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In Re: Bish Nath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All318
AppellantIn Re: Bish Nath
Excerpt:
.....assign or agent, satisfy himself of the right of such person so to appear (section 34), and, if satisfied on these points, it is his duty to register it (section 35). in the present case the judge should have ordered registration, as the above conditions were satisfied. 6. by section 76 an appeal lies to this court from the registrar's order refusing registration, on the application of any person claiming under the document, or his representative, assign or agent, in order to establish his right to have the document registered, and the court's duty is to order registration if it finds that the document has been executed, and the requirements of the law have been satisfied (section 70). 7. it is, however, argued that the petitioner in the present case cannot appeal, for though lie..........be founded upon it against lachman parshad or anyone else. the vendor could not, therefore, as a person claiming under it, apply by petition, under section 73, act viii of 1871, to the high court, in consequence of the judge's refusal to register it, with a view to establish his right to have the document registered. his petition cannot be entertained. whether the judge was right or wrong in refusing to register it is a question which we are not required to consider and determine.turner and spankie, jj.4. the petitioner having, as he alleges, agreed to sell certain lands and other property to the respondent, executed a conveyance and presented it to the registrar for registration. that officer refused registration on the grounds that the deed had not been delivered nor the.....
Judgment:

Robert Stuart, C.J.

1. It was objected by the respondent that, under Section 73 of the Registration Act, there was no appeal in a case like the present, by which, as I understand, is meant that, inasmuch as the appellant could not be said to 'claim' under the document, he bad no right to make the present application to this Court, being the remedy provided by Section 73, where the Judge of the district was, as in this case, the registering officer. But I am not satisfied that for the purposes of this section he must be regarded as not claiming under the document. He might not succeed in establishing his claim, say, to the purchase-money, but, although the deed was unilateral and executed by the vendor alone, it appears to lie in the form of sale-deed customary in these Provinces, and, on the face of it, therefore, and so far as its form is concerned, and whether it be registrable or not, I do not see that we are obliged at once to assume that it could not ho given effect to, or that because it is in form unilateral the appellant could not claim the purchase-money. There is, however, in relation to this point a curious inconsistency in the Act; for, whereas by this Section 73 the party desirous of making an application under it must he a person 'claiming' under the document, by Section 32 documents for registration shall ho presented 'by some person executing or claiming under the same, 'not executing and claiming, but executing or claiming. Why this should be, and the parties proceeding under these two sections in different positions, it is not easy to understand, unless it was intended that a party against whom an order refusing to register had been made was in a different position, at such a stage of the proceeding, from a party merely executing the document. Be this as it may, I do not see that for the purposes of Section 73 we are bound to assume in limine, that the applicant did not, or could not claim under it. I therefore consider that he was not precluded from his remedy by the application ho has made to this Court.

2. But on the merits of the question embraced in the reference before us, I must express the opinion I have formed on it, and that is, that registration of the document in question should not ho ordered. Even on the assumption that the applicant may be understood to claim under this sale-deed, I am not satisfied that it is a document or instrument within the meaning of the Registration Act. It is not only not executed by the allowed purchaser, but has been repudiated by him altogether, and this is a state of the case which I think may be allowed to come within the scope and intention of Section 35 of the Act, which provides that, if all or any of the persons by whom the document purports to be executed deny its execution, the registration shall be refused.

2. Was this so-called sale-deed a legal and enforceable document at all? I think not. As I have remarked, such unilateral instruments are not uncommon in these Provinces, and I may add that, in the practice of Scottish conveyancing, such instruments as sale-deeds, or deeds in the nature of mortgages, and the like, are only signed by the seller or obligor, and no inconvenience is experienced from this where the instrument records a true contract. But when there is no evidence at hand of such a contract, the unilateral character of the instrument leaves it open to the alleged purchaser or obligee to repudiate it. In the ease before us the alleged sale-deed recites no previous contract or agreement, the repudiation of it is express, and there is also the serious fact that no consideration had passed upon it. It was suggested at the hearing that there was no limit to the nature or character of the documents which might be presented for registration, but that the registering officer was bound to accept and register all documents without exception which purported to be executed at all. But this is a view of the law which I cannot concur in. If such was the position of the registrars under the Act, the public time would be wasted, and their duties would become intolerable. On the other hand, the consequences of registration are very serious, and I cannot allow that these consequences should be visited on the heads of innocent persons. The registering officers must satisfy themselves by evidence and inquiry that documents are honestly presented in their office, otherwise no one would be safe.

