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Smt. Saraswatibai W/O. Himmatsingh Vs. Md. Idrakuddin - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 63 of 1960
Judge
Reported inAIR1963MP234; 1963MPLJ96
ActsEvidence Act, 1872 - Sections 5 and 64; Code of Civil Procedure (CPC) , 1908 - Sections 100; Registration Act, 1908 - Sectioni 23, 30, 34, 76 and 77
AppellantSmt. Saraswatibai W/O. Himmatsingh
RespondentMd. Idrakuddin
Appellant AdvocateA.R. Choubey, Adv.
Respondent AdvocateY.S. Dharmadhikari, Adv.
DispositionAppeal dismissed
Cases ReferredGulabsingh Hamirsingh Rajput v. Tarabai
Excerpt:
.....if the court is satisfied that the original document was intact and had been produced before the registering officer and the same is lost while in the custody of the court after the riling of the suit, the court certainly will have the power to admit secondary evidence of the contents of the document and to decide whether the refusal of the registering officer was justified. but, further i am of opinion that if the court is convinced on the strength of the secondary evidence that a document of the kind was in fact executed by the executant, which conclusion the executant is unable to establish as vitiated, the court could certainly decide the question of correctness of the order of the registering officer and grant a decree for registration, if it is satisfied that the document was a..........civil judge, betul, in civil suit no. 4-a of 1957.2. the respondent executed a registered sale deed, dated, 10-9-1947 in favour of the appellant regarding certain malik makbuza land, having an area of 19.40 acres, for a consideration of rs. 1900/-. the sale deed was probably executed at the time of partition of the country, when the respondent was probably scared on account of his anxiety for his safety. that was undoubtedly an out and out sale deed, although the respondent's contention was that it was a mortgage. however, he did not make any attempt to establish his allegation about the transaction being a mortgage.3. the appellant leased back the fields to the respondent on 15-9-1947. the lease was for the agricultural year 1947-48; and as such was to expire on 2-5-1948.4......
Judgment:

P.K. Tare, J.

1. This appeal is by the defendant against the decree, dated, 24-11-1959, passed by Shri V.D. Joshi, Additional District Judge, Betul, in Civil Appeal No. 6-A of 1957, affirming the decree, dated, 18-7-1957, passed by Shri G.K. Parashar, Second Additional Civil Judge, Betul, in Civil Suit No. 4-A of 1957.

2. The respondent executed a registered sale deed, dated, 10-9-1947 in favour of the appellant regarding certain malik makbuza land, having an area of 19.40 acres, for a consideration of Rs. 1900/-. The sale deed was probably executed at the time of partition of the country, when the respondent was probably scared on account of his anxiety for his safety. That was undoubtedly an out and out sale deed, although the respondent's contention was that it was a mortgage. However, he did not make any attempt to establish his allegation about the transaction being a mortgage.

3. The appellant leased back the fields to the respondent on 15-9-1947. The lease was for the agricultural year 1947-48; and as such was to expire on 2-5-1948.

4. According to the appellant, the respondent took a loan from one, Rameshwar and put his signature in the Ticket Bahi of Rameshwar on 13-6-1948. According to her, all the trouble started after that.

5. The appellant was alleged to have executed a return sale deed, dated, 8-7-1948 (Ex. P. 10) regarding the very property having an area of 19.40 acres for a consideration of Rs. 3800/-. The alleged sale deed was presented before the Sub-Registrar of Betul, who also happened to be the District Registrar of the District. This step was taken on the advice of the Sub-Registrar, Multai, within whose jurisdiction the document had been executed, but who happened to be the son of the appellant, Mst. Saraswatibai. The Sub-Registrar, Betulads all attempts to summon the executant, who was a Pardanashin lady. Therefore, a commission was issued to the Tahsildar, Multai for her examination on commission regarding the execution of the document. Summonses were issued to her at her reported residence with her son at Multai, as also at two of the villages, namely, Mandhvi where the appellant was said to be residing, and at Bodhia where the appellant has her cultivation. However, the fact stands that she could not be served, with the result that the Sub-Registrar, Betul did not pass any orders aboutregistration. Subsequently when the respondent moved the Sub-Registrar about passing a specific order, he passed an order, dated 22-11-1952 refusing to register the document. Hence the respondent filed the present suit on 17-12-1952 under Section 77 of the Registration Act for getting the summary order of the Sub-Registrar set aside and for registration of the sale deed.

