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Chunee Mul Johary and ors. Vs. Brojo Nath Roy Chowdhry and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal967
AppellantChunee Mul Johary and ors.
RespondentBrojo Nath Roy Chowdhry and ors.
Excerpt:
registration act (iii of 1877), section 35 - certificate of guardianship act (xl of 1858)--majority act (ix of 1875), section 3. - .....act. the plaintiffs seek to have a mortgage deed registered, which was executed by the defendant brojo nath roy chowdhry. the sub-registrar of howrah, who was the registering officer to whom it was presented for registration, refused to register, on the ground that brojo nath roy chowdhry, the executant, was a minor. in making this order he acted under the provisions of section 35 of the registration. act, which provides as follows: 'if any of the persons by whom the document purports to be executed appears to the registering officer to be a minor, the registering officer shall refuse to register the document.' now, the object of this provision is undoubtedly this, that if the registration authorities refuse to register on the ground that the executant is a minor, the question of.....
Judgment:

Field, J.

1. This is a case under Section 77 of the Registration Act. The plaintiffs seek to have a mortgage deed registered, which was executed by the defendant Brojo Nath Roy Chowdhry. The Sub-Registrar of Howrah, who was the Registering Officer to whom it was presented for registration, refused to register, on the ground that Brojo Nath Roy Chowdhry, the executant, was a minor. In making this order he acted under the provisions of Section 35 of the Registration. Act, which provides as follows: 'If any of the persons by whom the document purports to be executed appears to the Registering Officer to be a minor, the Registering Officer shall refuse to register the document.' Now, the object of this provision is undoubtedly this, that if the registration authorities refuse to register on the ground that the executant is a minor, the question of minority may at once be brought into a Civil Court and there determined; and it is clear that this question can be decided more satisfactorily at the time when the last evidence of age or non-age may be supposed to be available than afterwards, it may be years afterwards, when this evidence is no longer forthcoming.

2. An appeal was preferred against the order of the Sub-Registrar, and under the provisions of Section 72 of the Registration Act, the District Registrar affirmed the Sub-Registrar's order. This case was then instituted, and the question which we have to decide is, whether Brojo Nath Roy Chowdhry was a major on the 18th of November 1879 when he executed the mortgage deed.

3. In order to determine this question we have first to decide whether the Indian Majority Act (IX of 1875) is applicable. Upon this point the Subordinate Judge says in his judgment: 'It has been argued by the defendants that the grandfather and the mother of the executant were ordered by the Judge to be his guardians under Act XL of 1858. He is a minor until he attains the age of twenty-one years under Section 3 of the Indian Majority Act. The plaintiffs' pleader, in answer to this contention, says that as the certificate of guardianship was not taken out by the said grandfather and the mother, the said section does not apply; but I do not think the contention of the plaintiffs' pleader is a valid one, for though no certificate was actually taken out, they were appointed as guardians by order of the District Judge, and they all along acted as guardians of Brojo Nath.'

4. It appears to us that the view here taken by the Subordinate Judge is correct. It is not denied before us that an order was made under the provisions of Act XL of 1858 by the District Judge, and we think that the making of the order and not the subsequent taking out of the certificate, is that by which a guardian is appointed of the person or property of a minor within the meaning of Section 3 of the Indian Majority Act (IX of 1875).

5. We then come to the evidence. In dealing with the evidence the Subordinate Judge has placed the burden of proof upon the defendants. It is not contended before us that the burden has been improperly placed, and we will assume, for the purposes of this case, that the burden of proof does rest upon the defendants.

6. There is no ground of appeal that evidence, which is by law irrelevant, has been received on the part of the defendants. Nevertheless, as we are bound to form our own independent opinion upon the evidence, we think we cannot allow our minds to be influenced by matter which has been admitted upon the record, but is clearly irrelevant. (His Lordship, after reviewing the evidence as to the minority of Brojo Nath, continued.)

7. We think that the balance of evidence is in favour of the case made by the defendants; and in this view we find that Brojo Nath was a minor on the 18th of November 1879, and therefore that the registration authorities rightly refused registration of the instrument.

8. The appeal will be dismissed with costs.


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