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Judgment
Bakthavatsalam, J.—The petitioner challenges an order dated 8-1-1990 by which the 1st respondent has rejected the revision petition filed
by the petitioner on the ground that the petitioner can challenge the will in a Civil suit by way of suit. The petitioner earlier came up before this
Court in W.P. 10403 of 1989 and this Court by order dated 7-8-1989 dismissed the petition in limine on the ground that the petitioner can invoke
the revisional jurisdiction under S. 68 of the Registration Act. Subsequently, the petitioner moved the Authorities, but he was told that he can move
a Court of Law. The short facts leading to the filing of the writ petition are: A will has been registered by the 3rd respondent under S. 41 of the
Indian Registration Act. The petitioner alleges that he is the only son of late Ramarathina Mudaliar who passed away on 28th March, 1985 in the
Government Hospital, Nagapattinam and his father owned valuable, immovable properties. The petitioner alleges that his father left himself as the
only son and only heir to his properties. On coming to know of the fact, a notice was published in newspaper that the said deceased Ramarathina
Mudaliar bequeathed his properties in favour of the 3rd respondent, the petitioner issued a notice through his counsel to the 3rd respondent. He
also published a notification in the newspaper on 11-4-1985 that he is the only legal heir. According to the petitioner, the will is a fabricated
document and on the said date of the will, the deceased father was in the village and was not keeping well. It is alleged that when the 3rd
respondent applied for registration of the will before the 2nd respondent on 9-1-86 and notification was made on 11-7-1987, the petitioner filed
objections before the 2nd respondent and the inquiry was adjourned from time to time and the attesters were examined in Chief on 15-2-1989 and
the matter was posted for cross-examination. When nobody turned out, it was dismissed for non prosecution. However, the second respondent
gave a notice stating that the evidence on the petitioner''s side has been closed and the matter has been adjourned to 14-3-1989 for 3rd
respondent''s evidence. The complaint of the petitioner is that without giving an opportunity to cross examine the witnesses of the 3rd respondent,
the 2nd respondent closed the evidence in the case and passed an order on 23-3-1989 upholding the validity of the will and has granted the
certificate of registration. Relying upon S. 33 of the Evidence Act that evidence given by a witness in a judicial proceeding or before any person
authorised by law, will be relevant in all subsequent proceedings, the petitioner is before me. It is also stated that the 1st respondent has got a
power under S. 68 of the Registration Act and the power is very wide enough and the 1st respondent ought to have inquired into the irregularities
committed by the 2nd respondent while deciding the will case 1 of 1986. It is also stated that the 2nd respondent has failed to see that the 3rd
respondent who was a party in O.S 93 of 1985 before the Sub Judge, Thanjavur, has remained ex parte and the plea made by him based on the
alleged will has been rejected in the compromise decree dated 28-3-1989. The petitioner alleges that the 1st and 2nd respondents ought to have
relegated the 3rd respondent to work out his remedy in the Civil Court in the light of objections taken by the petitioner.
Notice of motion has been ordered by me on 11-10-1990 and learned Government Advocate Mr. Veerabadran appears for the State and has
produced the records.
From the records, it is seen that the matter has been inquired into right from 23-5-1988 to 15-2-1989. On 1-3-1989, I find that an order has
been made that the evidence on the side of the 3rd respondent is closed and the petitioner has been asked to produce the witness on 14-3-1989.
On 14-3-89 the witness of the 3rd respondent did not appear and the counsel for the petitioner stated that he will appear on 17-3-1989. On 17-
3-1989, D.Ws. 1 and 2 were examined and statements were recorded and the matter was adjourned for orders. On 20-3-1989, on the request of
the petitioners counsel, the matter was adjourned to 22-3-1989. The petitioner''s counsel did not appear on that day and the matter was adjourned
to 23-3-1989 and the will was accepted for registration.
It is stated by the learned Government Advocate that under S. 41 of the Registration Act, (Part VIII of the Registration Act), a procedure with
regard to the registration of the will is provided for and once a will has been registered, there is no provision in the Act to set aside that, Learned
Government Advocate contends that Part XII of the Act provides for the contingency where the Registrar refuses to register any document and a
right of suit is given against the refusal, but nowhere in the Act, any provision is found in a case where the document is registered. According to the
learned Government Advocate, the power under S. 69 cannot be exercised in a case where the quasi judicial order has been passed and the
power of general superintendence is not to be used in a matter as if the decision of the registering authority is administrative in character.
