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J. and D. Eziekeil, Carrying Business Under the Name and Style of Ezekeil and Co. Vs. Annada Charan Sen - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal35,70Ind.Cas.794
AppellantJ. and D. Eziekeil, Carrying Business Under the Name and Style of Ezekeil and Co.
RespondentAnnada Charan Sen
Cases ReferredLuckhi Narain Khettry v. Satcowrie Pyne
Excerpt:
registration act (xvi of 1908), sections 34, 35 - document executed by several persons--registration, presentation for, by some only, effect of--bengal municipal act (iii of 1884), section 37--sale-deed executed by chairman and commissioner of municipality--registration, presentation for, by chairman alone--transfer, whether effectual--documents, execution of--signatures, affixation of. - .....by section 35. the inference is thus irresistible that, although the indenture took effect as a deed executed and registered by the chairman, it had no legal operation as a deed executed and registered by the vice-chairman or by the purchaser. in such circumstances, there is no room for the suggestion that what has happened is a defect in procedure curable by section 87 of the indian registration act. the present case does not fall within the class whereof sah mukhun loll panday v. sah koondun lal 2 i.a. 210 : 15 b.l.r. 228 : 24 w.r. 75: 3 sar. p.c.j. 509 (p.c.) and muhammad ewaz v. birj lal 4 i.a. 166 : i.a. 465 : 3 sar. p.c.j. 738 : 3 suth. p.c.j. 438 (p.c.) may be taken as types, where the procedure adopted by the registering officer might be deemed irregular or defective. on the.....
Judgment:

1. The subject-matter of the litigation which hat led up to this appeal is a small tract of land situated in the town of Chittagong, and included in a larger area purchased by the plaintiff-respondent from the Chittagong Municipality on the 19th December 1913. The defendants-appellants disputed the title of the plaintiff as also of the Municipality, which, it was alleged, had acquired the property under the Land Acquisition Act. The Court of first instance found against the plaintiff and dismissed the suit. Upon appeal, the Subordinate Judge has reversed that decision and decreed the suit. On the present appeal, the decree of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that assuming that the Municipality had acquired a good title to the land by virtue of proceedings regularly taken in respect thereof under the Land Acquisition Act such title has not been transferred to the plaintiff by a deed executed and registered in conformity with the provisions of the Transfer of Property Act, the Bengal Municipal Act and the Indian Registration Act; and, secondly, that the Municipality never acquired a valid title to the land, inasmuch as the proceedings under the Land Acquisition Act were void and inoperative against the plaintiff, the second does not call for consideration. The facts material for the determination of the first question may, consequently, be set out at this stage.

2. On the 14th November 1912, the plaintiff addressed a letter to the Chairman of the Chittagong Municipality, offering to purchase the surplus land which the Municipal Commissioners had resolved to sell. At a special meeting of the Commissioners held on the 16th November 1913, the following resolution was thereupon unanimously adopted:

That the offer of Rs. 12,100 be accepted for the land in question, provided the purchaser takes the title as it stands and the Municipality be involved in no other expense with regard to the land. That the road be named Sarup Chandra Sen's Road from Cheap John's shop to Hospital Road and that the sum be accepted on the understanding that part of the Rs. 12,100 is for purchase of land and the remainder for naming the road after his late father.

3. On the 19th February 1913, the Commissioners, by a majority, resolved at a meeting, 'that a draft deed of conveyance be made, embodying only the resolution of the Commissioners dated the 16th November 1912 with the addition of legal phraseology only.' On the 7th May 1913 the Commissioners, at a meeting, approved of the draft as drawn up and resolved 'that the kobala be executed and delivery of possession be made as per resolution of the special meeting dated the 19th February 1913.' On the 19th December 1913 the deed was drawn up in the form of an Indenture between 'the Chairman of the Municipal Commissioners of Chittagong, a body corporate, having perpetual succession and a common seal, called the vendor, of the one part' and 'Babu Annada Charan Sen, the vendee, of the other part.' The Indenture recited the declaration under the Land Acquisition Act dated the 12th June 1911, the application of the purchaser dated the on the 14th November 1912, and the resolution of the Municipal Commissioners adopted at their special meeting held on the 16th November 1912. There were mutual covenants; the vendor conveyed the property described in the schedule and the vendee took the title of the vendor as it stood. It was further stated that the road would be named after the father of the purchaser and the consideration was mentioned as paid, partly for the purchase of the land, and partly for the making of the road. The Indenture concluded with the statement that, 'in compliance with the conditions and terms set forth above, the said vendor and vendee have hereunto set and subscribed their respective hands and seals.' The first two pages of the document were signed in the right hand top corner by Capt. C.A. Gourlay, then Chairman of the Chittagong Municipality; the third, fourth and fifth pages were each initialled by Capt. Gourlay in the right hand top comer; the last page bears, at the foot, the signatures of Capt, Gourlay, 'Chairman, Municipality, Chittagang' Annada Charan Sen 'Vendee' and Annada Charan Chowdhuri Vice-Chairman.' The document was also signed by a witness Kamini Kumar Dass, 'M.C.' (Municipal Commissioner) and by the scribe Jagabandhu Wadadar (Head Clerk, Municipal Office, Chittagong. The seal of the Municipality was affixed on this last page. The document was presented for registration on the 22nd December 1913 by Capt. Gourlay (Chairman of the Chittagong Municipality). The Sub-Registrar thereupon made the following entry:

Execution is admitted by the above C.A. Gourlay who is personally known to me.

4. This signature of Capt. Gourlay appears in two places, first, under the endorsement regarding presentation, and secondly, under the endorsement regarding the admission of execution. Neither the Vice-Chairman nor the purchaser admitted execution before the Sub-Registrar, and there is no endorsement by the Sub-Registrar with regard to either of them. We have now to consider the legal effect of the Indenture so executed.

5. Section 34 of the Bengal Municipal Act, 1884, lays down that the Commissioners at a meeting may sell, let, exchange or otherwise dispose of any land not required for the purposes of the Act. The agreement to sell in the case before us fulfils this requirement. Section 37 then prescribes the mode of execution of contracts, in the following terms:

The Commissioners may enter into and perform any contract necessary for the purposes of this Act.

Every contract made on behalf of the Commissioners of a Municipality in respect of any sum exceeding five hundred rupees, or which shall involve a value exceeding five hundred rupees, shall be sanctioned by the Commissioners at a meeting, and shall be in writing, and signed by at least two of the Commissioners, one of whom shall be the Chairman or Vice-Chairman, and shall be sealed with the common seal of the Commissioners.

Unless so executed, such contract shall not be binding on the Commissioner.

6. We shall assume that the Indenture in this case was drawn up in proper form in view of Section 29 which provides as fellows:

The Commissioners shall, in the name of their Chairman, by the description of the Chairman of the Municipal Commissioners of...,' be a body corporate, and have perpetual succession, and a common seal, and in such name shall sue and be sued.

Such common seal shall have the name of the Municipality engraved thereon in legible characters in the English language, and also in the vernacular of the District.