6. The alleged sale deed, dated, 8-7-1948 was executed on two sheets. It was intact when it was presented before the Sub-Registrar, as also when the present suit was filed. But when the record of the present suit was requisitioned in connection with another case pending in the High Court, the second sheet of the sale deed bearing certain recitals and the signature of the appellant along with the signatures of the attesting witnesses was found to be missing. It could nut be traced out as to who was responsible for the loss of one sheet of the sale deed, which was material. Therefore, the respondent produced to copy of the original sale deed, which showed the contents of the missing sheet. . The question, therefore, arises whether the Civil Court can direct registration of a sale deed under Section 77 of the Registration Act, a sale deed, the original of which is produced in part, while an alleged copy is produced regarding the rest of the document. The part of the sale deed along with the copy as reconstructed by the trial Court is on record, as is evident from the documents (Exs. P. 10 to P. 12).

7. The appellant's defence was that she had never executed any sale deed and the so-called copy of the remaining portion of the sale deed is a fake document. It was further contended that no registration could be ordered in respect of a document which had been tampered with. Further, it was alleged that the Sub-Registrar, Betul had not followed the proper procedure, as laid down by the Indian Registration Act. Moreover, the evidence of the plaintiff's witnesses about execution was said to be interested, which was wholly unreliable.

8. The learned Judges of the Courts below held that the appellant had, in fact, executed the sale deed in question. Although a part of the original sale deed was missing, the learned Judges held that the Court could order registration of the deed, as there was satisfactory evidence on record that the defendant had executed the sale deed and a portion of the original deed was missing due to no fault of the plaintiff.

9. The learned counsel for the appellant urged three questions in this Court; one was that the evidence of the plaintiff's witnesses, particularly G.K. Huddar (P.W. 8) and Rameshwar Seth (P.W. 9), was highly interested. The learned Judges of the Courts below also noted the fact that these were interested witnesses. In spite of that, their testimony was relied upon. The evidence on record, according to the learned counsel for the appellant, did not establish execution of the sale deed, nor the payment of consideration of Rs. 2800/-. The balance of the consideration of Rs. 1000/- was indisputedly not paid, as is evident from the testimony of the plaintiff himself as P.W. 1. Secondly, it was contended that the proceedings before the Sub-Registrar were not in accordance with the provisions of the Act, with the result that the present suit under Section 77 of the Registration Act was not tenable. Lastly, it was urged that no decree for registration could be passed in respect of a document, which had been tampered with and a portion of the original of which was not to be traced. Therefore, it was suggested that the present suit under Section 77 of the Registration Act not being tenable, the only remedy of the plaintiff was to file a suit for specific performance of the contract of sale.

10. Regarding the first question about execution of the sale deed, dated, 8-7-1948, and the consideration of Rs. 2800/- alleged to have been paid, it is true that the plaintiff's witnesses, G.K. Huddar (P.W. 8) and Rameshwar Seth (P.W. 9) might be interested. But, interestednessc alone is no ground for rejecting of their testimony. The same has to be judged on its own merits. It may be that Rameshwar Seth may have advanced a loan not specifically for the purpose of paying the consideration of the sale deed. But there is a promissory note on record (Ex. P. 13), dated, 8-7-1948 executed by the respondent in favour of Mst. Tarabai wife of G.K. Huddar (P.W. 8) for a consideration of Rs. 3000/- received in cash on that very day. There is other oral evidence on record to show that Rs. 2800/- had been paid on the date of execution of the sale deed, while the respondent had undertaken a Havala to pay Rs. 1000/- due from the appellant towards certain taccavi loans, which he did not pay, as is disclosed by his testimony as P.W. 1. It is also clear from the testimony of Ramratan Singh (D.W. 2) (appellant's son) that he had paid the amount of Rs. 1000/- due from his mother towards the taccavi loan. Therefore, there can 'be no doubt that the sale deed, dated, 8-7-1948 was actually executed by the appellant. But, as regards the consideration an amount of Rs. 2800/- only had been paid, while the balance of Rs. 1000/-has not as yet been paid and the same is still due.

