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Ramchandra Das Vs. Rao Farzand Ali Khan and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.531
AppellantRamchandra Das
RespondentRao Farzand Ali Khan and anr.
Cases ReferredMujibunnissa v. Ahdur Rahim
Excerpt:
.....(i of 1872,), section 114--defect in procedure of registration, consequences of--admissibility of document in evidence. - - the bond was in fact registered to this extent at least that it was received in the registration office and a certificate of registration is endorsed thereon, or rather certain endorsements appear upon the band. in our opinion the production of the bond with the certificate of due registration endorsed thereon raises a strong presumption in favour of the due registration of the bond ;and that, in the absence of clear proof that the requirements of law were not complied with, the court was bound to admit the document in evidence. 4. we have already pointed out that in our view that production of the bond, with the registration certificate endorsed thereon, raised..........of the sub-registrar on monday the 4th of june 1883. assuming for a moment that the bond was duly presented within the meaning of section 82 of the registration act of 1877, the presentation was made in time. simultaneously with the presentation of the bond, an application was made under section 36 of the same act to summon the executants. they did not appear. the sub-registrar considered that execution was not admitted and he, therefore, refused registration. the matter then came before the district registrar under an application made on behalf of bansi lal under section 73 of the act. the presence of farzand ali was procured and he admitted the execution of the bond. the district registrar made an order in the following terms: 'the document be registered as admitted to have been.....
Judgment:

1. This appeal arises oat of a suit brought by the plaintiff against the defendants to realise the amount of a mortgage-bond dated the 5th of February 1888. The bond was originally made in favour of Bansi Lal, the father of the plaintiff Seth Ram Chandra Das. The bond was apparently executed by the defendant Rao Farzand Ali Khan on behalf of himself and also on behalf of his mother. The merits of the ease have not been gone into by the Court below and the question involved in this appeal is the question whether or not the learned Subordinate Judge was right in holding that the bond in suit had not been duly registered and accordingly could not be given in evidence by the plaintiff. The bond was in fact registered to this extent at least that it was received in the Registration Office and a certificate of registration is endorsed thereon, or rather certain endorsements appear upon the band. From these endorsements it would appear that the bond was presented for registration in the office of the Sub-Registrar on Monday the 4th of June 1883. Assuming for a moment that the bond was duly presented within the meaning of Section 82 of the Registration Act of 1877, the presentation was made in time. Simultaneously with the presentation of the bond, an application was made under Section 36 of the same Act to summon the executants. They did not appear. The Sub-Registrar considered that execution was not admitted and he, therefore, refused registration. The matter then came before the District Registrar under an application made on behalf of Bansi Lal under Section 73 of the Act. The presence of Farzand Ali was procured and he admitted the execution of the bond. The District Registrar made an order in the following terms: 'The document be registered as admitted to have been executed by Farzind Ali Khan.' Some way or another the bond found its way baok to the Sab-Registrar's office and was registered. Exactly how the bond found its way back to the Sub-Registrar's office is not very clear. The plaintiff, who is the son of Bansi Lal, in his evidence says: The document was not returned to me by the Judge. It was sent, to the Roorki Tahsil and it was registered there.' Except this statement, there is nothing to show how the bond get back to the Sub-Registrar's office, and the witness was speaking of matters which happened more than 20 years before he made his deposition and when he was a boy of about 15 years of age. The learned Subordinate Judge held that the bond had not bean duly registered and that it was not admissible in evidence. He accordingly dismissed the plaintiff's suit. Hence the present appeal.

2. It is argued on behalf of the defendants, first, that the bond was not in fact duly presented for registration on the ground that the person who presented it was not authorised to make the presentation in the manner prescribed by the Registration Act, and secondly, that even if it be presumed that the first presentation wa3 in accordance with law, it was necessary that there should be a second presentation by a person duly authorised after the Registrar had made his ruling on the application to him under Section 73 to which we have already referred. Section 32 of the Registration Act enumerates the persons who are entitled to present a document for registration: it may be presented by some person executing or claiming under the same, or by a representative or assign of such person or by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in the manner prescribed by the Act. From a document issued by the Registration Office which will be found at page 16 of the appellant's book, it would appear that the document in question was presented by one Dasondi Ram, Karinda of Bansi Lal. Section 36 provides means for procuring the attendance before the Registrar of any person whose presence or testimony is necessary for the purpose of registration. Section 60 provides for the endorsement by a Registering officer of a certificate of registration and further provides that such certificate shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsements referred to have occurred as certified. In our opinion the production of the bond with the certificate of due registration endorsed thereon raises a strong presumption in favour of the due registration of the bond ; and that, in the absence of clear proof that the requirements of law were not complied with, the Court was bound to admit the document in evidence. Section 114 of the Evidence Act, coupled with Section 60 of the Registration Act, seems to us to be abundant justification for this proposition.

3. The defendants strongly rely on the of case of Mujibunnissa v. Abdur Rahim 23 A. 233 : 28 I.A. 15. In that case the person who had executed the deed and on whose behalf the application for registration purported to have been made was dead at the time of the presentation of the document for registration. Their Lordships of the Privy Council held that the authorisation ceased upon the death of the donor of the power-of attorney, and that consequently the presentation was made by a volunteer, that is to say, by a person who had no authority whatever to 'present' the document. They held also that the presentation of the document was not a mere matter of procedure. The distinction between the facts in this case, and in the ca3e before us, is, we think, quite obvious. In the case before their Lordships it was proved by conclusive evidence, and admitted by the parties, that the person presenting the. document purported to do so on behalf of a dead person. In the present case (to deal with the two questions separately) it is not at all admitted that the document was presented for registration by an unauthorised person It is contended that the document to which we have arleady referred shows that the bond was presented by a karinda. It does not at all follow that the karinda may not have been duly authorised in the manner prescribed by the Act.

