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Kishnu Ghanshyam Vs. Maroti Mukunda - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 389 of 1957
Reported in(1963)65BOMLR578; 1963MhLJ520
AppellantKishnu Ghanshyam
RespondentMaroti Mukunda
DispositionAppeal allowed
.....statement of executants amounts to admission of execution under section 35(1) of act or rule 36 of rules-rule 36 whether in conflict with section 35-construction of statute-two provisions in a statute-whether court entitled to ignore owe provision because it thinks of less value than the other.;the expression 'execution' of a document used in section 35(1) and 35(3) of the indian registration act, 1908, and rule 36 of the central provinces and berar registration rules, 1939, connotes the knowledge of the contents of the document at the time when the signature is made on it.;where the document was a sale-deed according to the plaintiffs but the defendants before the sub-registrar did not admit that they had signed it as a sale-deed and were saying on the contrary that they had only whom the document purports to be executed is dead, and his representative or assign denies its execution. rule 36, on the other hand, provides for cases in which the sub-registrar ought not to refuse registration where the executant, while admitting execution, challenges the binding nature of the transaction for certain reasons mentioned in the rule. thus, this rule 36 only covers cases, which are not provided for by sub-section (1) and/or sub-section (3) of section 35, and it is not at all in conflict with section 35 or any parts thereof. consequently, this submission of shri banerjee that section 35 must prevail over rule 36 ought to stand rejected.10. shri banerjee then submitted that even if there is no conflict between section 35 and rule 36, the court should give more value to.....

Paranjpe, J.

1. The defendants have come up in second appeal to challenge the concurrent decisions of the Courts below whereby the claim of the plaintiffs-respondents for possession of the house in suit was decreed.

2. House No. 1146 situated in Circle No. 12/18 Lalganj, Nagpur, which is the subject-matter of this litigation, belonged to the joint family of the defendants-appellants and their predecessor Ghanashyam. This Ghanashyam died sometime before the document in suit was brought about on November 4, 1954, Defendant No. 1 Kishnu and defendants Nos. 3, 4 and 5, Shioram, Anandrao and Laxman, are the sons of Ghanashyam, while defendant No. 6 is the widow of Ghanashyam. Defendant No. 2 Ramdas is the minor son of defendant No. 1 Kishnu. On January 16, 1951, Ghanashyam, acting for himself and his minor sons defendants Nos. 4 and 5, defendant No. 1 Kishnu acting for himself and his minor son Ramdas, defendant No. 2, and defendant No. 3 acting for himself, executed a document transferring the house in suit by way of an ostensible sale to the plaintiffs for Rs. 1,500. There was a condition of repurchase embodied in the document and the parties were agreed that this document was in effect a mortgage under Section 58(c) of the Transfer of Property, Act. This document, dated January 16, 1951, is exh. P-1. On May 7, 1951, Ghanashyam and defendants Nos. 1 and 3 borrowed Rs. 500 from the plaintiffs at an interest of Rs. 2 per cent per annum and executed the bond (exh. P-2). On November 4, 1954, accounts of these transactions between the parties were taken and either Rs. 200 or Rs. 400 (about which the parties are not agreed) were found due on exh. P-2 in addition to the amount due on the mortgage (exh. P-1). On that day, after the accounts were made, a certain talk took place between the major defendants and the plaintiffs and the document (exh. P-3) was scribed. It purported to be a sale deed for Rs. 2,500 the consideration whereof was made up as under:

Rs. 1,500 due on the mortgage, dated January 16, 1951 (Exh. P-1).Rs. 400 due on the bond (Exh. P-2).Rs. 100 paid as earnest money on November 4, 1954 andRs. 500 to be paid before the Sub-Registrar.

3. On February 22, 1953, the plaintiff presented this document for registration as a sale-deed before the Sub-Registrar but the executants thereof did not appear. The Sub-Registrar then noticed the executants and accordingly defendants Nos. 1, 3 and 6 appeared before him on March 4, 1955. These defendants had raised certain objections to the registration of the document but the Sub-Registrar registered that document as a sale-deed, which is exh. P-3 before the Court.

