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Dattatraya Keshav Naik Vs. Gangabai Nakayan Naik - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case Number First Appeal No. 179 of 1923
Judge
Reported inAIR1926Bom137; (1925)27BOMLR1334; 94Ind.Cas.560
AppellantDattatraya Keshav Naik
RespondentGangabai Nakayan Naik
DispositionAppeal dismissed
Excerpt:
indian registration act (xvi of 1908), sections 35(c), 87 - registration of document-admission of executant- representative of deceased executant- irregularity in procedure.;the executant of a deed died shortly after executing the document, leaving him surviving two widows and two sons by one of them. after hig death, his widow, who was childless, admitted the execution of the document and it was duly registered. one of the two sons, on attaining majority, having raised the question whether the document was properly registered : -;that the document was properly registered, as the widow was a representative of her husband for the purposes of registration; and that, assuming she was not, it was only a defect in procedure which was not sufficient to invalidate the registration. - .....whether gopikabai was competent to represent her husband keshav for the purpose of admitting the execution of the document. the definition of the word 'representative' as given in section 3 of the act is not exhaustive. in the circumstances of the case, i think, she was competent but assuming that the registering officer was in error in accepting her aa keshav's 'representative' for the said purpose, it was only a defect in procedure which was not sufficient to invalidate the registration. [reference may be made to (1) section 87 of the act; (2) the observations of the judicial committee in sah mukhun lall panday v. sah koondun lall ; (3) pakran v. kunhamned i.l.r.(1900) mad. 580 2. for these reasons i agree in the order proposed by the learned chief justice.
Judgment:

Norman Macleod, Kt., C.J.

1. recorded a judgment dismissing the appeal on its merits. COYAJEE J. concurred in the judgment, and added :] It was however contended before us, on behalf of the plaintiff, that the document Exhibit 67 was not registered in accordance with the provisions of Section 85 of the Indian Registration Act, 1908, it did not therefore affect any of the properties comprised therein, and was not receivable in evidence. The facts material to a correct appreciation of this contention are briefly these. On April 10, 1890, Keahav and Gopinath signed the document and it was also duly attested. In May 1890 Keshav died, before the document was registered, On August 11, 1890, a fresh Clause was added giving a more detailed description of the properties. This was signed by Gopinath for himself, and Bai Gopikabai, the widow of Keshav, as the guardian of the plaintiff and his brother Shripad, both of whom were then infanta, This was attested by the same set of attesting witnesses. The document was then duly registered. It is contended that it was not competent to Gopikabai, who was the step mother of the plaintiff and Shripad to represent them, for their own mother Bhagirathibai was then, and is still, alive, and that this circumstance renders the registration invalid. The trial Judge has, in paragraph '23 of his judgment, given his reasons for rejecting this contention. In my opinion, he was right, The document was executed by Keshav himself. The material portion of Section 35 is : 'If the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution the registering officer shall register the d+ocument.' The question is whether Gopikabai was competent to represent her husband Keshav for the purpose of admitting the execution of the document. The definition of the word 'representative' as given in Section 3 of the Act is not exhaustive. In the circumstances of the case, I think, she was competent But assuming that the registering officer was in error in accepting her aa Keshav's 'representative' for the said purpose, it was only a defect in procedure which was not sufficient to invalidate the registration. [Reference may be made to (1) Section 87 of the Act; (2) the observations of the Judicial Committee in Sah Mukhun Lall Panday v. Sah Koondun Lall ; (3) Pakran v. Kunhamned I.L.R.(1900) Mad. 580

2. For these reasons I agree in the order proposed by the learned Chief Justice.


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