The question whether the document had been properly executed would be a question of fact binding on this Court at the second appellate stage, which cannot be challenged in the absence of a demonstrable illegality, or misapprehension on the part of the Courts below. Therefore, I an of opinion that the view of the Courts below cm the point of execution and consideration of the sale deed is correct and there is no occasion to disturb the same.

11. Moreover, all attempts were made by the Sub-Registrar, Betul to summon the appellant for the purpose of taking her statement regarding the execution of the sale deed. But, she was not to be found either at Multai or at Mandhvi, or at Bodhia, as is disclosed by the note sheets of the Sub-Registrar, dated, 19-12-1951 (Ex. D. 6). It appears that the appellant avoided to appear either before the commissioner or before the Sub-Registrar. It may be that she is a pardanashin lady entitled to the privilege under Section 132 of the Civil Procedure Code. But, all the same, there was no reason why she shouldhave refused to appear before the Commissioner appointed for the purpose. There is definite material on record to show that all attempts were made to avoid service of summonses on her.

12. The next point is whether the proper procedure regarding registration was followed by the Sub-Registrar, Betul, in this connection, it was pointed out that the document was not registrable at Betul, because it had been executed within the jurisdiction of the Sub-Registrar of Multai. It is clear from the record that the document was taken to the Sub-Registrar, Betul, who also happened to be the District Registrar, at the instance of the appellant's son, Ramratansingh, who was Sub-Registrar at Multai. The District Registrar, at any rate, had the jurisdiction to register a document executed within the district, if the document was considered not desirable to be registered at Multai. The Sub-Registrar, Betul was not merely a Sub-Registrar, but also the District Registrar; and in that capacity he had the jurisdiction to register a document executed within the jurisdiction of the Sub-Registrar Multai.

13. Further, it was urged by the learned Counsel for the appellant that the Sub-Registrar, Betul had no jurisdiction to pass an order either refusing or allowing registration of a document after the period of 8 months, as laid down by Section 34 of the Registration Act. It is to be noted that what the section requires is that no document shall be registered, unless the persons executing such documents, or their representatives, assigns or agents authorised appear before the registering office within the time allowed for presentation under Sections 23, 24, 25 and 26. Under the section the registering officer has the discretion to extend time by another 4 months. Sections 23, 24, 25 and 26 prescribe the period of 4 months for presentation of a document. Section 23 particularly lays down that subject to the provisions contained in Sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within 4 months from the date of its execution. However, an exception is made in the case of a decree or order which might be presented for registration within 4 months from the last appellate decree, which becomes final. Therefore, the bar is against registration of a document presented after 4 months or after 8 months, if the registering officer extends time in his discretion. There is no bar to the registering officer passing an order at any time. It is true that the proceeding before the registering officer are summary in nature and they are expected to pass orders expeditiously within the time allowed. But, can it be said that if a registering officer does not pass an order under Section 76 of the Registration Act within the time prescribed by Section 23 of the Act read with Section 34, the party aggrieved cannot at all file a suit for getting registration under Section 77 of the Act. It is to be noted that the right to file a suit under Section 77 of the Act accrues only when the registering officer actually passes an order of refusal or allows registration under Section 76 of the Act. It is an accepted principle that no party shouldbe made to suffer for the mistake of a Court of law, or a public authority. In the present case the document was presented before the Sub-Registrar on the next day of its execution, that is, on 9-7-1948. The Sub-Registrar, Betul made all attempts to summon the executant, but without any result. Therefore, he failed to pass any order for a period of almost 4 years. Ultimately, when he was again moved in that behalf by the respondent, he passed an order of refusal; 22-11-1952. That will be the date when the cause of action for filing a suit under Section 77 of the Act will accrue to the respondent. The fact that the Sub-Registrar avoided to do his duty as required by Section 76 of the Act cannot prejudice the respondent's right of suit under Section 77 of the Act. It is further clear that unless the sub-Registrar passed an order under Section 76 of the Act the respondent had no right of suit at all, and any suit filed by him would be thrown out on the short ground that it was premature. The limitation for a suit under Section 77 of the Registration Act will be from the date of refusal. The present suit was filed by the respondent on 17-12-1952, that is, within 30 days of the passing of the order of the Sub-Registrar. As such, the suit was certainly within time and no objection in that behalf can be taken by the appellant.