4. Claiming that they had become the full owners of the suit house by virtue of the sale-deed (exh. P-3), the plaintiffs claimed possession of the house. The defendants contested the suit on the following, among other, grounds:

They had never agreed to sell the suit house for Rs. 2,500 when the accounts were made. Rs. 400 were not found due on the bond (exh. P-2) and the earnest money of Rs. 100 was not paid to them that day. They never executed the document (exh. P-3) as a sale-deed. At that time their brother Anandrao was seriously ill and none of them were free to consider this question of settling the former transaction. Representing that the limitation for the debt was about to expire and that the document (exh. P-3) was only for the renewal of the old outstanding debts, the plaintiffs fraudulently obtained the signatures of the executants when they were not in a proper frame of mind. On being noticed by the Sub-Registrar, they learnt that fraud was played upon them and they, therefore, denied the execution and objected to the proposed registration. The Sub-Registrar ought not to have registered that document and this invalid registration conveyed no title to the plaintiffs and the suit should, therefore, be dismissed.

5. The two Courts below upheld the contentions of the plaintiffs, overruled the defence and decreed the claim for possession. Hence this second appeal.

6. Before the learned Additional District Judge, several rulings under Section 35(3) of the Indian Registration Act were cited in order to persuade him to hold that the registering authorities ought to have refused registration. The learned Additional District Judge did not consider any of these rulings because of his view in para. No. 4 that any reference to Section 35 was absolutely irrelevant for the purposes of that appeal. I do not think that those authorities should have been so summarily discarded by the learned Additional District Judge. Even if he thought that the matter was governed more by Rule 36 than by Section 35(3), there were certain points in those authorities which I would indicate in the sequel, requiring consideration at the hands of the Judge. I will deal with those authorities later on while considering what is required to be established for deciding whether execution was admitted or denied.

7. In the view of the learned Additional District Judge, the matters in controversy were completely governed by Rule 36 of the Central Provinces and Berar Registration Rules. That rule is in the following terms:

Registration shall not be refused on the ground that any person executing or claiming under the document is unwilling that it shall be registered or that want of failure of consideration or denial of execution with free consent (as defined in section 14 of the Indian Contract Act, 1872) is pleaded by the executant of the document, although, he, admits execution,or that the document deals with property not belonging to the persons by whom it purports to have been executed, or that the transaction is fraudulent or opposed to public policy, or that the document was executed under coercion or by fraud or under misrepresentation.

(Italics are mine).

8. The learned advocate for the appellants, Shri Banerjee, submitted that this Rule 36, which had come into existence under powers vested in the State Government to frame rules, could not have the effect of overriding or controlling Section 35 of the Indian Registration Act. In making that submission Shri Banerjee was obviously treating this Rule 36 as a mere piece of subordinate and delegated legislation, which had a lower status and place than the Act passed by the Legislature. He, however, overlooked the provisions of Section 69 of the Registration Act in this connection. Section 69(1) of the Registration Act authorises the Inspector General of Registration of each State to frame rules consistent with the Act on several points of procedure mentioned in Clauses (a) to (j) thereunder. Sub-section (2) of that section further lays down that the rules so made shall be submitted to the State Government for approval, and, after they have been approved, they shall be published in the Official Gazette, and on such publication, shall have effect as if enacted in this Act. This special and additional provision in Sub-section (2) would, therefore, mean that though these rules were pieces of subordinate and delegated legislation, the Legislature itself had intended and provided that once the rules, as proposed by the Inspector General, were approved by the State Government and were published in the Official Gazette, they were to have the same effect as if they were enacted by the Legislature itself, These rules framed under Section 69 were, therefore, parts of the Act itself and were to be treated as enacted by the Legislature as they were admittedly published in the Official Gazette after approval by the State Government, Consequently, this Rule 36 also would have to be treated as being a part of the Act itself and as being on par with Section 35 of the main Act.

