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Abdul Gafur Bhuiya Vs. Badial Haque and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal588
AppellantAbdul Gafur Bhuiya
RespondentBadial Haque and ors.
Cases ReferredMadhu Mollah v. Babonsa Karikar
Excerpt:
- .....by defendant 6 against the decision of the district judge of mymensingh by which the learned district judge granted a decree to the plaintiffs and directed the document in question in the present suit to be registered in the proper office after it was duly presented for registration within 30 days from the date of his decree. it appears that one ayesha aktar khatun executed a conveyance in favour of the plaintiffs who are her brother's sons by which she transferred the whole of her immovable properties to them for consideration of rs. 500. the document was executed on 7th may 1925. ayesha died on 10th may, that is within three days of the execution of the kabala. it was presented for registration on 1st june 1925 by one md. khalek who is defendant 3 to the present suit and who is.....
Judgment:

Mitter, J.

1. This is an appeal by defendant 6 against the decision of the District Judge of Mymensingh by which the learned District Judge granted a decree to the plaintiffs and directed the document in question in the present suit to be registered in the proper office after it was duly presented for registration within 30 days from the date of his decree. It appears that one Ayesha Aktar Khatun executed a conveyance in favour of the plaintiffs who are her brother's sons by which she transferred the whole of her immovable properties to them for consideration of Rs. 500. The document was executed on 7th May 1925. Ayesha died on 10th May, that is within three days of the execution of the kabala. It was presented for registration on 1st June 1925 by one Md. Khalek who is defendant 3 to the present suit and who is the father of the plaintiffs and brother. and one of the heirs of Ayesha. He presented this document in his character as one of the representatives of Ayesha. Before the Registrar execution was admitted by defendants 4 and 5 who are Ayesha's sisters. It was denied by Ibrahim who is defendant 1 to the present suit and husband of Ayesha. The registration was refused on 27th July 1925. An application was then made under Section 73 of the Act to the District Registrar who however rejected the same on 4th February 1926 on the ground that such an application was not maintainable. Hence the present suit under Section 77, Registration Act. The Munsif dismissed the suit on the ground that it was not maintainable and also on the ground that it was not validly executed by Ayesha. Against this decision an appeal was taken to the Court of the District Judge who has come to the conclusion that the suit was maintainable and further that the kabuliyat was executed by Ayesha.

2. Against the decision of the learned District Judge, the present appeal has been brought and two points have been taken on behalf of the appellant in support of the appeal. It is argued in the first place that having regard to the finding of the learned District Judge that Ayesha was suffering from phthisis and kalazar it was not possible having regard to the fact that she died within three days of the execution of the kabala that she could understand the contents of the document. It is said that before the suit can be decreed it must be shown by the plaintiff that the document was explained to her, that she had independent advice in connexion with the transaction and that she fully understood the import of what she was doing; in other words it is argued that all the elements necessary to establish the validity of the deed executed by a pardanashin lady must be fulfilled before the plaintiffs can be held entitled to get a decree under Section 77.

3. I cannot agree with this contention of the learned advocate for the appellant. The learned Judge has come to the clear conclusion that the medical evidence gives no ground for holding that at the time when she did execute the document she did not know what she was doing. The District Judge found that she did execute the document. In a suit under Section 77 all that is required to be shown by the plaintiffs is as to whether the document was executed by her. The Court has not to determine as to whether the document is executed under circumstances which would make the document operative as against a pardahnashin lady. As has been pointed out in the case of W. W. Broucke v. Raja Saheb Mohan Bhiram Shah [1910] 5 I.C. 20in a suit for a decree directing registration of certain documents the inquiry in. Court is to be directed on two points: that is, firstly, whether the document has been executed and secondly, whether certain requirements of the law as to presentation for registration in due time to the proper office and in the manner generally prescribed by the Registration Act, had been complied with by the person presenting the document for registration. 'This Rule is in consonance with the earlier authorities, namely, the cases of Rajlakhi v. Debendra [1897] 24 Cal. 668 Balambal v, Arunachala [1895] 18 Mad. 255 and Kanhay Lal v. Sardar Singh [1907] 29 All. 284. Reference may also be made to the recent case of Dwijendra v. Joges Chandra : AIR1924Cal600 . It has been pointed out by Ashutosh Mookherjee, J., that

in a case instituted under Section 77 the Court is concerned not with the validity but with the genuineness of the document sought to be registered, that is, whether the document has been executed by the person by whom it is alleged to have been executed. The question of its validity must be determined in a suit properly framed for that purpose. The Court will not consequently examine such defence as that the document was cancelled or that the document was executed by a guardian of a minor in contravention of his power, or that the document is void for want of consideration, or that the document is executed by the donee of a voidable power of attorney or whether the document was obtained by undue influence.

4. Having regard to these authorities in view of the finding of the District Judge that the document was executed by Ayesha and that she knew what she was doing at that time so far as the execution is concerned there is no substance in the first ground taken. It is next contended that the document should not have been directed to be registered as all the requirements of the Registration Act had not been fulfilled. It was argued that as the document was presented for registration by one of the representatives there was not a valid presentation within the meaning of Section 32, Registration Act. This view prevailed with the Munsif, but the view seems to be erroneous for the word 'representative' used in Section 32, Clause (b) includes the case of one of several representatives. It has been so held in a recent decision of this Court in the case of Madhu Mollah v. Babonsa Karikar : AIR1928Cal565 . The second ground also therefore is untenable. The result is that both the grounds taken in this appeal fail and the appeal must be dismissed with costs.


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