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Nemi Chand Vs. Ganeshimal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 462 of 1062
Judge
Reported in1970WLN357
AppellantNemi Chand
RespondentGaneshimal and ors.
DispositionAppeal dismissed
Cases ReferredIn Narindar Chakrvarty v. Mahendra Nath
Excerpt:
.....successful in a suit under section 77 of the act is that he must show that the document had been presented for registration by a person authorised to do so under the provisions of the act and that it had been presented for registration within the time prescribed by section 23 to 26. the plaintiff, however, failed to do so and in this view of the matter the lower courts cannot be said to have gone wrong in dismissing the plaintiff's suit in absence of evidence of valid presentation of the document. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days..........was further observed that the jurisdiction of a sub-registrar only comes into force if and when a document is presented to him in accordance with law.8. again in mujisurendraessa and ors. v. abdul rahim and abdul aziz xxvii i.a. 15 , their lordships held that the power and jurisdiction of the registear only came into play when he is invoked by some persons having a direct relation to the deed. it is for those persons to consider whether they will or will not give the deed the efficacy conferred by registration. it was observed that the registrar could not be held to exercise the jurisdiction conferred on him, if hearing of the execution of a deed, he got possession of it and registered it.9. it is needless to multiply the authorities on the point as the law seems to be well settled that.....
Judgment:

C.M. Lodha, J.

1. The facts giving rise to this second appeal by the plaintiff lie within a narrow compass.

2. Defendants Nos. 1 and 2 Ganeshmal and Sardarmal executed a mortgage deed dated 1-3-1954 for a sum of Rs. 8000/- in favour of the plaintiff Nemichand. Shri M.K. Rathi, an Advocate of Ajmer presented the mortgage deed on behalf of mortgage-plaintiff Nemichand before the SubRegistrar, Ajmer on 1-7-1954 which was the last date for presentation of the deed, thelimitation prercribed for the purpose being four months from the date of execution. The Sub-Registrar returned the document the same day with the following endorsement:

M.K. Rathi counsel for Nemichand prerent. The above presentation along with the document does not appear to be valid, and further the time prescribed for registration expires to-day and there is no time left to enforce the appearance of the opposite party. Therefore, in view of Section 4 of the Indian Registration Act no further action can be taken. The document is therefore returned.

what exactly happened thereafter is not known but there is a further endorsement of the Sub-Registrar dated 9-10-1954 which runs thus:

The document received from the Registrar of Assurance, Ajmer under his No 3416/- XXII-D-21 dated 15-7-1954 with the direction to register it on payment of 10 times the amount of proper registration fee as fine.

Mr. M. K. Rathi Advocate appeared on 22-7-1954 and put in an. application under Section 36 of the Indian Registration Act.

There is yet another endorsement of the Sub-Registrar of the same date to the effect that Shri Badgel filed power for both the opposite parties requesting for time to file objections but did not undertake to produce the opposite parties. It is further mentioned in this endorsement that notice was issued to the opposite party No. 1, namely, Ganesimal, and it was not received after service but Shri Badgel stated that substiruted service had been effected on Shri Ganesimal. The opposite party No. 2, namely, Sardarmal was reported to be assent inspite of service. Consequently, the Sub-Registrar observe that the absence of brth the executants inspite of service amounted to denial of execution of the document and therefore he refused to register it. Dis-satis-fied with the fatter order of the Sub-Registrar of 9-10-1954 the plaintiff moved an application under Section 73 of the Indian Registration Act of 1968 (which for shortness will hereinafter be called 'the Act') before the Registrar who also by his order dated 22-5-1958 refused to register the document on the ground that it had not been properly presented before the Sub-Registrar, Ajmer. Incidently he also observed that the document had not been proved to be duly executed. The plaintiff thereupon filed the present suit under Section 77 of the Act on 30-6-1958 in the Court of Civil Judge, Ajmer praying that a direction may be issued for registration of the mortgage deed. The suit was resisted by the defendants Nos. 1 and 2 who while admitting thier sighetures on the document pleaded lack of receipt of consideration. They also pleaded that there was no valid presentation of the document and consequently the suit was liable to be dismissed. The raised a further objection to the maintainability of the suit on the ground that the order of the Sub-Registror dated 1-7-1954 was applicable and no appeal having been filed from that order the present suit did not lie.

3. The learned trial court dismissed the plaintiff's suit, Aggrieved by the judgment and decree of the trial court the plaintiff filed appeal in the Court of District Judge, Ajmer but unsuccessful. Consequently, he has been come in second appeal to this court.