7. The substantial question in controversy is, whether the Indenture was executed in the manner ordained by Section 37, which requires that every contract, of value exceeding Rs. 500, must fulfil four requirements, namely, it must be (1) sanctioned by the Commissioners at a meeting, (ii) put in writing, (iii) signed by the Chairman or Vice-Chairman and at least one, Commissioner, and (iv) sealed with the common-seal. There is no dispute as to the factum of compliance with the first, second and fourth requisites. As regards the third requirement, it is conceded that the Chairman did sign the Indenture; but the parties are not at one as to the signature of the Vice-Chairman, who may, for our present purpose, be taken to be a Commissioner other than the Chairman. The term 'signed,' which occurs in Section 37, is not defined in the Bengal Municipal Act. The definition given in the General Clauses Act, 1897, Section 3(52), and in the Bengal General Clauses Act, 1899, Section 3(41), which makes the term include a 'mark' in the case of a person unable to write his name, is of no assistance in the solution of the question raised before us. But it is plain that the term, taken with the provision in the third paragraph of Section 37, implies that the signature must be affixed for purposes of execution of the document. Speaking generally, a signature is the writing or otherwise affixing a person's name or a mark to represent his name, by himself or by his authority, with the intention of authenticating a document as being that of or as binding on the person whose name or mark is so written or affixed. In the case before us, the defendants emphasise the fact that the signature of the Vice-Chairman does not appear on any of the sheets except the last, and that even on the last page, it does not follow immediately the signature of the Chairman on the other hand, it is near the name of the gentleman who signed as witness. As was ruled by Lord Abinger, C.B., in Johnson v. Dodgson (1837) 2 M. & W. 653 : 46 R.R. 733 : 6 L.J. (N.S.) Ex. 185 : C.M. & H. 271 : 1 Jur. 312 : 150 E.R. 919 and by Lord Chelmsford, L.C. and Lord Westbury in Caton v. Caton (1867) 2 H.L. 127 : 36 : L.J. Ch. 886 : 16 W.R. 1 the insertion of the name, In any part of the writing, in a manner to authenticate the instrument, is sufficient. Although the signature be in the beginning or middle of the instrument, it is as binding at the foot of it. The question always is, whether the party, not having signed it regularly at the foot, yet meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it; but when it is ascertained that he meant to be bound by it as a complete contract, the signature is, for purposes of execution, effective; Stokes v. Moore (1786) 1 Cox. 219 : 1 R.R. 24 : 29 E.R. 1137. Thus, where an instrument is in the handwriting of the party to be charged, it is sufficient if his name be inserted at the commencement Ogilvie v. Foljambe (1817) 3 Mer. 53 : 17 R.R. 13 : 36 E.R. 21; Propert v. Parker (1830) 1 Russ. & M. 625 : 39 E.R. 240; Bleakley v. Smith (1840) 11 Sim. 150 : 54 R.R. 342 : 59 E.R. 831; Lobb v. Stanley (1844) 5 Q.B. 574 : Dav. & M. 635 : 13 L.J.Q.B. 117 : 8 Jur. 462 : E.R. 1366; Holmes v. Mackrell (1858) 3 C.B. (N.S.) 789 : 111 R.R. 837 : 140 E.R. 953. The Courts have gone so far as to hold that the name at the head of a telegram was sufficient; Godwin v. Francis (1870) 5 C.P. 295 : 39 L.J.C.P. 121 : 22 L.T. 338 of Tourret v. Cripps (1879) 48 L.J.Ch. 567 : 27 W.R. 706. Some of the cases even hold that matters not for what purpose the signature was put, if in fact it authenticates the document, In re Hoyle, Hoyle v. Hoyle (1893) 1 Ch. 84 : 62 L.J.Ch. 182 : 2 R. 145 : 67 L.T. 674 : 41 W.R. 81; Daniels v. Trefusis (1914) 1 Ch. 84 : 62 L.J.Ch. 579 : 109 L.T. 922 : 58 S.J. 271 and it has been said that if a party to a written memorandum signed as witness with knowledge of the contents, he may be charged with an agreement recited or referred to in the document; Welford v. Beazely (1747) 3 Atk. 504 : 26 E.R. 1090 The decisions in Coles v. Trecothick (1804) 9 Ves. 234 : 7 R.R. 167 : 1 Smith 233 : 32 E.R. 592 and Barkworth v. Young (1856) 4 Drew 114 : 113 R.R. 297 : 26 S.J.Ch. 153 : 3 Jur. (N.S.) 34 : 5 W.R. 156 : 62 : E.R. 1 support only the qualified statement that the name of a person signing as a witness may authenticate the instrument, if Ls cannot be a witness. But these instances do not weaken, much less do they abrogate, the primary rule that where the name occurs in the document, not as authenticating the whole, but only for a particular purpose or only with reference to a part, it is not an effective signature: Gosbell v. Archer (1835) 2 A. & E. 500 : 41 R.R. 475 : 4 N. & M. 485 : 1 H. & W. 31 : 4 L.J. (N.S.) K.B. 78 : 111 E.R. 194; Thynne (Lady) v. Glengall (1848) 2 H.L.C. 131 : 81 R.R. 77 : 12 Jur. 805 : E.R. 1042; Caton v. Caton (1867) 2 H.L. 127 : 36 : L.J. Ch. 886 : 16 W.R. 1. In view of the principles thus enunciated, we may, upon a reasonably liberal view of what took place at the time of the execution of the Indenture, hold that the Vice-Chairman, who, as the proceedings show, was aware of the contents of the deed, affixed his signature thereto, in1 his capacity as a Commissioner qualified to be an executant in addition to the Chairman and in fulfilment of the requirement of Section 37 of the Bengal Municipal Act. The conclusion follows that the Indenture was executed in conformity with Section 37; but this does not necessarily show that the deed became forthwith operative, against the Commissioners: The third paragraph of Section 37 provides that unless so executed, that is, unless executed in the manner prescribed in the second paragraph, such contract, that is, the contract mentioned in the first and second paragraphs, shall not be binding on the Commissioners. This does not prescribe in the affirmative that the contract so executed shall be binding on the Commissioners. The reason is plain; for the contract may be such as is subject to the operation of other statutory provisions, for instance, those of the Transfer of Property Act and in the Indian Registration Act. The case now requires examination from this standpoint.

