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HusseIn Abdul Rehman and Co. Vs. Lakhmichand Khetsey - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSuit No. 4431 of 1923 and O.C.J. Appeal No. 18 of 1924
Judge
Reported in(1924)26BOMLR934; 84Ind.Cas.416
AppellantHusseIn Abdul Rehman and Co.
RespondentLakhmichand Khetsey
DispositionAppeal dismissed
Excerpt:
.....learned trial judge on this point is perfectly correct. 10. in the present case the sub-registrar refused registration under section 21. apparently he did not make the distinction upon which reliance is placed between refusal to accept for registration and refusing to register, at any rate he did not state it, and endorsed the order refusing registration on the document. in the present case, we are quite satisfied that the registration was refused under section 21, that the order made by the sub-registrar was appealable under section 72, and that when the registrar refused to interfere with that order, he in effect refused to direct the registration of the document within the meaning of section 76(1)(b), and that the suit is maintainable under section 77. 14. the second point as to..........under section 21 what the sub-registrar and the registrar have in effect done is not to have refused registration, but to have refused to accept the document for registration, and that where that is the nature of the order passed by the sub-registrar and the registrar, the suit is not within the scope of section 77. in support of this contention reliance is placed upon the decision in gangava v. sayava i.l.r. (1896) 21 bom. 699. 7 bom. l.r. 742 and the observations of mr. justice chandavarkar in abdul hussain v. goolam hoosein i.l.r. (1905) 30 bom. 304. on behalf of the respondent it is urged that this case does not fall under section 25, corresponding to section 24 of the indian registration act of 1877, under which the case of gangava v. sayava was decided, that for the purposes.....
Judgment:

Lallubhai Shah, Ag. C.J.

1. This is an appeal from the judgment of Mr. Justice Fawcett in a suit brought under Section 77 of the Indian Registration Act. The plaintiff filed the suit for an order under Section 77 for registration of the document in question, dated October 18, 1922 (Exh. A). It purports to have been executed by Hussein Abdul Rehman & Co. to Lakhmichand Khetsey, The material portion of that document is in these terms:--

We have taken from you on rent a godown bearing No. three. The Port Trust Number of which is ..in the new Rice Market at Carnac Bunder Port Trust Bombay. We have taken the same on rent by fixing the rent thereof at Rs. 601 per month. We are duly to pay you the said rent as accrues due each month. The period in respect of the said godown is fixed to be from the 1st of Kartak Sud and of the Samvat year 1979 to the 30th of Chaitar Vad of the Samvat year 1980 (i. e., from October 21, 1922, to May 3, 1924) i. e, nineteen months including the intercalary month.

2. Apparently the executant took possession of the godown and remained in possession for some time, but in March 1923 he seems to have given up the idea of retaining it in pursuance of this document. Thereafter the document was presented for registration for the first time on June 7, 1923, after paying the necessary stamp and penalty. The Sub-Registrar on that day made an order refusing registration of the document under Section 20 of the Indian Registration Act. He refused to accept it on the ground that the endorsement on the document made after it was executed referring to the cadastral survey number was not signed by the executant, but was signed only by the person to whom the document was executed. The reasons for this order are stated in Exh. F which show that the document was presented by Lakhmichand Khetsey on payment of penalty under Section 25. Lakhmichand Khetsey appealed to the Registrar from this order. The Registrar made the following order on July 26:--

The order of refusal by the Sub-Registrar is not proper under the section, and I therefore set it aside.

3. The document came again before the Sub-Registrar who made an order on August 13, 1923, refusing registration of the deed under Section 21 of the Indian Registration Act. In that order also the Sub-Registrar refers to the fact that 'the schedule of the property subsequently added is not signed by the executant and has no binding effect on the contract.' The said Lakhmichand Khetsey again appealed to the Registrar who made the following order on September 25:--

In the present case the Sub-Registrar has exercised his discretion given to him by Section 21 of the Registration Act and has refused to accept the lease for registration. I cannot therefore interfere with the order of refusal.

4. I have taken the substance of these orders from the register kept as required by the Indian Registration Act. The document also is endorsed by the Sub-Registrar on both occasions that 'Registration is refused' as required apparently by Section 71 of the Indian Registration Act.

