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Madhu Molla Vs. Babonsa Karikar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal565
AppellantMadhu Molla
RespondentBabonsa Karikar and ors.
Cases ReferredEziekiel & Co. v. Annoda Charan Sen A.I.R.
Excerpt:
- .....1896 by panchu, who died shortly after; and, on his death, was presented for registration by his widow panchu left him surviving his widow, a brother, a sister, and a mother, and if this kabala was inadmissible as 'evidence of any transaction affecting the immovable property comprised therein,' (section 32) it is common ground that each of these four persons as the heirs of panchu would be entitled to a share of his estate. the kabala having been presented by the widow was registered. the contention of the appellant is that inasmuch as the kabala was presented for registration by the widow alone under section 49, registration act, it could not 'be received as evidence of any transaction affecting the property. the question is : was the kabala presented for registration by 'the.....
Judgment:

Page, J.

1. This appeal raises an interesting question with respect to the construction of Section 32, Registration Act (3 of 1877), now Section 32 of the Act 16 of 1908. The suit was brought by the plaintiffs for a declaration of their title to a share in certain lands comprised in two jamas, and for partition. As regards an eight annas share of the lands in suit, the plaintiffs traced their title through a kabala which was granted to their vendors by one Panchu. This kabala was executed in 1896 by Panchu, who died shortly after; and, on his death, was presented for registration by his widow Panchu left him surviving his widow, a brother, a sister, and a mother, and if this kabala was inadmissible as 'evidence of any transaction affecting the immovable property comprised therein,' (Section 32) it is common ground that each of these four persons as the heirs of Panchu would be entitled to a share of his estate. The kabala having been presented by the widow was registered. The contention of the appellant is that inasmuch as the kabala was presented for registration by the widow alone under Section 49, Registration Act, it could not 'be received as evidence of any transaction affecting the property. The question is : Was the kabala presented for registration by 'the representative' of Panchu It is contended on behalf of the appellant that in Section 32 the term 'representative of such person' means all the persons who legally represent such person; and that unless all the heirs jointly presented this document to the Registrar, the document was not duly presented, and the Registrar had no jurisdiction to effect the registration of it. In support of this contention, a number of authorities were canvassed before us. It was conceded, however, that there is no direct authority upon the question that falls for determination in this appeal. It has been laid down by Lord Robertson, expressing the opinion of the Judicial Committee of the Privy Council in the case of Mujbunnissa v. Abdul Rahim [1901] 23 All. 233,

that the power and jurisdiction of the Registrar only come into play when he is invoked by some person having a direct relation to the deed,

and later in his judgment his Lordship added that no case had been cited that

gives any countenance to the view that the absence of any party legally entitled to present a deed for registration is a defect in procedure falling under Section 87.

2. In that case the Judicial Committee held that the deed not having been presented by a person entitled in that behalf the registration was illegal. The question which we have to consider is whether when the widow of Panchu presented the kabala for registration the jurisdiction of the Registrar was invoked 'by the representative' of Panchu. It is not contended that the widow's interest in Panchu's estate was not directly affected by the deed. But it is said that the intention of the legislature was that all the heirs must combine in presenting a document for registration in order that the jurisdiction of the Registrar should duly be invoked. I am of opinion that that contention is ill-founded. It may be, (though it is unnecessary to decide), that the four heirs of Panchu were bound to admit the execution of the deed under Section 35, although the failure of any of the heirs so to do would amount to a mere irregularity and would not vitiate the registration. But why was it necessary that all the heirs of Panchu should have presented the document for registration? The object of the legislature, as I apprehend, in enacting Section 32 was to prevent a mere outsider from presenting for registration a document with which he had no concern, and in which he had no interest. To allow all and sundry to present documents for registration would be to open a door to fraud and forgery, and the legislature, therefore, intended to provide that the registration should be initiated by the document being presented for registration by a person 'having a direct relation to the deed.' But in order to give effect to that intention I do not think that it was necessary or reasonable that the other heirs of Panchu should have joined with the widow in presenting the kabala for registration.

3. If it had been intended that all persons directly concerned in the execution of a document should present the document, one would have expected to find in a case in which, for instance, four persons had jointly executed a registrable document, that the document could only duly be presented for registration by all four of such persons jointly and in combination. But it is provided by Section 32 that any one of such persons may present the document for registration. Eziekiel & Co. v. Annoda Charan Sen A.I.R. 1923 Cal. 35. I see no reason, if one of four persons who are jointly interested in the execution of a document may present the document for registration, why one of the persons who were the heirs and representatives of Panchu, and who had 'a direct relation to the deed,' should not in like manner be entitled duly to present the document for registration. In my opinion, in the circumstances of this case, the presentation of the kabala for registration by the widow of Panchu conformed with the requirements of Section 32, Registration Act. and that the kabala was presented for registration according to law. There are no other points raised on behalf of the appellant to which I need advert, or which possess any substance. The result is that the appeal fails, and is dismissed with costs.

Duval, J.

4. I agree.


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