Sayyaparaju Surayya vs Koduri Kondamma

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

Plaintiff''s husband presented to the Sub-Registrar of Kothapeta on the 8th January, 1944, a document purporting to be a sale deed executed by

the defendants in favour of the plaintiff on the 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 the 13th December, 1944, u/s

77 of the Indian Registration Act for enforcing registration of the document. The document is Exhibit 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. 5,500 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 Chandraraju. 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 munsiff 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

plaintiff''s husband on a blank paper. She also pleaded that she could not have sold the property for such a low consideration of Rs. 5,500

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 Exhibit 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. 5,500,

though the date of the documents 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 to establish 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 the sixth sheet in the document for bringing

into existence a sale deed. He also noticed that in he 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 of the Registration Act and the suit was dismissed.

In this appeal we have been taken through the evidence 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 munsiff, 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 ; button a comparison of the thumb impression on Exhibit 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 Exhibit 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.

5,500 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 of the 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 of the 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 of the 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 the

registration. The suit was dismissed by the lower appellate Court ; but on second appeal his decision was reversed by Viswanatha Sastri, J.

According to the learned Judge, u/s 35 of the 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

* * * * *

(2) 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 (1927) 54 M.L.J. 473 : L.R. 55 LA. 81: ILR 55 Cal. 533 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 page 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. Bolla Guruvayya and Others Vs. Cherukuri Venkatarathnam, .

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 page 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 this 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 aconclusion

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 me 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 Ammal

v. Arunachala Chetti I.L.R.(1894)Mad. 255, which also lays that the function of the Court acting u/s 77 of the 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 Ramaswami Chettiar v. Srinivasa

Pillai (1933) 66 M.L.J. 424 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 lire, 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 plaintiff''s 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.