Sayyaparaju Surayya vs Koduri Kondamma

Satyanarayana Rao, J.—This is an appeal by the plaintiff against the decree dismissing her suit u/s 77, Registration Act. Plaintiff''s husband

presented to the Sub-Registrar of Kothapeta on 8th January 1944 a document purporting to be a sale deed executed by the defendants in favour

of the plaintiff on 29th September 1943. The Sub-Registrar refused to register the document as the defendant denied its execution. There was an

appeal against that decision of the Sub-Registrar to the District Registrar who agreed with the Sub-Registrar and confirmed his decision. His order

is dated 15th November 1944. A suit was thereafter instituted by the plaintiff on 13th December 1944 u/s 77, Registration Act for enforcing

registration of the document. The document is Ex. P-2 in the case. The document consists of six sheets of paper of which five sheets are stamp

papers of the aggregate value of Rs. 82 8-0. The sixth and the last sheet is a brown paper and there is the thumb impression of the defendant only

on the last sheet. There is the ""nishani"" (mark) put by the scribe on the first five sheets. On the stamp papers, it is significant, there is no thumb

impression. It purports to be a sale for a sum of Rs. 5500 of lands of the extent of about 24 acres belonging to the defendant and in which are

included about 10 acres of wet land. The document was attested by two witnesses Vageswara Venkataraju and Nadimpilli Ghandraraju. The

document, it is in evidence, is in the handwriting of one Appalaraju. The defendant''s case was that the plaintiff''s husband who was the village

Munsif of Vedireswaram represented to her that in order to get the contribution demanded from her to the War Fund reduced it was necessary to

present a petition to the, Tahsildar and on that representation her thumb impression was obtained by the plain-tiff''s husband on a blank paper. She

also pleaded that she could not have sold the property for such a low consideration of Rs. 5500 especially as the property comprised also wet

lands of considerable value.

To substantiate the case of the plaintiff, plaintiff examined herself on commission and examined her husband as P. W. 4 and one of the attestors

as P. W. 3. During the course of the trial she got Ex. P-17 produced through P. W. 5, which purports to be an application intended to be sent to

the Sub-Registrar for procuring his attendance at the house of the defendant for registering the document. The importance of this document is that it

purports to bear the thumb impression of the defendant and contains an admission that the property was sold to the plaintiff for a sum of Rs. 5500

though the date of the document is left blank in the petition. The learned Subordinate Judge who tried the case was of opinion that the document

was not executed by the defendant and that the evidence is (sic.) established its execution was interested and no reliance could be placed upon it.

He also found that the consideration for the sale was wholly inadequate, having regard to the evidence regarding the value of the property at or

about the time and relied on this as a circumstance improbabilising the case of the plaintiff that the defendant sold the property to the plaintiff. He

accepted the version of the defendant that the thumb impression was obtained by the plaintiff''s husband on a blank paper on the representation

that it was necessary to file a petition to get the contribution to the War Fund reduced and that sheet was utilised as the sixth sheet in the document

for bringing into existence a sale deed. He also noticed that in the recitals in the document the description of the properties was repeated more than

once in order to bring over the matter to the last sheet, the brown paper. For these reasons the learned Judge in a very exhaustive and careful

judgment came to the conclusion that the document could not be directed to be registered u/s 77, Registration Act and the suit was dismissed.

