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Shiv Charan Das and ors. Vs. Rukmani Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 904 of 1968
Judge
Reported inAIR1975All354
ActsRegistration Act, 1908 - Sections 73, 73(1), 74 and 75; Limitation Act, 1963 - Sections 12, 12(2) and 12(3)
AppellantShiv Charan Das and ors.
RespondentRukmani Devi and anr.
Appellant AdvocateS.P. Gupta, Adv.
Respondent AdvocateH.S. Joshi, Adv.
DispositionAppeal dismissed
Excerpt:
property - registration of sale deed - sections 73, 74 and 75 of registration act, 1908 - registrar not a court - hence benefit under section 12 of limitation act, 1963 not applicable - limitation for registration of documents to be governed by guidelines of registration act. - - that the suit was bad for non-joinder of devendra kumar etc. 1 had clearly alleged that the sale deed was registered in a wrong manner and was not admissible in evidence. the petitioner obtained certificate to appeal to the supreme court but failed to deposit necessary security as required by rules of the high court. it was open to the temple to get its rights established by means of a suit under section 57(3). it failed to take that step. section 76 applies to orders of refusal by a registrar made under.....m.p. saxena, j.1. this is plaintiffs' second appeal against the judgment and decree dated 11-3-1965 passed by the additional district judge, moradabad.2. briefly stated the facts alleged in the plaint were that one sheel chand was the owner of the house described in para 1 of the plaint. after his death it devolved on his two sons, namely. babu ram and ram swarup in equal shares. on the death of babu ram his one half share was inherited by his widow, smt. kalawati devi and on the death of ram swamp his one hair share devolved on his sons maharaj kumar and ratan kumar. the latter died in 1940 leaving behind his widow smt. rukmini devi who got his 1/4 share. maharaj kumar died in or about the year 1943 and his one-fourth share devolved on his widow smt. tribeni devi and three sons namely......
Judgment:

M.P. Saxena, J.

1. This is plaintiffs' second appeal against the judgment and decree dated 11-3-1965 passed by the Additional District Judge, Moradabad.

2. Briefly stated the facts alleged in the plaint were that one Sheel Chand was the owner of the house described in para 1 of the plaint. After his death it devolved on his two sons, namely. Babu Ram and Ram Swarup in equal shares. On the death of Babu Ram his one half share was inherited by his widow, Smt. Kalawati Devi and on the death of Ram Swamp his one hair share devolved on his sons Maharaj Kumar and Ratan Kumar. The latter died in 1940 leaving behind his widow Smt. Rukmini Devi who got his 1/4 share. Maharaj Kumar died in or about the year 1943 and his one-fourth share devolved on his widow Smt. Tribeni Devi and three sons namely. Devendra Kumar, Mahendra Kumar and Surendra Kumar. In 1950 Smt. Kalawati filed a suit (No. 64 of 1950) against Devendra Kumar and others for partition of her half share. It was decreed and the final decree separating her share was prepared on 23-1-1954. The remaining the half share remained with Smt. Rukmini Devi, Smt. Tribeni Devi and her three sons.

Smt. Tribeni Devi and her three sons sold their one fourth share in this house 10 the plaintiff for Rs. 2,500/- by means of a sale deed dated 15-2-1954 (Ex. 1). On the same day the vendors took this portion on rent and executed a rent note in plaintiff's favour. On 7-4-1958 the vendors vacated it and put the plaintiff in possession of it. Smt. Kalawati's heirs did not relish it and pot proceedings under Section 145, Criminal P. C. initiated against him with a view to oust him from the house. These proceedings terminated against the plaintiff and the revision application filed against it was also dismissed on 23-7-1959. According to the plaintiff he was ousted from a portion of his share. Hence that suit for partition of his one fourth share and for possession thereon. Originally the suit was filed against Smt, Rukmini Devi alone but during the pendency of the suit she transferred her share to Smt. Ram Dulari, daughter of Babu Ram. Therefore, Smt. Ram Dulari was also impleaded as defendant No. 2

3. Smt. Rukmini Devi contested the suit on the grounds that the sale deed dated 15-2-1951 (Ex. 1) relied upon by the plaintiff was obtained by fraud and without consideration; that it was got registered in a wrong manner and was not binding on her or on Devendra Kumar and others nor any relief could be claimed on its basis, that the sale deed was inadmissible in evidence; that the suit was bad for non-joinder of Devendra Kumar etc. and heirs of Smt. Kalawati; that the suit was undervalued and court-fee paid was insufficient and lastly, that the suit was barred by the principles of estoppel and Section 4 of the Partition Act.

