Court in Mohammad Ismail Beg v. Sricharan Das, 1922 Pat 408 = 69 I C 198 = 1 Pat 146 in which it was held that the Registering Officer has no jurisdiction to register a document, if it is not presented within thirty days of the date of the decree of the civil Court. Now, Mr. Mitra contends that this Court cannot and should not in appeal take away a right from the appellant which has vested in him in consequence of the document not having been duly presented for registration within thirty days of the decree and that all that this Court can do is to affirm, reverse or modify the decree passed by the learned Subordinate Judge. It appears to me however that the powers of a Court of appeal are not so restricted as they are suggested to be; but apart from this it seems to be well settled that the word "decree" as used in S. 77 means a final decree and if an appeal is filed from a decree, the document may be presented for registration within thirty days of the date of the decree of the appellate Court: see Ramasubba Nayakar v. Doari Raj, 1925 Mad 401 = 85 I C 192 = 47 M L J 735. It is clear that if the decree of the Court below is affirmed by this Court that decree will merge in the decree of this Court and it will be open to this Court to pass the very order which the lower appellate Court was competent to pass and to direct that the document be registered within thirty days from the date of the decree passed by this Court. In the present case it appears to me that the delay in the registration of the document was duo mainly to the mistaken notion of the Subordinate Judge that the plaintiff could not ask the document to be returned to him to be presented for registration before the expiry of thirty days and I think that the plaintiff should not be deprived of the benefit of the decree passed in his favour in consequence of this mistaken view.

Now, the only point which was urged before me, so far as the merits of the case were concerned, was that the learned Subordinate Judge had not directed his attention to the question as to whether the disputed document had been executed in the legal sense of the term and in this connexion reference was made to a decision of this Court in Sundar Chaudhuri v. Lalji Chaudhuri, 1933 Pat 129 = 145 I C 698 = 14 P L.T 727 in which the learned Chief Justice pointed out that:

Execution does not mean mere signing, but it means all acts necessary to make the parties to it bound thereby.

In other words, according to the learned counsel for the appellant, execution means not the mere mechanical act of signing the document or getting it signed but an intelligent appreciation of the contents of the document and signing it in token of the acceptance of those contends. Now, there is no doubt that Mr. Mitra is right that this is what the execution of a document should be understood to mean, but in my opinion, the finding of the learned Subordinate Judge cannot be attacked on the ground that he was under any misapprehension as to the meaning of execution. Upon reading the judgments of the two Courts below it seems to be quite clear that the important question which was in issue between the parties was not whether defendant 1 had failed to understand or appreciate the purport or contents of the sale deed but whether he had signed it at all. The learned Subordinate Judge has on a consideration of the entire evidence before him come to the conclusion that it was executed by defendant. 1 and I have no doubt that he meant to hold that it had been duly Executed. In these circumstances I dismiss the appeal with costs and direct that the document be duly presented for registration within thirty days from this decree. This order seems to be necessary in order to safe-guard the plaintiff from future attacks on his title by defendant 1 or any other person on the ground that the registration of the document which has already been effected was an act which the Registrar was not authorised under the law to do. As I have already stated, it is arguable that though the document has been registered, yet as the registration was effected in contravention of the express provision of S. 77, that registration is invalid and the document must he registered again. I therefore direct that the plaintiffs should present the document to the Sub-Registrar as soon as possible and that it may be registered again according to law.