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Ganesh Ram Vs. Paras Finance Company and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 254 of 1933
Judge
Reported in1984WLN245
AppellantGanesh Ram
RespondentParas Finance Company and anr.
Cases ReferredDeiva(sic)ai v. Mannappa
Excerpt:
.....in holding that the mortgage deed in dispute in the present suit was validly registered by the district registrar, jodhpur despite the fact that no part of the property under the mortgage deed was situate within his jurisdiction.;revision accepted with costs - - he placed strong reliance upon harakchand v. in my opinion the present case clearly falls within this category because by holding the document to be properly registered the court has decided the matter on the merits to the effect that the suit against the defendant no 2 is maintainable and the liability against him can be enforced and if it is found that in tact the document is not properly registered then this court will certainly be entitled to interfere with the decision of the trial court in its revisional jurisdiction...........of rs, 59,392.15 on the basis of a mortgage deed dated 28-11-1965, registered on 29-11-1965 by the district registrar, jodhpur, against kapoor chand, defendant no. 1 who is non-petitioner no. 2 in the present revision and the present petitioner who is defendant no. 2. the case of the plaintiff was that defendant no. 1 had created a simple mortgage of the property in dispute in favour of the plaintiff but thereafter the property in dispute was sold for recovery of some government dues and was purchased by the present petitioner. the plaintiff wants to enforce the liability under the mortgage against the present petitioner also. in the suit the defendant no. 1 viz. kapoor chand, the mortgage accepted his liability under the suit mortgage & submitted that the amount of mortgagee should be.....
Judgment:

K.S. Lodha, J.

1. This revision has been filed by one of the defendants against the order of the Additional District Judge, Sirohi, dated 16-4-1983 holding that the document in question was validly registered and admissible in evidence.

2. The brief facts giving rise to this revision are that the plaintiff M/s Paras Finance Co. filed a suit in the court of Additional District Judge, Sirohi for recovery of Rs, 59,392.15 on the basis of a mortgage deed dated 28-11-1965, registered on 29-11-1965 by the District Registrar, Jodhpur, against Kapoor Chand, defendant No. 1 who is non-petitioner No. 2 in the present revision and the present petitioner who is defendant No. 2. The case of the plaintiff was that defendant No. 1 had created a simple mortgage of the property in dispute in favour of the plaintiff but thereafter the property in dispute was sold for recovery of some government dues and was purchased by the present petitioner. The plaintiff wants to enforce the liability under the mortgage against the present petitioner also. In the suit the defendant No. 1 viz. Kapoor Chand, the mortgage accepted his liability under the suit mortgage & submitted that the amount of mortgagee should be realised from the present petitioner defendant No. 2. The petitioner has, on the other mind denied this liability inter alia on the ground that the mortgage dated 21-11-1965 is void and the document is inadmissible in evidence inter alia on the ground that the District Registrar, Jodhpur had no jurisdiction or authority to register that document as no part of the property was situated within his jurisdiction and all the properties were situated in Sumerpur, District Pali. The court below, on the allegations of the parties framed a number of issues including issue No. 19 which reads as under:

Whether the District Registrar, Jodhpur was not competent to register the suit mortgage and the registration of the said mortgage was against law and, therefore, the suit mortgage was void and ineffective?

This issue was a preliminary issue and the learned Addl. District Judge after the parties decided this issue in favour of the plaintiff and against defendant No. 2, holding that the District Registrar, Jodhpur was competent to register the mortgage deed in question, even though, the property is situated in Sumerpur by virtue of Section 30(2) of the Registration Act and as such the registration is valid and the document is admissible against this order of the learned Additional District Judge Sirohi dated 16-4-1983 that the defendant No. has come up in revision.

