Skip to content


Purna Chandra Ghose Vs. Sm. Kiran Bala Ghose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1948Cal53
AppellantPurna Chandra Ghose
RespondentSm. Kiran Bala Ghose
Excerpt:
- .....the evil court under section 77, merely established the right of the party concerned to have the document registered. unlike an order passed under section 72, it did not correct the action of any particular officer and accordingly there was no reason why in such a case the plaintiff in the suit under section 77 should be held to the office which had refused him registration this result was said to follow from sections 35(3)(c), 71(2), 73, 74, 75, and 76(b).12. it will be seen that the whole question turns primarily upon the true meaning of the words 'is sought to be registered,' occurring in section 77. if they mean 'is sought in the plaint,' it is clear that no objection could be taken to the jurisdiction of the first munsiff at manikganj on the plaint, as amended. but if the.....
Judgment:

Chakravartti, J.

1. This appeal raises a question under the Registration Act which does not seem to have been considered in any reported case. The facts are simple and may be briefly summarized as follows. On 8-3-1937, one Sarat Chandra Ghosh, the maternal uncle of the plaintiff, executed a deed of gift in her favour and thereby gave her a piece of land, apparently as a present on the occasion of her marriage. The land was situated within the jurisdiction of the Sub-Registrar at Barangail in the district of Dacca. Shortly after the execution of the deed, Sarat died and the document could not be registered by him. On Sarat's death the plaintiff made repeated requests to the defendant, who is a brother of Sarat and his heir, to get the deed registered but he refused to do so and thereupon the plaintiff presented the deed for registration before the 'Special Sub-Registrar' of Dacca. That officer, by an order dated 23-4-1938 refused registration on the ground that execution was not admitted and the document appeared to him to be of a suspicious character.

2. On 23-5-1938 the plaintiff brought the present suit Under Section 77, Registration Act in the Court of the First Munsiff at Manikganj and by her plaint prayed that the document might be directed to be registered in the office of the Special Sub-Registrar of Dacca. The plaint, as originally filed, was insufficiently stamped and the balance of the requisite court-fees was not paid till some date between 3rd and 11th of June which was the period of a second extension of time granted for the purpose. The defendant resisted the suit on the merits, but raised no question as to the jurisdiction of the Court, The learned Munsif held against him and found the deed to be a genuine document, but in spite of the prayer in the plaint which sought registration at Dacca, directed the deed to be registered by the Sub-Registrar of Barangail, within whose jurisdiction the property was situated and who was himself within the jurisdiction of the Munsiff. On appeal by the defendant, this discrepancy was removed. The learned Fourth Subordinate Judge of Dacca upheld the finding of the Munsiff, but directed the plaint to be amended in order to bring it into conformity with the order made for registration at Barangail. No opportunity was given to the defendant to file an additional written statement and his appeal was dismissed. He came up to this Court with a second appeal Section A. No. 1743 of 1939, and obtained an order that the appeal should be re-heard after giving him an opportunity to file an additional written statement. On a re-hearing of the appeal, as directed, it was again dismissed by a successor-in office of the Judge who had heard the appeal in the first instance. Thereupon, the present second appeal was preferred by the defendant.

3. At the re-hearing of the appeal on remand, the question of jurisdiction was raised. In his judgment, the learned Judge does not discuss it very fully, nor dispose of it very satisfactorily. Bat he has held in effect that the amendment was properly allowed and since the property is situated within the jurisdiction of the Sub-Registrar of Barangail, there is no reason why registration by that officer could not be directed and why the suit could not be brought in the Court at Manikganj, although the deed might have been presented for registration before the special Sub-Registrar of Dacca.

4. Although the officer before whom the deed was presented for registration has been referred to in the case as 'the Special Sub-Registrar of Dacca,' we have satisfied ourselves that he was in fact the District Registrar. We were informed that 'Special Sub-Registrar' was a term which had come to be popularly applied to the District Registrar, because he has a special jurisdiction Under Section SO of the Act to register any document which might have been registered by a Sub-Registrar subordinate to him. The order of 23rd April 1938 itself shows that the officer who passed it was the District Registrar.

5. Before us, two points were urged by Mr. Pakrashi who appeared on behalf of the appellant. He contended in the first place that since full court-fees on the plaint were not paid till after 30 days had elapsed from the District Registrar's order, the suit was not brought within 30 days as required by Section 77, Registration Act, and, accordingly, it was barred by limitation. The second contention was that Under Section 77, a suit could be brought only in the Court within the jurisdiction of which the office where the document was sought to be registered was situated and since, in the present case, the document was sought to be registered in the office of the District Registrar at Dacca, no suit could be brought in the Court of the First Munsif at Manikganji.