4. At first Smt. Ram Dulari gave out that she would adopt the written statement of Smt. Rukmini Devi but later on she filed a written statement which was rejected by the learned trial Court.

5. The learned trial Court rejected all the pleas raised by the defendants except that the application under Section 73(1) of the Registration Act was presented beyond the prescribed period of thirty days and the District Registrar had no jurisdiction to direct registration of the sale deed. In his opinion the document was not validly registered and did not transfer any interest in the property to the plaintiff. Accordingly the suit was dismissed with costs on parties.

6. The plaintiff filed an appeal and the learned First Appellate Court agreeing with the findings of the trial court dismissed it with costs to the respondents.

7. The plaintiff has now come up in second appeal mainly on the ground that both the learned lower courts were wrong in holding that the sale deed dated 15-2-1954 was not validly registered and was void. The case has been argued at great length and various points of interest have been pressed. Before going into the merit of these points it is necessary to state a few facts.

The sale deed in question was presented for registration before the Sub-Registrar, Moradabad on 25-2-1954. As the executants were not present the registration was postponed. On 13-5-1954 the plaintiff moved an application for summoning the executants. Notices were issued to them for 31-5-1954. On this date only Devendra Kumar appeared and as the remaining executants remained absent the Sub-Registrar held it to be a case of denial of execution and refused to register the document. On 5-7-1954 the plaintiff moved an application (B6) under Section 73(1) of the Indian Registration Act before the District Registrar, Moradabad, in order to establish his right to have the document registered. It may be stated here that an application under Section 73(1) has to be moved within thirty days from the date of the making of the order of refusal. Jn the instant case this order was made on 31-5-1954 and the application to the District Registrar was presented on 5-7-1954 i.e. beyond the period prescribed. Therefore, the Chief Registration Clerk gave a report that the application was liable to be rejected as it was given beyond time. According to him, the Indian Registration Act being a special Act the provisions of Section 12 of the Act were not applicable to it and the period spent in obtaining copy of the Sub-Registrar's order could not be excluded. The District Registrar did not agree with him and held that the Registration Act nowhere expressly provides that the time spent in obtaining copy of the order shall not be computed. Hence benefit of Section 12 of the Limitation Act was extended. As the application was within time, if the period spent in obtaining copy was excluded, the District Registrar passed an order on 15-1-1955 that further proceedings be started. The copy of this order is Ex. B-7. On 19-3-1955 the District Registrar issued directions under Section 75 of the Indian Registration Act to the Sub-Registrar to register the sale deed. Accordingly, on 4-4-1955 the Sub-Registrar registered it.

8. To begin with, the learned counsel for the appellant has urged that the learned lower courts should not have gone into the merit of the question whether the sale deed was validly registered or not because this plea was not specifically taken in the written statement. It carries no force because in her written statement the respondent No. 1 had clearly alleged that the sale deed was registered in a wrong manner and was not admissible in evidence. The plaintiff filed replication to the same. A specific issue was struck on this point and the parties led evidence. Both the learned lower courts went into its merit and held that the document was not validly registered. It is now too late in the day to contend that the plea should not have been considered.

9. It is further argued that the plaintiff-appellant is a transferee of Smt. Tribeni Devi and her sons of one fourth share in the whole house. He got registration done and it became final under Section 75(3) of the Registration Act against them. If his transferors cannot challenge it the defendants-respondents can do it much less. To substantiate this contention reliance has been placed on certain cases. One of them is the case of Raja Jagannath Baksh Singh v. State of U. P : [1962]46ITR169(SC) . It was a case on Section 11 of the Civil P. C. in which writ proceeding challenging the validity of certain notices under U. P. Act 31 of 1957 were dismissed by the High Court. The petitioner obtained certificate to appeal to the Supreme Court but failed to deposit necessary security as required by rules of the High Court. In consequence the certificate granted was cancelled. Subsequently writ petition was filed by the petitioner under Article 32 of the Constitution of India in the Supreme Court challenging the same proceedings and it was held to be barred by res judicata. It does not apply to the case under consideration because as will be just discussed, the order of the District Registrar directing the Sub-Registrar to register the sale deed was passed without jurisdiction. It was a nullity and did not bind any one. Secondly, no remedy was available against this order.

