1. The first defendant is the appellant in this Second Appeal. The Plaintiff has filed the suit under Section 77 of the Indian Registration Act for a decree directing the Registrar to register a document.
2. The case of the plaintiff is that the first defendant (appellant) and the other three defendants constitute a joint family, that the defendants 1 to 3 and the first defendant as guardian of the fourth defendant executed a sale deed on 15-6-1961 for Rs. 4,000/- in favour of the plaintiff in respect of the suit property, that the first defendant received RS. 3,500/- at the time of the execution and the balance was reserved to be paid at the time of he registration. The plaintiff was put in possession of the suit property. The first defendant had come with the scribe from Dindigul to Alanganallur for executing the sale deed and the plaintiff paid Rs. 320/- to the first defendant for the purchase of the Stamp papers. After the first defendant executed the sale deed he demanded the consideration and the plaintiff stated that the consideration would be paid only after the execution of the sale deed by defendants 2 and 3. Immediately the first defendant went with the sale deed to Dindigul and returned the same evening. He represented that the defendants 2 and 3 also have signed the sale deed. Then the consideration of Rs. 3,500/- was paid to the first defendant (appellant). Thereafter the defendants evaded to register the document. Then the plaintiff presented the document before the Sub-Registrar, Alanganallur for compulsory registration. But the Sub-Registrar passed an order on 13-9-1961 refusing to register the document. The plaintiff then filed an appeal to the District Registrar under Section 77(73?) of the Indian Registration Act. The appeal was dismissed after an enquiry on 25-6-1962 and therefore the plaintiff filled the present suit.
3. Defendants 1 to 3 filed a written statement and the guardian of the fourth defendant adopted the same. As far as the first defendant is concerned he has stated that he executed the document thinking that it was a lease deed. As far as the other defendants are concerned, they denied execution of the document.
4. The learned District Munsif accepted the case of the plaintiff so far as the first defendant is concerned and granted a decree directing the Registrar to register part of the sale so far as it related to the execution by the appellant herein and dismissed the suit as against defendants 2 and 3. On appeal, the learned Additional Subordinate Judge of Madurai confirmed the finding of the learned District Munsif. As regards the defendants 2 and 3 the finding is that the signatures have not been proved by the plaintiff. Only on that ground the trial court has refused to direct registration of the document along with defendants 2 and 3. The plaintiff has not preferred any cross-objections against this denial of her right and the same is not the subject-matter before this Court.
5. The learned Advocate for the appellant states that under Section 77 of Indian Registration Act, the Court can only direct the entire document to be registered and there is no question of its registration as against any particular person. Then he contends that such a document can be registered as against a particular person only when he is the sole executant and when he admits the execution of it. The third point raised by the appellant is that there is a definite finding to the effect that the document is not probably genuine and hence the Court should not have granted registration. As regards the third contention, I do not find any finding by the courts below as to the genuineness of the document. The learned District Munsif in paragraph 15 of his Judgment states that it is for the plaintiff to positively show that the defendants 2 and 3 executed the document by putting the signatures there to and this has not been proved by her. Hence this finding will not amount to conclude that the document is not genuine. As regards the second point raised by the learned counsel for the appellant. I do not think there is any substance in the same inasmuch as the question of the first defendant executing the document has been decided factually by the Courts below and there is no point in the first defendant merely denying the execution of the document in spite of the decision of both the courts below.
6. The learned counsel for the appellant argues on the first point to the effect that the document intended to be registered under Section 77 is the whole document and no part of it. By that he means that when a document has been signed by four persons. It is not correct under Section 77 of the Indian Registration Act to direct registration of the document only by one of the persons. For this purpose he reads Sections 35, 73, 75 and 77 of the Indian Registration Act. As far as Section 35 is concerned before the amendment of Section 35(3)(c), there is a decision in Muhammad Ewaz v. Birj Lal, I.L.R. (1875) All 465. This decision has been brought to my notice by the learned counsel for the respondent. There, the Privy Council holds:
'The words of Section 35 of the Indian Registration Act, VII of 1871 which provide that 'if all or any of the persons by whom the document (i.e., the document presented for registration) purports to be executed deny its execution, or if any such person appears to be a minor an idiot, or a lunatic, or if any person by whom the document purports to be executed is dead and his representative or assign denies its execution, the registering officer shall refuse to register the document, taken literally, seem to require the registering officer to refuse registration of a deed which purports to be executed by several persons if any one of them deny execution, or appear to be a minor, an idiot, or a lunatic.
Since such a construction would cause great difficulty and injustice, and would be inconsistent with the language and tenor of the rest of the Act, the words in question must be read distributively, and construed to mean that the registering officer shall refuse to register the document quoad the persons who deny the execution of the deed, and quoad such persons as appear to be under any of the disabilities mentioned.''
Incorporating the observations of the Privy Council Section 35 is now amended and Section 35(3)(c)(35)(3)(a)? Ed.) says that the Registering Officer shall refuse to register the document as to the person so denying appearing or dead. This clearly means that the registering authority can register a document in so far as it relates to that person whose execution has been proved in spite of the fact that there are other persons who have subscribed their signatures as executants to the document. Then we have Section 73 which deals with the application to the Registrar where the Sub-Registrar refuses to register on the ground of denial of execution. Then Section 75 deals with the order by Registrar to register and the procedure thereon. The learned counsel for the appellant draws my attention to show that what is contemplated by these sections are registering the document. He strenuously argues that registering a document as a whole with all the executants and not with one of the executants of the document. In this line of the argument, the learned Advocate for the appellant states that under Section 77 the refusal by the Registrar to register the document is correct. I am not able to subscribe to this view. The document means the nature and the character of the document such as sale deed, mortgage deed and lease deed etc. There is no question of the character of the document changing simply because of one of executants of the document. alone being directed to execute the document. Taking the intention of the legislature and the purport of the whole Act it has been clearly brought out under Section 35(3)(c) proviso, that the Registrar has power to direct a document to be registered by one of the executants leaving the others who denied execution. To the same effect is the decision reported in Jetharam v. Hazarimal .
7. In view of the discussion and the decisions referred above. I am of the view that the Courts below are correct in directing the Registrar to register the document under Section 77 of the Registration Act with the first defendant alone as the executant.
In these circumstances, the second appeal fails and the same is dismissed with costs.
8. Second appeal dismissed.