In this appeal we have been taken through the evidance bearing on the question and we have perused the document. We have no doubt that the

conclusion of the learned Subordinate Judge is perfectly justified on the evidence on record. The most striking circumstance which tells against the

case of the plaintiff is the absence of the thumb impression on the stamp papers. The importance of this is admitted even by the plaintiff''s husband

in the witness box, and yet, though he is a village munsif, who must have been acquainted with the formalities required for the execution of

documents, he has no explanation to offer for this significant omission. The plaintiff did not examine the scribe and the other attesting witness. There

is no satisfactory explanation for the non-examination of these two persons. What is more, the evidence of P. W. 3, the only attesting witness who

has been examined in the case, is wholly interested and is not worthy of credence. Exhibit P. 17 no doubt purports to bear the thumb impression of

the defendant ; but on a comparison of the thumb impression on Ex. P. 17 with the thumb impression on the last page of the sale-deed, we are

satisfied that the two are not identical. The scribe of the document Ex. P. 17 is not known, though the names of two persons are disclosed in the

evidence, and the document itself does not bear the signature of the scribe. The date of the sale-deed is left blank, and the document is not proved

by any witnesses. No reliance can, therefore, be placed upon the recital in the document that the defendant executed a sale-deed for a sum of Rs.

5500 in respect of her lands in favour of the plaintiff. For these reasons we are of opinion that the decision of the learned Judge on the question of

fact is correct.

On behalf of the appellant, a question of law was raised, viz, that in a suit u/s 77, Registration Act, or for the matter of that, when a document

was presented for registration and the Registrar had to consider the registration of the document u/s 35 of the Act, if it purports to bear the

signature or thumb impression of the executant the document must be registered, if the signature or thumb impression is admitted by the executant,

as such an admission amounts to admission of execution within the meaning of Section 35, Registration Act. In support of this position reliance was

placed by the learned Advocate for the appellant on a recent decision of a single Judge of this Court in Alluru Bapanayya Vs. Chintalapati

Bangarraju, . In that case which also arose out of a suit u/s 77, Registration Act the defendant denied the execution of the document and stated that

his finger impression was taken by representing that his attestation on a document, i. e., a sale-deed executed by his brother in favour of the plaintiff

was needed. Registration was refused and so the plaintiff instituted a suit u/s 77 of the Act for compelling registration. The suit was dismissed by

the lower appellate Court; but on second appeal his decision was reversed by Vishwanatha Sastri J. According to the learned Judge, u/s 35,

Registration Act it is the duty of the Registrar to register a document if the ostensible executant admits his signature to the document. This amounts

to an admission of execution referred to in Section 35 of the Act. We are unable to read Section 35 in the manner in which the learned Judge did.

What Section 35 requires is that there should be an admission of execution of the document. Section 35(1)(a) says :

If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise

satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, the registering officer shall

register the document as directed in Sections 58 to 61, inclusive.

Under Sub-section (3) :

If any person by whom the document purports to be executed denies its execution, the registering officer shall refuse to register the document as

to the person so denying.

The admission required, therefore, is admission of the execution of the document. It may be a sale-deed, it may be a mortgage deed. It is not

enough for the person, who is the ostensible executant, to admit his signature on a paper on which, it may be, the document is ultimately engrossed.

The identity of the papers on which the signature occurs is not sufficient. If a man says that he signed a blank paper on the representation that it

was required for presenting a petition, as in the present case or if a man signs a completed document on the representation that his signature or

thumb impression is required as an attesting witness, that admission of the signature or thumb impression in those circumstances cannot be

construed to be an admission of the execution of the document. Far from its being an admission, it is a clear and unambiguous denial of the

execution of the document. He must admit, in order to attract the provisions of Section 35(1), that he signed the document, viz., a sale-deed or a

mortgage deed or a lease deed, as the case may be. Some light is thrown on this question by the observations of the Privy Council in Puranchand

Nahatta v. Monmothonath Mukherji, 65 Cal.. 532 : A. I. R. 1928 P. C. 38. No doubt the question which their Lordships of the Judicial

Committee were considering was different from the question now before us. But their Lordships were defining the expression ""person executing"" in

the Act, and it is pointed out that the expression is not identical with the ""person signing."" ""They mean"" to quote the words of their Lordships at p.