9. Shri Banerjee did not seriously dispute the position that these rules were given the status of parts of the main Act by Section 69(2). But he contended that Rule 36 was in conflict with Section 35 and, therefore, on the authority of Union of India v. Satyendra Nath : AIR1955Cal581 it should be held that Section 35 in the main Act must prevail over Rule 36, which was to be treated by fiction of law to be a part of the Act itself. This argument assumed that there was a conflict between Section 35 and Rule 36 but he was unable to show to me any such conflict. Reading Section 35 and Rule 36 together, it would be seen that Section 35(1) deals with cases where there is no dispute about registration because the execution of the document is admitted and, in such eases of admissions, Section 35(1) provides that the document must be registered. Section 35(2) is not relevant in this context as it only provides that the registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. Section 35(3) covers cases where the Sub-Registrar must refuse registration either because the executant denies its execution or because the executant appears to be a minor, an idiot or a lunatic, or because the person by whom the document purports to be executed is dead, and his representative or assign denies its execution. Rule 36, on the other hand, provides for cases in which the Sub-Registrar ought not to refuse registration where the executant, while admitting execution, challenges the binding nature of the transaction for certain reasons mentioned in the rule. Thus, this Rule 36 only covers cases, which are not provided for by Sub-section (1) and/or Sub-section (3) of Section 35, and it is not at all in conflict with Section 35 or any parts thereof. Consequently, this submission of Shri Banerjee that Section 35 must prevail over Rule 36 ought to stand rejected.

10. Shri Banerjee then submitted that even if there is no conflict between Section 35 and Rule 36, the Court should give more value to the main section in preference to the rule which is given the notional status of a part of the Act by Section 69(2). This argument virtually amounts to saying that the Court should itself take the role of the Legislature and should, at its will, prefer one or the other part of the legislation. Obviously that will be an untenable position. Once the Legislature has passed a law, it is the duty of the Court to consider the entire law and to apply it. There can be occasions where there may be a necessity of considering two provisions together but there would not be any question of ignoring one provision, because the Court thinks that it has less value than some other provision in the main Act. Moreover, if Rule 36 were to be ignored, as was suggested by Shri Banerjee, there would be no provision for cases which have been specifically provided for by this Rule 36, because there was no provision for such cases in the main Act itself. In view of my opinion that there is no conflict between Section 35 and Rule 36, there would be no question of ignoring one or the other provision, and the correct course would be to consider the two provisions together and to apply such of them as are applicable to the facts of the present case.

11. It was next urged on behalf of the appellants that the happenings before the Sub-Registrar did not warrant the application of Rule 36 but required invoking Section 35(3) so as to impel the Sub-Registrar to refuse registration. This submission can be properly considered only after keeping in view what had happened before the Sub-Registrar. The learned appellate Judge had summarized the pleadings of the defendants in this connection in para. 2 of his judgment. They were as follows:

Para 5. It is not disputed that the document, dated the 4th November 1954 was presented for registration by the plaintiff No. 1. It is admitted that the defendants were noticed by the Sub-Registrar. It is also admitted that the defendants objected for the registration of the said document as their signatures and the thumb-mark of the defendant No. 6 were obtained by the plaintiffs by practising fraud, deception, coercion, and misrepresentation and without knowing the contents of the said document. It is also not disputed that the Sub-Registrar overruled 'the objection of the defendants and registered the said document.

Para 10(c). They knew, therefore, that the document was not the document of renewal of the old debt but it was the sale-deed on which the plaintiffs obtained the signature of the defendants through fraud.