Section 54 of the Transfer of Property Act provides as follows:

Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a. reversion or other intangible thing, can be made only by a registered instrument.

8. Section 17(1)(b) of the Indian Registration Act makes documents of the following class compulsorily registrable:

Other non-testamentary instrument other is, non-testamentary instruments o1 her than instruments of gift of immoveable property), which purport or operate to create...assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of Rs. 100 and upwards, to or in immoveable property.

9. Section 49 of the Indian Registration Act provides that no document required by Section 17 to be registered shall affect any immoveable property comprised therein, unless it has been registered.

10. There is no room for dispute that the Indenture in this case was compulsorily registrable. We have now to consider whether it has been duly registered.

11. Section 32 6f the Indian Registration Act prescribes that every document to be registered, whether such registration be comulsory or optional, shall be presented at the proper registration office by some person executing or claiming under the same. This requirement was fulfilled in this case, when the document was presented for registration by Capt. Gourlay. We next come to Section 34, Sub-section (1) which provides that no document shall be registered, unless the persons executing such document or their representatives, assigns, or agents authorised in the manner set out in Section 33, appear before the Registering Officer within the time allowed for presentation, subject to the proviso that the Registrar may extend the time within defined limits. Sub-section (2) next provides that appearances under Sub-section (1) may be simultaneous or at different times. This should be read in conjunction with Section 24, which provides that where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution. We pass on to Sub-section (3) of Section 34, which specifies, in the following terms, the duty of the Registering Officer after due presentation of documents, and appearance of executants.

The Registering Officer shall thereupon-

(a) enquire 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.

12. Section 35(1)(a) next lays down that 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, the Registering Officer shall register the document. Sub-section (3)(a) lays down that if any person by whom the document purports to be executed denies its execution, the Registering Officer shall, refuse to register the document as to the person so denying. The phrase denial of execution is not defined, but the neglect of the executant of a deed to appear in the Registration Office in obedience to a summons for enforcing his attendance, has been treated as equivalent to denial of execution with in the meaning of Section 35; In re Shaik Abdul Aziz 11 B. 691 : 6 Ind. Dec. (N.S.) 454 Radhakissen Rowra Dakna v. Chooneelall Dutt 5 C. 445 : 5 Ind. Jur. 312 : 5 C.L.R. 172 : 2 Ind. Dec. (N.S.) 893; Luckhi Narain Khettry v. Satcowrie Pyne 16 C. 189 : 8 Ind. Dec. (N.S.) 126; Kudrathi Begum v. Najibunnessa 25 C. 93 : 13 Ind. Dec. (N.S.) 63); Kanhaya Lal v. Sardar Singh 29 A. 284 : A.W.N. (1907) 46 : 4 A.L.J. It is thus plain that a document duly presented for registration can be registered only in respect of the executants who appear personally or by a representative and admit execution; we are not concerned here with the case where the executant is dead. This is in accordance with the decisions of the Judicial Committee in Sah Mukhun Lall Panday v. Sah Koondun Lal 2 I.A. 210 : 15 B.L.R. 228 : 24 W.R. 75: 3 Sar. P.C.J. 509 (P.C.) and Muhammad Ewaz v. Birj Lal 4 I.A. 166 : I.A. 465 : 3 Sar. P.C.J. 738 : 3 Suth. P.C.J. 438 (P.C.). In the latter case, Sir Montague Smith observed as follows with reference to Section 35 of the Indian Registration Act, 1871:

Then comes the enactment which occasions the difficulty. 'If all or 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.' These words, taken literally, undoubtedly seem to require the Registering Officer to refuse to register a deed which purports to be executed by several persons, if any one of those persons deny the execution. Such a construction, however, would cause great difficulty and injustice, which it cannot be supposed the legislature contemplated, and would be inconsistent with the language and tenor of the rest of the Act; their Lordships, therefore, think the words should be read distributively, and be construed to mean that the Registering Officer shall refuse to register the document quoad the persons who deny the execution of the deed, and quoad any person who appears to be a minor, an idiot or a lunatic. There appears to be no reason for extending the clause further than this, so as to destroy the operation of the deed as regards those who admit the execution and who are under no disability, which would be the practical effect of a refusal to register at all. The proviso in the 23rd Section to which allusion has already been made, shows that the Legislature contemplated a partial registration of a deed, that is, partial as to the persons executing it. Now, it would be extremely difficult to give effect to this enactment in the 35th Clause in its literal meaning, and at the same time to give effect to the proviso in the 23rd clause. To do so would certainly create an anomaly, supposing three vendors live in different places, and are called upon at different times execute the deed of sale, in that case there undoubtedly may be three several registrations. Supposing No. 1 and No. 2 attend the Registrar and admit the execution of the deed, and it is registered, but No. 3 afterwards comes and denies the execution of the deed, what is to be the consequence? Is the previous registration of the two to be rendered invalid? If so, effect could not be given to the proviso. And if that registration is not to be invalid what difference in principle can there-be between the case, where three vendors appear at different times to admit or deny the execution, and where they appear at the same time to admit or deny the same fact? That which is required of them is precisely the same in both cases, and the admission and denial ought in reason to have the same effect in both.

