(1) The plaintiff is the appellant in the second appeal and she filed this suit for registration of a sale deed in her favour under S. 77 of the Indian Registration Act.
(2) The defendant-respondent executed a sale deed in favour of the plaintiff of a house on 23rd April 1957. On 2nd August 1957, the plaintiff presented the, sale deed before the Sub-Registrar, for registration. While presenting the document for registration, she filed a petition for excusing the delay in presenting the document before the Sub Registrar. no delay obviously was in waiting till almost the last day for presentation of the document. The Sub Registrar ordered notice to the defendant. The defendant appeared before the Sub Registrar on 30th August, 1957. He admitted execution of the document but stated that he was not willing to register the document as a large portion of the amount due under the sale deed was not paid to him. The Sub Registrar refused to register the document, and an appeal by the plaintiff to the District Registrar, also proved futile.
(2a) The plaintiff filed the suit praying for a decree Greeting the document to be registered by the Sub Registrar.
(3) The trial Court found all the issues in favour of the plaintiff and granted a decree as prayed for. On appeal, the lower appellate court reversed the findings of the trial court and dismissed the suit with costs. It found that the plea put forward by the plaintiff was not accepted by the District Registrar, and as the District Registrar had in exercise of his discretion refused to register the document, it is not a fit case for interference by the civil court.
(4) Section 23 of the Registration Act provides that subject to the provisions contained in Ss, 24, 25 and 26, no document shall be accepted for registration unless presented for that purpose to the proper officer within 4 months from the date of its execution. Section 24 deals with the execution of a document by several persons and provides that the document should be presented for registration within four months from the date, of each execution. Sec. 25 relates to failure of presentation of document within 4 months due to urgent necessity or unavoidable accident and provides that the Registrar may excuse the delay in presentation if it does not exceed four months. Section 26 relates to documents executed outside the provinces.
So far as the present document is concerned, Ss. 24, 25 and 26 have no application, and this document has to he presented for registration within four months from the date of its execution. The document was, in fact, presented on 22nd August 1957, that is within four months from the date-of its execution. There is, therefore no dispute that this document was presented by a proper person, that is a person claiming under the document, within the time prescribed, and the execution wag also admitted by the executant. The executant refused to register the document on the ground that the full consideration was cot paid to him. The Act makes a provision for enforcing the appearance of the executant and the witness, if desired by the person presenting the document, under S. 36 of the Act. It may be noticed that the period of four mouths prescribed under S. 23 is for presentation of the document and when once the document is, presented within tune it will have to be accepted for registration. In this difficulty arose because the plaintiff, though he presented the document for registration within the time allowed, chose to file a petition for excusing the delay in presentation. The Sub Registrar felt that there was no sufficient reason for excusing the delay and the District Registrar agreed with him. There was no need at all for presenting any petition for excusing the delay, as the document itself was presented within time.
The learned counsel appearing for the respondent sought to justify the order of the lower courts on the ground that under S. 34 of the Act no document shall be registered under the Act unless persons executing such documents appear before the registering officer within the time allowed for presentation under Ss. 23, 24, 25 and 26. There is also a proviso to S. 34 to the effect that if there was any delay in the. executant appearing within 4 months, the Registrar may, on payment of a fine, register the document. The Proviso to S. 34 deals with cases in which The executant convinces the Registrar that there was some necessity or unavoidable accident. In this case there was no delay in presentation. The delay, if any, was by the executant in appearing before the Sub-Registrar. The executant diet not appear because he did not want to register the document as the payment was not made. If the executant did not appear within the period prescribed under Sec 23, it was not the fault of the claimant. The executant was not willing to appear and execute the document. The lower courts have not found that because the claimant waited till a day before the last day, the executant could not he got and therefore the presence of the executant, as required under S. 34, within four months could not be secured and therefore the document cannot be registered.
The registration of the document was refugee as the lower appellate court found that the ill-ness and other reasons pleaded by the plaintiff were not made out for the petition was for excusing the delay in presentation which was not necessary. In the circumstances, the document that was presented should have been registered by the Sub Registrar. A 33ench of the Calcutta High Court held in Shama Charandas v. Jaymoolam, ILR 11 Cal 750 that there is no limitation for the actual fact of registration, provided that the requirements of the Act have been complied with in the matters for which a limitation of time is provided. Although S. 34 lays clown that no document shall he registered unless the persons executing the same appear before the Sub-Registrar within the period allowed for presentation, yet the section is directly subject to S. 77 and that section nowhere provides for time within which the parties shall appear to admit execution, All that is required in order to maintain a suit under Sec. 77 is that there must be a refusal to register by the Sub Registrar, an appeal within time to the Registrar, a refusal by the Registrar and a suit filed in the civil court within one month from the order of the Registrar refusing registration. All the conditions specified in the above decision are satisfied in case.
(5) In Balambal Ammal v. Arunachala Chetti, ILR 18 Mad 255, a document was executed on 26th January 1892 by the defendant. On the last day, that is on the 26th May 1892, plaintiff it presented the conveyance for registration, but registration was refused. The plaintiff sued for a direction under S. 77 of the Registration Act. Their Lordships observed that the document wag presented in time and that the question to be considered in a suit under S. 77 of the Registration Act is limited to factum of execution. No time is fixed by law, within which tile registration of an instrument presented and accepted within four months of its execution must be completed. Though the document was, in fact, presented on the last day, the Bench held that the document is bound to be. registered. In the circumstances, I find the order of the Registering authority refusing to register the document is erroneous. The appeal is allowed with costs. The order as to costs in the lower courts will stand. Leave refused.
(6) When this document is presented before the Sub Registrar within a month from the date of this order the Sub Registrar will register it. The order may he expedited. No leave.
(7) Appeal allowed.