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Fattechand Anandram Marwadi Vs. Umaji Valuji Mahar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 769 of 1922
Judge
Reported inAIR1923Bom187; (1923)25BOMLR45
AppellantFattechand Anandram Marwadi
RespondentUmaji Valuji Mahar
Excerpt:
.....directing the document to be registered:-;that the suit was maintainable under section 77 of the indian registration act, the order passed by the registrar being an order under section 72 of the act.;section 34 of the indian registration act, which is subject to the provisions of various sections including section 77, is not intended to lay down any limitation upon the effect of sections 71 to 77. it simply provides that the document shall not be registered unless the delay is excused. but where there is an order made by the sub-registrar refusing registration and where the registrar has refused to direct the registration of the document on appeal, the final order of the registrar satisfies the requirements of section 72 of the act. - - the registrar did not sanction the acceptance..........of law, that arises in this appeal, relates to the interpretation of the provisions of the indian registration act. the facts which have given rise to it are these. apparently a sale-deed was executed in favour of the plaintiff by the defendants on november 20, 1919. it was presented by the plaintiff on march 20, 1920, for registration to the sub-registrar. the sub-registrar accepted it and issued notice to the defendants. the defendants appeared on april 7, 1920, and they made a statement which may be briefly described as admission of execution subject to the proviso that the sale was subject to the agreement that the plaintiff was to reconvey the property on payment of the amount mentioned in the sale-deed. he also accepted in accordance with the rules under the indian.....
Judgment:

Lallubhai Shah, Kt., Acting C.J.

1. The question of law, that arises in this appeal, relates to the interpretation of the provisions of the Indian Registration Act. The facts which have given rise to it are these. Apparently a sale-deed was executed in favour of the plaintiff by the defendants on November 20, 1919. It was presented by the plaintiff on March 20, 1920, for registration to the Sub-Registrar. The Sub-Registrar accepted it and issued notice to the defendants. The defendants appeared on April 7, 1920, and they made a statement which may be briefly described as admission of execution subject to the proviso that the sale was subject to the agreement that the plaintiff was to reconvey the property on payment of the amount mentioned in the sale-deed. He also accepted in accordance with the rules under the Indian Registration Act the penalty which was leviable in consequence of the admission of execution of the document not having been made within the time allowed by law under Section 34 of the Indian Registration Act, subject to the sanction of the Registrar who would have power under the proviso to that section in case of urgent necessity or unavoidable accident to condone the delay. The Registrar did not sanction the acceptance of the penalty and did not condone the delay, with the result that on April 18, 1920, the Sub-Registrar endorsed on the document his order refusing to register it on the ground that the Registrar had not given the necessary sanction for accepting the fine and for registering the document. Thereafter the plaintiff made an application to the Registrar, but he saw no reason to revise the order already passed by him and refused the application on May 5.

2. The present suit was filed by the plaintiff on May 19, 1920, under Section 77 of the Indian Registration Act for a decree directing the document to be registered. The defendants resisted the plaintiffs claim, and the trial Court dismissed the suit on the ground that the suit was outside the scope of Section 77 of the Indian Registration Act, and therefore not maintainable.

3. The plaintiff appealed to the District Court, and the First Class Subordinate Judge, with appellate powers, who heard the appeal, came to the same conclusion and affirmed the decree of the trial Court.

4. The plaintiff has appealed to this Court, and his contention briefly stated is that the suit is within the scope of Section 77 of the Indian Registration Act. On the other side, the contention is that it is outside the scope of Section 77, because the order made by the Registrar is not covered by either Clause (a) or Clause (6) of Section 76. It is urged that there is no refusal on the part of the Registrar to register the document within the meaning of Clause (a), and that there is no refusal to direct the registration of the document under clause (b). By way of reply to these contentions it is urged on behalf of the appellant that the case is governed by Clause (a) of Sub-section (1) of Section 76 because in effect there is a refusal by the Registrar to register the document, and further that in any event it is covered by Clause (6).

5. It is clear that in order that the suit may be treated as maintainable under Section 77, the order must be one of refusal to order the document to be registered under Section 72 or Section 76. I do pot think that the order in question can be treated as a refusal to register by the Registrar within the meaning of Section 76(1)(a). We have to consider whether it amounts to a refusal to direct the document to be registered under Section 72 as provided in Section 76(1)(b). I may mention here that it is difficult to appreciate the need for referring to Section 72 in Section 77 as the orders of refusal by the Registrar under that section are included in Section 76. The point is not easy to decide under the provisions of the Indian Registration Act. But it seems that the true answer to the question that arises is to be found in the correct interpretation of the facts as they occurred before the Sub-Registrar and the Registrar. It appears that the document was accepted for registration under Section 24 of the Indian Registration Act as it was presented within the time allowed by law. But the registration was refused by him on April 15, 1920, as the persons executing the document did not appear before the registering officer within the time allowed for the presentation of documents, and as the Registrar did not condone the delay. We have not got on the record a copy of the application made by the plaintiff to the Registrar thereafter. But we have got a certified copy of the order which the Registrar made on that application. We have also got a certified copy of the entry made by the Sub-Registrar on April 15 in his own book, though it does not appear in terms whether that is Book No. 2 referred to in Section 51 of the Indian Registration Act. From the nature of the extract put in, it appears to me that the Sub-Registrar really refused on April 15, 1920, to register this document, on the ground stated in the endorsement. It is clear that the refusal to register was endorsed on the document, and there was also an entry in Book No. 2 of the reasons for such an order as required by Section 71. Therefore so far as the act of the Sub-Registrar is concerned, in spite of the previous reference to the Registrar which is referred to in his endorsement, it seems to me that it must be treated as an order under Section 71. So far there is no difficulty.