Learned Counsel for the petitions contends that the registering authority has failed to give an opportunity to the petitioner to cross-examine the
witnesses of the 3rd respondent and the registering authority on his own accord, closed the evidence and this vitiates the registration of the
document itself. According to the Learned Counsel, even if a suit is filed, the evidence taken before the registering authority will be put against him
on the basis of the provisions of the Evidence Act. Learned Counsel states that when the petitioner came up earlier before this Court, it was
dismissed on the ground of alternative remedy and that when it was invoked, it was dismissed by the Registrar and as such this. Court should set
aside the order registering the will.
I have considered the arguments of the Learned Counsel for the petitioner and also the contentions put forth by the learned Government
Advocate based on the instauration given to him. In Part VIII of the Indian Registration Act, 1908, S. 41 provide for registration of a will. Sub-S.
(1) of S. 41 states that a will presented for registration by the testator or donor may be registered in the same manner as any other document Sub-
S.(2) states as follows:
(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is
satisfied�
(a) The the will or authority was executed by the test or or donor, as the case may be;
(b) That the testator or donor is dead; and
(c) That the person presenting the will or authority is, under S. 40, entitled to present the same.
Part VII provides for enforcement of the appearance of executants and witnesses. A procedure is set out under S. 36 of the Registration Act. The
effect of registration is set out under Ss. 47 to 50 of the Act. After a document is registered, an entry is given and an index is maintained. S.69
speaks about the power of the Inspector General to superintend registration offices and make rules. Part XII of the Act provides for a contingency
where Sub Registrar refuses to register a document and S. 77 of the Act provides for a suit in case an order of refusal by the Registrar to register.
A reading of the provisions of the Act clearly shows that the power under S. 69 of the Act cannot be exercised by the Registrar where the
registering authority has exercised a quasi judicial function of registering a document after an inquiry especially when it is questioned by a person
like the petitioner in this case. It is settled law that when an enactment provides for an appeal in a particular contingency or a provision to sort out
the grievance and is silent in other respect, the general power of super intendance cannot be used in such circumstances. A Full Bench of this Court
as early as in Nagarathnammal v Ibrahim Sah 1955-2-M.L.J. 49:68 L.W. 202, has held so. As such, the power S. 69 cannot be invoked by the
petitioner on the facts and circumstances of this case. However it is open to the petitioner in my view to challenge the will by filing a suit in Civil
Court with regard to the genuineness of the will.
The Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, has held that the mere fact that the
will was registered, was not by itself sufficient to dispel the suspicion without scrutiny of the evidence of registration. The Supreme Court in that
case held that the registration was done in a perfunctory manner and the evidence did not establish that the testator knew that the document the
execution of which he admitted before the sub-registrar''s clerk was his will. The witnesses produced to prove registration, even if they are treated
as attesting witnesses, failed to prove the execution and attestation of the will. So, if the principle laid down by the Supreme Court is looked at, I
do not think, the petitioner can contend that the registration of the will decides the case against him. In the case before the Supreme Court, the will
was registered without the testator appearing before the Sub Registrar and the Sub Registrar only sent his clerk to the residence of the testator for
that purpose. Out of 16 persons who signed the the will as attesting witnesses, only 4 were produced to prove the will. Though the Trial Court and
the High Court held that suspicious circumstances were dispelled by the registration of the will, the Supreme Court reversed the judgment and held
that the registration of the will by itself will not dispel the suspicion. As such, it is open to the petitioner in my view to challenge the genuineness of
the will before a Civil Court and if the Registrar is available and subject to the process of the Court, steps should be taken to call for the Registrar
in the witness box. Though the certificate issued by the Registrar who registered the will is to some extent an evidence of the execution of the
document and the admission of signature before the Registrar by the executants can form an evidence of the execution of the document, registration
simpliciter cannot be regarded as a talisman casting away all suspicions against the evidence of the will. Though presumption with regard to the
validity arises, in law if it is registered in the Office of the Sub Registrar it can be repelled by evidence adduced by the petitioner. The Sub Registrar
can be called to the witness box and it can be proved that the registration was made without giving opportunity to the petitioner to cross-examine
the witnesses and the registration was made admitting the evidence of the 3rd respondent''s side alone. In view of the dicta laid down by the
Supreme Court in the case cited supra. I am of the view that the petitioner can very well question the genuineness of the will before a Civil Court.
Giving liberty to the petitioner to challenge the will in a Civil Court, the writ petition will stand dismissed. However, there shall be no order as to
costs.