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Kuppa Goundar Vs. Joint Sub-registrar, Iii, Salem and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 1217 of 1959
Judge
Reported inAIR1960Mad401; (1959)2MLJ63
ActsIndian Registration Act - Sections 36, 73 and 75(4); Code of Civil Procedure (CPC), 1908 - Order 16, Rule 14
AppellantKuppa Goundar
RespondentJoint Sub-registrar, Iii, Salem and ors.
Excerpt:
indian registration act (xvi of 1908), section 75(4)--scope of--compulsory registration of document--enquiry--sub-registrar on his own initiative summoning witness--validity of--applicability of order xvi, rule 4 of civil procedure code ; where a sub-registrar, in the course of an enquiry concerning the compulsory registration of a document, summoned a witness on his own initiative, while both parties to the document were unwilling to that witness being examined, on an application for issue of a writ of certiorari challenging the order of the sub-registrar on the ground of his having exceeded his jurisdiction,; held, that the words 'as if he were a civil court' occurring in section 75 (4) of the registration act attracts all the provisions of the civil procedure code in respect of..........following circumstances:(2) one ponnuswami gounder filed original enquiry no. 1 of 1959 before the joint sub-registrar iii, salem, claiming compulsory registration of a mortgage document dated 12-2-1959 under s. 73 of the indian registration act. his case was that the mortgage document was executed by on ellappa gounder and his brother, kuppa gounder (ellappa gounder also acting as guardian of his minor son, thangavelu) having received consideration of rs. 4600 in cash.it was stated by this ponnuswami gounder that after receiving consideration and after executing the mortgage bond referred to, the executants promised to have the document registered on or before 16-2-1959. finding that the executants did not keep up their promise and fulfil their obligation to have the document.....
Judgment:
(1) This is a writ petition for the issue of a writ of certiorari to quash the order of the Joint Sub-Registrar, III, Salem, dated 28-11-1959 passed under the following circumstances:

(2) One Ponnuswami Gounder filed Original Enquiry No. 1 of 1959 before the Joint Sub-Registrar III, Salem, claiming compulsory registration of a mortgage document dated 12-2-1959 under S. 73 of the Indian Registration Act. His case was that the mortgage document was executed by on Ellappa Gounder and his brother, Kuppa Gounder (Ellappa Gounder also acting as guardian of his minor son, Thangavelu) having received consideration of Rs. 4600 in cash.

It was stated by this Ponnuswami Gounder that after receiving consideration and after executing the mortgage bond referred to, the executants promised to have the document registered on or before 16-2-1959. Finding that the executants did not keep up their promise and fulfil their obligation to have the document registered. Ponnuswami issued a registered notice through his lawyer on 30-3-1959 which was received by the executants on 6-4-1959. No reply was sent to this notice.

Thereafter Ponnuswami filed a petition for compulsory registration on 14-5-1959 before the Joint Sub Registrar, III, Salem, who issued summons to the executants to appear before him on 26-5-199 to admit the document and have it registered. The respondents received the summons but failed to appear before the Joint Sub Registrar. Alleging that the executants wilfully absented themselves before the Joint Sub Registrar, Ponnuswami filed an original petition, O. E. No. 1 of 1959 in accordance with the provisions of the Indian Registration Act seeking an enquiry into the matter as provided for therein.

(3) Ellappan and Kuppa Goundan 'the executants' of the mortgage bond were the respondents in O. E. No. 1 of 1959 which as stated above was instituted by Ponnuswami. The executants, however, denied the execution of the document as alleged by Ponnuswami and also denied receipt of consideration and filed counter statements before the Joint Sub-Registrar. Therefore an enquiry became necessary as to whether the mortgage document was executed by the executants as alleged by the mortgagee Ponnuswami.

The Joint Sub Registrar held an enquiry in the course of which he examined Ponnuswami as P.W. 1, and Ramaswami and Sennimalai as P. Ws. 2 and 3. One of the executants Kuppa Gounden was examined as R. W. 1. He denied having executed the document or of having received a sum of Rs. 4600 alleged to have been paid. The Joint Sub Registrar further examined the karnam of Nalikalpatti the scribe of the document and karnam of Parapatti one of the attestors to the document as court witnesses 1 and 2. It is not necessary to refer to the substance of the evidence tendered before the Joint Sub Registrar in the course of his enquiry.

(4) During the enquiry the Joint sub Registrar felt that having regard to the contentions raised before him the evidence of one Sennimalai father-in-law of Ponnuswami, the person in whose favour the mortgage was executed was necessary to which course there was apparently opposition on the part of Kuppanna the joint executant of the mortgage document. As neither side was willing to his being examined the Joint Sub Registrar thought it fit to issue summons to Sennimalai to give evidence before him as court witness. The order of the Joint Sub Registrar in so far as it is material is as follows:

"The court witness Sennimalai is a very important man in connection with this case but he has not been examined either by the applicant or the counter petitioner. I consider his evidence important to find out the truth in this case." Kuppa Gounden feeling himself aggrieved by the said order of the Joint Sub Registrar has filed the above writ petition challenging the jurisdiction of the Joint Sub Registrar to pass such an order.

(5) The learned, advocate for the petitioner contends that the jurisdiction of the Joint Sub Registrar to hold the enquiry in respect of compulsory registration of the document presented before him is circumscribed by the provisions of S. 36 and S. 75(4) of the Indian Registration Act and that having regard to the said provisions, he has no power to examine any witness of his own styled as court witness.

Section 36 reads as follows:

"If any person presenting any document for registration or claiming under any document, which is capable of being so presented, desire the appearance of any person whose presence or testimony is necessary for the registration of such document the registering officer may in his discretion, call upon such officer or court as the (State) Government directs in this behalf, to issue a summons requiring him to appear at the registration office, either in person or by duly authorised agent, as in the summons may be mentioned, and at a time named therein."

Section 75(4) is in these terms:

"The Registrar may for the purpose of any enquiry under S. 74 summon and enforce the attendance of witnesses, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the notice or any part of the costs of any such enquiry shall be paid and such costs shall be recoverable as if they had been awarded in a suit under the Civil Procedure Code, 1908."

(6) The contention raised is that S. 36 of the Registration Act provides only for examining all witnesses whose presence or testimony is necessary for the registration of such document according to the desire of the person presenting the document for registration and that it does not provide for witnesses being examined at the instance of the officer before whom the document is presented for registration. The language of S. 75(4) of the Act is wide and it enables the registrar to summon and enforce the attendance of witnesses as if he were a civil court. But the contention on behalf of the petitioner is that this section only provides for the mode of summoning and enforcing the attendance of witnesses and does not prescribe the jurisdiction of the officer to summon witnesses.

(7) The power of the civil court to summon witnesses is contained in O. 16 R. 14 C. P. Code. Rule 14 of O. 16 of the C. P. Code provides that a Court may of its own motion and accord summon witnesses at any time as it thinks fit or necessary. The contention of the learned counsel for the petitioner is that the Joint Sub Registrar is not a civil court to whom the provisions of the Civil Procedure Code can be attracted.

This contention overlooks the specific words in S. 75(4) of the Registration Act, namely, 'as if he were a civil court' which show that the powers exercisable by the enquiring Registrar in respect of summoning and examining witnesses are exactly those that are conferred upon a civil court. Otherwise the significance of the words "as if he were a civil court" will be entirely lost. I am of opinion that the words "as if he were a civil court" occurring in S. 75(4) of the Registration Act attracts all the provisions of the Civil Procedure Code in respect of summoning and enforcing attendance of witnesses and that, therefore, the provisions of O. 16, R. 14 C.P.C. referred to above apply with full force to any enquiry before the Sub Registrar for compulsory registration of documents presented before him.

(8) Assuming, however, that the provisions of the Civil Procedure Code do not in terms apply in respect of the aforesaid enquiry the question still remains whether the enquiring officer is in any way precluded from examining witnesses whom he considers necessary or material for the purpose of investigating the truth.

No doubt, a tribunal functioning under a special enactment has got its jurisdiction circumscribed by the provisions of the Act creating it but this delimitation of jurisdiction is only with regard to matters to be decided and adjudicated upon by it. It cannot relate to the mode of the enquiry which the Tribunal can conduct to enable it to function under the special enactment. Quasi-judicial tribunals entrusted with the duties of decision and adjudication have really an uncharted filed of enquiry which they can resort to, untrammelled by strict rules of procedure or evidence.

That does not mean that they can hold a roving enquiry or act contrary to the rules of natural justice. Such tribunals are free to function within the limits of their jurisdiction without being obliged to follow any particular or special form of enquiry or procedure. There is no prohibition under the Indian Registration Act against the Joint Sub Registrar summoning witnesses of his own accord, in his anxiety to find out the truth. In fact in the present case the Joint Sub Registrar has categorically observed that he feels the necessity for examining Sennimalai to find out the truth. It would be a travesty of justice if he cannot do so by his being told that he must find out the truth of the case only through the evidence of witnesses whom the parties choose to place before him.

(9) I am of opinion that the Joint Sub Registrar has not in any way exceeded his jurisdiction by holding that Sennimalai should be examined as a court witness. The statutory provision of the Indian Registration Act and the wide and free scope of enquiry permissible to tribunals in general confer such jurisdiction upon him. I, therefore, overrule this contention raised on behalf of the petitioner. The writ petition fails and is dismissed.

(10) Writ petition dismissed.


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