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Sharnappa (Since Deceased) by Legal Representative Chander Kant Vs. Pathru Saheb - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 916 of 1957
Judge
Reported inAIR1963Mys335; (1963)1MysLJ109
ActsEvidence Act, 1872 - Sections 17, 21 and 115; Registration Act, 1908 - Sections 58 to 61(1), 61(2) and 87
AppellantSharnappa (Since Deceased) by Legal Representative Chander Kant
RespondentPathru Saheb
Appellant AdvocateBhimsenachari Ashrith, Adv.
Respondent AdvocateMohd. Zakaullah, Adv.
Excerpt:
.....joseph, cj & a.n. venugopala gowda, jj] holding of departmental enquiry against a government servant - enquiry set aside by high court and sending the matter back to the authorities - authorities initiating a fresh enquiry new enquiry challenged as un-constitutional - held, new enquiry is not barred. - on these facts, their lordships held that the compliance with the provisions of sections 34, 35, 58 and 59 of the registration act constituted registration of the document and the subsequent formalities required by sections 60 and 61(1) were mere ministerial acts and the failure to comply with them constituted defects of procedure for which neither the donor nor the donee was responsible. this group comprises sections 58 to 63. section 58 states what are the particulars to be..........effect:1) whether the deed. in suit has been executed by the defendant;2) whether the mortgage deed is registered according to law;3) whether the defendant has paid the amount due under the mortgage; and4) whether the suit is in time.on these issues, the court held that the defendant has executed the mortgage deed and received the consideration thereunder. it also held that the defendant has not paid the mortgage amount and that the mortgage deed has been registered in accordance with provisions of the registration act and that, therefore, the suit is not barred by limitation. in view of these findings, it decreed the plaintiff's suit.5. the defendant, therefore, preferred an appeal against this decree in the court of the district judge at bidar. the learned district judge agreed.....
Judgment:

1. This appeal has been filed by the plaintiff against the judgment and decree, dated 21st June 1957, passed by the learned District Judge, Bidar, in Appeal No. 164/4/1955, by which he dismissed the plaintiff's suit.

2. The suit, was filed by the plaintiff in the Court of the Subordinate Judge at Bidar, being case No. 33-1/55, to recover a sum of Rs. 3,5007- O. S. from the defendant on the basis of a registered mortgage deed, dated 29th Meher 1339 F, executed by the defendant.

3. The defendant denied the execution and registration of the mortgage deed and also the receipt of the consideration. He also pleaded the discharge of the mortgage amount and contended that the suit claim was barred by limitation.

4. The trial Court raised, among others, issues to the following effect:

1) whether the deed. in suit has been executed by the defendant;

2) whether the mortgage deed is registered according to law;

3) whether the defendant has paid the amount due under the mortgage; and

4) whether the suit is in time.

On these issues, the Court held that the defendant has executed the mortgage deed and received the consideration thereunder. It also held that the defendant has not paid the mortgage amount and that the mortgage deed has been registered in accordance with provisions of the Registration Act and that, therefore, the suit is not barred by limitation. In view of these findings, it decreed the plaintiff's suit.

5. The defendant, therefore, preferred an appeal against this decree in the Court of the District Judge at Bidar. The learned District Judge agreed with all the findings of the trial Court except as to the registration of the document and the consequent limitation. He held that the mortgage deed has not been registered in accordance with the provisions of the Indian Registration Act, and, therefore the suit claim is barred by limitation. On that view of the matter, he allowed the appeal and dismissed the plaintiffs suit.

6. It is not disputed before us that if it is held that the document is not duly registered, then the plaintiff's claim would be barred by limitation. Therefore the only point of dispute between the parties is as to whether the mortgage deed can be deemed to be duly registered in accordance with the provisions of the Indian Registration Act.

