Krishnaswami Naicker vs Nalla Gounder

Horwill, J.—When the respondent presented a document for registration to the Sub-Registrar, the appellant who purported to be the

transferor, was absent; and his absence was construed by the Sub-Registrar as a denial of execution. The Sub-Registrar Wherefore refused to

register the document be respondent thereupon invoked the procedure laid down in Section 73, Registration Act, and applied to the District

Registrar to register the document. It was open to the District Registrar to inquire into the factum of execution u/s 74(a) of the Act, but he did not

do so; for he held that as the respondent had not complied with the requirements of Section 145(2), Madras Estates Land Act, the requirements of

law had not been complied with and that the application had therefore to be dismissed u/s 74(b). Thereupon, the respondent filed a suit u/s 77 of

the Act. The District Munsif upheld the order of the District Registrar and dismissed the suit. The Subordinate Judge of Dindigul allowed the appeal

on two grounds: (i) that the law referred to in Section 74(b) meant the law laid down in the Registration Act and nothing more, and (ii) that since

the Sub-Registrar had no power to refuse to register a document on the ground that it was not in accordance with law, the District Registrar, being

an appellate Court, had no greater power. Both the reasons on which the lower appellate Court allowed the appeal are in my opinion fallacious.

There is no reason by the term ""requirements of law"" should be restricted, to the requirements of a particular statute. Moreover, it is usual in an Act

I to refer to the provisions of that statute as ""the provisions of this Act"" or similar words. When it speaks of the law for the time being in force, it

must mean the whole body of law. The second reason was equally unsound; for although it may be laid down as a general principle that an

appellate Court has no greater powers than the Court from whose order the appeal has been preferred; yet if a statute gives an appellate Court

greater powers, it can undoubtedly exercise those powers. Section 74(a) is an example of a greater power being given to the District Registrar

than to the Sub-Registrar for whereas the Sub-Registrar cannot register a document if a, party denies execution, the District Registrar can.

Incidentally, it is hardly correct to term the District Registrar as an appellate tribunal and, as will be seen presently, I do not think that Section 74(b)

requires the District Registrar to do anything that the Sub-Registrar is not bound to do.

The questions in dispute will therefore have to be decided on other grounds. The contention of the respondent which found favour in the lower

appellate Court was that Section 35 requires the Registrar to register a document if the parties are known to him or if he is otherwise satisfied that

they are the persons they represent themselves to be etc. He has no discretion in the matter, it is said, even though the document on the face of it

conveys no title. Section 60 also says that after such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented for

registration have been complied with, the registering officer shall endorse thereon a certificate containing the word ""registered."" The provisions of

Section 35 have already been referred to u/s 35(3) the registering officer shall refuse to register a document if the person who purports to have

executed the document denies its execution or if such person appears to be a minor, an idiot, or lunatic, or if the person is dead and his

representative or assign denies its execution. Section 84 forbids registration unless the parties appear before the Registrar within a certain time.

Section 58 merely refers to the procedure to be adopted after a document is admitted to registration and Section 59 to the affixing of a signature.

So if one read only Sections 35 and 60 it would seem that the registering officer can refuse to register a document only on one of the grounds given

in Section 35(3), i.e., if a person denies execution or if he appears to be a minor or idiot or lunatic or if he is dead etc. A reference to other

sections of the Act will show that Section 35 does not include all the grounds on which a Registrar may refuse registration. For example, u/s 19,

the registering officer is bound to refuse to register a document if it is in a language not commonly used in the district or not known to him, unless it

is accompanied by its true translation into a language commonly used in the district. Section 20 empowers the registrar to refuse to accept for

registration any document which bears any interlineations or blank or erasure or alteration. Section 21 says that no non-testamentary document

shall be accepted for registration unless it contains a description of the property sufficient to identify the same. The rules u/s 22 also require certain

things to be done by a party before a document can be registered.

I have no doubt that the Registrar is also bound to have regard to any other law that may affect the law of registration. That a later enactment

can by implication modify an earlier enactment cannot be doubted. If that is so, the law to be applied is the law in the earlier Act as modified by the

later enactment. Section 4, T. P. Act, makes Sections 54, paras. 2 and 3, 59, 107 and 23 of that Act supplemental to the Registration Act, i.e.,

these sections must be road as part of the registration law which the Registrar is bound to observe. Some of these provisions appear to have been

embodied in Section 49, Registration Act, but not all. Section 59, T.P. Act, says that a mortgage can be effected only by a registered instrument

signed by the mortgagor and attested by at least two witnesses. Section 123 requires that a gift deed should be effected by a registered instrument

arid attested by at least two witnesses. These sections of the Transfer of Property Act do not say that a registering officer shall refuse to register a

mortgage or gift deed unless it is attested by two witnesses; but that would seem to be implied; for it would be absurd if the Registrar had to

register a document which on the face of it could have no legal effect whatsoever. In the same way, Section 145(2), Madras Estates Land Act,

says:

Any person presenting for registration any document transferring a holding or any portion thereof shall present therewith a notice in writing signed

by the transferor and transferee, and addressed to the landholder asking for recognition of the transfer, and shall also pay to the registering officer

such fee as the Provincial Government may prescribe for transmission of such notice to the landholder.

This direction would have no force whatsoever if the Registrar had no power to refuse to register when that provision had not been complied

with. It is true that Section 145 seems to work an injustice, in that a transferor refusing to join in an application would be able to prevent the

transferee from effecting compulsory registration. Section 145(6) was probably intended to prevent the transferor from obstructing the transferee in

the recognition of his rights; but even if the transferee could persuade the Collector to recognise an unregistered instrument, he would still not be

able to comply with, the requirements of Section 145(2). There, therefore, seems to be a hiatus in Section 145(2); but that is a matter which only

the Legislature can rectify. The respondent is not without a remedy, for if the Registrar was bound to refuse to register the document, a suit for

specific performance would lie.

We are not here concerned directly with the act of refusal of the Sub-Registrar, but with that of the District Registrar in an application u/s 74,

according to which the Registrar is bound to refuse to register a document if the requirements of the law have not been complied with. I agree with

the District Munsif that the Registrar was bound under this section to refuse to register the document. The second appeal is allowed, the decree of

the lower apellate Court is set aside, and that of the District Munsif restored. The appellant will have his costs in this Court, and in the lower

appellate Court.