3. I have heard the learned Counsel for the patties and have gone through the record.

4. A preliminary objection has been raised by the learned Counsel for non-petitioner No. 1 that the revision is not maintainable in as much as the learned Addl. District Judge was within his jurisdiction to decide whether document in question was admissible in evidence or not and such a decision of the court below is not revisable under Section 115 CPC. He placed strong reliance upon Harakchand v. State of Rajasthan (1970 RIW 320). On the other hand the learned Counsel for the petitioner urged that the matter does not merely relate to the question of admissibility of the document but goes to the very root of the suit and the jurisdiction of the Court to enforce the liability in the suit against the present petitioner and, therefore, this order is revisable He placed reliance on Md. Shakeel Waheed Ahmed v. State of Maharashtra : AIR1983SC540 , Premraj v. D.L.F.H. & Co. Ltd : [1968]3SCR648 & D.L.F. Housing etc. Co. v. Sarupsingh : [1970]2SCR368 . I have given my careful consideration to the rival contentions. In my opinion in the circumstance of the present case the preliminary objection cannot be accepted and the authority reported in Harakchand's case (supra) does not apply to the facts of the case. In that case the question was whether a particular document was admissible in evidence or not and the answer to the question depended upon the interpretation of the document and in those circumstances it was held that it was within the jurisdiction of the court to interpret the document in question & even if that the interpretation was wrong & the document was wrongly held to be admissible in evidence the decision could not be challenged in revision. Such is not the case here. In the present case the court was not merely concerned with the interpretation of the document or deciding the question of its admissibility in evidence but the question was whether the document was legally registered or not. If the document is held to be legally or properly registered it would be admissible in evidence and the liability of defendant No. 2 on the basis of this document can be enforced in the suit. On the other hand if it is held that the document cannot be said to be properly and legally registered and is, therefore, not a registered document in the eye of law, it would not only be inadmissible in evidence but the suit against defendant No. 2 cannot be based on such a document. Therefore the court below was to consider whether the document was legally and properly registered or not and if by an altogether untenable interpretation of Section 30(2) of the Registration Act held it to be properly registered the court must be deemed to have exercised its jurisdiction with illegality or material irregularity. In Harak Chand's case while categorising the powers of the High Court under Section 115 the Court observed that that category was that in exercising jurisdiction the court has not acted illegally, i.e. in breach of some provision of law or with material irregularity i.e. in by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision. In my opinion the present case clearly falls within this category because by holding the document to be properly registered the court has decided the matter on the merits to the effect that the suit against the defendant No 2 is maintainable and the liability against him can be enforced and if it is found that in tact the document is not properly registered then this court will certainly be entitled to interfere with the decision of the trial court in its revisional jurisdiction. It cannot be said in the circumstances of the case that the court has merely taken a wrong view of law while exercising its jurisdiction but as a matter of fact it is an error in the manner in which the jurisdiction was being exercised by the learned court below by taking a document to be registered whereas in fact and in law the document could not be said to have been a registered document at all. The decision in D.I.F Housing Co. v. Sarup Singh (supra) would throw some light on the question in dispute. Their Lordships observed:

The words 'illegal' and with 'material irregularity' as used in this Clause do not cover either errors of fact or law. They do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this Clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision and not to errors either of fact or of law after the prescribed formalities have been complied with.

I am, therefore, clearly of the opinion that the revision in the present case is maintainable.

5. This brings me to the only other question involved in this revision, namely whether the mortgage deed in question was validly registered by the District Registrar, Jodhpur. Admittedly no part of the property comprised in the mortgage deed is situated within the district of Jodhpur and all these properties are situated in Sumerpur, district Pali. As the document in question was registered on 29-11-1965 we shall have to take into consideration the provisions of Section 30(2) of the Registration Act as it stood before the amendment in 1969. At that time the Sub-section (2) of Section 30 read:

The Registrar of a district including a Presidency town...may receive and register any document referred to in Section 28 without regard to the situation in any part of India of the property to which the document relates.

6. Now the question is what is meant by the words 'Registrar of a district including a Presidency town.' Do they mean a Registrar of any district including a Registrar of a Presidency town or does it mean only a Registrar of such a district in which can be put on these words is that Sub-section (2) of Section 30 only empowers a Registrar of such a district in which a Presidency town is situated that he may register a document referred to in Section 28 without regard to the situation in any part of India of the property to which the document relates. In other words a Registrar of a district in which a residency town is situated may register a document even through no property to which the document relates is situated within this district. This position would be further clear if we refer to the earlier Sections of the Registration Act. We may begin with Section 5 which relates to the formation of the districts and sub-district by the State Government. Then Section 6 refers to the appointments of the Registrars and Sub-Registrars. Then we come to Section 7 which says. 'The State Govt. shall establish in every district an office to be styled the office of the Registrar and in every sub-district an office or offices to be styled the office of the Sub-Registrar or Offices of the Joint Sub-Registrar. Then we come to Section 10 which reads as under:

10(1) When any Registrar, other than the Registrar of the district including a Presidency town, is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector General appoints in the behalf, or, in default of such appointment, the Judge of the District Court within the local limits of whose jurisdiction the Registrar's office is situate, shall be Registrar during such absence or until the (State Government) fills up the vacancy

(2) When the Registrar of a district including a Presidency town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector General appoints in this behalf shall be the Registrar during such absence, or until the (State Government) fills up the vacancy.