7. The document in question is dated 29th Meher 1339F. On the back of this document, there is the Sub-Registrar's endorsement to the following effect;

'Pathru Saheb s/o Qadur Saheb Bagban age 42 years, caste Muslim occupation agriculture, resident of village Karimabad has submitted this mortgage deed for registration in the office of Sub-Registrar at about 3 in the day time Date as Signature Sub Registrar above Signature Pathru Saheb Pathru Saheb s/o Qadur Saheb age 42 years, caste Muslin occupation agriculture resident of village Karimabad ad mitted before me the writing and execution of this mort gage deed and the receipt of the consideration, and this person was identified by Sri Ibrahim Clerk Local Fund whom I know personally hence it is registered. Date as aboveSignature Sub Registrar.' Pathru Saheb' Mohamad Ibrahim' Kishan Rao.Book No. X Serial No. XPage No. X entered intoDate as aboveSignature Sub-Registrar.'

8. It shows that the executant submitted the mortgage deed for registration In the Office of the Sub-Registrar at about 3 p.m. on the very day of the execution of the document. It further shows that the executant admitted before the Sub-Registrar the execution of the mortgage deed and the receipt of the consideration and that he was identified by persons known to him personalty. The Sub-Registrar then signed the deed on the very day stating that it is registered. The, executant also has signed the deed along with two other persons. The last portion of this document shows:

'Book No. XSerial No. XPage XEntered into date as aboveSignature Sub-Registrar.'

There is also the seal of the Sub-Registrar's Office. Thus we find that the document bears an endorsement of the Sub-Registrar. But it does not show the number and the page of the book in which the document has been copied. Therefore the Sub-Registrar's endorsement seems to comply only with the provisions of Sections 58 and 59 of the Indian Registration Act and not with the provisions of Sections 60 and 61(1) of the said Act. Therefore the question that arises for our determination is whether, in the circumstances stated by us above, it can be said that the document is duly registered in accordance with the provisions of the Indian Registration Act. The trial Court held that the omission to comply with the provisions of Sections 60 and 61 of the Indian Registration Act did not invalidate the registration and, therefore, the deed must be considered to be duly registered.

9. The appellate Court held that the registration of the document cannot be deemed to be complete since there is no compliance with the provisions of Sections 60 and 61 of the Indian Registration Act. The finding of the lower appellate Court has been challenged before us fey Mr. Bheemasenachar Ashrith, the learned counsel for the appellant-plaintiff. His contention is two-fold:

1) that the defendant has on previous occasions admitted the registration of the document and that such admission would be sufficient to hold that the document is duly registered;

2) that the acts required to be done under the provisions of Sections 60 and 61 of the Indian Registration Act are ministerial acts to be performed by the registering officer with which the executant has nothing to do and that since there has been a due compliance with the provisions of Sections 34, 35, 58 and 59 of the Indian Registration Act, it must be held that the document is duly registered.

10. On the other hand, Mr. Zakaulla, who appears for the respondent, has contended that the mortgage deed in question cannot be deemed to be duly registered under the provisions of the Indian Registration Act unless there has been due compliance with the provisions of the Act. 'According to him, the registration can be deemed to be complete only when the endorsement made by the Sub-Registrar is certified as required by Section 60 and further the endorsement and the certificate are copied into the margin of the Register-book as required by Section 61(1); in other words, unless there has been due compliance with the provisions of Sections 60 and 61(1), the registration of the document cannot be deemed to be complete.

11. These are the rival contentions urged before us by the learned counsel appearing for the appellant and the respondent. We shall now proceed to consider these contentions and see whether the registration of the document in question can be deemed to be complete as required by the provisions of the Indian Registration Act.