In view of these pleadings, the learned Additional District Judge came to the conclusion that the case of the appellants before the Sub-Registrar was that they had signed the document as a bond in renewal, of the earlier debts and not as a sale-deed and their signatures were taken by practising fraud, coercion, deception and misrepresentation without letting them know the contents of the document as being a sale-deed. The learned advocate for the plaintiffs-respondents did not question the correctness of this interpretation of the defence by the learned appellate Judge.

12. These pleadings meant that the defendants did not admit that they had consciously or knowingly executed the document as a sale-deed. What they claimed was that fraud, deception, coercion and misrepresentation etc. were practised on them and they were not made aware of the real contents of the document but they signed it merely in renewal of the old debts and not as a sale-deed. This admission of the signature on the document, under certain circumstances specified above, was interpreted by the learned Additional District Judge as an admission of execution within the meaning of Rule 36, on the authority of Rindu v. Vithoha (1930) 27 N.L.R. 116. In that decision also, it was noticed that the expression 'executed' or 'execution' was not defined in the Registration Act and the expression 'executed' was interpreted therein as equivalent to merely 'signed' on the analogy of the definition of 'executed' given in Section 2(12) of the Indian Stamp Act. It would not seem permissible to adopt the definition of the expression 'executed' given in, one Act for the purposes of some other Act which has been brought into existence for an entirely different purpose. With respect, I do not think that it would be correct to read the definition of 'executed' as given in the Stamp Act as operative for the purpose of the Registration Act also.

13. If that was the intention of the Legislature, Section 35 and other sections would have only referred to then admissions of signatures on these documents. But Section 35(1) and Section 35(3) of the Act and Rule 36 also specifically refer to 'admits execution' or 'denies execution'. Obviously, the word 'execution' connotes something more than the bare physical act of signing. Even, in common parlance, a mere signature on a document would not be treated as execution of the document in the sense of consciously subscribing to the contents of the document. The expression 'execution' of a document would necessarily connote the knowledge of the contents of the document at the time when the signature is made on it. The following observations* in Bagdu v. Bhana I.L.R. (1904) 28 Bom. 420 : 6 Bom. L.R. 126 would lend support to my view though I would make it clear that that ruling is on a different point..The second defendant is illiterate, and it is established that if a man, who cannot read, has a written contract falsely read over to him and the contract written differs from that pretended to be read, the signature of the document is of no force because he never intended to sign, and therefore in contemplation of law did not sign the document on which the signature is.... But if a person executes a document knowing its contents but misappreciating its legal effect he cannot deny his execution.

14. Thus the statement of the defendants that they signed the document as a bond in renewal of the old debts and not as a sale-deed and their signatures were obtained by fraud, deception, coercion and misrepresentation etc. without letting them know that it was in reality a sale-deed, would not possibly be covered by the clause 'although he admits execution' within the meaning of Rule 36. The position taken by the defendants before the Sub-Registrar would only mean that they were not admitting the execution but were denying it. Consequently, there would be no question of invoking Rule 36 and the case would have to fall under Section 35(3).

15. In order to support his view that the admission of barely signing the document did not amount to an admission of execution, the learned Counsel for the appellants had referred to several rulings. In Wazira v. Muhammadi A.I.R. [1918] Lah. 34 a sale-deed purporting to sell certain land along with appurtenances was shown to an illiterate vendor by the Sub-Registrar and the vendor stated that he had sold the land but without the appurtenances. Under these circumstances, it was held therein that the vendor's protest amounted to a denial of execution of the document produced for registration. That meant that where an alleged executant protests that he has not subscribed to the contents of the whole or part of the contents of the document, which is read out to him, that protest would amount to a denial and not admission of the execution of the document even though he may admit transfer of a part of that property.

16. In Puran Chand v. Monmotho Nath A.I.R. [1928] P.C. 38 : 30 Bom. L.R. 783 it was pointed out in somewhat different circumstances that the words 'the person executing' do not mean merely as ''a person signing a document'; they mean something more, namely, the person, who by a valid execution enters into obligation under the instrument. That would mean that a person executing the document agrees to bind himself by the recitals in the document. In the instant case, the document was a sale-deed according to the plaintiffs. But the defendants never admitted that they had signed it as a sale-deed and were saying on the contrary, that they had only signed the document as a bond in renewal of the old debts. Under these circumstances, the statement of the defendants before the Sub-Registrar could not possibly amount to an admission of execution but must be treated as a denial of execution.