5. On this refusal of the Registrar to interfere with the order of the Sub-Registrar the present suit was filed on October 26, 1923. The defendants, who are the executants of the document, raised two pleas by way of answer to the suit, first, that the suit was not maintainable as it did not fall within the scope Section 77 of the Indian Registration Act; and, secondly, that the description of the property was not sufficient to identify it within the meaning of Section 21 of the Indian Registration Act.

6. The learned trial Judge dealt with the first issue in his judgment dated December 20, 1923, and held that the suit was maintainable. After that on January 21, 1924, the learned Judge on a consideration of the evidence came to the conclusion on the second question that the description was sufficient to identify the property, and directed registration of the document on the basis of that conclusion.

7. The defendants have appealed from this decree, and the same two points have been argued in support of this appeal. The first question, therefore, that we have to consider is whether the suit is maintainable under Section 77 of the Indian Registration Act. It is urged that it is not maintainable because under Section 21 what the Sub-Registrar and the Registrar have in effect done is not to have refused registration, but to have refused to accept the document for registration, and that where that is the nature of the order passed by the Sub-Registrar and the Registrar, the suit is not within the scope of Section 77. In support of this contention reliance is placed upon the decision in Gangava v. Sayava I.L.R. (1896) 21 Bom. 699. 7 Bom. L.R. 742 and the observations of Mr. Justice Chandavarkar in Abdul Hussain v. Goolam Hoosein I.L.R. (1905) 30 Bom. 304. On behalf of the respondent it is urged that this case does not fall under Section 25, corresponding to Section 24 of the Indian Registration Act of 1877, under Which the case of Gangava v. Sayava was decided, that for the purposes of Section 77 really there is no differ-once between refusal to accept for registration and refusal to register a document, that in effect it amounts to a refusal to register the document, and that, therefore, the suit is within the scope of Section 77.

8. After a consideration of the arguments on both sides, we have come to the conclusion that the view taken by the learned trial Judge on this point is perfectly correct. Under Section 77 a party may institute a suit when the Registrar refuses to order the document to be registered under Section 72 or under Section 76. Under Section 76 it is provided that:--

Every Registrar refusing to direct the registration of a document under Section 72 or Section 75, shall make an order of refusal, and record the reasons for such order.

9. I have omitted to refer to Clause (a) in Section 70 because it has no application to the facts of the present case. In order to determine whether the Registrar in this case has refused to direct the registration of this document under Section 72, we must turn to the wording of Section 72 and see whether, his order falls under that section. It provides that:--

Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate.

10. In the present case the Sub-Registrar refused registration under Section 21. Apparently he did not make the distinction upon which reliance is placed between refusal to accept for registration and refusing to register, at any rate he did not state it, and endorsed the order refusing registration on the document. But whether under Section 21 he refused in fact to accept the document for registration, or refused to register it, it seems to us that the order was appealable under Section 72, because the expression in Section 72 is 'refusing to admit a document to registration' which appears to be comprehensive enough to include not only a refusal to register, but a refusal to accept a document for registration. Looking to the words of Section 72 the order was appealable and when the Registrar refused to interfere he in effect refused to direct registration under that section,

Turning to the wording of Section 21 it provides:

No non-testamentary document relating to immoveable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.

11. Then there are provisions in that section as to what kind of description should ordinarily be given with respect to houses in towns and other houses and lands. But from the mere fact that a document is not accepted for registration on account of the objection which in the opinion of the Sub-Registrar exists with reference to the description in a given document, it does not follow that there is no refusal to register the document.

12. As regards the decision in Gangava v. Sayava, which was relied upon, it is sufficient to point out that that was a decision, not with reference to an order under Section 21, but in respect of an order which was made under Section 24 of the Act of 1877, corresponding to Section 25 of the present Act. There is no decision which goes the length of accepting the distinction which has been relied upon on behalf of the appellant in respect of an order made under Section 21. The ratio decided in Gangava v. Sayava may lend some support to the contention. But after all it is a decision with reference to Section 24, and does not touch the point in the present case. We do not think that in dealing with the point which arises in this case we are bound by this decision.

