V.K. Manika Mudaliar vs K. Mahammad Ziasuddin Saheb

Ramesam, J.—This second appeal arises out of a suit to obtain registration u/s 77 of the Registration Act. The facts are as follows: The suit

document (Ex. A) was executed on 29th November 1919 by defendant in favour of plaintiff. The plaintiff presented it before the Sub-Registrar for

registration on 24th March 1920, i.e., within four months of the execution. The Sub-Registrar ordered notice to the executant who appeared on 19

th April 1920, i.e., beyond four months. The Sub-Registrar referred the matter to the Registrar u/s 31(4) of the Act. In so referring the matter, he

seems to have forwarded the document also to the Registrar though this is not necessary u/s 34(4), the Office of the Registrar and the Joint Sub-

Registrar being situate in the same building. The Registrar passed an order on 4th May 1920 ""Registration refused ""and gave reasons in which he

held that the delay of the parties in appearing beyond four months does not ""come under urgent necessity or unavoidable accident"" (Ex. B). The

document was then returned to the Sub-Registrar who furnished to the plaintiff a copy of the order on 8th June 1920. The present suit was filed on

14th June 1920, the re-opening day of the District Munsif''s Court of Vellore. The District Munsif dismissed the suit on the ground that the

plaintiff''s remedy was to have appealed against the order of the Sub-Registrar u/s 72 or made an application to the District Registrar u/s 73. On

appeal, the Subordinate Judge reversed the decision of the District Munsif and gave a decree. The defendant files this second appeal.

Where a matter is referred to the Registrar u/s 34(4) and proviso to Section 34(1) the Registrar may direct the registration if he is of opinion that

the delay was due to ""urgent necessity or unavoidable accident."" The proviso does not describe the form of the order to be passed by the Registrar

if he is not so satisfied about the delay. But, it maybe conceded in favour of appellant, that the proper form of the order is to express his opinion

that the delay is not due to urgent necessity or unavoidable accident. When he so expresses his opinion (such opinion being remitted to the Sub-

Registrar) the Sub-Registrar ought to follow it up by endorsing on the document ""Registration refused"" and then the remedy of the person who

seeks registration is to file an appeal u/s 72. This is the view taken by the Bombay High Court in Fattechand Anandram Marwadi Vs. Umaji Valuji

Mahar, and by the Punjab Chief Court in Harkishen Singh v. Sarmukh Singh 43 Ind. Cas. 294 : 169 P.W.R. 1917 : 102 P.R. 1917 : 7 P.L.R.

1918 where the exact reason for the refusal of the Sub-Registrar does not appear. A similar view is taken on the parallel Section 25 in Gangadara

Mudali v. Sambasiva Mudali 40 Ind. Cas. 192 : 40 M.P 759 : 33 M.L.J. 51 [of. Gangava v. Sayava 21 B.p 699 : 11 Ind. Dec. (N.S.) 470. I

agree with these decisions. So far the District Munsif is right. But, in the present case, the District Registrar did not pass the order which is the

proper one according to the above decision, viz., an order expressing his opinion about the delay. On the other hand he passed an order on the

document ""Registration refused."" Nor did the Sub-Registrar follow up the order of the Registrar by passing an order ""Registration refused."" The

District Munsif is in error in para. 7 of his judgment where he stated, ""The Sub-Registrar on receipt of the order has endorsed on the document

''Registration refused'' on the same date 4th May 1920."" This mistake of the District Munsif has been pointed out by the learned Subordinate

Judge. The question that arises before us is--What is the effect of the irregular procedure of the Registration Officers? Should the party suffer for

their mistakes? One way of construing the order of the Registrar is to regard him as having abridged the proper and regular procedure i.e., instead

of the matter going before the Sub-Registrar for his endorsement and an appeal being filed against the order of the Sub-Registrar and the Registrar

passing final orders on such appeal, he anticipated such last order in appeal and passed his final order at an earlier stage. If so, the plaintiff''s suit is

maintainable. But, even if this view of the Registrar''s order cannot be taken, the question is, not, what is the proper order which the Registrar

ought to have passed but, what is the effect of the order he has actually passed. The question is whether it falls u/s 76(a) so as to enable the plaintiff

to sue. In my opinion, the language of Section 76(a) is wide enough to cover all orders of the Registrar refusing registration--whether such orders

are passed on documents presented to him in the first instance or otherwise. Mr. Anantakrishna Iyer argues that the clause is limited to the first

class of cases only. If the Registrar passes orders properly it is true no other class will fall u/s 76(a). But if the Registrar passes an order refusing

registration by following an irregular procedure, I do not see why such an order should not fall u/s 76(a). Mr. Anantakrishna Iyer argues that the

aggrieved party must first take some steps to make the Registering Officers follow the proper procedure and then come to the Civil Court at the

proper stage of the proceedings as contemplated by the Act and he argues that the arm of law is strong enough to compel the Registering Officer

to follow the proper procedure. It may be that the arm of law is strong enough to get the procedure rectified. Yet I do not see why the party

should suffer for the Registrar''s irregularity i.e., why he should take some extraordinary remedy (such as a mandamus) to get the Registering

Officers to observe the proper procedure and why, when the language of Section 76(a) is wide enough to cover the actual order passed, he should

not go to the Civil Court at once.

The order of the District Registrar misled the Sub-Registrar who, seeing that this superior officer passed an order ""Registration refused"" thought

it would be presumptuous on his part to pass the same order once again and abstained from doing so. On the actual events that happened, the

view of the Subordinate Judge is right and I would dismiss the second appeal with costs.

Venkatasubba Rao, J.

I agree.