12. The first contention urged by the learned counsel for the appellant is that the document must be deemed to be duly registered since the defendant has admitted its registration. In order to prove this admission of the defendant, the plaintiff relied on a written statement filed by the respondent in another suit between him and the plaintiff-appellant. There is a controversy as to what exactly the defendant has stated in para 4 of the written statement and whether the statement amounts to an admission of the registration. The learned District Judge, after considering the contents of the written statement as also the evidence of the parties, held that the contents of the written statement could not be construed as an admission of the factum of registration. We need not go into the correctness or otherwise of this finding since, in our view, even granting that the defendant has admitted that the document in question has been registered, it would not carry the plaintiffs case any further in the absence of any circumstances showing that the admission amounts to estoppel. It is not suggested that there is any such circumstance in this case. If the law requires that the registration shall be done in accordance with the provisions of the Act, then the admission of a party cannot make a document a registered one unless there has been due compliance with it. Therefore the first contention of the learned counsel for the appellant must be rejected.

13. Mr. Ashrit's other contention is that the Sub-Registrar's endorsement on the document shows that there has been due compliance with the provisions of Sections 34, 35, 58 and 59 of the Indian Registration Act and that it is sufficient to prove the registration of the document. The further requirements of Sections 60 and 61, he urges, are mere ministerial acts and a non-compliance with them would not make the registration of the document incomplete. In support of his contention, he has relied upon two decisions of the Oudh Court.

14. In Sobhnath Singh v. Pirthipal Singh, AIR 1948 Oudh 223, the question that arose for consideration was whether the deed executed on 27th October 1938 could be considered to be a document duly registered. It arose in this way. The owner executed two successive gift deeds in respect of the properties in suit. The first deed was executed on 27-10-1938 in favour of the plaintiffs who filed the suit to recover possession thereof. The donor did not go to the Sub-Registrar's Office but the Sub-Registrar was invited to his house and the document was registered in his house on 27-10-1938. The necessary formalities of registration were gone through in that the provisions of Sections 34, 35, 58 and 59 of the Indian Registration Act were complied with. The Sub-Registrar then issued the usual receipt as required under Section 52 of the Act to the executant and kept the document for being copied in the Register-book and for endorsing the final certificate of registration as required by Section 60(1) of the Act. The receipt shows that the document was to be returned to the executant on the 28th October. But it could not, however, be returned because the document was taken away from the Sub-Registrar by use of criminal force. Therefore the endorsements required by Sections 60 and 61(1) could not be completed. On the 4th November, the owner executed another gift deed in respect of the said properties in favour of defendants who went into possession. Thereafter the said document was registered in accordance with law. On the death of the owner, the plaintiffs sued the defendants to recover possession of the properties. The question, therefore, that arose was whether the document of the 27th October operated to effect the transfer of the properties covered by it. On these facts, their Lordships held that the compliance with the provisions of Sections 34, 35, 58 and 59 of the Registration Act constituted registration of the document and the subsequent formalities required by Sections 60 and 61(1) were mere ministerial acts and the failure to comply with them constituted defects of procedure for which neither the donor nor the donee was responsible.

15. We are, with great respect, unable to follow the reasoning of their Lordships when they say that the due compliance with the requirements of Sections 60 and 61(1) are mere ministerial acts and the observance of the requirements of Sections 34, 35, 58 and 59 are sufficient to constitute the due registration of the document. Is it suggested that the compliance with the requirements of Sections 34, 35, 58 and 59 are not formalities or ministerial acts to be observed by the registering officer? This reasoning ignores the provisions contained in Part XI of the Registration Act which lay down the duties and powers of the registering officers. It would seem that the Act makes no distinction between the formalities to be observed by the registering officers under Sections 34, 35, 58 and 59 on the one hand and Sections 60 and 61(1) on the other. In fact, Section 61(2) makes it absolutely clear that the registration of the document shall be deemed to be complete only when the foregoing requirements of law are complied with. The reasoning of the Court would, therefore, appear to be not only logically defective but also unwarranted by the provisions of the Registration Act. We are unable to see how Section 87 would come into play when the necessary requirements of the Act are not complied with. The non-compliance with the provisions of Sections 60 and 61(1) cannot be said to be merely defect in procedure but is a total violation of the provisions or requirements of the Act which make the registration of the document incomplete. It may also be perceived that if the reasoning of the Court is carried to its logical conclusion, it might, in conceivable cases, defeat the provisions of the Registration Act.