537 ""something more, namely, the person who by a valid execution enters into obligation under the instrument."" The admission of execution,

therefore, must amount to an admission that the person admitting entered into an obligation under the instrument; in other words, that he had

executed the document, signed it as a sale deed, mortgage deed or a lease deed, as the case may be. There are a number of decisions to which

our attention was drawn which have considered the scope of Section 77 of the Act. Guruvayya v. Venkataratnam, 47 Mad. 833 : A. I. R. 1924

Mad. 810 is a very extraordinary case in which the person in whose favour two documents were executed, one a sale deed and another a

mortgage, with the help of certain acids removed the writing in the body of the documents leaving the signature intact and converted the two

documents into a sale deed in respect of a larger extent of property and presented it for registration. The executant denied execution of the

document, and the question was whether, in view of the admission of the signature in the document, which was left untouched by the acid, u/s 77 of

the Act it was open to the Registrar to refuse registration. The power of a Court u/s 77 of the Act is the same as that of the Registrar whose duty it

is to register the document. The same considerations should guide the Court in directing registration u/s 77 which guide also the Registrar. It was

contended in that case that the document as presented to the Registrar for registration represented in substance the agreement between the parties

and, therefore, it should be registered. In dealing with this contention Coutts-Trotter C. J. observed at p. 835 as follows :

Is this Court to enter on a roving enquiry into the probabilities and the surrounding circumstances and put itself the question : Does the document,

whatever its history, represent the substance of the agreement between the parties ? In my opinion, that is a wholly otiose and irrelevant enquiry.

The Registrar has to ask himself merely this : Is this document now tendered to me to be registered actually in the state in which it was executed by

the parties to it? In my opinion, he would be exceeding his functions if he went into a roving enquiry as to whether the substance of the document

truly represented the agreement actually concluded. He is concerned alone with the form, and not with the substance of the document. It appears

that, in a suit u/s 77, the same considerations should guide the Court which should guide the Registrar in considering his duty to register or to refuse

registration. Indeed, were it otherwise, the Court would be called upon to say, in effect that the Registrar was perfectly justified in refusing

registration, but that the Court will nevertheless order it to be registered ; and the result might be that the Court would order registration of the

document which had been altered behind the back of the person who executed it and after its execution and signature on the ground not that he

had ever executed it in its present state, but that it represented what had actually been agreed between the parties. In my opinion, such a

conclusion is so absurd as to refute itself.

The registration of the document was ultimately refused. In that case the Registrar had before him a document which contained admittedly the

signature of the executant, but was on the face of it in an altered condition. It was held! by the Full Bench that the proper course for the Registrar

and for the Court was to refuse to register the document in such circumstances. The-mere fact that the signature on the document'' was admitted is

not treated as execution of the document so as to make it the imperative duty of the Registrar to register the document. The admission of signature

therein cannot be taken to be conclusive and as constituting admission of execution of the document. There is the earlier case in Balambal Animal

v. Arunachala. Chetti, 18 Mad. 255, which also lays that the function of the Court acting u/s 77, Registration Act, is to confine itself to the factum

of execution and it should not go into a validity of the document. In a later decision of this Court in M. Ramaswami Chettiar Vs. Srinivasa Pillai and

Others, , a Bench consisting of Sundaram Chetty and Pakenham Walsh JJ. had to consider the question whether in a suit u/s 77, questions as

regards the validity or enforceability of the document could be gone into. 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 be taken to this judgment and we do not think that that decision throws any light

or supports the contention of the appellant. There are also other decisions on the same line, which it is unnecessary to refer to in this judgment.

Another important circumstance in the present case is there is only one thumb impression on the last page and not on the other pages. The net

result of the discussion of the cases is that in a case like the present where the ostensible executant states that she had affixed her thumb impression

to a blank paper in order to enable the plaintiffs husband to file a petition before the Tahsildar to get the contribution to the War Fund reduced, it is

a clear denial of execution of the document and not an admission of execution. The refusal, therefore, by the Registering authorities to register the

document is perfectly justified.

The result is that the appeal fails and is dismissed with costs.