4. We have already pointed out that in our view that production of the bond, with the registration certificate endorsed thereon, raised a strong presumption in favour of due registration. We think that this was the view taken by their Lordships of the Privy Council in the case of Mohammad Ewas v. Birj Lal 4 I.A. 166 : I.A. 465. At p. 175 their Lordships say: 'But there is another part of the judgment of the High Court, which their Lordships think, requires consideration. The High Court say: 'It has been held by this Court more than once, that unless a deed be registered in accordance with the substantial provisions of the law, it must be regarded as unregistered, though it may, in fact, have been improperly admitted to registration.' Their Lordships think this is too broadly stated, if the High Court is to be understood to mean that in all cases where a registered deed is produced, it is open to the party objecting to the deed to contend that there was an improper registration, that the terms of the Registration Act in some substantial respects have not been complied with. Undoubtedly, it would be a most inconvenient rule if it were to be laid down generally that all Courts, upon the production of a deed which has the Registrar's endorsement of due registration, should be called on to inquire before receiving it in evidence whether the Registrar had properly performed his duty. Their Lordships think that this Rule ought not to be thus broadly laid down. The registration is mainly required for the purpose of giving notoriety to the deed and it is required under the penalty that the deed shall not be given in evidence unless it be registered. If it be registered, the party who has presented it for registration is then under the Act in aposition which prima facie at least entitles him to give the deed in evidence. If the registration could at any time, at whatever distance of time, be opened, parties would never know what to rely upon, or when they would be safe.' In our opinion there in nothing in the judgment of their Lordships in the case of Mujibunnissa v. Abdur Rahim 23 A. 233 : 28 I.A. 15, which is inconsistent with the above observations.

5. The case of Ishri Prasad v. Baij Nath 28 A. 707 : A.W.N. (1906) 195 : 3 A.L.J. 373 is also relied upon by the defendants. In that case the document was presented for registration by a Pleader who was not duly authorised in compliance with the provisions of the Registration Act and this fact was admitted by the parties. In our judgment, this case is no authority for holding that the onus lay in the present case upon the plaintiff of showing that the requirements of the Act were duly complied with. In the case mentioned above, as also in the case of Mujibunnisa v. Ahdur Rahim 23 A. 233 : 28 I.A. 15 the presumption in favour of due registration was rebutted by evidence and by the admission of the parties. In the case before us there is no such evidence and no such admission. We are, therefore, unable to hold that the initial presentation of the bond was defective.

6. We now deal with the second point. Section 75 of the Registration Act provides as follows: 'if the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered. And if the document has been duly presented for registration within 30 days after the making of such order, the Registering officer shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60. Such registration shall take effect as if the document had been registered when it was first duly presented for registration'. The defendants contend that the provisions of this Section render it necessary that there should be a second presentation within 30 days, and that second presentation mast be in all res peels similar to the initial presentation made under Section 32. In the first place, we may point out that but for the evidence of the plaintiff, to which we have already referred, in which he says that the bond was not returned to him but that it was sent to the Roorki Tashil and was registered there, there is nothing to prove that the document was not in fact duly presented a second time by a duly authorised agent. The evidence of the plaintiff on this particular point is very vague. As we have already pointed out, he is speaking of a very ancient matter and he does not even say who brought the document for registration, and it is only an inference which may be drawn from his evidence that it was the Judge, that is the Registrar, who directed the document to be sent back to the Sub-Registrar for registration. In our opinion, it would be hardly reasonable to bind the plaintiff by this vague statement and to hold that it is sufficient to rebut the strong presumption in favour of everything required by the Act having been duly performed. However, even if we assume in favour of the defendants that the bond after it had been adjudicated upon by the Registrar was not returned by the Registrar to Bansi Lal or his attorney but was forwarded direct to the Sub-Registrar, we think the matter ought to be dealt with as a defect in procedure. Section 87 provides that Nothing done in good faith pursuant to this Act, or any Act hereby repealed, by any Registering officer shall be deemed invalid merely by reason of any defect in his appointment or procedure.' If it was irregular of the Registrar to send himself the bond to the Sub-Registrar instead of handing it back to the applicant, the irregularity was the irregularity of the Registrar not of the applicant. It is no doubt true that their Lordships of the Privy Council say in the case of Mujibunnissa v. Ahdur Rahim 23 A. 233 : 28 I.A. 15 in dealing with the acceptance by the Registrar of the document from the attorney of a deceased person, it has been suggested, however, that the error of a 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.' Their Lordships were here dealing with the initial presentation for registration. And that presentation was made by a mere volunteer. For the purposes of the point we are now dealing with it must be presumed that the bond was originally presented by a person duly authorised and that the error, if any, which was committed was the sending of the bond by the Judge to the Sub-Registrar instead of handing it back to the part to be represented. In our opinion the second point which has been argued in support of the decision of the learned Subordinate Judge also fails.

7. We, therefore, hold that the appeal should be allowed. We accordingly allow the appeal, set aside the decree of the learned Subordinate Judge and remand the case to his Court under Order XLI, Rule 23 of the Code of Civil Procedure, to be heard and determined according to law. The appellant will have his costs in this Court including fees on the higher scale. Other costs will abide the result.


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