14. As regards the question whether registration could be ordered in respect of an incomplete sale deed, a portion of which was missing, the learned counsel for the appellant urged that no registration could be ordered in respect of a document, which had been tampered with. In this connection, attention was invited to the Privy Council case of Sri Venkata Sveta Chalapati Ranga Rao, Raja of Bobbili v. Inuganti China Sitaramasami Gam, ILR 23 Mad 49 (PC), wherein Their Lordships laid down that for the purposes of Section 34 of the Indian Stamp Act, the understanding or non-stamping must be in respect of the original document and a copy of the original could not be required to be properly stamped. Their Lordships also laid down that secondary evidence of the original under-stamped document would not be admissible.

15. That principle no doubt will apply where there is no explanation regarding the loss of the original document. There can be no doubt that secondary evidence of the contents of a document, which has not been proved to be lost, cannot be permissible. Moreover, for the purposes of the Indian Stamp Act, proper stamp duty and penalty can be recovered only on the original document, and not on a copy.

16. In Probadha Gaolini v. Banka Behari, AIR 1933 Cal 196, Patterson, J., held that a suit under Section 77 of the Registration Act was not tenable to enforce registration of a document which had been tampered with. It is true that no SUIt to enforce registration of a document which has been tampered with would be tenable, as the registering officer himself has no jurisdiction to decide whether the document is a genuine or a tampered document. But, the question is the present case is whether the document was a tempered one. It is significant to note thatthe document was intact when it was produced before the Sub-Registrar. Similarly, it was in tact when the suit was filed. A portion of the document disappeared after it was produced : the Court.

17. In Chidambaram Chettiar v. Meyyappan Ambalam, ILR (1946) Mad 672 : (AIR 1941 Mad 298), a Division Bench consisting of Leach C.J., and Koman, J., held that for the purpose of Section 34 of the Stamp Act it is only the original which can be validated upon payment o the requisite stamp duty and the penalty. In that case, as a mob had set fire to the Court building and the original document kept in the record was destroyed, a copy of the same could not be validated even upon payment of the requisite stamp duty and the penalty. Following the dictum laid down by Their Lordships of the Privy Council in ILR 23 Mad 49 (PC) (supra), the learned Judges held that Section 34 of the Stamp Act applies to the original ' documents only.

18. It is also correct to say that, as laid down by a Division Bench of the Calcutta High Court in Purna Chandra v. Sm. Kiran Bala, AIR 1948 Cal 53, the nature of the proceedings before the Registering Officer is summary and the cause of action for filing a suit is the refusal of the registering officer to register a document. As such, the scope of the suit is to decide the correctness or otherwise of the order passed by the registering officer.

It was suggested by the learned counsel for the appellant on the basis of this case that the Civil Court cannot have any more powers than to examine the correctness or otherwise of the order of the registering officer. So far as the general proposition is concerned, there is no doubt that the scope of a suit under Section 77 of the Registration Act is to see whether the summary order passed by the registering officer was correct or otherwise. But, the further question arises whether the civil Court is circumscribed in its power to the same extent as the registering officer.

19. So far as the powers of the Civil Court in trying the suit are concerned, it cannot be disputed that the procedure is governed by the provisions of the Civil Procedure Code, the Indian Evidence Act and other analogous Acts. The restrictions that are placed on the registering officer by virtue of provisions of the Registration Act can in no case be said to be applicable to the Civil Court, as the procedure in the Civil Court is governed by the special provisions of Acts contained in the statute. However, I am in entire agreement with the view expressed in the above noted cases that the registering officer in no case has jurisdiction to register a copy of a document. What he can register is only the original deed. Similarly, as laid down by Their Lordships of the Privy Council, copies of original documents cannot be required to be properly stamped, nor can they be validated. But, where the original document was before the registering officer and a suit under Section 77 of the Registration Act is filed and the original document is lost while in, the custody of the Court, can the Court be said to be powerless to decide whether the order ofthe registering officer refusing registration was correct or otherwise. In such a case, I am of opinion that if the Court is satisfied that the original document was intact and had been produced before the registering officer and the same is lost while in the custody of the Court after the riling of the suit, the Court certainly will have the power to admit secondary evidence of the contents of the document and to decide whether the refusal of the registering officer was justified. Of coarse, J quite realise that some difficulties arise in a case of the present kind, where a part of the original document is still on record, while the second sheet of the original document is missing. But, further I am of opinion that if the Court is convinced on the strength of the secondary evidence that a document of the kind was in fact executed by the executant, which conclusion the executant is unable to establish as vitiated, the Court could certainly decide the question of correctness of the order of the registering officer and grant a decree for registration, if it is satisfied that the document was a genuine one and had in fact been executed.