17. In Jogesh Prasad v. Ramchandar Prasad : AIR1950Pat370 it was held that execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. That would mean that execution was tantamount to knowing the obligation created by the document and accepting that obligation. That was not the case in the instant litigation and, therefore, the mere signature on a document, the contents of which were not known or were considered to be different from what they were, would not amount to an execution.

18. In Surayya v. Kondamma : AIR1950Mad239 which was decided by a Division Bench, the earlier view of a single Judge that mere signing amounted to an execution of the document, was overruled and it was laid down that the admission must be of the execution of the document with the knowledge of its contents and the obligation created therein. In that case, the signature of the alleged executant was taken on a blank paper with the representation that it was required for presenting a petition and subsequently a document was brought about over that signature. But the Division Bench held in that connection that far from being an admission of execution, the defence amounted to a clear and unambiguous denial of the execution of the document and, in order to attract the provisions of Section 35(1), the alleged executant must admit that he signed that document as such.

19. The learned Counsel for the plaintiffs-respondents submitted that the rulings referred to above were rightly overlooked by the learned appellate Judge because they did not indicate that the Madras rules were on par with the M.P. Rule 36 on which the learned appellate Judge had acted and they were distinguishable on facts. True enough, there was nothing in the above rulings to show that they were with respect to local rules framed under Section 69(1) of the Registration Act for the relevant territories. That criticism was of no avail in view of my finding that the present case also was not governed by Rule 36 of the M.P. Rules. My discussion would show, on the contrary, that the present suit was governed only by Section 35(3) and not by Section 35(1) and, therefore, the reasoning in those decisions would be entitled to great respect and consideration. At any rate, those authorities were of great value for the present case for deciding what was meant by 'the execution of a document' and 'the admission or denial of an execution.' Those rulings would support my view that the decision in Rindu v. Vithoba that execution amounted to mere signing, was not correct.

20. It would, therefore, be seen that the learned Courts below were not right in assuming that the defendants had admitted execution and in applying Rule 36. As I have shown above, neither Rule 36 nor Section 35(1) would be applicable, but the case would clearly be governed by Section 35(3) of the Registration Act, because the defendants had denied the execution of the document as a sale-deed. In that view, the Sub-Registrar acted without jurisdiction in registering the document and the proper course for him was to refuse registration. As held in Razi-un-nissa v. Sabir Husain I.L.R. (1903) All. 57 the action of the Sub-Registrar in registering the document, when the execution thereof was denied, was ultra vires and without jurisdiction and consequently that document could not be used in evidence against the alleged executant and did not create any title in favour of the plaintiffs. As was pointed out by their Lordships of the Privy Council in Bharat Indu v. H.M.H. Ali Khan A.I.R. [1921] P.C. 93, the provisions of the Registration Act are very carefully designed to prevent forgeries and the procurement of conveyances or mortgages by fraud or undue influence, and though it may seem somewhat technical to insist upon exact compliance with the provision of the Act, it is necessary so to do. In the instant case, the Sub-Registrar had not complied with the requirements of Section 35(3) and that made his action of registering the document illegal.

21. When the registration of a document, the execution whereof was denied by the executant, was itself illegal, even the learned Counsel for the plaintiffs-respondents could not dispute that the plaintiffs would not get title under that document. I would, therefore, differ from the Courts below and find that the plaintiffs' claim for possession on the strength of the document, dated November 4, 1954, (exh. P-3), which was registered without jurisdiction, must fail.

22. The appeal is allowed with costs and the suit of the plaintiffs-respondents is dismissed with costs throughout.

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