Pearson, J.

3. The vendee was not a party to the instrument in question, which does not in any way bind him. It was executed by the vendor alone, and merely declares that he has sold the property therein mentioned, for a consideration which he has received, to Lachman Parshad. But no claim could be founded upon it against Lachman Parshad or anyone else. The vendor could not, therefore, as a person claiming under it, apply by petition, under Section 73, Act VIII of 1871, to the High Court, in consequence of the Judge's refusal to register it, with a view to establish his right to have the document registered. His petition cannot be entertained. Whether the Judge was right or wrong in refusing to register it is a question which we are not required to consider and determine.

Turner and Spankie, JJ.

4. The petitioner having, as he alleges, agreed to sell certain lands and other property to the respondent, executed a conveyance and presented it to the Registrar for registration. That officer refused registration on the grounds that the deed had not been delivered nor the consideration paid. Had the question before us rested here, there would have been little difficulty in disposing of it, as the law does not prescribe either of the grounds recorded by the Registrar as justifying the refusal of registration. The deed was in a form not uncommon, if not most usual, in these Provinces, that is to say, it was unilateral, the seller alone being a party to it. It was duly executed by the seller, who appeared before the Registrar and admitted its execution. It is not alleged, and it does not appear that there had been any failure to comply with the requirements of the law, consequently registration should not have been refused. But it is contended on the part of the respondent that the petitioner is not entitled to apply to this Court for an order for the registration of the instrument, seeing that the law accords that privilege only to a person claiming under such instrument, or his representative, and that on the face of the instrument it appears that the petitioner does not claim under it. The only claim which it is suggested the petitioner could assert would be a claim to the purchase-money, but inasmuch as the instrument purports to be and is executed by the petitioner alone, it is clear that he cannot claim the purchase-money under it. It would not he the duty of the Court, we apprehend, on such an application to enter into any involved question of construction to determine whether or not the person presenting such an application has not a claim, but when, on the face of the document, it clearly appears that he can claim nothing under it, we hold that a mere unfounded assertion of a claim will not give him a locus standi, and that his application should he refused.

Oldfield, J.

5. All documents to which the Registration Act applies may by presented for registration by some person executing or claiming under the same (Section 32), and it is the duty of the registering officer, on presentation of the document, to inquire (a) whether or not such document was executed by the persons by whom it purports 60 have been executed, (b) satisfy himself as to the identity of the persons appearing before him, and alleging that they have executed the document, and (b) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear (Section 34), and, if satisfied on these points, it is his duty to register it (Section 35). In the present case the Judge should have ordered registration, as the above conditions were satisfied.

6. By Section 76 an appeal lies to this Court from the Registrar's order refusing registration, on the application of any person claiming under the document, or his representative, assign or agent, in order to establish his right to have the document registered, and the Court's duty is to order registration if it finds that the document has been executed, and the requirements of the law have been satisfied (Section 70).

7. It is, however, argued that the petitioner in the present case cannot appeal, for though lie executed the document, he is not claiming under it, since it is a document which can support no claim. The document purports to effect a sale of certain lands on the part of the petitioner to Lachman Parshad. As such, it is certainly one of those documents capable of registration, and to which the law applies as purporting or operating to create, declare, or assign, an interest in immoveable property; it is a document which the Registrar should register on application by the petitioner. No doubt the deed is signed by the vendor only as executor, but I do not think we can look into the document and say, that since it is unilateral it can give to the petitioner no valid claim, and therefore he has no hens standi to appeal; the document by itself may make no complete contract, but it may go to form one; for it is possible that another forming the counterpart may have been executed completing the contract, and so we cannot say that petitioner may not be in a position to assert a claim under it as forming part of a contract. In entering on these questions, I think we go beyond the powers given by the Act, which confines the inquiry to the question of the right, to have the document registered, dependent on due execution and fulfilment of the requirements of the law. Documents of this character are not uncommon, and our refusal to allow the appeal, and order registration of such documents, may have prejudicial effects. I would admit the appeal, and order the Registrar to register the document.


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