6. The first ground taken by Mr. Pakrashi is entirely misconceived. He argued that the Registration Act was a self-contained statute which provided for its own periods of limitation and these periods could not be enlarged by invoking either the Limitation Act or the Civil Procedure Code. There is clearly no question of enlarging any period of limitation in the present case. The plaint was filed within 30 days of the Registrar's order, although it was insufficiently stamped. Under Order 7, Rule 11 (c), Civil P.C., the Court may, if not must, when the plaint is written upon paper insufficiently stamped, fix a time within which the requisite stamp paper should be supplied and the plaint jean be rejected only if the plaintiff fails to supply the stamp paper within the time so fixed. Again, Section 149 of the Code expressly provides that the Court may, at any stage, allow 4 person to pay the balance of the court-fees' payable by him on any document, and upon such payment, the document shall have the same force and effect as if such fee had been paid in the first instance. Neither provision makes any exception against plaints in suits Under Section 77, Registration Act. As regards the extreme contention that the Civil Procedure Code itself would not apply, it is enough to say that the Registration Act does not deal with Civil Procedure and Mr. Pakrashi was unable to say under what law or principle, application of the Code to a civil suit in a civil Court was to be excluded. There can be no question that on the facts of the present case, the suit must be taken to have been filed on 23rd May 1938, when in' fact it was, and the first contention of Mr. Pakrashi must accordingly be overruled.

7. The really substantial question in the case is that raised by the second contention of Mr. Pakrashi, but before dealing with it, reference may conveniently be made to the terms of Section 77. That Section, by Sub-section (1) provides as follows:

Where the Registrar refused to order the document to be registered, Under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within 30 days of the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situated the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within 30 days after the passing of the decree.

8. The contention is that the office where the document is unsuccessfully presented for registration is the office where it is 'sought to be registered' and a suit can be brought only in the Court within whose jurisdiction that office is situated, asking for registration in that office. A person claiming under a document cannot actually seek registration in one office and then in his suit ask for registration in another, thus enabling himself to bring the suit in the Court within case jurisdiction the office of his later choice is situated. In aid of this argument it was contended that refusal of registration by a particular Registrar or Sub Registrar was the cause of action for the suit contemplated by the Section and accordingly the relief prayed for in the suit must have reference to that particular officer.

9. Mr. Sen Gupta who appeared for the respondent contended in the first place that the words used in the Section were 'is sought to be registered' and not 'was sought.' It was thus clear that the office contemplated by the Section was the office in which the document was sought to be registered at the time the suit was brought, that is to say, the office where registration was asked for by the plaint.

10. It was contended in the second place that the Section did not require that such office must be the office where the document had been presented for registration. The first part of the Section merely recited the events on the happening of which a right to bring a suit in a civil Court would arise, but its effect was not to make refusal of registration by a particular officer the Wrong for which a remedy was provided in a civil suit.

11. It was contended thirdly that where as in the present case, the refusal was on the ground of denial of execution, the order allowing registration, whether passed by the Registrar Under Section 75(1) or by the evil Court Under Section 77, merely established the right of the party concerned to have the document registered. Unlike an order passed Under Section 72, it did not correct the action of any particular officer and accordingly there was no reason why in such a case the plaintiff in the suit Under Section 77 should be held to the office which had refused him registration this result was said to follow from Sections 35(3)(c), 71(2), 73, 74, 75, and 76(b).

12. It will be seen that the whole question turns primarily upon the true meaning of the Words 'is sought to be registered,' occurring in Section 77. If they mean 'is sought in the plaint,' it is clear that no objection could be taken to the Jurisdiction of the first Munsiff at Manikganj on the plaint, as amended. But if the reference is to the original attempt made to obtain registration, failure in which is the occasion for bringing the suit, the plaintiff in a suit Under Section 77 is not entitled to change the registration office and thereby confer jurisdiction on another Court. He must adhere to the office where he tried to obtain registration and failed, and bring his suit in the Court within whose jurisdiction that office is situated, for that is the office where the document 'is sought to be registered.'

13. It is clear that the view contended, for by the respondent is of importance only cases where registration could legally be had in either of the two offices, unless it is said that even if a person presented his document in an office which had no jurisdiction, he can, in his suit, ask for registration in an office which has. It is also clear that if the view contended for by the appellant be correct, a suit will be worth while only in cases where the office in which the document was presented for registration was one where it could legally be registered Under Section 28, 29 or 30. If registration in the same office must be asked for in the suit, it will be useless to ask for it if the office be one where registration could not be had in law,' With regard to cases coming Under Section 30, a further qualification must be made and a suit will be worth while only if the registrar received the document in the exercise of his discretion, but refused registration on the merits Lastly, on the appellant's contention, even if B document might be registrable in two different offices, a party cannot, after presenting it in one of them ask in his suit for registration in the other.