4. Learned Counsel for the applicant has urged that the lower courts have committed an error of law in dismissing the suit on the gronnd that there was no valid presmentation of the mortage deed. It is contended that the Registrar had passed an order dateed 15.7.1954 directing the subRegisarar to register the document on payment of ten times the amounts of the proper registration fee as fine. This order of the Registrar according to the learned Counsel was passed under Section 25 of the Act and the validity of the same could not be called into question in a suit under Section 77 of the Act. In net seell his contention in, that it must be promoted, in the facts and circumstances of the case, that the document had been validity presented before the Registrar and by virtue of toe powers conferreed up to him by Section 25 of the Act he directed the registration of the document even after tee exprition of the precribad period of four months from the date of execution on payment of fine. He has further argued that the Nogistrar had no jurisdiction thereafter to refuse to register the document by his order dated 22. 5. 1958.

5. It may be stated at the outset that the learned Counsel for the appellant did not rely on the presentation of the document before the subRegistrar by Shri M.K. Bhati on behalf of the plaintiff Nemichand on 1-7-1954, and his sole smphasin is on the presentation of the document before the Registrar, Ajmer some time thereafter which resulted in the order by the Registrar dated 15-7-1954. It is important to note that the order of the Registrar dated 15-7-1954 on which the plaintiff-appellant has rested his whole case has not been produced. There is even no reference to it in the plaint, The only proof regarding the order of the Registrar dated 15-7-1954 in the endorsement by the sub-Registrar dated 9-10-1954. But unfortunatuly for the plaintiff even this endorsement does not show that the document was presanted before the Registrar by the plaintiff by any person duly authorised in this behalf, nor it is mentioned that any application had been moved on his behalf before the Registrar disclosing the circumstances under which benefit was being claimed under Section 25 of the Act for registration of the document after the expiration of the prescribed period of four months, nor is there any mention in this endorsement that for certain reasons, good, bad or indifferent the Registrar, in thought it fit to issue a direction for registration of the document. Thus there is absolately no evidence on the record to show that the document had validly presented before the Registrar.

6. That the requirements regarding vaid presentation is necessary condition present for registration of the document does not admit of any doubt and there is a plethora of authorities in support of this view.

7. In Jammu Prasad v. Muhamed Nawdb Aftab Ali Nahan 28 I.C. 422 their Loardehip of the Privy Council were pleased to observe that want of proper presentation was not a mere defect in procedure under Section 87 but rendered the deed invalid, and that the object of Sections 32, 33, 34, and 35 of Act III of 1877 (which was in force prior to the present Act of 1908) was to prevent fraud by means of registration under the Act and therefore the provisions were imperative. It was further observed that the jurisdiction of a sub-Registrar only comes into force if and when a document is presented to him in accordance with law.

8. Again in Mujisurendraessa and Ors. v. Abdul Rahim and Abdul Aziz XXVII I.A. 15 , Their Lordships held that the power and jurisdiction of the Registear only came into play when he is invoked by some persons having a direct relation to the deed. It is for those persons to consider whether they will or will not give the deed the efficacy conferred by registration. It was observed that the Registrar could not be held to exercise the jurisdiction conferred on him, if hearing of the execution of a deed, he got possession of it and registered it.

9. It is needless to multiply the authorities on the point as the law seems to be well settled that proper presentation by an authorised agent is an. indispensible fouddation for giving the registering officer jurisdiction to regis-the document.

10. Learned Counsel for the appellant, however, submitted that initially even if a document is not validly presented the defect can be remedied by its subsequent valid presentation In this connection he has placed reliahce on Rampasad v. H.H. Khan AIR 1921 PC 93 Jagdeo Narayan Singh v. Pannalal AIR 1922 PC 279. The proposition submitted by the learned Counsel, is correct so far as it goes. But in the present case, as already observed above, there is no evidence at all of presentation of the document before the Regisrar and muchless of a valid presentation It must, therefore, be held that the plaintiff has failed to prove that the mortgage dead in question was ever validly presented for registration.

11. Faced with this position learned Counsel submitted that a presumption should be drawn in fovour of there being a valid presentation of the document when an order is passed by the Registrar under Section 25 of the Act. In support of his contention he selied upon Tulock Chand Harnath v. Gomulbhoy Mulchand ILR 21 Bom 724 Ramjithasal v. Sonhanyaiheemal : AIR1962Mad421 and Apaya v. Govind AIR 1953 Bom. 625.