7. A bare perusal of Section 10 would clearly show that when the Legislature referred to the Registrar of a district including a Presidency town it clearly mean the Registrar of a district in which a Presidency town is situate and that is why two separate provisions in respect of the absence of Registrar of an ordinary district and Registrar of a district including a Presidency town have been made. That being so, Section 30(2) of the Registration Act can only be interpreted to me as that it is only a Registrar of a district in which a Presidency town is situate who can exercise jurisdiction in registering document irrespective of the situation of the properties referred to in the document to be registered. In other words, all District Registrars cannot exercise the power of registering documents in relation to properties which are not situate within their own districts. So far as such Registrar, i.e. Registrars of districts other than a district including a Presidency town are concerned, Section 30(1) of the Registration Act makes it clear that they may register the document which might he registered by any Sub-Registrar subordinate to cannot register documents which relate to properties situate outside their districts. Only the Registrars of districts in such Presidency towns are situate are empowered to register documents without regard to the situation in any part of India of the property to which the document relates. If we apply this principle to the present case the inevitable conclusion is that the district Registrar Jodhpur could not have registered the mortgage deed in question in as much as admittedly no part of the property referred to in the mortgage deed was situated within his jurisdiction and all the properties were situated in Sumerpur, district Pali. The learned Additional District Judge has relied upon Deiva(sic)ai v. Mannappa : AIR1952Mad802 in holding that the District Registrar, Jodhpur could validly register the document in question, but in my opinion that authority has no application to the present case. That case, as a matter of fact related to the provisions of Section 29(2) where under a copy of a decree or order may be presented for registration on the office of the Sub-Registrar in whose sub-district the original decree or order was made or where the decree or order does not affect immovable property in the office of any other Sub-Registrar under the State Government at which all the persons claiming under the decree or order desire the copy to be registered. In that case instead of getting the decree registered in the office of the sub-registrar of the place where the decree was passed, the decree was got registered in the office of the Sub-Registrar of place where the property in dispute was situate and it was in these circumstances that it was held that the registration could not be said to be invalid.

8. Section 8 specifies the places of registration and starts with a non-obstente Clause save as in this part otherwise provided.... Therefore, ordinarily the document has to be presented as indicated Under Section 28, two Sections 29 and 30 make provisions by way of exception to Section 28 under the aforesaid non-obstente Clause and in these circumstances Section 30 can only be interpreted in the sense of an exception to Section 28 giving special power to the Registrar of a district including a Presidency town.

9. Learned Counsel for non-petitioner No. 1 on the other hand vehemently urged that where the term 'including' is used in any expression it indicates that the expression is used in order to extend the scope of the Section and not to limit it. I do not have any quarrel with this proposition but such is the situation where the term including is used in defining something and that also not necessarily always, but where the term including is used otherwise than by way of defining a certain thing it does not even admit that interpretation and has to be interpreted in the context in which it has been used From what has been stated above it is abundantly clear that the term 'including a Presidency town' only means the situation of the Presidency town within the district referred to in Sub-section (2) of Section 30 and the only meaning which can be given to this provision is that only a Registrar of a district in which a Presidency town is situate has been given the power to register a document irrespective of the situation of the property referred to in that provision. The other Registrars of the District cannot exercise such a power and cannot register documents which could not have been registered by any Sub-Registrar under them.

10. Sub-section (2) of Section 30 has now undergone an amendment in 1969 and the Section now reads 'the Registrar of a district in which a Presidency town is included and the Registrar of Delhi district....'. Now this amended provision also throws a good deal of light on the interpretation of the provision of the unamended Sub-section (2) of Section 30. It is well settled that a later amendment can always be used to clarify the legislative intention of the earlier unamended provision. The present Sub-section (2) of Section 30 leaves no room for doubt that it relates to only the Registrar of districts in which Presidency towns are situate and not to the other Registrar of other districts. The change of the phraselogy as also the inclusion of the Registrar of Delhi District are very significant in this respect. If this power to register the document irrespective of the situation of the property in any part of India was to be exercised by all the District Registrars there was absolutely no necessity for the inclusion of the Registrar of Delhi district in Sub-section (2) of Section 30 in as much as admittedly Delhi district does not include any Presidency town and that is why in order to give special power to the Registrar of the Delhi District that Registrar has been included in Sub-section (2) of Section 30 i.e. in order to give him the same powers as a Registrar of a district in which a Presidency town is included can exercise.

11. For the aforesaid reasons I am clearly of the opinion that the learned Addl. District Judge was wrong in holding that the mortgage deed in dispute in the present suit was validly registered by the district Registrar, Jodhpur despite the fact that no part of the property under the mortgage deed was situate within his jurisdiction. The decision of the learned Addl. District Judge, therefore, cannot be maintained.

12. The revision is, therefore, accepted. The order of the learned Addl. District Judge, Sirohi dated 16-1-83 is set aside and issue No. 19 is decided in favour of the defendant No. 2. The petitioner shall be entitled 1o his costs of this revision.


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