14. With these practical implications of the two respective views in mind, we might now approach the task of interpreting Section 77. But it will be useful to ascertain first the different kinds of case to which the Section applies, for its true meaning must be one which applies to all cases covered by it.

15. The Section gives a right of suit 'where the registrar refuses to order the document to be registered, Under Section 72 or Section 76.' Section 76(1) covers three cases: (a) that of the registrar refusing to register the document, when presented in the first instance to himself, (b) that of his refusing to direct registration Under Section 72 and that of his so refusing Under Section 75. Since Section 76(1) covers a case of refusal Under Section 72, it would have been sufficient if Section 76 alone had been mentioned in Section 77 and the separate mention of Section 72 is not very logical. The refusal Under Section 72 has reference to the case where a sub-registrar refuses registration on a ground other than denial of, execution and thereupon an appeal is taken to the registrar. The refusal Under Section 75 refers to the case where a sub-registrar refuses registration on the ground of denial of execution and thereupon an application is made to the registrar. Section 77 makes no mention of Section 75. The logical way of expressing the Section would have been either to mention only Section 76 which would cover all the three cases or to mention all the three Sections 72, 75 and 76, the last applying to cases of original refusal by the registrar. To such cases the language of Section 77, viz., 'refuses to order the document to be registered,' is not, it is true, wholly appropriate, for while it would cover cases of denial of execution, where the registrar directs or refuses to direct the document to be registered (see Section 35(1), proviso, Section 74 and Section 15) prima facie it would not cover other cases where, apparently, the registrar simply registers a document or refuses to register it. But although the accordance of Section 77 with Sections 72, 75 and 76 is not perfect it is reasonably clear that the Section covers all cases of refusal by the registrar whether on an appeal Under Section 72 or an application Under Section 73 or with respect to a document presented before himself.

16. In our opinion, the effect of Section 77, read, with the Section s to which it refers, is to make the civil suit a kind of appeal against the decision of the registration authorities. The Section does not merely give an abstract right of suit on the happening of certain events: it provides for a further stage of proceedings, of which the previous course has been dealt with by the previous Sections. It does not say 'where the registrar refuses to order a document to be registered,' but says 'where the registrar refuses to order the document to be registered.' The language implies a reference to a particular document which has been the subject of proceedings Under Section 72 or 73 or 76 and the suit is provided as a remedy against the refusal of the registration authorities to register it. The refugal is the cause of action. From that it follows that the relief contemplated by the Section is reversal of the order of refusal and the prayer contemplated by it is that the office which has refused to register the document be directed to register it. In other words, the office 'in which the document is sought to be registered' and which, under the terms of the Section, must be directed to register it if the suit succeeds, can only be the office where the document was presented for registration.

17. We do not think the use of the present tense creates any difficulty or that its effect is to enable the plaintiff to choose at his will any competent office he likes. In our opinion, the scheme of the series of Section s from Section 72 to Section 77 is that a person, claiming under a document, seeks to have it registered in a particular registration office and having failed in his attempt before the registration authorities, carries the same attempt further by means of a civil suit which, in essence, is a continuation of the same proceeding in another forum. There is but one 'seeking' throughout and, accordingly, the Section appropriately uses the present tense.

18. It does not seem to us to be correct to say, as the respondent contended, that in cases coming Under Section 73, the proceeding before the Registrar is an independent and original proceeding having no reference to the order of the Sub-Registrar, but launched only 'in order to establish the right to have the document registered.' The point of the argument seems to be that if even before the Registrar, it is not necessary to seek registration by the particular Sub-Registrar who refuses to register the document, still less can it be necessary in a suit Under Section 77. Section 77, however, is not limited to cases coming Under Section 73 but covers all cases; and even with respect to cases Under Section; 73, the assumption underlying the argument is not correct. It is true that the Section speaks of establishing a right to registration; but by the order passed on the application Under Section 75(1), the Registrar must 'order the document to be registered.' Under Section 75(2), when such an order is passed and the document is duly presented for registration, 'the registering officer shall obey the same.' In our view, it is not possible to say that the order is an order at large, to be obeyed by any competent registering' officer to whom the document may be presented for registration. It is noticeable that in cases coming Under Section 72, which, comprise all cases except these of denial of execution, the appeal to the Registrar must be against the order of the Sub-Registrar, and if the Registrar directs the documents to be registered, 'the Sub-Registrar shall obey the same.' There can thus be no doubt that in cases coming Under Section 72, the proceeding before the Registrar is not an independent proceeding and the Officer to whom the document must be presented if the appeal succeeds and who is directed to obey the Registrar's order, is the same Sub-Registrar who had refused registration. We can find no reason to think that with respect to the single type of case which comes Under Section 73, the Act makes a distinction and no reason why it should have done so, It is true that in describing the officer who is to obey the Registrar's order in this class of cases, Section 75(1) uses the general term 'registering officer,' but the obvious reason is that Section 75(1) covers cases of original presentation before a Sub-Registrar as well as of such presentation before the Registrar himself (see Section 74). Lastly, in the case of refusal by the Registrar to register a document presented to himself which also is covered by Section 77, it is meaningless to say that the proceeding before the Registrar is an independent proceeding.

