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Radheshyam Saraf Vs. Registrar of Assurance, Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberMatter No. 391 of 1966
Judge
Reported inAIR1974Cal280
ActsRegistration Act, 1908 - Sections 35, 38(1), 38(2), 39, 74 and 76(1)
AppellantRadheshyam Saraf
RespondentRegistrar of Assurance, Calcutta and ors.
Appellant AdvocateD.K. Dey, Adv.
Respondent AdvocateN.C. Roy Chowdhury and ;C.R. Roy, Advs. (for No. 1) and ;A. Chowdhury, Adv. (for Nos. 2 and 3)
DispositionPetition allowed
Cases ReferredKudrathi Begam v. Najibunnessa
Excerpt:
- .....of the act for the examination of such person. by virtue of section 39 the law in force as to summons, commission and compelling the attendance of witnesses in suits before civil court shall mutatis mutandis apply to any such summons or commission issued and any person summoned to appear under the provision of the act. in the case of radha kissen rowra dakna v. chunilal dutta. (1880) ilr 5 cal 445 it has been held that a refusal to admit execution is a denial within the meaning of the act. wilful refusal or neglect to attend and admit execution, in obedience to a summons for that purpose, is a refusal to admit and therefore amounts to denial within the meaning of section 74 of the act. in the case of sk. abdul aziz. (1887) tt.r 11 rom 691, a deed of mortgage was duly lodged for.....
Judgment:
ORDER

Debi Prosad Pal, J.

1. By a Deed of lease dated 17th February, 1950, the respondent No. 2, Maharaja Dhiraj Uday Chand Mohatab is stated to have granted a lease in perpetuity to Udaynagar Private Ltd., the petitioner No. 2 certain lands which comprise inter alia of Premises Nos. 2/3 & 2/4, Judges Court Road. It is stated that one of the conditions of the said covenant of lease was that the petitioner No. 2 would within 10 years invest a sum of not less than Rupees twelve lakhs on the said lands and develop the same. It is not necessary to set out the various other clauses of the said Indenture for the purpose of the present application. Subsequent to the said Deed of lease, the lessor and the lessee, to avoid disputes and differences is stated to have agreed that the petitioner No. 2 would surrender its leasehold interest in respect of land measuring 3 bighas 18 cottahs 2 Cbittaks and 27 sq. ft. and being premises Nos. 2/3 and 2/4, Judges' Court Road and the lessor would release and discharge the lessee-company for ever and absolutely from the liability to spend the said sum of Rupees twelve lakhs. Pursuant to the said agreement between the lessor and the lessee a Deed of Release and Surrender is stated to have been executed on the 4th May, 1965, by the respondent No. 2 and the petitioner No. 2. The petitioner No. 1 and the respondent No. 3 being the Managing Directors of the lessee-company, executed the Deed on behalf of the petitioner No. 2. On 2nd June, 1965, the said Deed was duly presented for registration under the provisions of the Indian Registration Act, 1908 (hereinafter referred to as the Act) by the petitioner No. 1 before the Registrar of Assurances of Calcutta, being the respondent No. 1. It is stated that the petitioner on diverse occasions called upon the respondents Nos. 2 and 3 to appear before the respondent No. 1 for the purpose of admitting the execution of the said Deed in order that it may be duly registered under the Act. The petitioner made an application before the respondent No. 1 for the issue of a commission to examine the respondents Nos. 2 and 3 at their respective residences. The respondent No. 1 thereafter directed the Sub-registrar of Assurances, Alipore to examine the said respondents on commission at their respective residences. On 10th August, 1965, the said Sub-registrar of Assurances attended the residences of the respondents Nos. 2 and 3 but they could not be examined as they were found to be absent on that date when the Sub-registrar of Assurances paid a visit to their residences. Thereafter the respondent No. 1 made an order under Section 76(1) of the Act on 29th October, 1965, refusing registration of the said document as in his view the petitioner did not take any ac-tion to prove the factum of execution by the respondent Nos. 2 and 3 who were the other executants within the statutory period which expired on 4th September, 1965. Being aggrieved by the said order the petitioner has moved this Court and obtained the rule nisi.

2. An affidavit of Tara Prosad Chatterji being the constituted Attorney of respondent No. 3 affirmed on 20th January, 1967 had been filed. A further affidavit of Sri Tara Prosad Chatterji affirmed on 17th February, 1968, in reply to the subsequent affidavit filed by the petitioner had also been filed.

3. At the time of the hearing the learned Counsel for the petitioner contended that when a commission had been issued for the examination of the respondents Nos. 2 & 3 being the other executants and the respondents Nos. 2 and 3 did not appear on the date when the Sub-registrar of Assurance paid a visit at the residence of the said respondents, this amounted to neglect to attend and admit execution and hence should be treated as a denial of execution. Tn such a case the Registrar is obliged to make an enquiry under Section 74 of the Act and without such an enquiry the order refusing the registration of the document in the present case is illegal and without jurisdiction. The learned Counsel for the respondent No. 1 contended that when a commission had been issued, the executants having not appeared, the petitioner should have taken further steps within the time fixed under Section 34 of the Act. The petitioner having failed to do so, the respondent No. 1 was justified in law in refusing registration on the ground that the persons executing the document did not appear within the statutory period fixed under Section 34 of the Act.