10. Another case is of Sri Bhavanarayana Swamivari Temple v. Vadpalli Venkata Bhavanarayana Charyulu, (1970 (1) SCC 673). In this case one of the important questions the Board had to decide was whether the properties in dispute were Archakatwam service Inam properties. The Board's decision which was adverse to the temple, affected the rights of the temple in a substantial manner. It was open to the temple to get its rights established by means of a suit under Section 57(3). It failed to take that step. Therefore, the decision of the Board became final and binding on the temple. This principle does not apply because in the instant case no remedy was available against the order passed by the District Registrar. As held in the cases of Edun v. Mahomed Siddik, ((1883) ILR 9 Cal 150) and Udit Upadhia v. Imam Bandi Bibi, (1902) ILR 24 All 402 (FB) the right of suit given by Section 77 of the Registration Act arises only when the Registrar, on an application complying with All the provisions of the second and third paragraphs of Section 73 of the Act having been presented to him has upheld the order of the Sub-Registrar and has refused to direct the document to be registered, The same view was taken by the Full Bench in the earlier case of Bhagwan Singh v. Khuda Baksh, ((1881) ILR 3 All 397 (FB)).

In the instant case neither the condition prescribed by paragraph second, that an application under Section 73 must be made within thirty days from the date of the making of the order of refusal, by the Sub-Registrar, was complied with nor the Registrar refused to register the document. Therefore, there was no remedy by means of a suit. Besides it, the order' of the Registrar directing registration of the document, as will be discussed elsewhere in this judgment, was beyond jurisdiction and a nullity and it was not at all necessary to have that order set aside. The plaintiff-appellant filed that suit for partition of his share. The defendant being a co-sharer could non-suit him on the ground that he had no title. One of the grounds attacking his title was that the sate deed was not validly registered and conveyed no title. The defendant was not estopped or precluded from challenging the sale deed on this ground. The contention of the learned counsel for the appellant that registration was complete and the validity of the decument could not be assailed on this ground is with but any substance. The registration of a document merely shows that the document was duly presented by the person authorised to do so and has received due publicity by the process of registration, its execution having been established by the registration authority. Registration itself does not affect right to challenge validity of document; Daulat Ram v. Smt. Jai Dai . The expression 'registered' means validly registered under the law for the time being in force in India. Where an instrument which purports to transfer title to property requires to be registered the title does not pass until registration has been effected under the law; Ponnayya Goundan v. Muttu Goundan, ((1894) ILR 17 Mad 146). For all these reasons the defendants had every right to challenge the validity of the sale deed in the suit.

11. The crucial point for consideration is whether the application, Ex. B6, was presented to the District Registrar within time. Section 73(1) of the Registration Act lays down that an application is to be made 'within thirty days after the making of the order of refusal' by the Sub-Registrar. The meaning of this expression has been considered in the case of Swaminathan v. Lakshmanan, (AIR 1930 Mad 490) and it has been held that if the order is made in the presence of the party the period of thirty days starts from the date when it was made. Where it is made in the absence of the party the period is' to be counted from the date when the order was made if notice of the date of the hearing of the application was given to him, but if no notice was given, the period runs from the date when the order is communicated to the party. In the instant case the plaintiffs' own application, Ex. B6, shows that he had moved an application before the Sub-Registrar on 13-5-1954 for summoning the executants and on it 31-5-1954 was fixed. It further states that on this date only one executant had arrived and the rest had remained absent and on the same day the Sub-Registrar had passed the order refusing to register the document. It makes it clear that he had not only knowledge of the date on which the order was passed but was also personally present on that date. Therefore, the period of thirty days commenced from 31-5-1954 and ended on 29-6-1954 but the application before the Registrar was filed on 5-7-1954 obviously after the expiry of 30 days.

