W. Comer Petheram, C.J.
1. This is a suit brought under the provisions of Section 77 of the Registration Act, to compel registration of a deed. 'The deed was executed on the 18th September 1886. It was presented for registration on the 12th January 1887 by the claimant, who applied for a summons against the executant. He was unable to serve the summons, and on the 30th August 1887, the Registrar refused registration, on the ground that more than eight months had elapsed.'
2. So much I have taken from the judgment of Mr. Justice Trevelyan. The suit was commenced on October 28th, 1887, and the only defence has been that it is barred by limitation.
3. The statement by the learned Judge in his judgment, of the ground of refusal is incomplete; because the statement on the face of the document of the ground for the refusal given by the Registrar is this: 'Summons and warrant were issued, but could not be served on the party, as his whereabouts were not known to the claimant. As more than eight months have elapsed since the execution of the deed, and as the claimant has applied for return of the deed, registration is refused. We find then, that the reason given by the Registrar for the refusal was, that the, applicant had been unable to obtain the attendance of the executant for the purpose of proving by his evidence the execution by him of the document, and that more than eight months had elapsed and the claimant had applied for the return of the document. And as I understand it, the Registrar, upon these facts, assumed or found as a fact that the alleged executant had denied execution of the deed, and he thereupon refused to register it. If that is so, then it comes to be a case in which the Registrar refused to register, because the execution of the deed is denied by the alleged executant; and this, in our opinion, brings the case within the meaning of Section 76 of the Registration Act.
4. Several cases have been cited before us on the subject. The first case is that of In the matter of the Registration Act, 1871, and In the. matter of Ruttobehary Banerjee (11 B.L.R. 20). That case was decided by Mr. Justice Macpherson; and Mr. Justice Macpherson in that case undoubtedly did hold that the time must be reckoned from the expiration of the four months, and that all the proceedings must be had within that period. The point involved in that case has been subsequently discussed in the case of Shama Charan Das v. Joyenoolah I.L.R. 11 Cal. 750 which was decided by a Division Bench of this Court in the year 1885. Apparently on the argument of the latter case, the decision of Mr. Justice Macpherson, to which I have just referred, was not brought to the attention of the Court; and in considering the matter now, we must give it due consideration. It seems to us that the case, Shama Charan Das v. Joyenoolah I.L.R. 11 Cal. 750, and that in the Privy Council, Mukhun Lal Panday v. Koondun Lal 15 B.L.R. 228 : S.C.L.R. 2 I.A. 210 : 24 W.R. 75, are directly in point, and are authorities in support of the view taken by the learned Judge in the Court below, and binding on us. But as Mr. Justice MACPHERSON, in the case cited, took a different view, we proceed to examine the provisions of the Act on the subject. The application to register in this case was made to a Registrar.
5. The sections which relate to this case are Sections 23, 24, 34,1 35, 2 74, 76 and 77.
6. By Sections 23 and 24 the document must be presented for registration within four or eight months, as the case may be, and by Sections 34 and 35 the execution may within that time be proved by admission; and (Section 35) in cases in which such admission is not made, and the registering officer is a Registrar, he shall follow the procedure prescribed in Part 12 of the Act.
7. Sections 76 and 77 of Part 12 relate to refusal by the Registrar. Section 76 provides that, if the Registrar refuses to register for any reason but want of jurisdiction, he shall record the reasons for such refusal and make an order to that effect. No period is prescribed within which a document, which has been admitted for registration, may be registered, or within which the order of refusal must be made; but it is obvious, that the order of refusal must be made at some time after the expiration of the time allowed for admitting the document, except in cases in which there has been an express refusal. Section 77 provides that a suit to compel registration may be brought within 30 days from the making of the order of refusal; and the contention of the defendant in the present case amounts to this,-that in cases where there has been no express denial of execution, but where the alleged executant has refused to attend, the registering officer must make an order of refusal within the time limited for admission of execution, and that the 30 days mentioned in Section 77 will begin to run immediately on the expiration of such time. The law does not say so expressly, and we think it impossible to imply such a meaning, for (amongst others) the reason, that the order of refusal could not be properly made until after the expiration of the whole period limited for admission by the parties; and if it were made afterwards, and the period of limitation began to run at the expiration of the period limited for admission, it would begin to run from a time before that at which the action could have been brought. And it seems to us that the period of limitation can only begin to run when the order of refusal was made, at which time, and not before, the cause of action accrued.
8. On the whole then, both on principle and authority, we think the learned Judge in the Court below was right in the conclusion at which he arrived, and we dismiss this appeal with costs.
1 Inquiry before registration by registering officer.
[Section 34: Subject to the provisions contained in this part and in Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26:
Provided that if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee in addition to the fine, if any, payable under Section 24, the document may be registered.
Such appearances may be simultaneous or at different times.
The registering officer shall thereupon-
(a) inquire whether or not such document was executed by the persons by whom it purports to have been executed.
(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document, and
(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.
Any application for a direction under the proviso in this section may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
Nothing in this section applies to copies of decrees or orders.]
2 Procedure on admission of execution.
[Section 35: If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be and if they all admit the execution of the document
or, in the case of any person appearing by a representative, assign or agent, if such representative, assign or agent, admits the execution;
or, if the person executing the document is dead and his representative or assign appears before the registering officer, and admits the execution.
the registering officer shall register the document as directed in Sections 58 to 61, inclusive.
The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.
Procedure on denial of execution, etc.
If any of the persons by whom the document purports to be executed deny its execution,
or if any such person appears to be a minor, an idiot, or a lunatic,
or if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution,
the registering officer shall refuse to register the document: Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII of this Act.]