4. Before the rival contentions of the parties are examined it is necessary to record the admitted position that the document having been executed on 4th May, 1965, was duly presented for registration before the proper Officer viz., respondent No. 1 within four months from the date of its execution as required under Section 23 of the Act. Unless the document in question is presented within the statutory period fixed under Section 23 of the Act the document cannot be registered, unless the time limit is extended under the provisions contained in Sections 24, 25 and 26 of the Act. Under Section 34 unless the persons executing such document or their representatives, assigns or duly authorised agents appear before the registering authority within the time allowed for presentation of the document under Sections 23, 24, 25 and 26 of the Act, the document shall not be registered under the Act. If a party executing a document does not appear before the registering officer within the said statutory period, he may apply for a direction from the Registrar under the proviso to Section 34(1) of the Act for condo-nation of the delay. If the persons executing such document or their representatives, assigns, or agents appear, the registering Officer shall thereupon enquire whether such document was executed by the persons by whom it purports to have been executed and shall satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. Under Section 35 of the Act if all the persons executing the document admit the execution of the document the Registrar is bound to register the document. If however, any person by whom the document purported to be executed denies its execution, the registering Officer shall refuse to register the document as to the person so denying. Where the Officer is a Registrar, before making such order for refusal he has to follow the procedure laid down in Part 12 of the Act; in other words he has to make the enquiry as required under Section 74 of the Act. Sections 36 and 37 empower the registering officer to issue a summons requiring, inter alia, a person executing a document to appear at the registration office. Under Section 38 of the Act, the registering officer has the power to issue a commission for the examination of a person who, inter alia, is exempted by law from personal appearance in Court. Under Section 74 of the Act, where an application is made before the Registrar against the order of the Sub-registrar refusing to register the document on the ground that any person by whom the document is purported to have been executed has denied its execution or where such denial is made before the Registrar in respect of a document presented before him for registration, the Registrar shall enquire whether the document has been executed and whether the requirements of the law for the time being in force have been complied with on the part of the applicant or the person presenting the document for registration as the case may be so as to entitle the document to registration. If the Registrar finds that the document has been executed and the requirements of law have been complied with, he has to make an order directing the document to be registered. The Registrar for the purpose of any enquiry under Section 74 has been given the powers of a Civil Court for summoning and recording the attendance of witnesses and for compelling them to give evidence. If the Registrar refuses the registration of the document, he shall make an order of the refusal and record the reasons thereof. The order of the Registrar is final and no appeal lies therefrom under the law. But any person claiming such document or his representative may within 30 days after making the order of refusal, institute a suit in the Civil Court for a decree directing the document to be registered.