6. The further step that is necessary to consider is whether the application made by the plaintiff to the Registrar after that was an appeal under Section 72 of the Indian Registration Act, and whether the order rejecting the application is an order refusing to direct the registration of the document under Section 72. Section 72 is not referred to in terms in this order, and we do not know whether it was referred to in the application which the present plaintiff made to the Registrar on May 3. But under Section 72 the refusal of the Sub-Registrar, such as we have in this case, is open to appeal to the Registrar; and no particular form of appeal is prescribed, at least none has been brought to our notice. The rules under the Act which have been referred to are not shown to contain any particular form in which the appeal provided by Section 72 is to be made. We may, therefore, treat the application made by the plaintiff as an appeal. It is true that when the District Registrar refuses to direct the registration of the document under Section 72, he has to record reasons for such order in his Book No. 2 as provided in Section 76(1). It does not appear on the record of this case that any such entry of the order was made by the Registrar in Book No. 2, and we must assume for the purposes of the present appeal that no such entry was made. It is conceivable that the Registrar merely dealt with the plaintiff's application as an application to revise the order which he had already communicated to the Sub-Registrar on April 15. But the omission of the Registrar to refer the order to the proper section of the Indian Registration Act, and to make the necessary entry in Book No. 2 as required by that Act would not be a sufficient justification for our refusing to refer that order to the proper section, if it could be so referred.

7. After a careful consideration of the nature of the order and the steps taken in this particular case before the Sub-Registrar and the Registrar, I have come to the conclusion that the order made by the Registrar on May 5 was in substance an order under Section 72 refusing to direct the registration of the document which the Sub-Registrar had already refused to register. It is no doubt a somewhat anomalous position that the power which the District Registrar has under the proviso to Section 34 to condone the delay should be exercised by him in the first instance on a reference by the Sub-Registrar, which might be, for all that we know, without any knowledge of, and in the absence of, the parties concerned and that the party should have a right to appeal to the same authority practically to reconsider the decision so arrived at by him at an earlier stage. But under Section 72 the party has the right of appeal in the case of refusal, except when the refusal is based on the ground that the execution is denied, with which exception we are not concerned and for which exception a different procedure is provided. The present refusal of the Sub-Registrar to register the document would clearly be one in respect of which there could be an appeal to the Registrar. As there was an application to the Registrar after the refusal by the Sub-Registrar, it seems to me to be fair to treat that application as an appeal, and the order thereon as an order by the Registrar refusing to direct the registration of the document in question. When the order is read in that manner, it is quite clear that the suit is well within the scope of Section 77. That is the view which I take of the nature of the orders made by the Sub-Registrar and the Registrar, and I am, therefore, of opinion that the suit is maintainable under Section 77 of the Indian Registration Act.

8. I desire to add a word with reference to the argument based on the provisions of Section 34 that no document shall be registered under the Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation by the provisions of Sections 23 to 26. It is urged that where the Registrar refuses to excuse the delay under the proviso to that section, the document cannot be registered and that, therefore, the suit for the registration of such a document is outside the scope of Section 77. It is true that if Section 34 is literally read, it does present an apparent difficulty; but it seems to me that Section 34, which is subject to the provisions of various sections including Section 77, is not intended to lay down any limitation upon the effect of Sections 71 to 77 with which I have already dealt. It simply provides that the document shall not be registered unless the delay is excused. But where there is an order made by the Sub-Registrar refusing the registration as in the present case, and where the Registrar has refused to direct the registration of the document on an application which, as I have already stated, may be treated as an appeal, I do not see how the final order of the Registrar can be said not to satisfy the requirements of Section 72 of the Indian Registration Act. In spite of the difficulty, which no doubt does arise in view of the apparent conflict between the provisions of Section 34 and those of Sections 71 to 77, I think that the present suit should be treated as falling within the scope of Section 77 of the Indian Registration Act.

9. I would, therefore, allow the appeal, discharge the decrees of the lower Courts, and remand the suit to the trial Court for disposal according to law. All costs up to date to be costs in the suit.

Crump, J.

10. I concur.


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