R.B. Lal, J.
1. This second appeal by the defendants is directed against the judgment and decree dated 6-5-75 passed by Sri M. Lal Additional Civil Judge, Moradabad.
2. Smt. Ram Murti Devi, plaintiff-respondent, filed suit under Section 77 of the Registration Act, 1908, and prayed for issue of a direction to the Sub-Registrar, Amroha to register the sale deed executed by the defendants (present appellants) in her favour. She pleaded in the plaint that the defendants were owners in possession of a house detailed at the foot of the plaint. Two shops adjacent to this house on the eastern side belonged to her sons Jagdish Saran and Bal Krishna. The shops were in the tenancy of Fida Ali, father of Nawab Ali, defendant No. 1. The owners of the shop wanted to eject Fida Ali and civil litigation took place between them. Ultimately all the concerned parties appointed Lala Ram Nath as an Arbitrator by an agreement dated 13-8-68 to settle the matters in dispute between the parties. The arbitrator gave his award to the effect that the shops in question should be transferred in favour of the mother of Nawab Ali, defendant No. 1, and the owners of the house should transfer the same in favour of the plaintiff Smt. Ram Murti Devi. The sale consideration of the shops was to be Rs. 7500/- and that of the house was to be Rs. 4500/-. Two sale deeds were written out in pursuance of this award. Both the sale deeds were presented in the office of the Sub-Registrar on 23-8-68. First the sale deed executed by Jagdish Saran and Bal Krishna in favour of the mother of defendant No. 1 was registered. Thereafter the defendants managed to leave the office of the Sub-Registrar on a pretext and did not turn-up to get the sale deed of the house registered. The plaintiff moved an application before the Sub-Registrar. The Sub-Registrar made an endorsement of refusal on the back of the sale deed. The plaintiff took proceedings under Sections 72 and 73 of the Registration Act but the District Registrar dismissed the application of the plaintiff and directed her to file a regular civil suit. Hence the suit was filed.
3. Both the defendants namely, Nawab Ali, defendant No. 1, and Smt. Husan Bano, defendant No. 2, contested the suit and filed a joint written statement. They denied the plaint allegations. They, however, admitted that Jagdish Saran and Bal Krishna had executed sale deed in respect of two shops in favour of the mother of defendant No. 1 and the same was registered in the office of the Sub-Registrar, Amroha on 23-8-68. They (defendants) added that they had handed over the title-deeds of their house to Shaukat Ali (husband of defendant No. 2) for verification of the boundaries in connection with the sale deed of the shops and Shaukat Ali had handed over those title-deeds to Jagdish Saran and Bal Krishna. They denied having executed the sale deed in dispute in favour of the plaintiff. They also denied the execution of the Arbitration Agreement and other facts.
4. The Munsif Amroha who tried the suit held that Nawab Ali, defendant No. 1, had not signed the arbitration agreement and the sale deed in question. He also held that it was admitted that the defendant No. 2 had not put her thumb-mark on the arbitration agreement and the sale deed in dispute. He also observed that the document could not be void partly. In the result, he dismissed the suit. The plaintiff appealed to the District Judge and the appeal was decided by the Additional Civil Judge. The Additional Civil Judge reviewed the evidence on the record and the circumstances of the case and accepted the case of the plaintiff. He observed that the findings recorded by the trial Court were based on surmises and conjectures. In the result, he allowed the appeal and decreed the suit against both the defendants. The defendants have felt aggrieved and have filed this Second appeal.
5. I have heard the learned counsel for the parties.
6. The suit was brought under Section 77 of the Registration Act. The main question to be determined in such a suit is whether the document sought to be registered was executed by the defendants; if the answerto this question is in the affirmative, the plaintiff is entitled to a decree directing the document to be registered at the office of the Registrar concerned, if it is duly presented for registration within the time mentioned in Sub-section (1) of Section 77 of the Registration Act.
7. The plaintiff had examined five witnesses, namely Sri A. S. Kapoor, Handwriting Expert (PW-1), Om Prakash Khajanchi Tahsil Amroha, (PW-2), Nair Hussain, Scribe of the Arbitration Agreement (PW-3), Ram Nath Arbitrator (PW-4) and her son Jagdish Saran (PW-5) to prove her case. In rebuttal, the defendants had examined Sri Ram Ratan Gupta, Handwriting Expert (DW-1), Nawab Ali (defendant No. 1) DW-2, Shaukat Ali (husband of defendant No. 2) DW-3 and Smt. Husn Bano (defendant No. 2) DW-4.
8. From a perusal of the judgment of the Munsif, it is evident that he did not consider the evidence and circumstances of the case in order to arrive at his findings. He based his findings on the evidence of the two experts and some other circumstances appearing from the statements of Om Prakash (PW-2) and Nair Hussain (PW-3). He did not consider the direct evidence given by the witnesses about execution of the arbitration agreement and the disputed sale deed by Nawab Ali, defendant No. 1. He did not consider the circumstances appearing from the admissions of the defendants and other materials on the record. He also did not consider the falsity of the statements of Nawab Ali and Shaukat Ali and improbability of the explanation regarding handing over of title-deeds of the house to Jagdish Saran. The question whether the disputed signatures of Nawab Ali, defendant No. 1, on the arbitration agreement and the disputed sale deed were genuine or not, should have been decided on a consideration of this entire material. The opinion evidence of the handwriting experts could not be made the sole basis of recording a finding on this point. The Additional Civil Judge was, therefore, justified in rejecting the findings of the Munsif as based on surmises and conjectures. In these circumstances, the'Additional Civil Judge was justified in reappraising the entire material on record and in recording his own findings on the questions which arose for consideration in this case.
9. Before proceeding further some more facts may be mentioned which appear from the disputed sale deed, the certified copy of the sale deed of the two shops and the applications moved for purchasing stamp papers for the two, sale deeds. It appears that Jagdish Saran had purchased general stamps worth Rs. 377.50 P., on 20-8-68 for execution of sale deed and that very day Nawab Ali had purchased general stamps worth Rs. 202.50 P., for executing a sale deed. the disputed sale deed is written on two stamps papers, one worth Rs. 200/- and the other worth Rs. 2.50 n.p. Both the sale deeds i.e. of the two shops and of the house were written out on the same date i.e. 21-8-68. The sale deed of the two shops was presented before the Sub-Registrar, Amroha on 23-8-68 and was registered the same day. The certified copy of the sale deed of the shops is paper No. 27-C-l.
10. The Additional Civil Judge did not record a clear and categorical finding regarding the thumb-impression of Husn Bano, defendant No. 2. The material on the record is sufficient to lead to the conclusion that the thumb-marks on the arbitration agreement and the disputed sale deed purporting to be those of Husn Bano were, in fact, not made by real Husn Bano but by some other woman who was in Burka and who was represented to be Husn Bano by Nawab Ali, defendant No. 1. No one on the side of the plaintiff stated that the woman who had affixed her thumb-marks on the two deeds was in fact Husn Bano. The witnesses admitted that they did not know the woman and she was in Burka and was presumed to be Husn Bano because Nawab Ali had given her out as Husn Bano. The plaintiff did not get the disputed thumb-marks of Husn Bano compared with her specimen thumb marks. The defendants on the other hand got the thumb-marks examined by their expert and Sri R. R. Gupta, Expert (DW-1) clearly said that the disputed thumb-impressions on the disputed sale deed didnot tally with the specimen thumb-impressions of Husn Bano. This evidence was not assailed successfully. It is really surprising that the lower Appellate Court did not consider this material. In view of this material I have no hesitation in saying that Husn Bano, defendant No. 2, had not affixed her thumb-marks on the disputed sale deed.
11. The lower Appellate Court considered the oral evidence, the expert evidence and the circumstances of the case and then came to the conclusion that the signatures purporting to be those of Nawab Ali, defendant No. 1, on the arbitration agreement and the disputed sale deed, were in fact made by Nawab Ali and no one else. This conclusion of the lower Appellate Court is well founded and based on a proper appreciation of the evidence on the record and the circumstances of the case. As a matter of fact, the evidence was all one sided and in favour of the plaintiff on this point. One Prakash (PW-2) who was in service at Tahsil Amroha, had sold the two stamps of the disputed sale deed on 20-8-68, and he clearly said that he had sold the stamps to Nawab Ali, defendant No. 1, whom he knew from before. Nair Hussain (PW-3) was the scribe of the arbitration agreement (Paper No. 25. A-l) and stated that it was signed by Nawab Ali, defendant No. 1, in his presence. Ram Nath (PW-4) was the arbitrator and stated that Nawab Ali, defendant No. 1, had signed the arbitration agreement. He added that he had given his award to the effect that Jagdish Saran and Bal Krishna should sell their two shops to the mother of Nawab Ali, and Nawab Ali and Husn Bano should sell their house to Suit. Ram Murti Devi, plaintiff. He further said that the title deeds of the house (Paper Nos. 105-A.l and 106-A.l) were handed over to him by Nawab Ali and he gave them to the husband of Smt. Ram Murti Devi. He also stated about the execution of the disputed sale deed by Nawab Ali defendant No. 1 and a Burqa woman, and that it was presented in the office of the Sub-Registrar, the same day on which the sale deed of the two shops was presented in that office. The witness added that when the turn of the registration of the disputedsale deed came, the defendants went away on a pretext and did not come back. These witnesses could not be shaken in any manner. Jagdish Saran (PW-5) son of the plaintiff, proved the entire case of the plaintiff. There was no reason to doubt or disbelieve this cogent evidence. This direct evidence was sufficient to lead to the conclusion that the arbitration agreement and the disputed sale deed were signed by Nawab Ali, defendant No. 1, and by no one else. The evidence given on behalf of the defendants was interested and negative in character. Barring the handwriting expert, the remaining three witnesses, Nawab Ali, Shaukat Ali and Husn Bano were closely related and interested persons. The explanation given by Nawab Ali and Shaukat Ali for the presence of the title-deeds of the house in possession of Jagdish Saran son of the plaintiff, was not at all convincing. Those sale deeds were not required for describing boundaries of the shops. Nawab Ali made an unsuccessful attempt to say that he did not know how to sign in Hindi or Urdu scripts. He had to admit that he had read these languages up to Intermediate standard. The defendant's evidence was rightly not accepted. The plaintiffs evidence did not deserve to be rejected on the ground that the thumb marks appearing on the arbitration agreement and the disputed sale deed were not of the real Husn Bano. The statements of the witnesses showed that they did not know the Burqa woman had put her thumb-marks and had relied on the representation made by Nawab Ali about her identity.
12. While preparing the file for dictating judgment, I had noted that an endorsement on the back of the first stamp paper of the disputed sale deed indicated that it was presented before the Sub-Registrar by Smt. Ram Murti Devi on 24-8-68. I invited the attention of the learned counsel for the parties to this fact and sought an explanation. The learned counsel for the defendants-appellants filed certified extract of the register of the Sub-Registrar showing that the sale deed was presented on 24-8-68 by Smt. Ram Murti Devi along with an application under Section 36 of the Registration Act praying that theattendance of the executants be enforced and the Sub-Registrar fixed 7-9-68 for the attendance of the executants. The executants did not appear on the date fixed and the Sub-Registrar refused registration. From this it cannot be concluded that the disputed sale deed was not presented in the office of the Sub-Registrar, on 23-8-68 for registration and the case of the plaintiff to that effect was wrong. There is direct evidence of Ram Nath and Jagdish Saran that this sale deed was presented in the office of the Sub-Registrar on the date on which the sale deed of the two shops was presented. The endorsement dated 24-8-68 was not put to these witnesses and no explanation was sought from them about it. Above this endorsement, there is impression of rubber stamp in which blanks are not filled and which is scored out by drawing three lines. This rubber stamp relates to the admission of execution by executants. The fact that a blank rubber stamp impression was there and scored out is, in my view, consistent with the case of the prosecution.
13. On a careful consideration of the entire material and the circumstances of the case, I agree with the finding of the lower Appellate Court that Nawab Ali, defendant No. 1, had signed the arbitration agreement as well as the disputed sale deed. The unassailed evidence of Ram Nath and Jagdish Saran PWs. also goes to prove in a convincing manner that Nawab Ali defendant No. 1 had signed the disputed sale deed after reading and understanding its contents. Thus his (Nawab Ali) act of affixing signatures on the disputed sale deed amounted to its execution by him. Thus, it is also proved that Nawab Ali, defendant No. 1, had executed the disputed sale deed.
14. Thus, the position emerges that the disputed sale deed was executed by Nawab Ali, defendant No. 1, and in fact it was not executed by Smt. Husn Bano, defendant No. 2. The plaintiff was duped so far as the execution purporting to be by Smt. Husn Bano, defendant No. 2, was concerned because Nawab Ali wrongly represented that the woman in Burqa was Husn Bano.
15. Now the question for consideration is whether a direction can be given to the Sub-Registrar, Amroha under Section 77 of the Registration Act to register the sale deed so far it has been executed by Nawab Ali, defendant No. 1, in favour of the plaintiff. The title deeds to the house in question show that Nawab Ali had purchased 3/4th portion of the house from the previous owner and Smt. Husn Bano had purchased the remaining 1/4th share in the house. Nawal Ali admitted in his cross-examination that his share in the house was 3/4th and that of Smt. Husn Bano was 1/4th only. These two owners could execute separate sale deeds in respect of their shares in the house. No law made it obligatory on these owners to execute a joint sale deed in favour of the transferee. Section 35 of the Registration Act provides that where there are several executants of a document, the registering officer shall register the document as to the persons who admit the execution of the same and shall refuse to register the document as to the person who denies the execution thereof. Sub-section (2) of Section 77 provides that the provisions contained in sub-sections. (2) and (3) of Section 75 shall mutatis mutandis apply to all documents presented for registration in accordance with a decree under Section 77(1). Section 75(2) refers to Sections 58, 59 and 60. Section 60(1) inter alia refers to the provisions of Section 35 of the Registration Act. In view of the applicability of these provisions, the principle that a document can be registered as to the person admitting execution of the document should be held applicable to registration of a deed under Section 77 of the Registration Act. The answer to the question posed at the beginning of the paragraph is in the affirmative.
16. The lower Appellate Court while decreeing the suit directed the defendants to get the sale deed registered in favour of the plaintiff within three months and further directed that in the event of the failure of the defendants, the plaintiff shall be entitled to get the sale deed registered through Court at the expense of the defendants. It appears that the lower Appellate Court did not care to read the provisions of Section 77(1) of the RegistrationAct before passing this kind of decree. This section provides for passing a decree 'directing the document to be registered in such office, if it be duly presented for registration within thirty days after the passing of such decree.' Obviously, this presentation is to be made by the plaintiff. The presence of the executants is not required for registration of the document under a decree under Section 77(1) of the Registration Act.
17. In view of the findings recorded earlier, the appeal of Smt. Husn Bano defendant No. 2, alone must succeed. The plaintiff-respondent is entitled to a decree for registration of the sale deed so far as it relates to Nawab Ali, defendant No. 1, and to that extent this second appeal must fail. The decree should also be modified in order to bring it in conformity with Section 77(1) of the Registration Act.
18. The two defendants had jointly contested the suit. Since the suit succeeds against Nawab Ali who has 3/4th share in the house, I think that the plaintiff should get her 3/4th costs of the suit throughout including the second appeal, and the defendants should be directed to bear their own costs throughout.
19. The appeal is allowed in part. The decree passed by the lower Appellate Court is modified, in this way that the suit of the plaintiff is decreed against Nawab Ali, defendant No. 1, only, under Section 77(1) of the Registration Act, 1908 and it is directed that the sale deed in suit shall be registered at the office of the Sub-Registrar, Amroha as to Nawab Ali, defendant No. 1, if it be duly presented for registration within the time prescribed by law. The suit is dismissed against Smt. Husn Bano defendant No. 2. The plaintiff-respondent shall get 3/4th costs of all the Courts including this Court from Nawab Ali alone. The defendants shall bear their own costs throughout.