16. Therefore, with respect, we find ourselves unable to agree with the conclusion reached by their Lordships.

17. The other case relied upon by the learned counsel is Sita Ram v. Raj Narain, AIR 1934 Oudh 283. We do not see how this case helps the appellant. In that case, though the document was registered, there was an omission to mention the mortgage deed in the registration index relating to the mauza. Such an entry was required to be made under Section 54 of the Act in the book required to be maintained under Section 51 of the Registration Act. Their Lordships stated that Sections 60 and 61 of the Act make no reference to Sections 54 and 55 and that, when there has been a due compliance with the provisions of Sections 60 and 61, the document must be held to be duly registered. This is what their Lordships have stated.

'We think that the registration of this document was complete, according to the provisions of Section 61(2) of the Act, and that the omission of it from the index did not invalidate the registration as such .....'

Thus it could be seen that, according to their Lordships, the registration of a document can be deemed to be complete only when there has been a due compliance with the requirements of Sections 60 and 61 of the Registration Act We think that this decision, far from helping the appellant, goes against his contention. Therefore, the two cases on which reliance has been placed by the learned counsel for the appellant do not help his client.

18. We shall now examine the relevant provisions of the Indian Registration Act to find out whether the document in question can be deemed to be a duly registered document under the Act. Under Section 23 of the Act, every document has got to be presented for registration within a particular time. Part V of the Act deals with the place of registration. When the document has been presented for registration by the executant at the proper Sub-Registrar's Office, the officer concerned shall comply with the requirements of Sections 34 and 35 of the Act. Then Part XI of the Act deals with the duties and powers of the registering officer. This Part has been sub-divided into four groups -- A, B, C and D/ We are concerned with groups A and B.

19. Group A contains Sections 51 and 57 which deal with Register-books and indexes. Group B deals with the procedure to be followed on admitting a document to registration. This group comprises Sections 58 to 63. Section 58 states what are the particulars to be endorsed on documents admitted to registration. Under Section 59, the registering officer has been enjoined to affix his signature to all endorsements made under Sections 52 and 58, relating to the same document and made in his presence on the same day. Under Section 60(1), the registering officer has got to endorse thereon a certificate containing the word 'registered' together with the number and page of the book in which the document has been copied. Sub-section (2) says that such certificate shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by this' Act. Under Section 61(1), the endorsements and certificate referred to and mentioned in Sections 59 and 60 shall be copied into the margin of the Register-book, and Sub-section (2) of this section states that the registration of the document shall thereupon be deemed complete.

20. Thus, when we examine the scheme of the Act, we find that the registration of a document shall be deem ed to be complete under Section 61(2) of the Act only when it is registered as provided by Sections 58 to 61(1) and not otherwise.

21. In this case, we find that there is no compliance with the provisions of either Section 60 or 61(1) of the Act. The compliance with the requirements of these sections is in conformity with the public policy because, as stated by their Lordships of the Privy Council in Mohammed Ewaz v. Brij Lall, 4 Ind App 166 (P C), the registration is mainly required for the purpose of giving notoriety to the deeds. When we look to the provisions of the Transfer of Property Act, we also find that the registration of a document amounts to a constructive notice to the persons who might deal with the properties comprised in the registered document. Therefore, in our view, the requirements of Sections 60 and 61(1), are essential requirements and cannot be regarded as merely ministerial acts the non-compliance with which can be cured by Section 87 of the Act.

22. In the present case, there is no compliance with the provisions contained in Sections 60 and 61(1) of the Act and the document is not registered in the manner provided by the Indian Registration Act. It must, therefore, be held that the document is not a duly registered document. The contention of the learned counsel for the respondent is, therefore, correct and must be sustained. Consequently it must be held that the suit claim is barred by limitation and must be dismissed.

23. In this view of the matter, we agree with the conclusion reached by the lower appellate Court and dismiss this appeal with costs.


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