S.R. Das Gupta, J.
1. In this appeal two questions arise for our consideration, (1) whether or not a donee under an instrument of gift which is sought to be registered can admit execution under Section 35(1)(c) of the Registration Act, the person executing the document being dead and whether registration effected on such admission is altogether void? and (2) whether or not the action of the Registrar in registering the document in question on the admission of such a person is a mere irregularity in procedure without affecting jurisdiction of the Registrar to effect such registration?
2. Shortly stated the facts are as follows: The appellant is the donee from her grand mother Badhika Sundari under an instrument of gift in respect of a plot of land which measures about one bigha. The respondents are in possession of the said land and the appellant filed a suit for the recovery of the said possession. One of the grounds taken by the respondents in the said suit was that the registration of the said deed of gift was invalid such registration having been effected on the admission of the plaintiff? It should be noted that on the date of such registration the executant of the said document was dead.
3. The Munsif found in favour of the plaintiff, but on appeal his decision was reversed. The plaintiff has filed the present appeal before us.
4. The first, question which arises for our consideration is whether or not the document in question could be registered on the admission -of the plaintiff, in other words, whether or not the plaintiff was an assign within the meaning of Sub-clause (c) of Sub-section (1) of Section 35 of the Registration Act. Sub-section (1) of Section 35 of the Registration Act reads as follows:
(a) '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
(b) If in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or
(c) 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.'
5. It is not necessary for the present purpose to refer to the other provisions of Section 35. In this case, as I have already stated, the person executing the document was dead at the time when the document was presented for registration by the plaintiff and I have also said that the Registrar registered the document on admission of the plaintiff who is the donee under the said deed. The question for our determination is whether or not the plaintiff who is the donee under the said document is an assign within the meaning of Sub-clause (c) of Sub-section (1) of Section 35 of the Registration Act.
If she is, then there is no question that the registration was good. If she was not an assign, then the further question will arise whether or not the action of the Registrar in registering the said document was a mere procedural irregularity. On the first question, namely, whether or not the donee under a deed which is sought to be registered is an assign within the meaning of Sub-clause (c) of Sub-section (1) of Section 35, there is a decision of this Court -- 'Akshoy Chandra v. Manmatha Nath' AIR 1917 Cal 269 (I) (A) which took the view that a donee under a deed of gift is an assign of the executant within the meaning of Section 35 of the Registration Act and may when the donor is dead, admit the execution of the deed before the Registering Officer. Fletcher J. who delivered judgment in that case observed that the plaintiff' who was the donee under the deed of gift was vested with the interest that the deceased lady (donor) had in the property comprised in the deed of gift; and, ordinarily, he would be an assign of the lady.
His Lordship further held that no reason had been shown why the word 'assign' should not be given its ordinary signification and it is quite possible that the Legislature inserted the word 'assign' in the third clause of Section 35 to provide for the case where the representative would not appear and, unless the transferee was authorised to appear and admit the execution, the deed could not be registered. That this is a direct authority on this question which is now before us has not been disputed by the other side.
But the learned Advocate for the respondents contended before us that the view taken by their Lordships in the said case should not be accepted as correct. The learned Advocate for the respondents relied upon certain observations of Chakravartti J., as he then was, in the case of -- 'Pumananda Narayan v. Maleka Bibi', 51 Cal WN 675 (B), where Chakravartti J. expressed his doubt as to whether it would be right to hold that the donee was an assign within the meaning of Section 35 of the Registration Act before registration.
It however appears that although Chakravartti J. expressed his doubt on the correctness of the view taken in the case of AIR 1917 Cal 269 (1) (A), his Lordship ultimately held as follows:
'I am, however, informed by my learned brother, who has had considerable experience of the administration of the Registration Act that as a matter of practice, assigns under documents to be registered are generally allowed to make an admission of execution in cases where the actual executants are not available.'
The actual decision in that case, however, rested on other grounds. It follows, therefore, from the said observations of Chakravartti J. that whatever may be the correct position in law, the practice which has existed for a considerable time is to allow documents to be registered on admission made by the assigns in cases where the actual executants are not available. We however do not find it necessary for the purpose of deciding this appeal to come to a definite conclusion on the question as to whether or not a donee under a deed of gift is an assign for the purpose of Section 35 of the Registration Act and a deed of gift can be registered on the admission of suchdonee.
The appeal before us, in our opinion can, be disposed of on other grounds. The ground on which we hold that this appeal should succeed is that the defect, if any, in the matter of registering the document in question was a defect in procedure. Section 87 of the Registration Act provides that nothing done in good faith pursuant to this Act or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure.
Mr. Roy appearing on behalf of the respondents contended before us that omission to comply with the strict provisions of Section 35 of the Registration Act was not a merely procedural error but an error which goes to the very jurisdiction of the Registrar to register a document. He contended before us that Sections 32, 34, 35, 36, 77 and 78 of the Registration Act all stand on the same footing and non-compliance with any of the provisions of the said sections would deprive the Registrar of his jurisdiction to register the document.
We have given careful consideration to the arguments of Mr. Roy, but we are not able to accept the same as sound. It should be noted that the High Courts of Bombay, Madras, Lahore and Allahabad have all taken the view that non-compliance with the provisions of Section 35 of the Registration Act is a mere procedural error and would not vitiate registration on that ground. -- 'Arunachala Mudali v. Venkatachala Pillai', AIR 1934 Mad 425 (C); -- 'Dattatraya Keshav v. Gangabai Narayan', AIR 1926 Bom 137 (D); -- 'Muni Lal v. Ghulam Hussain-Nur Ahmad', AIR 1935 Lah 416 (E); and -- 'Rafat-un-nissa Begam v. Hussaini Begam : AIR1925All215 .
There is no direct authority on this point so far as this High Court is concerned. We see no reason to take a view different from the view taken systematically in all these High Courts. In our opinion, once a document has been presented for registration by- the person executing the document or claiming under the same or by the assign or representative of such person the Registrar is clothed with jurisdiction to deal with the matter and any mistake which he may have made in the process of registering the said document would be a mistake in procedure.
We are of opinion that the defect, if any, of the present kind is a defect in procedure. Besides, as appears from the judgment of Chakravartti J. it has been the longstanding practice existing for a considerable time to allow documents to be registered on admission of execution made by the donee where the actual executants are not available.
6. In this view of the matter we hold that the decision of the lower appellate Court appealed against should be set aside and we make an order accordingly. The decree passed by the Munsif is restored and affirmed.
7. The appellant is entitled to her costs of this appeal and of the Courts below.
8. I agree.