12. In Durga Singh v. Mahendra Das ILR 6 All. 460 the document was presented before the sub Registrar by the person claiming under the deed after the expiration of the period of four months prescribed under Section 23 of the Act. The sub-Registrar forwarded it to the Registrar who directed that the document should be accepted for registration on payment of fine prescribed. The executant, however, denied the execution of the document before the sub-Registrar, and consequently the registration was refused. The plaintiffs made an application under Section 73 of the Act, but the Registrar refused to register the document on the ground that it had not been presented within the time allowed by law, even though he held that its execution was proved aid thereby over-ruled his predecessor's order for registration of the document. In the suit flied by the plaintiff under Section 77 of the Act praying for a decree directing registration, it was held that the previous order passed by the Registrar for registration was a final and binding order. It may be noticed that in that ease there was no dispute about valid presentation of the document, and the order having been passed for registration of the document after the expiration of the prescribed period on account of the circumstances disclosed before the Registrar, his seccessor in office had no jurisdiction to sit in judgment over his predecessor's order. The facts of that case were radically different and the principal laid down therein has, in my opinion, no application to the facts of the present case.

13. Similarly in Tullock Chand Ramnath v. Goulbhoy Mulchand ILR 21 Bom 724 The question canvassed before the Court was that a direction given by the Registrar under Section 24 of the old Act (which is equivalent to Section 25 of the present Act) could not be called into question before a Civil Court on the ground that there were no sufficient reasons before the Registrar for giving such a direction. It was held that when the direction had been given, the fine paid all the requirements of law on the part of the applicant complied with there was no obligation upon the applicant that the Registrar shall properly perform the duties of his office. It would be relevant to point out, here that there is no dispute in the present case about the sufficiency or insufficiency or the reasons with respect to an order passed under Section 25 of the Act and therefore, this case is also of no assistance to the appellant. In the present case, it is even difficult to say whether the Registrar at all passed any order under Section 25 of the Act. I have looked into the other two authorities also cited by the learned Counsel and an of the opinion that they do not support the view propounded on behalf of the appellant.

14. Learned Counsel for the respondent has streneously urged that there is no basis for the appellant to sumit that the Registrar had passed any order under Section 25 of the Act on 5.7.1954. He has orguee that that plaintiff had never set up such a case in the plaint nor had developed it at any stage on these lines. He has also contedded that the document having been presented within the prescribed period of four months before the sub Registrar under Section 23 of the Act, there was no scope left for the plaintiff to Dress into service Section 55 of the Act, which applies only when the document is presented after the expiration of the prescribed period of four months. The only remedy, according to the learned Counsel, open to the plaintiff, was to file an appeal from the order of the sub-Registrar dated 1.7.1954 under Section 72 of the Act within the prescribed period of 30 days. He has also also submitted that any view of the matter no presumption can be drawn under Section 144 of the Evidence Act that the requirements of valid presentation had been fulfilled at the time when the Registrar is alleged to have passed the order dated 15-7-1954.

15. In Narindar Chakrvarty v. Mahendra Nath ILR 1956 Assam 123 it was held that where a party seeks to rely on a registrated document on the face of which it is obvicus that it was presented for registration beyond four months of its execution, the onusliea heavily on the party to show that the requirement of the law had been fulfilled before it could be a samed by any court that the document had been registreted within the meaning of Section 24. It was further observed that no presumption can radsed in favour of the party under Section 114, Evidence Act, in view of the registration as no presumption can arise unless it is show that the requirements of the law had been complied with.

16. The plaintiff's case is on a much lower footing than the Assam case to above. The document is not registred. The order of the Registrar alleged to the under Section 25 of the Act has not been produced and as already observed above there is nothing on the record to show that the Registrar had passed the order dated 15th July,1954 under Section 25 of the Act after valid presentation and after compliance with the provisions of that section. The defendant took specific objection in his written statement that there was no valid presentation of the document yet the plaintiff did not care to put on record any evidence to show, that the document had been validly presented. One of the ressential conditions for a plaintiff to be successful in a suit under Section 77 of the Act is that he must show that the document had been presented for registration by a person authorised to do so under the provisions of the Act and that it had been presented for registration within the time prescribed, by Section 23 to 26. The plaintiff, however, failed to do so and in this view of the matter the lower courts cannot be said to have gone wrong in dismissing the plaintiff's suit in absence of evidence of valid presentation of document. The decision on this point is sufficient to non suit the plaintiff. It is, therefore, not necessary, to decide the larger question convassed by the learned Counsel for the respondents that the document having been once presented though by an unauthorised person within the prescribed time under Section 23 of the Act, could not have been re-presented after the expiry of the prescribed period under Section 25 of the Act.

17. The result is that this appeal has no force, and is hereby dismissed but in the circumstances of the case I leave the parties to bear their own costs.


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