12. The learned counsel for the appellant has argued that in view of Section 73(2) filing of certified copy of the order of the Sub-Registrar with the application was essential. As the Sub-Registrar had taken time in supplying it the period of limitation remained held up during all this period. According to him, if this period is excluded his application Ex. B6, will be found to be within time. In this connection reliance is placed on the case of Madura Co. P. Ltd. v. A. Thangal Junju Musaliar : AIR1964Ker190 which lays down that when a party is prevented from doing a thing because of an act of a court or an authority, he is entitled to do it at the subsequent opportunity. This contention has no force because Section 71(1) of the Act lays down that where registration is refused on the ground of denial of execution (as in this case) the Sub-Registrar on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. The appellant furnished no mate-trial to prove when he had applied for copy of the order and when the same was issued to him. In its absence there is no scope for argument that there was any delay on the part of the Sub-Registrar in issuing the copy and this period should have been excluded.

13. It is further urged that the period spent in obtaining copy of the order was liable to be excluded under Section 12 of the Limitation Act. There is no controversy that a Registrar under the Registration Act is not a court. He has not to determine the jural relations between parties arising out of the documents presented for registration. He merely makes an enquiry to satisfy himself whether he is justified in registering the document prescribed for that purpose. The Registrar also in determining whether a document should be registered or not on an appeal being preferred against the decision of the Sub-Registrar on that point, even if he takes evidence does so, not as a court but under Section 75 'as if he were a court.' No judicial function is exercised by him. In Mohima Chunder Dhur v. Jugal Kishore Bhuttacharji ((1881) ILR 7 Cal 736) a Registrar was held to be an executive officer invested with quasi-judicial function. In Kuppa Gounder v. Joint Sub-Registrar : AIR1960Mad401 he was held to be a Special Tribunal. Since the Registrar is not a court provisions of the Limitation Act cannot be applied to the proceedings before him.

14. The next question which arises for consideration is, whether the Limitation Act applies to Special Tribunals. From the side of the appellant reliance is placed on the cases of Jijibhoy N. Surty v. T. S. Chettyar (AIR 1928 PC 103), Durg Pal Singh v. Pancham Singh : AIR1939All403 and Commr. of Sales Tax U. P. Lucknow v. Parson Tools and Plants, Kanpur, 1970 All LJ 163 : (AIR 1970 AH 428) (FB) to show that by virtue of Section 29 of the Limitation Act Section 12 applies to Tribunals other than Courts and that general principles of Section 12 are applicable to all proceedings where certified copy is required. From the side of the respondents reliance is placed on the cases of ((1902) ILR 24 All 402) (FB) and Shyam Sunder Bajpai v. Commr. Allahabad Division, (1965 All LJ 211). I have given my anxious consideration to the whole matter and in my judgment the case of (1902) ILR 24 All 402 (FB) (ibid) is on all fours with the facts of this case and I with respect agree with the preposition of law laid down in it

The scheme of Sections 71 to 77 of the Act is that if a Sub-Registrar refuses to register a document except on the ground that the property to which it relates is not situate within his sub-district, he shall make an order of refusal and record his reasons, for such order and on application being made by either party to the document issue copy of the reasons so recorded forthwith, Section 72 provides for an appeal to a Registrar from orders of Sub-Registrars refusing registration on a ground other than denial of execution. Thirty days period of limitation is prescribed for the appeal, Section 73 provides for an application to a Registrar where a Sub-Registrar refuses to register on the ground of denial of execution. The period of limitation prescribed for this application is also 30 days. Section 74 lays down procedure for disposal of an application moved under Section 73 of the Act. Section 75 relates to the order of the Registrar to register and procedure thereon. Section 76 applies to orders of refusal by a Registrar made under Section 72 as well as under Section 75. Section 77 provides for a suit if the Registrar refuses to order a document to be registered. Thirty days' time is prescribed even for filing of the suit. In this manner the Registration Act is a complete Code by itself and prescribes its own limitation for various remedies. Therefore, the Limitation Act will not apply. The following observation made in (1902) ILR 24 All 402 (FB) (ibid) can be cited with advantage:

'Now this period of thirty days is one which I must presume was intentionally inserted in this section by the Legislature, with the object, most probably, of procuring a speedy settlement of the question as to whether a particular document was or was not to be registered. It is a provision which I presume, the legislature intended to be obeyed, and not to be disregarded. I cannot believe the Legislature intended that the limitation period of thirty days might be disregarded, and that the rejection of an application presented under Section 73, say 20 years after the refusal by the Sub-Registrar would give a right of suit under Section 77. When, then an application purporting to be an application under Section 73 of the Act is presented to the Registrar after the expiration of the thirty days limited by that section, such an application is not in my opinion an application which could be entertained under that section and summary rejection of such an application, on the ground that it was put in beyond time cannot be considered to be a refusal under Section 76 of the Act.'

15. The words 'in such case' in Section 75 are important and clearly imply that it is only when an application, purporting to have been presented under Section 73, complies with all the conditions required by that section, that action is to be taken under Section 74 and the two following sections. If an application purporting to be an application under Section 73 of the Act is presented to the Registrar after the expiration of 30 days limited by that section, such an application cannot be regarded as an application which could be entertained under that section and is liable to be rejected in limine.

16. In Queen Empress v. Tulja, ((1888) ILR 12 Bom 36 at p. 43) it has been held that special laws must be confined in their operation to their special object. In (AIR 1960 Mad 401 also) it has been held that a Tribunal functioning under a special enactment has got its jurisdiction circumscribed by the provisions of the Act creating it. In Hukumdev Narain v. Lalit Narain : [1974]3SCR31 : : [1974]3SCR31 it has been observed that:--

'............ What we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view even in such a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.'

17. As stated above, Sections 71 and 77 of the Registration Act lay down a complete procedure and prescribe their own periods of limitation for various remedies and will be deemed to exclude the application of the Limitation Act to it. The same view was expressed in Fatelal y. Mst. Siti, (AIR 1926 Nag 126). The following observations were made in this case:

'Under Section 29(1) of the Limitation Act nothing in that enactment affects or alters any period of limitation specially prescribed for any suit, appeal or application by any special or local law and inasmuch as Sections 71 to 77 of the Registration Act lay down a complete procedure where registration is refused and as Section 77 limits the period within which suit is to be brought to 30 days, the period cannot be extended under Section 14 of the Limitation Act on the ground of prosecution of proceedings in good faith in court not having jurisdiction in the matter. I am, therefore, of the view that the Registration Act is a complete Code by itself and prescribes its own periods of limitation for various remedies and the Limitation Act does not apply.

18. Another contention of the learned counsel for appellant is that by virtue of Section 29(2) of the Limitation Act, the provisions of Limitation Act will apply to special or local law. Even if this proposition is accepted, the question will arise whether Section 12 of the Limitation Act, as it stood in 1954 when the disputed sale deed was registered, applied to proceedings under Section 73 of the Registration Act. In 1954 Section 12 of the Limitation Act read as follows:--

'12 (1) In computing the period of Limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

(2) In computing the period of Limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded, shall also be excluded.

(4) In computing the period of limita-tation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.'

Obviously sub-section (1) of Section 12 is not applicable to the controversy before us. Benefit is claimed of Sub-section (2). In my judgment, even it does not come to the help of the appellant because it applies to appeals, an application for leave to appeal and an applica-cation for a review of judgment. The application under Section 73 of the Registration Act is neither an application for leave to appeal nor an application of a review of judgment. This section did not apply to all types of applications. Therefore, even the benefit of this provision could not be claimed.

19. In order to claim the benefit of Sub-section (2) of Section 12 of the Limitation Act the learned counsel for the appellant has strenuously argued that the alleged application under Section 73 of the Registration Act was in substance an appeal and as such benefit of the said provision of the Limitation Act was available. This argument is based on the contention that an appeal is not defined under the Registration Act or Limitation Act, In ordinary parlance an application to a higher court for correcting errors of a subordinate court is treated as an appeal. It is only a complaint to higher authority to correct an error committed. It is further argued that copy of the order passed by the Sub-Registrar is required to be filed simply to hear an application under Section 73 of the Registration Act as an appeal. According to him, what is provided in Section 73 is an appeal though it is to be done by an application. In this connection reliance has been placed on four cases. I have given my anxious consideration even to this contention and I am reluctant to subscribe to this view. At first I may analyse the cases relied upon by the learned counsel for the appellant. The first case is of Nagendra v. Suresh in which it was held that:

'There is no definition of appeal in Civil P. C. but their Lordships have no doubt that any application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent.' The second case is of Raja, Kulkarni v. State of Bombay (AIR 1954 SC 73). In this case also the meaning of the word 'Appeal' was considered. The third case is of M/s. Mela Ram and Sons v. Commr. of Income-tax : [1956]29ITR607(SC) . The last case is of M/s. Lakshmi Ratan Engineering Works Ltd. v. Asst. Commr. Sales Tax : [1968]1SCR505 . All these cases relate to proceedings before the courts. Applications which were treated as appeals were filed before the appellate courts which bad power to set aside or revise a decision of a subordinate court, me position of proceedings under the Registration Act is entirely different. This Act itself makes a distinction between an appeal and an application. An appeal is provided under Section 72 of the Act when the registering officer has refused to register document on a ground other than denial of execution. In the instant case registration was refused on the ground of denial of execution and not on any other ground. In such a case the remedy lay by means of an application under Section 73. Secondly, Section 72 provides that the Registrar may revise or alter such order which is an attribute of appeal. Section 73 on the other hand does not provide for revision or alteration. Even if it is described as an appeal or wrong section is erroneously mentioned, it will still be an application under Section 73. The same view was taken in the case of Uttam Singh v Ratan Devi, 74 Ind Cas 688 = (AIR 1924 Lah 28).

20. There is no scope for argument that for the purpose of Section 73 the District Registrar is an appellate court. Section 73 nowhere states that the District Registrar shall reverse or alter the order passed by the Sub-Registrar. He can simply issue direction to the Sub-Registrar to register a document whose registration has been refused by him on the ground of denial of execution by the executant. It is for this reason that in an application under Section 73 no request for setting aside the order of the Sub-Registrar is made. The simple prayer is that the Sub-Registrar may be directed to register the document. Its implied effect may be revision of the order passed by the Sub-Registrar. This view finds support from the case of (1902) ILR 24 All 402 (FB) (ibid) and (AIR 1965 Punj 378). In the latter case an application under Section 73(1) of the Registration Act was presented to District Registrar. The latter erroneously described the proceedings before him as appeal. It was held that this description could not make an application an appeal. It was further held that under Section 73(1) of the Act an application and not an appeal lies. It makes it clear that the Registration Act itself makes a distinction between an appeal and an application. An appeal lies under Section 72 but under Section 73 only an application is maintainable. Period of limitation is prescribed separately for both. I am, therefore, of the view that Ex. B6 was an application under Section 73 and could not be treated as appeal. In this view of the matter the provisions of subsection (2) of Section 12 could not be applied to it.

21. Learned counsel for the appellant has further contended that at least general principles of Section 12 are applicable to all proceedings where certified copies are required to be filed. This aspect of the matter has already been discussed above. There is nothing on the record to show on which date the application for copy of the order was moved and when the same was issued. In its absence the general principles of Section 12 cannot be applied. The aforesaid discussion makes it clear that the application Ex. B-6 was moved after the expiration of 30 days contemplated by Section 73 of the Registration Act. It is on this application that the District Registrar issued directions to the Sub-Registrar to register the sale-deed. The crucial point which arises for consideration is whether this order of the District Registrar was ultra vires and the registration was a nullity. The learned counsel for the appellant has referred to the cases of Ittyavira Mathai v. V. Verkey : [1964]1SCR495 and Nawab Khan Abbas Khan v. State of Gujarat : 1974CriLJ1054 to show that the judgment and order, even if passed beyond period of limitation, is not a nullity or void. It is further argued on the basis of AIR 1954 SC 73 (ibid) and : [1956]29ITR607(SC) that the error was purely of limitation and not of competence and the order could not become void. It is urged that the appellant had filed an application under Section 73 beyond 30 days. The District Registrar did not act beyond jurisdiction because he had jurisdiction alright to entertain that application but he wrongly decided the question of limitation. Therefore, no question of jurisdiction which could render the order as nullity was involved. According to him, an erroneous order about limitation does not become a nullity as rules of limitation are procedures and do not create any substantive right in a party. Even if an application under Section 73 is presented beyond 30 days it will nonetheless be an application under Section 73. I am reluctant to subscribe to this view in the peculiar circumstances of this case. In the first two cases the court had jurisdiction over the subject-matter as well as over the parties. Therefore, it was held that merely because it made an error in deciding a vital issue, it could not be said that it had acted beyond jurisdiction. Secondly, in those cases the aggrieved party was entitled to have the decree or order set aside by preferring an appeal.

22. Sections 71 to 77 of the Registration Act lay down when an appeal or an application against an order passed by a Sub-Registrar can be filed. It also lays down the procedure. The jurisdiction of the District Registrar was conditional upon the appellant making an application in 30 days and filing copy of Sub-Registrar's order therewith. If there was no valid application before him, then he had no jurisdiction. There must be initial jurisdiction and then a court or a tribunal can decide a matter rightly or wrongly. An order of registration passed on an application presented beyond 30 days is ultra vires. Jurisdiction to pass an order arises only when all the requirements are fulfilled. I am fortified in this view by the observations made in (1883) ILR 9 Cal 150 and ((1902) 24 All 402) (FB) (ibid) In the former case it was held that under the Registration Act a suit to compel registration is maintainable only when the provisions of Section 77 of the Act have been complied with. A person omitting to make an application to the Registrar as provided by Section 73 cannot be said to have complied with the conditions precedent to a suit under Section 77. In the latter case it was held that where an application purporting to be one under Section 73 of the Act is presented to the Registrar after the expiration of 30 days limited by that section, such an application is not an application which could be entertained under that section and the summary rejection of such application on the ground that it was put in beyond time is perfectly justified. According to the view taken in this case, such an application is liable to be rejected in limini. Even the contention that if period is not extended it will have disastrous effect on a party was repelled on the ground of 'vigilantibus non dorminentibus jura subveniunti.' In Pandurang Dhondi v. Maruti Hari Jodhan : [1966]1SCR102 it has been held that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries. In Manindra Land & Building Corporation v. Bhutnath Banerji : [1964]3SCR495 it was held that under Section 3 of the Limitation Act, 1908, it is the duty of the court not to proceed with the application if it is made beyond the period of limitation prescribed, it should be rejected in limini.

A similar situation arose in (1965 All LJ 211). That was a case in which Rent Control and Eviction Officer had granted permission to file a suit for ejectment. Revision to the Commissioner was filed beyond 30 days. There was delay of one day. The Commissioner condoned it without application by any one. The point pressed was that entertainment of the revision by the Commissioner when the revision was barred by time was wholly without jurisdiction. Shelter of Section 29(2) read with Section 12 of the Limitation Act was taken as the delay of one day occurred in obtaining copy of the Rent Control and Eviction Officer's order. It was held that the order of the Commissioner condoning the delay was without jurisdiction. After carefully examining the entire position I am in agreement that the application 6-B was presented after the expiry of 30 days and the District Registrar had no jurisdiction to issue direction that the sale deed be registered. It was liable to be rejected in limini. The order passed by the District Registrar was ultra vires with the consequence that the deed itself was void and unenforcible. In the case of Amba v. Srinivasa Kamathi, (26 Cal WN 369 : (AIR 1922 PC 135) there was lack of authority for presenting a document for registration and it was held that the registration of the deed was illegal, invalid and void.

23. So far as the contention that the respondents should have got the order of the Registrar set aside is concerned, it is worth stating that no suit under Section 77 of the Registration Act could be filed against an order directing Sub-Registrar to register a document. Such a suit lies only when registration is refused. No other remedy against District Registrar's order is provided in the Registration Act. If the order was ultra vires it was not necessary to file a writ petition for having it set aside. They could assail it as defendants when it was used against them.

24. Learned counsel for the appellant has also contended that in any case the District Registrar was himself competent to register the sale deed under Section 30 of the Registration Act and this order should be deemed to have been passed under this provision. I am unable to agree even with this contention. If the appellant had moved an application to the District Registrar to register the document and the latter had himself registered it the registration could be upheld, but in the instant case the application was moved under Section 73 for direction to the; Sub-Registrar to register the document. It was not permissible under Section 30 of the Registration Act and its advantage cannot be taken.

25. Lastly, it is urged that in the circumstances of this case equity and good conscience should prevail because the appellant has parted with sale consideration. It cannot be done because equity cannot override the written provisions of law. If Section 73 prescribes an application for registration to be made in a particular manner equity cannot be allowed to override it.

26. The aforesaid discussion makes it clear that the order of the District Registrar was without jurisdiction and the registration of the sale deed was void. Section 17 of the Registration Act provides for compulsory registration of documents. Section 49 lays down that no document required by Section 17 to be registered shall affect any immovable property comprised therein or to be received in evidence of any transaction affecting such property unless it has been registered in accordance with the provisions of the Act. In the instant case the sale deed Ex. 1 was not validly registered and conferred no title on the plaintiff appellant and he was not entitled to claim partition on its basis. Therefore, the view taken by the learned lower appellate court was correct.

27. The appeal is dismissed with costs to the respondents.


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