5. The question arises as to whether in the facts and circumstances of the case it can be said that there has been any denialof the execution of the document by the respondent Nos. 2 and 3 being the other executants. In this case although it has not been specifically stated in the affidavit, at the time of the hearing of this rule all the parties accepted the position that the respondent Nos. 2 and 3 are exempted by law from personal appearance in court and are covered by the protection afforded under Section 38(1)(c) of the Act. In the case of such a person who is exempted by law from personal appearance in court, a commission may he issued under Section 38(2) of the Act for the examination of such person. By virtue of Section 39 the law in force as to summons, commission and compelling the attendance of witnesses in suits before Civil Court shall mutatis mutandis apply to any such summons or commission issued and any person summoned to appear under the provision of the Act. In the case of Radha Kissen Rowra Dakna v. Chunilal Dutta. (1880) ILR 5 Cal 445 it has been held that a refusal to admit execution is a denial within the meaning of the Act. Wilful refusal or neglect to attend and admit execution, in obedience to a summons for that purpose, is a refusal to admit and therefore amounts to denial within the meaning of Section 74 of the Act. In the case of Sk. Abdul Aziz. (1887) TT.R 11 Rom 691, a Deed of Mortgage was duly lodged for registration but the mortgagor neglected to appear at the registration office to admit execution. A summons was accordingly issued against him under Section 36 of the Act to enforce his attendance and was duly served upon him. He did not obey the summons and neglected to attend the Sub-registrar's Office on the date so appointed. He subsequently went to Arabia without admitting execution. The mortgagee then applied to the Sub-registrar to treat he morteagor's neglect to attend and admit execution as equivalent to a denial of execution and to 'refuse to register' the Deed under the provision of Section 35 in order that an application might be made to the Registrar under Section 73 for the purpose of establishing the rights of the mortgagee to have the Deed registered. The Sub-registrar however did not consider the mortgagor's non-appearance as a denial of execution. The Bombay High Court held that the non-appearance of the mortgagor in pursuance of the summons was equivalent to a denial of execution within the meaning of Section 35 of the Act and accordingly made an order directing the Registrar to proceed under Section 74 to make an enquiry directed under the said section. Lord Buckmaster delivering the judgment of the Board in the case of Chhotevlal v. Collector of Moradabad. 49 Tnd App 375 = (AIR 1922 PC 279) referred to the said decision of the Bombay High Court with approval. Tn the case of Kudrathi Begam v. Najibunnessa, (1898) ILR 25 Cal 93 the Division Bench of the Calcutta High Court relied upon the earlier decisions of this Courtin the case of (1880) ILR 5 Cal 445 (vide supra) and the case of (1887) ILR 11 Bom 691 (vide supra) with approval. The preponderance of judicial opinion is therefore that a wilful refusal or neglect to attend and admit execution, in obedience of a summons for that purpose, is a refusal to admit and therefore amounts to a denial. A denial of execution does not, necessarily and always mean actual denial of execution. Where a person wilfully refuses or neglects to attend, in obedience of a summons there is no reason why such a conduct would not constitute denial of execution. The object of the Act is that all documents of certain description shall be registered as soon as possible after their execution. Before they can be registered, their execution has to be establish-ed. The provisions of the Act were designed to prevent forgery and procurement of Deed by fraud or undue influence. The Act therefore insists upon the exact compliance with the various provisions introduced for the form of proof to be adopted for establishing the execution of a document. The primary and best mode of establishing such execution is by the admission of the executing parties or their agents or representatives. The means provided by the Act to obtain that form of proof must be adopted before the secondary mode of establishing the execution by witnesses provided under Chapter 12 is resorted to. But if a person executing a document requiring registration is allowed to successfully evade or deliberately disobey the process of the registration office by not attending in obedience of a summons and thereby prevent a document being registered within the statutory period, this would defeat the paramount object of the Act. In view of Section 39 of the Act, the same consequences will follow if a person executing the document wilfully refuses or neglects to attend a commission issued for the examination of such a person. Such a conduct in my opinion also will amount to a denial of execution in view of the decisions referred to earlier. To hold otherwise is to enable a dishonest executing party to set the law at defiance by refusing to comply with the summons or the commission issued and thereby to defeat the object of the Act which is to make it difficult for a person to commit fraud by means of registration under statutory provisions. It is not necessary for me to examine the cases where the failure to appear in response to a summons is due to an accident or any other legitimate cause and there are materials on records to indicate that the person not appearing had no intention to prevent the registration of the document being under an impression that admission by some of tbe other executants would be sufficient for registration. Tn the present case in view of the affidavit filed by Sri Tara Prosad Chatterji referred to earlier there are materials on record to indicate that the respondents Nos. 2 and 3 have objected to the admissibility ofjthe document. In these circumstances I am of the view that the non-appearance of the respondents Nos. 2 and 3 amounted to a neglect to attend and admit execution if not a wilful refusal to do so and as such is to be treated as a denial of execution within the meaning of Section 35 and Section 74 of the Act. No doubt Section 74 refers to a denial before the Registrar but this may fairly be construed to mean a denial in a proceeding before the Registrar and oppose to a proceeding before a Sub-Registrar. As admittedly in the present case the proceedings were before the Registrar, the Register under Section 74 of the Act was required under the law to make an enquiry as to whether the document had been executed and whether the requirements of the law had been complied with on the part of the petitioner presenting the document for registration. If he is satisfied on such enquiry that the requirements of the law have been properly complied with and the document has been executed he has to order the document for registration. If however, he is rot satisfied he has to make an order under Section 76 of the Act.

6. The order of the respondent No. 1 dated 29th October. 1965, has not complied with the statutory procedure laid down under Section 74 of the Act. When the respondents Nos. 2 and 3 did not attend on the day when the Sub-registrar paid a visit to their residences in pursuance of a commission issued under Section 38 of the Act it was a case of a neglect to appear and attend the commission and hence amounted to a denial of execution. The absence on that day cannot be treated as accidental particularly in view of the affidavit of Sri Tara Prosad Chatterji affirmed on 20th January, 1967, as according to the said deponent the document has not become effective or operative in view of the circumstances set out in paragraph 3 of the said affidavit. In these circumstances the non-appearance of the respondents Nos. 2 and 3 was a clear case of denial of execution. The respondent No. 1 before refusing the registration of the document should have made an enquiry under Section 74 of the Act and the failure to do so has vitiated the proceeding as also the order made under Section 76(1) of the Act.

7. The learned Counsel for the petitioner next contended that the respondents Nos. 2 and 3 being the persons exempt under Section 38(1)(c) of the Act, the requirement of Section 34 to appear within the statutory period does not apply to them. It is not necessary for me to decide this question because of the view taken by me on the other points.

8. The result is that the order made by the respondent No. 1 on 29th October, 1965, is quashed by a writ of certiorari. There will also be a writ in the nature of mandamus to forbear the respondents from giving effect to the said order. The respondent No. 1 before making any order regarding theregistration of the document is directed to comply with the procedures laid down under Section 74 of the Act in the light of the decision given in this case. The rule is made absolute to the extent indicated above. There will be no order as to costs.


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