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Bansraj Singh and anr. Vs. Rajbans Barthi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All76(2); 24Ind.Cas.451
AppellantBansraj Singh and anr.
RespondentRajbans Barthi
Cases ReferredAzmat Ali v. Sitla Bux Pal
Excerpt:
registration act (xvi of 1908), section 28 - property not situated in sub--district where document registered--no valid registration. - - ' this passage clearly shows that their lordships were of opinion, first, that the registrar should have 'power and jurisdiction,'and, secondly, that his 'power and jurisdiction' could only be called into play by a person having a direct relation to the deed......deed. in the present case it appears to us that on the facts as found the sub-registrar had no 'power or jurisdiction' to register the deed. (see also azmat ali v. sitla bux pal 16 ind. cas. 108 : 9 a.l.j. 766. and an important unreported judgment in second appeal no. 877 of 1908, decided on the 25th november 1909).5. it is next urged that the mortgagor ought not to be allowed to take advantage of his own wrong. it appears to us that no such question arises in the present case. beyond all question both the mortgagor and the mortgagee were deliberate parties to fictitiously entering property in the mortgage-deed with a view to evade the provisions of the registration act. under these circumstances the mortgagee (assuming the mortgage to be genuine) has only himself to blame for.....
Judgment:

1. This appeal arises out of a suit on foot of a mortgage. The Court below has dismissed the plaintiffs' suit on the ground that the document was not duly registered according to the provisions of the Registration Act. None of the immoveable property which purports to be mortgaged was situate within the sub-district where the document was in fact registered. It will be seen that when the document was presented for registration, it was returned by the Sub-Registrar upon the very ground that none of the property was situate within the sub-district and that he had no jurisdiction to register it. The parties then added to the mortgage security a couple of sal trees alleged to be growing on the property within the sub-district. It has been found by the Court below that these trees never existed, and that the mortgagor had no property in the place where they were supposed to grow.

2. The question we have to decide is whether under these circumstances the Court below was right in holding that the document was not duly registered and could not be admitted in evidence. Section 28 of the Registration Act is as follows :

Save as in this part otherwise provided', every document mentioned in Section 17, Sub-section (1), Clauses (a), (b), (c) and (d), and Section 18, Clauses (a), (b) and (c), shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

3. It seems to us that on the facts as found no portion of the mortgaged property lay within the sub-district of the office of the Sub-Registrar who registered the document. It is, therefore, clear that the Court below was correct unless the omission to comply with the provisions of Section 28 can be regarded merely as a matter of procedure. There are obviously many reasons why a document should be registered in the right office and it is conceivable that fraud might easily be perpetrated by the omission to comply with the provisions of Section 28.

4. In the case of Mujib-un-nissa v. Abdur Rahim 23 A. 233 : 28 I.A. 15 (P.C) : 5 C.W.N 177 the facts were as follows : A deed of gift was presented for registration by a person holding a power of attorney from the donor but prior to the actual presentation the donor, died. The document was accepted by the Sub-Registrar. This High Court, holding itself bound by the Full Bench decision in the case of Hardei v. Ram Lal 11 A, 319 : A.W.N. (1889) 101 (F.B.)., decided that the registration was valid. Their Lordships reversed the decision of this Court. At page 241 of the report their Lordships say, 'it has been suggested, however, that the error of the Registrar was a defect in his procedure only, and accordingly, under Section 87, does not invalidate the act of registration. To their Lordships the error appears to be of a more radical nature. When the terms of Section 32 are considered with due regard to the nature of registration of deeds, it is clear that the power and jurisdiction of the Registrar only come into play when he is invoked, by some person having a direct relation to the deed.' This passage clearly shows that their Lordships were of opinion, first, that the Registrar should have 'power and jurisdiction,' and, secondly, that his 'power and jurisdiction' could only be called into play by a person having a direct relation to the deed. In the present case it appears to us that on the facts as found the Sub-Registrar had no 'power or jurisdiction' to register the deed. (See also Azmat Ali v. Sitla Bux Pal 16 Ind. Cas. 108 : 9 A.L.J. 766. and an important unreported judgment in Second Appeal No. 877 of 1908, decided on the 25th November 1909).

5. It is next urged that the mortgagor ought not to be allowed to take advantage of his own wrong. It appears to us that no such question arises in the present case. Beyond all question both the mortgagor and the mortgagee were deliberate parties to fictitiously entering property in the mortgage-deed with a view to evade the provisions of the Registration Act. Under these circumstances the mortgagee (assuming the mortgage to be genuine) has only himself to blame for what-has happened. The appeal fails and is dismissed with costs including fees on the higher scale.


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