13. If a document, which has been executed by several persons, is registered upon the appearance and admission of one of these persons, there is clearly no effective registration as regards the other executants who neither appear nor admit execution. Reference may, in this connection, be made to Razi-un-nissa v. Sabir Husain 26 A. 57 A.W.N. (1903) 195 where Sir John Stanley, C.J., pointed out that the provision which now appears in Section 35, namely, 'the Registering Officer shall refuse to register the document as to the persons so denying,' was inserted by the amending Act No. XII of 1879 after the decision of the Judicial Commitee in Muhammad Ewaz v. Birj Lal 4 I.A. 166 : I.A. 465 : 3 Sar. P.C.J. 738 : 3 Suth. P.C.J. 438 (P.C.). To the same effect is the decision in Ebadut Ali v. Muhammad Fareed 35 Ind. Cas. 56 : (1917) Pat. 40 : 3 P.L.W. 226. The case before us is reasonably free from difficulty, as the Registering Officer never registered the document as regards the executants other than the Chairman, he did not even profess to act in excess of the authority conferred upon him by Section 35. The inference is thus irresistible that, although the Indenture took effect as a deed executed and registered by the Chairman, it had no legal operation as a deed executed and registered by the Vice-Chairman or by the purchaser. In such circumstances, there is no room for the suggestion that what has happened is a defect in procedure curable by Section 87 of the Indian Registration Act. The present case does not fall within the class whereof Sah Mukhun Loll Panday v. Sah Koondun Lal 2 I.A. 210 : 15 B.L.R. 228 : 24 W.R. 75: 3 Sar. P.C.J. 509 (P.C.) and Muhammad Ewaz v. Birj Lal 4 I.A. 166 : I.A. 465 : 3 Sar. P.C.J. 738 : 3 Suth. P.C.J. 438 (P.C.) may be taken as types, where the procedure adopted by the Registering Officer might be deemed irregular or defective. On the other hand, the case is more analogous to the decisions in Mujib-un-nissa v. Abdur Rahim 28 I.A. 15 : 23 A. 233 : 5 C.W.N. 177 : 11 M.L.J. 58 : 3 Bom. L.R. 114 : 7 Sar. P.C.J. 829 (P.C.); Jumbu Parshad v. Muhammad Nawab Aftab Ali Khan 28 Ind. Cas. 422 : 42 I.A. 22 : 37 A. 49 : 21 C.L.J. 218 : 19 C.W.N. 282 : 13 A.L.J. 129 : 17 M.L.T. 148 : 2 L.W. 277 : 28 M.L.J. 577 : 17 Bom. L.R. 413 : (1915) M.W.N. 592 (P.C.) and Bharat Indu v. Mohammad Hamid Ali Khan 58 Ind. Cas. 386 : 47 I.A. 177 : 18 A.L.J. 717 : 39 M.L.J. 41 : (1920) M.W.N. 413 : 28 M.L.T. 98 : 42 A. 487 : 25 C.W.N. 73 : 22 Bom L.R. 1362 : 47 C. 73 : 22 Bom. L.R. 1362 : 13 L.W. 4 : 2 U.P.L.R. (P.C.) 179 (P.C.). The provisions of the Indian Registration Act with which we are here concerned were very carefully designed to prevent forgeries and the procurement of deeds by fraud or undue influence, and, though it may seem somewhat technical to insist upon exact compliance with these provisions, it is necessary so to do; for, in the words of Lord Philimore, it is the duty of the Courts in India not to allow the imperative provisions of the Act to be defeated, when the one object of the Act is to make it difficult for persons to commit frauds by means of registration under statutory provisions. We must, consequently, decline to adopt a construction of the sections which would render a person liable to be bound by a document which, even if it be assumed to have been executed by him, has been registered at the instance of a co-executant, though he himself never appeared before the Registering Officer and admitted execution thereof. In the case before us, we are concerned with a public Corporation which is authorised by Statute to execute contracts in a manner specifically prescribed by the Statute; there must clearly be strict compliance with these provisions: Chairman South Barrackpore v. Amalya Nath Chatterjee 34 C. 1030 : 12 C.W.N. 50; Mathura Mohan Saha v. Ramkumar Saha 35 Ind. Cas. 305 : 43 C. 790 : 23 C.L.J. 26 : 20 C.W.N. 370. It cannot be disputed that where, by the constitution of a Corporation, any special mode of execution of its deeds is prescribed, or any particular formality is required to be observed in affixing the corporate seal, every deed of the Corporation must, in order to be completely binding, be executed in the manner or with every formality so prescribed: Clarke v. Imperial Gas Light & Coke Co. (1832) 4 B. & Ad. 315 : 1 N. & M. 206 : 2 L.J. (N.S.) K.B. 30 : 110 E.R. 473; Earnest v. Nichalls (1857) 6 H.L.C. 401 : 108 R.R. 175 : 3 Jur. (N.S.) 919 : 6 W.R. 24 : 10 E.R. 401 : 108 R.R. 175. D'Arcy v. Tamar Kit Hill and Callington Ry (1867) 2 Ex. 158 : 4 H. & C. 463 : 36 L.J. Ex. 37 : 21 Jur. (N.S.) 548 : 13 L.T. 626 : 14 W.R. 968. In the present case, if the deed be treated as one executed by the Chairman alone, the plaintiff is met by Section 37 of the Bengal Municipal Act which ordains that such contract shall not be binding on the Commissioners;' this clearly does not mean 'shall be voidable at the instance of the Commissioners' or 'shall be binding on the Commissioners unless repudiated by them.' No question also arises here as to ratification or acquiescence by a Corporation, or as to the position created by the consideration moving from the Corporation: Bournmouth Commissioners v. Watts (1884) 14 Q.B.D. 87 : 54 L.J.Q.B. 93 : 51 L.T. 823 : 33 W.R. 280 : 49 J.P. 102; Brooks v. Torquay Corporation (1902) 1 K.B. 601 : 71 L.J.K.B. 109 : 85 L.T. 785 : 66 J.P. 293 : 18 T.L.R. 139; Fishmongers Co. v. Robertson (1843) 5 Man. & Gr. 131 : 63 R.R. 242 : 6 Scott (N.R.) 56 : 12 L.J.C.P. 185 : 134 E.R. 510; Australian Royal Mail Steam Navigation Co. v. Marzetti (1855) 11 Ex. 228 : 105 R.R. 505 : 3 Com. L.R. 1179 : 24 L.J. Ex. 273 : 156 E.R. 814. What happened then in substance was that the Indenture was duly presented for registration, but the registration was not completed, inasmuch as all the executants did not appear and admit execution before the Registering Officer, so as to enable him to register the document with regard to all of them. We are not called upon to consider whether, in view of the decision of the Judicial Committee in Sah Mukhun Lall Panday v. Sah Koondun Lal 2 I.A. 210 : 15 B.L.R. 228 : 24 W.R. 75: 3 Sar. P.C.J. 509 (P.C.) and of this Court in Luckhi Narain Khettry v. Satcowrie Pyne 16 C. 189 : 8 Ind. Dec. (N.S.) 126; it may not be still open to the plaintiff to take back the Indenture to the Registration Office and get the registration completed in respect of the executants other than Capt. Gourlay. It is sufficient for the purposes of this litigation to hold that, at its commencement, the title of the plaintiff had not been perfected by a deed executed and registered in accordance with statutory requirements.

14. The result is, that this appeal must be allowed, the decree of the Subordinate Judge set aside and the suit dismissed.

15. Each party will pay his own costs in all the Courts.


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