13. As regards Section 25, which no doubt applies to this case, because the document was not presented for registration within four months from the date of its execution, it is enough to refer to the fact mentioned in the first order of the Sub-Registrar that the penalty was paid and the document was accepted. It does not appear on the record of this case whether the document was sent up to the Registrar as required by Sub-section (2) of Section 25 for his directions. Having regard to the fact that this document has been twice before the Sub-Registrar and twice before the Registrar, it must be taken now that the provisions of Section 25 were duly complied with, and that the necessary direction was given, or must be taken to have been given, and that the document would have been registered but for the objection which the Sub-Registrar thought existed under Section 21 of the Indian Registration Act. It is not disputed before us that the document must be deemed to have been properly accepted under Section 25. That fact itself presents an additional difficulty in the way of the appellant. For instance, if in this case the document has been accepted under Section 25, and subsequently for one reason or another registration is refused, even though the order may purport to have been under Section 21, the net effect is that the registration is refused. In the present case, we are quite satisfied that the registration was refused under Section 21, that the order made by the Sub-Registrar was appealable under Section 72, and that when the Registrar refused to interfere with that order, he in effect refused to direct the registration of the document within the meaning of Section 76(1)(b), and that the suit is maintainable under Section 77.

14. The second point as to whether the document, contained sufficient description for the purpose of identifying the property is really a question to be determined with reference to the nature and terms of the document and the circumstances of each case. It is not, in my opinion, desirable, nor is it necessary to attempt to define what may be sufficient and what may not be sufficient description of the property. In the present case we have the fact that it is a 'go-down' which was let to the appellant. It was let for a period of nineteen months, and the document contains not a very full description, but an apparently sufficient description. It appears from the orders passed by the Sub-Registrar, as also from his evidence that he refused registration because the endorsement referring to the cadastral survey number of the land on which this godown was constructed was not signed by the executants. So far the position is perfectly correct. That endorsement is of no use as it is not signed by the executants in determining whether the document contains a sufficient description of the property or not. But the Sub-Registrar seems to have assumed that if the land on which the godown stood was not described by its cadastral survey number the description could not be sufficient within the meaning of Section 21. On that point the terms of Sub-section 21 and 22 afford a complete answer. Sub-section (2) of Section 21, with which we are concerned, provides that:--

Houses in towns shall be described as situated on the north or other aide of the street or road (which should be specified) to which they front and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

15. Sub-section (3) of that section relates to other houses and lands, and the essential requirement of Section 21, is given in sub-Section (1), namely, that the document must contain a description of the property sufficient to identify the same. Section 22 provides that:--

Where it is, in the opinion of the Local Government, practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the Local Government may, by rule made under this Act, re-quire that such houses and lands as aforesaid shall, for the purpose of Section 21 be so described.

16. It may be mentioned that the Local Government have made rules under this sub-section which are to be found in the Bombay Government Gazette, Part I, 1910 (Notification No. 6412 of July 18, 1910), p. 1065. The sub-section itself provides, and the rules clearly indicate, that they are applicable to houses not in towns and lands, and it is conceded before us that the rules made by the Local Government under Sub-section (1) of Section 22 cannot apply to this property, because it is a house in a town with reference to which under Sub-section (1) of Section 22 Government have no power to make rules, and in reference to which no rules have been made It may be that for the purpose of indexing the property as required by the Indian Registration Act it is desirable, and even necessary to a certain extent, that the cadastral survey numbers of the land on which any particular house stands in the town should be stated in the document. But the provisions of law are clear, and there is no requirement of law that such numbers should be stated in describing houses in towns. Sub-section (2) of Section 22 provides as follows:--

Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provisions of Section 21, Sub-section (2) or Sub-section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property.

17. Therefore the whole question is whether the description given in this document, apart from the endorsement on this document, which must be left out of account, the description is sufficient to identify the property. The nature of the property here, as the learned Judge has rightly held, is that it is a superstructure on land, and that the document makes no reference to the land itself. The question is whether the description given in the document is sufficient to identify that superstructure. The learned trial Judge has drawn a distinction between houses and buildings which may or may not be justified for the purpose of Sub-section (2) of Section 21. We do not consider it necessary to follow that distinction for the purposes of this case. Treating the superstructure to be a house within the meaning of Section 21, the question is whether the house is sufficiently described Both parties before us have argued the case on the footing that the godown is a house within a meaning of Section 21, and we are prepared to accept that position so far as the decision in this case is concerned. Taking the godown to be a house, the description in the document, such as it is, appears to be sufficient. The learned Judge, after a careful consideration of the circumstances of the ease came, to the conclusion that it was sufficient to identify the property, and we accept that conclusion.

19. The result, therefore, is that both the contentions urged in support of this appeal fail. We confirm the decree of the trial Court and dismiss the appeal with costs. We discharge the stay order.


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