1. The order of the Sub-Registrar, which was the commencement of the proceedings out of which this suit has arisen, sets forth certain circumstances which occurred before him in connection with the application for registration. It then went on to state that Moheem, the person applying for registration, had stated that it was not his deed, and that he did not pay the fees on being asked for them. It then continued the deed has not agreeably to Section 42, Clause 7 of the rule in force been presented by a proper person, and the fees have not according to Section 66 been paid. Therefore, the registration of the deed is rejected.'
2. From this order there was an appeal to the Registrar who passed the following order: 'The rural Sub-Registrar was right in refusing registration, as he was unable to satisfy himself that it had been presented by a person authorized to do so, and because the proper fee was not paid. Appeal dismissed.'
3. It is contended on behalf of the appellant that upon these orders the present suit could not be brought, or that, if brought, all that could be enquired into would be the question whether or not the Sub-Registrar and Registrar were right in holding that a proper presentation of the deed for registration had not been made.
4. On behalf of the respondent it has been urged that, inasmuch as there had been a refusal by the Sub-Registrar to register, and as that refusal had been appealed against to the Registrar the respondent was at liberty to bring this action under Section 77, and in that action to raise the whole question whether or not the deed had been executed by the defendant, and whether it ought not therefore to be registered.
5. I do not think that this contention is right. It appears to me that the contention of the appellant is sound, that if the non-registration of the deed has resulted from the refusal of one of the parties to it to execute it, that matter must be enquired into by the Registrar, as directed by Section 74, before any right to sue under Section 77 would arise; and my opinion is, following the ruling of this Court in Edun v. Mahomed Siddik (ante, p. 150) that unless the requirements of the Act have been complied with, no cause of action arises under Section 77.
6. I am, therefore, of opinion that the decree of the lower Appellate Court must be set aside, and that of the original Court dismissing the plaintiff's suit restored with costs throughout.
7. In my opinion this suit cannot be maintained, either under Section 77 of the Registration Act or under the general provisions of the Code.
8. To maintain this suit it was indispensable, 1 think, that the requirements of the Act as to presentation of the document by some one executing it should have been found; but this has not been done. The Subordinate Judge does indeed find that the defendant went in a boat to the Sub-Registrar, but he evidently went to the place where the Sub-Registrar's office is, for it is common to both plaintiff and defendant that the defendant did not appear before the Sub-Registrar. There is, therefore, no finding that the defendant appeared before the Sub-Registrar. He could not, therefore, register, and was bound to refuse to register the document; and the first Court could not properly direct that a document not presented according to law should be registered.
9. I think, on the authority of the case of Edun v. Mahomed Siddik (ante, p. 150) the appeal should be decreed and plaintiff's suit dismissed with all costs.