20. The further question arises in such a case whether a party can file a suit under Section 77 of the Registration Act, or the only remedy is to file a suit for specific performance of the contract of sale. In this connection, I might observe that Their Lordships of the Privy Council in Tulsi Ram Lala v. Ram Saran Das, AIR 1925 PC 80 have laid down that once a document is filed in Court and is lost while in the custody of the Court, secondary evidence of the contents of the document would be admissible. Therefore, in my opinion, the real distinction is that a registering officer undoubtedly will have no jurisdiction to direct registration of a copy of a document. But, if on the other hand, the document in original has been produced before the registering officer and also in Court and is thereafter lost, tile Court cannot be precluded from admitting secondary evidence of the contents of the document and to grant a decree for registration, if it is otherwise satisfied about the genuineness of the document.

In this connection, I might also observe that in Gulabsingh Hamirsingh Rajput v. Tarabai, AIR 1958 Madh Pra 310, Dixit, J., (as he then was), tracing out the case law on the point exhaustively, held that merely because a person might be in a position to file a suit for getting a document registered under Section 77 of the Registration Act, will not preclude him from filing a suit for specific performance of the contract of sale. As observed by the learned Judge, such suits will be maintainable tinder different circumstances. But, I am unable to accept the contention of the learned counsel for the appellant that the only remedy of the plaintiff in the present case would be to sue for specific performance of the contract of sale. That is one of the additional remedies, as laid down by Dixit, J. In that ease the contention was that as the remedy under Section 77 of the Registration Act was available, no suit for specific performance of the contract of sale lay. In my opinion, either of the suit can be filed by a party, but where registration of a document be not possible, in that event only, the only remedy of a party would be a suit for specific performance of the contract of sale.

21. So far as the present case is concerned, I have no doubt that the Civil Court has the power to admit secondary evidence of the contents of the original document and to reconstruct the document as such, and to grant a decree for registration, if the Court upholds the plaintiffs contention on merits. Therefore, had the original document been tampered with or had the original document been lost before its presentation before the registering officer, no suit under Section 77 of the Registration Act could have been filed, as the registering officer himself would be incompetent to order registration of a copy. But, under the circumstances, as detailed above, I am of opinion that the present suit was tenable when it was filed; and as the original document was subsequently lost while in the custody of the Court, that fact alone cannot render the suit untenable, which was originally tenable. For this purpose, the Civil Court has all the powers conferred by the different statutes to act in the interest of justice and to grant a decree for registration.

22. However, one more question arises whether a decree for registration should be granted unconditionally. The learned Judges of the Courts below granted such an unconditional decree without taking into consideration the stand of the respondent that he had paid Rs. 2800/- only towards the consideration of the transaction, while an amount of Rs. 1000/- was still in balance. By passing an unconditional decree, the Court would be compelling the appellant to file a suit for recovery of the balance of consideration. Therefore, in order to avoid multiplicity of suits and to do equity between the parties, I am of opinion that the decree for registration in the present case should be conditional upon payment of the balance of consideration of Rs. 1000/- by the respondent to the appellant. Therefore, the decree of the Courts below shall be modified to that extent only. The balance of the consideration shall be paid to the appellant within 15 days of the signing of this decree by this Court; and the document as reconstructed by the trial Court shall be presented for registration within 30 days of the same date. The registering officer is directed to register the sale deed.

23. As a result, the decree passed by the Courts below is upheld subject to the modification indicated above. In case of non-compliance by the respondent with the directions given above, the registering officer shall not register the document and the suit of the plaintiff shall stand dismissed with costs throughout. Therefore, this appeal substantially fails and is dismissed subject to the modification indicated. In view of the minor success of the appellant, I direct that she shall pay to the respondent three-fourth of the costs of the present appeal. The costs of the Courts below shall be borne as directed by the first appellate Court. Counsel's fee according to schedule or certificate, whichever be less. Leave for filing letters patent appeal is refused.


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