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Appa Naicken Vs. Nagammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberAppeal Against Appellate Order No. 135 of 1949
Judge
Reported inAIR1952Mad113; (1951)2MLJ397
ActsRegistration Act, 1908 - Sections 77 and 77(1)
AppellantAppa Naicken
RespondentNagammal
Appellant AdvocateK.G. Srinivasa Iyer, Adv.
Respondent AdvocateT.A. Ananta Iyer and ;M. Ramachandra Iyer, Advs.
DispositionAppeal dismissed
Cases ReferredMirza Muhammad Ismail Beg v. Sricharan Das
Excerpt:
- - i fail to see how these two cases can be of any help to the appellant. but it is better and more convenient in such circumstances that the decree should state that the document should be presented for registration within 30 days......positively postulates that the document should be presented for registration within 30 days of the decree directing the registration. mr. srinivasa aiyar further relied upon two other cases, 'keshwar mehra v. rajeswari pershad' a.i.r. 1935 pat 497 and 'bapanayya v. bangaraju' : (1949)1mlj479 . both these cases are not 'ad idem' with the facts of the present case because in both of them what has been held is that if the trial court refuses an order directing registration but the appellate court or the second appellate court reverses that decree and passes an order directing registration, then the 30 days should be computed from the date of the appellate or second appellate decree which is the final decree in the case. i fail to see how these two cases can be of any help to the appellant......
Judgment:

Govinda Menon, J.

1. The appellant had a sale deed executed in his favour by the respondent on 9-4-1943; but since the respondent did not register it, the appellant was compelled to apply for compulsory registration on 9-8-1943. The Sub Registrar did not register it and on appeal to the District Registrar the order of the Sub Registrar was confirmed. Then a suit was filed under Section 77 of the Indian Registration Act for directing registration of the document and a decree was passed directing that the document be registered on 8-7-1946. But it transpired that the decree was signed by the presiding officer of the Court only on 18-7-1946. The decree did not fix any time within which the document should be duly presented for registration as mentioned, in Section 77(1) of the Registration Act. The next day after the passing of the decree, an application for copy of the same was filed before the District Munsif and the copy was delivered over to the appellant on 26-7-1946. But the document which was sought to be registered remained in Court and no application for return of the same was made until 13-8-1946 on which date the appellant requested the Court for return of the document filed in the case. That application was refused by theCourt on the ground that the respondent had applied for copies of the judgment and decree with the object of filing an appeal and since such an application was pending under the Rules of Practice prevalent in Courts the documents filed in the case could not be returned until the appeal time had expired. Therefore the documents were not returned to the appellant.

2. The application out of which the present civil miscellaneous second appeal arises was filed under Order 21, Rule 34 (6), C. P. C., requesting the Court to send the document to the Sub Registrar for registration. It was filed on 10-7-1947, that is more than a year alter the decree was passed by the Court. Both the lower Courts have held that the remedy sought for by the appellant cannot be granted and dismissed the application.

3. Mr. K. G. Srinivasa Aiyar, for the appellant, relies upon the observations of Sir Francis Maclean Chief Justice in 'Gopinath v. Gadadhar Das', 33 Cal 1020. The learned Chief Justice had expressed the opinion that Section 77(1) of the Act did not postulate the necessity of presenting the document for registration within 30 days of the decree. This decision was animadverted upon by a Bench of the Patna High Court in 'Muhamad Ismail v. Srieharandas', 1 Pat 146 where Das J. in delivering the judgment of the Bench dissented from the views expressed in 'Gopinath v. Gadadhar Das' 33 Cal 1020 and stated, that if the learned Chief Justice's opinion is correct then Sub-section (2) of Section 77 would be otiose and unnecessary. I am inclined to agree with the Patna case because the section positively postulates that the document should be presented for registration within 30 days of the decree directing the registration. Mr. Srinivasa Aiyar further relied upon two other cases, 'Keshwar Mehra v. Rajeswari Pershad' A.I.R. 1935 Pat 497 and 'Bapanayya v. Bangaraju' : (1949)1MLJ479 . Both these cases are not 'ad idem' with the facts of the present case because in both of them what has been held is that if the trial Court refuses an order directing registration but the appellate Court or the second appellate Court reverses that decree and passes an order directing registration, then the 30 days should be computed from the date of the appellate or second appellate decree which is the final decree in the case. I fail to see how these two cases can be of any help to the appellant. Since the document was not presented within 30 days of the decree directing its registration, the appellant herein cannot by the application of Section 77(1) get any relief.

4. The question then arises as to whether the decree itself should direct that the document should be presented for registration within 30 days of its passing. The facts in 'Mirza Muhammad Ismail Beg v. Sricharan Das' 1 Pat 146 show that in that case the decree did not make such direction; and the document was presented for registration about five months after the decree. The learned Judges held that even though the decree does not necessarily make any such direction, still it is implicit in a decree that the document should be presented for registration within 30 days. Mr. Ananta Aiyar relies upon that and contends that on a true and proper construction of the latter part of Sub-section (1) of Section 77, namely

'A suit for a decree directing the document to be registered in such office if it be duly presented for registration within 30 days after passing of such decree'

the only inference that is possible is that if the decree is passed, then the document should be presented for registration within 30 days and not that there should be any direction in the decree that the document should be so presented. According to Mr. Ananta Aiyar Sub-section (2) is the enactment which provides for the presentation. Sub-sections (2) and (3) of Section 75 would apply 'mutatis mutandis' to all documents presented for registration in pursuance of the directions under Section 77(1) of the Act. Therefore, it would be unnecessary that the decree should state that the document should be before the Sub Registrar within 30 days of the decree. The provision regarding the presentation within 30 days in Sub-section (1) is intended only to be included as a prayer in the plaint and not as a positive direction in the decree. There is much to be said for this argument but I do not wish to express any opinion on this matter. But it is better and more convenient in such circumstances that the decree should state that the document should be presented for registration within 30 days. Since the appellant was negligent in the proceedings fife has taken he has to thank himself. If he is so advised and if the law permits it is up to him to have the decree amended and take such further steps as he is advised.

5. The second appeal is dismissed with costs. No leave.


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