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Srimati Anila Debi and anr. Vs. Moni Mohan Mukerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.57
AppellantSrimati Anila Debi and anr.
RespondentMoni Mohan Mukerjee and ors.
Excerpt:
registration act (xvi of 1908), sections 72, 73, 76 - refusal of sub-registrar to register document on executant's failure to appear--appeal, whether lies--procedure--application under section 73, dismissal of, for default--registrar, power of, to restore. - .....and for higher rent may possibly supply the motive for this case. prom this we hold that the learned judge must have come to the conclusion that this rs. 160 had been paid. otherwise his statement would be meaningless. i agree with dr. mitra that it would have been better if the learned judge had added a statement in his judgment that this rs. 100 had been paid. it is quite possible that the learned judge having to write a lengthy judgment had, by an oversight, omitted to add this statement. but no one can suggest that he meant to find that rs. 100 was not paid.4. the next point raised by dr. mitra is that as the lady was a pardanashin lady, it was necessary to prove that she fully understood the transaction. the learned judge remarked that it was very difficult for defendant no. 1.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiffs against a decision of the learned District Judge of 24-Pergannas, dated the 6th April 1915, reversing a decision of the Subordinate Judge of Alipore. The suit was brought by a Hindu widow to get aside a permanent lease which was alleged to have been granted by her. The document was presented to the Sub-Registrar for registration on the 17th February 1910. The executant having been duly summoned failed to appear. Thereupon the Sub-Registrar held that there was a denial of execution by the executant and declined to register the deed. The authorities in this Court establish clearly that a wilful failure to appear before a Sub-Registrar amounts to a denial of execution within the meaning of Section 72 of the Registration Act. Therefore, no appeal lay upon the decision of the Sub-Registrar to the Registrar. The only procedure open to the party presenting the deed was to apply to the Registrar under Section 73 of the Registration Act to direct registration of the document. That appears to be the course which should be adopted in such a case. It is quite true that there is a document, on the record, called 'Hazira of witnesses' in which the heading is Appeal No. 25 We have gone through the record and we have found that there are other documents which are headed as 'applications.' It seems, therefore, that perhaps a mukhtiar or a Pleader headed this list of witnesses as an appeal. It cannot be held to be an appeal inviting a Court to exercise a jurisdiction that it has not got, instead of one that it has got. It is quite a novel way of stating that a person exercising judicial or quasi-judicial jurisdiction should assume that the document presented to him was presented to be acted upon under powers that he had not got rather than under powers that he had. However that may be, we must take it as an application presented to the Registrar which he could hear and determine, and the application which was made after the denial of execution was an application under Section 73. That application under Section 73 was dismissed for default on the 20th September 1910. There was an application for restoring the case. It was not an application for review. It was presented to the Registrar who directed on the application the case to be restored. It has been objected to by Dr. Mitra in this case that the Registrar had no power to restore the case. This is the only point in the case which caused us any trouble. Dr. Mitra wanted to show, after calling for certain records from the lower Court, that the Registrar had conclusively exercised his jurisdiction in dealing with the case under Section 76 by recording his reasons in Book No 2. It is difficult to urge that the Registrar was not competent to restore the case. Book No. 2 is not given in evidence and in its absence we cannot assume that the Registrar, when he restored the case, had ceased to have any power to deal with the case after taking evidence. The presumption is the other way. The presumption is that the Registrar had acted in a regular and proper manner. Apart from that, there is no evidence that the Registrar when he restored the case had finally dealt with the matter under Section 76 and, therefore, could not proceed to hear the case on the merits. We think that on the record as it at present stands we must take it that the Registrar had full power to restore the matter and re-hear the case. The fact that the Registrar did proceed to restore the case and re-hear it gives rise to a presumption that the Registrar bad acted in a regular and proper manner.

2. The other points raised turn on the merits. The first point is that the learned District Judge had omitted to find that the consideration money of Rs. 100 for the grant of the land was paid. It is stated that that point was not dealt with by the learned'District Judge in his judgment. That is so in so far as it is not stated directly, but the evidence shows that Rs. 100 was paid and we cannot read the judgment of the learned District Judge without coming to the conclusion from the facts placed before) him that in his view this Rs. 100 was paid. In that portion of his judgment where he compares the terms of the two leases, he states that the fact of the plaintiff executing a patta subsequently in favour of another person for a higher salami and for higher rent may possibly supply the motive for this case. Prom this we hold that the learned Judge must have come to the conclusion that this Rs. 160 had been paid. Otherwise his statement would be meaningless. I agree with Dr. Mitra that it would have been better if the learned Judge had added a statement in his judgment that this Rs. 100 had been paid. It is quite possible that the learned Judge having to write a lengthy judgment had, by an oversight, omitted to add this statement. But no one can suggest that he meant to find that Rs. 100 was not paid.

4. The next point raised by Dr. Mitra is that as the lady was a pardanashin lady, it was necessary to prove that she fully understood the transaction. The learned Judge remarked that it was very difficult for defendant No. 1 to prove that plaintiff No. 1 did understand what she was doing and that before entering into the transaction she had proper independent advice I think, having regard to the express finding of the learned Judge, made about nine lines higher up the above sentence, that the plaintiff had fully understood the transaction, that this statement was only an unfortunate way of expressing that she fully understood what she was doing. I suppose what the learned Judge meant was that the defendant was pressed with an up-hill task and notwithstanding that he managed to reach the goal, namely, to convince the learned Judge that plaintiff No. 1 had fully understood the transaction.

5. Then as to the fiduciary relationship. There is no relationship established or appearing on the facts as to necessarily give rise to a fiduciary relationship. It may be that defendant No. 1 was a close friend of the lady's husband, but that does not mean that he was in a fiduciary relationship to the lady. A man might have collected rent on behalf of the lady's husband and not be in a fiduciary relationship to the lady. A case like this is not similar to that of guardian and ward or to that of guru and chela, in which the Court holds for various reasons that the relationship when established is fiduciary. No such relationship is established in this case.

6. The appeal fails and is dismissed with costs.

Newbould, J.

7. I agree.


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