19. In our opinion, there is nothing in Section 72 or 73 or 75 from which it can be argued that the proceeding before the Registrar, and so a suit under Section 77, are proceedings independent of the proceedings before the Sub-Registrar so that there is no bar against seeking registration in different registration office.

20. Another argument was that Section 71(2), showed that after a document, refused registration by a Sub-Registrar, had been directed to be registered, it could be registered by any registering officer. The argument is surprising. Section 71(2) merely says that 'no registering officer' shall accept for registration a document on which a refusal of registration has been endorsed, unless and until it is directed to be registered. It is impossible to see how torn that provision it follows that after the document' has been directed to be registered, any registering officer may register it. The general term 'registering officer' on which much reliance was placed, has been used obviously because the bar affects both Registrars and Sub-Registrars.

21. The last contention was that if registration had to be sought in the same office, an impossible situation would arise where, as in the present case, the document was presented for registration in the first instance before a Registrar. The jurisdiction of the Registrar to register a document was, it was said, only discretionary and there could not possibly be a prayer for a direction that the document be registered by the Registrar. It. is true that Under Section 30 of the Act, a Registrar may accept a document for registration only if he chooses to do so, but the argument overlooked that if the Registrar refused to accept the document at all, no question of bringing a suit could arise. There would be an occasion for bringing a suit only if the Registrar accepted the document in exercise of his discretion and thereafter refused registration on the merits. In such a case, the Registrar having forgone his privilege of refusing to accept the document, there is no reason why he cannot be directed to register it, if his view on the merits be found to be wrong.

22. We have said enough to show that none of the arguments of the respondent can dislodge what appears to us to be the true view of Section 77. That view receives additional support from Sub-section (2) of the Section. The Sub-section provides that the provisions contained in Sub-sections (2) and (3) of Section 75 shall apply mutatis mutandis to documents presented for registration in accordance with a decree passed Under Section V. If Section 15(2) implies, as we have held it to do, that the document must be presented to the same registering Officer who had refused registration and that it is he who is directed to obey the order of the Registrar, it follows that in the case of a decree Under Section 77 as well, the document must be presented to the same registering officer and it is he who is directed to obey the decree. It follows further that since a suit Under Section 77 must be for a decree 'directing the document to be registered' in the office 'in which the document is sought to be registered' it is intended that such office must be the office where the document was first presented for registration. Section 75(3) emphasizes further the correctness of this view. There it is provided that the registration shall take effect as if the document had been registered when it was first duly presented for registration. If the respondent's view be correct, it would be possible for a person to present his document to an office having no jurisdiction and, on being necessarily refused registration, to bring a suit, arising for registration in another and a competent office, and to obtain the necessary direction. How could Section 75(3), which applies mulatis mutandis to all documents presented for registration under a 'decree in a suit Under Section 77, apply at all in such a case? The' document had not previously been duly presented for registration in any office and accordingly the Sub-section cannot apply and the registration, which must almost certainly be time barred if the benefit of the Sub-section cannot be obtained, cannot take effect. It is no answer to say, as the respondent did say, that in such a case the Court will not decree the suit. His own argument was that the suit was an independent proceeding, which had no reference to proceedings before the Registration authorities and in which the only question was the registrability of the document. If so, there is no reason why the Court should dismiss the suit simply because the document had been presented to a wrong office.

23. In our opinion, the conclusion is in escapable that the office 'in which the document is sought to be registered,' as contemplated by Section 77, is the office where the document was presented for registration. It is in that office that the document must be sought to be registered in the suit as well and the suit can be brought only in the Court within the jurisdiction of which such office is situated. If the document was presented in a wrong office, the suit must still ask for' registration there, but in such a case it will be futile to bring a suit, since the Court cannot direct registration by an office which has no jurisdiction.

24. For the reasons given above, it must be held that the plaintiff had no right to ask for registration by the Sub-Registrar at Barangail, as she did on the plaint as amended and on that basis to bring and maintain her suit in .the Court of the First Munsif at Manikganj. The appeal is accordingly allowed, the judgment and decree of both the Courts are set aside and it is directed that the plaint be returned by the trial Court to the plaintiff for presentation to the proper Court. Each party will bear its costs throughout.

Ellis, J.

25. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //