Rashid Chenoy vs Raja Pratapgirji

This is a first appeal in a civil case. The only point for determination in this appeal is whether the registration effected is valid in law. We have heard the arguments of the learned Advocates of the parties and record our opinion below;

The learned Advocate for the Appellants argued that the registration effected is infructuous in law inasmuch as it has been effected by the Assistant Registrar of the suit property which was beyond the limits of the Hyderabad City; that the Registration Act delimits the jurisdiction of the Assistant Registrar to the precincts of the Hyderabad City; that the only exception in the Act is in Section 24 (ii) and is in favour of the Registrar & not in that of the Assistant Registrar, and that that Section 87 only cures defects in procedure and. not defects of jurisdiction and, hence, as in this case the Assistant Registrar has no jurisdiction outside the City, he could not have registered the mortgage deed and as such, the registration is infructuous in law. He has cited the following: cases.

- Ma Pwa May v. Chettiar Firm AIR 1929 PC 279 (A) - AIR 1931 52 (Privy Council) (B) - Suganmal v. Mt. Umraobi AIR 1938 Nag 550 (C); - Basanta Kumar Roy and Others Vs. Manjuri Dasi and Others, (Sic). Bansraj Singh v. Rajbans Barthi AIR 1914 All 76 (2) (E); Musammtat Rampia Vs. Hazari Lal and Others, (F).

We have carefully gone through all cases referred to by him and are of the opinion that they are distinguishable. There can be no quarrel with the principle that registration outside territorial jurisdiction is invalid. In the case under consideration, however, the Registrar had admittedly power u/s 24(2) to effect registration of the property situate anywhere in this State and therefore, as the document was presented to him all the cases referred to by the learned advocate become, strictly speaking, irrelevant. The only question that remains is whether the Registrar can delegate the registration to one of his officers, as he delegated it in this case to the Assistant Registrar. The cases cited by the learned advocate-throw no light on this point. The question may be viewed from this point of view that by the presentation of the document to the Registrar, the Registrar became seized of jurisdiction and anything he did after he had jurisdiction can only be a. question of procedure. It may be that u/s 38, Registration Rules, he should have himself registered the document. But the question is that when he issued a commission delegating the act of registration to his subordinate officer, whether the, delegation deprives him of the jurisdiction or is it a mere defect in procedure? A little discussion on this point seems necessary.

To begin with, the case of - S.M.A.R. Chetty Firm v. Ko Teik Ka AIR 1923 Rang 176 (G) may be referred to where it was held that:

Where a document is presented by a person duly authorised to present it who thus initiates the jurisdiction of the registering officer and who does all that is required to do under the Act and is guilty of no shortcoming thereunder, it would be contrary to the scheme of the Act and it could not have been the intention of the Registrar that he should be punished for any error or defect in procedure of the registering officer subsequent to the presentation".

Similarly Sir Barms Peacock in - Sah Mukhun Lal v. Sah Kundan Lal 2 Ind App 210 (H) held:

Now considering that the registration of all conveyances of immovable property of the value of Rs. 100 or upward is by the Act rendered compulsory, and that proper legal advice is not generally accessible to persons taking conveyance of land of small value, it is scarcely reasonable to suppose that it was the intention of the legislature that every registration of a deed should be null and void by reason of a non-compliance with the provisions of Ss. 19, 21 or 36 (now Ss. 34-35, Indian Registration Act. XVI of 1908) or other similar provisions. It is rather to be inferred that the legislature intended that such errors or defects should be classed under the general words ''defects in procedure'' in Section 88 (now Section 87) of that Act so that innocent and ignorant persons should not be deprived of their property through any error of inadvertence of a public officer on whom they would naturally place reliance. If the registering officer refuses to register, the mistake may be rectified upon appeal u/s 83 or upon petition u/s 84, as the case may be; but if he registers where he ought not to register, innocent persons may be misled, and may not discover, until it is too late to rectify it, the error by which, if the registration is in consequence of it to be treated as a nullity, they may be deprived of their just rights".

The learned commentator, Sir Brojendra La Mitter, in his commentary on the Indian Registration Act on Section 35 page 162 after quoting the above passage from 2 Ind App 210 (H) has remarked:

But later rulings of Privy Council leave hardly any doubt that the registration in such a case is a nullity. The view taken in recent cases is that the provisions of the present section (Section 35) are not merely directory but imperative. In - Jambu Parshad v. Muhammad Aftab Ali AIR 1914 PC 16 (I) their Lordships said:

''One object of Ss. 32, 33, 34 and 35 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under the Act. It is the duty of Courts in India not to allow the imperative provisions of the Act to be defeated when, as in this case, it is proved that an agent who presented a document for registration had not been duly authorised in the manner prescribed by the Act to present if.

Similar observations occur in still later cases - Choteylal v. Collector of Moradabad AIR 1922 PC 279 (J) & - Bharat Indu v. Md. Hamid Ali Khan AIR 1921 PC 93 (K). The view taken by the High Court of Allahabad in - Hardei v. Ram Lal 11 All 319 (L) CP B), and by the High Court of Madras in - Pakran v. Kunhammed 23 Mad 580 (M) that non-compliance with the provisions of Section s 34 and 35, is a mere ''defect in procedure'' within the meaning of Section 87, can no longer be sustained. In fact the decision in Hardei''s case'' (L) is inconsistent with the ruling of the Privy Council in ''Jambu Pershad''s ease'' (I) cited above.

It may, however, be remarked that all the cases referred to by Sir Mitter are prior to 1929 and in AIR 1929 P C 279 (A) their Lordships of the Privy Council again quoted 2 Ind App 210'' (H) with approval. In view of this it is difficult to agree that the authority of the Allahabad and Madras cases referred to by Sir Mitter is weakened, or that those cases are inconsistent with the Privy Council''s rulings. A principle that can be deduced clearly from these cases is that where there is no fraud or suspicion of fraud it is not the intention of the Registration Act to invalidate a registration deed which is otherwise valid. This is evident from the Pull Bench case of - ''Hardei v. Ram Lail, (L) referred to above, whom the Allahabad High Court relying on 2 I. A. 210 (H) held that even:

non-attendance of the executant of an instrument before the Registrar would not on that account render his registering the instrument invalid.

Straight, C.J. cited the case of - Majid Husain v. Fasl-un-nissa 16 Ind App 19 (N) in support of the above proposition, where it was held by their Lordships of the Privy Council that:

though a direction in the statute to parties seeking registration of a document had not in terms been complied with, nevertheless the certificate of the Registrar was sufficient and satisfactory proof of due and proper registration.

The Privy Council case of - Mohammad Ewaz v. Brijlal 4 Ind App 166 (O) may also be-referred to here. There Sir Montague E. Smith explained that:

the object of the Registration Law being to afford notoriety to instruments relating to immovable property, the" circumstance that a document has been in fact registered, satisfies the object at which the statute aimed.

And further,

A certificate of registration is sufficient to render a document admissible in evidence, without inquiry as to whether the same was properly granted.

We may also refer to - Zohra Jan v. Haveli Shah AIR 1935 Lah 301 (P). This case has an almost direct bearing on the point now under consideration, as it has been held there that:

The appointment of an official by Registrar to do the registration shows that he was duly appointed & Section 87 covers any defect in qualification necessary for the appointment.

The learned advocate for the Appellant argued that as this case was decided on Section 11, Registration Act, and the Hyderabad Registration Act contains no section corresponding to Section 11, it has no bearing on the present case and the Registrar could not have delegated the registration to the Assistant Registrar. It may, however, be pointed out that the Lahore High Court has expressly staled in their judgment that even if the appointment had not been u/s 11, Section 87 would have cured any defect in appointment.

The above should not blur the other side of the case: of course there are circumstances which vitiate registration. These are well stated in Lord Atkin''s judgment to be as follows:

In seeking to apply 3. 87, Registration Act, it is important to distinguish between defects in. procedure of the registration and lack of jurisdiction Where the Registrar has no jurisdiction to register as where a person not entitled to do so presents his registration or where there is lack of territorial jurisdiction or where the presentation is out of time, the section is imperative. On the other hand, if the Registrar has jurisdiction in exercise of it the section takes effect.

Keeping these also in view the position comes to this that where the defect is one of jurisdiction as opposed to one of procedure, it is not curable. This is evident right from 2 Ind App 210'' (H) down to Privy Council case of - Mujibunnissa Begum v. Abdur Rahim 28 Ind App 15 (Q) and AIR 1929 P. C. 279 (A). No doubt, it cannot be gainsaid that lack of territorial jurisdiction makes a regn. invalid. But when as in the case under consideration the Registrar has jurisdiction, his appointing a registering officer to do the regn. does not appear to be a defect of jurisdiction & is a defect only of procedure & as such curable by Section 87 Indian (Registration Act or its corresponding Section of the Hyderabad Registration Act. In the result, we are of the opinion, that the registration effected by the Sub-Registrar, under the directive of the Registrar is correct and cannot be questioned. We hold, therefore, that the mortgage-deed was properly registered.

On merits, the execution of the mortgage-deed is admitted. The allegation is that there was no consideration; but this contention has no-force, as the Defendant himself made several payments under it. In the result, we agree with the finding of the first Court. There remains the plaintiff''s appeal. The first appellate Court has not given any interest for the pendency of the suit. In our opinion some interest should have been allowed. We direct 2 per cent interest for the pendency of the suit & till full payment. In the result, the Defendant''s appeal is dismissed and the Plaintiff''s appeal is allowed. Plaintiff will get cost throughout. This judgment should govern the connected appeal.