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Jugul Kishore Bhuttachaji Vs. Mohima Chunder Dhur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal736
AppellantJugul Kishore Bhuttachaji
RespondentMohima Chunder Dhur
Cases ReferredRam Chunder Paul v. Becharam Dey
Excerpt:
declaratory decree - cause of action--civil suit to contest the genuineness and validity of a registered document--registration--onus of proof--registration act (iii of 1877), sections 74, 75--specific belief act (i of 1877), section 39. - .....act, it was the district judge who heard the petition made against the order of the registering officer refusing registration. phbae, j., who delivered judgment in that case, certainly regarded that as a decision of a 'competent court.' the present registration act enacts, that where the registering officer refuses to register, the procedure is by way of an appeal to the registrar, and the registrar is then to enquire---first, whether the document has been executed; and secondly whether the requirements of the registration law have been complied with. it appears to us, that it is impossible to say that the proceedings of the registrar, when he enquired whether the document had been executed, are in any sense proceedings of a 'competent court.' they are the proceedings of an executive.....
Judgment:

Field, J.

1. In this case the plaintiff sued to have a kobala or bill of sale set aside and declared spurious. It appears that the defendant presented this bill of sale for registration, and, under the special procedure provided in the Registration Act, he succeeded in obtaining an order of the District Registrar for the registration of the document. The first contention raised before us on appeal is, that this suit is not maintainable; and, in support of this contention, the case of Ram Chunder Paul v. Becharam Dey (10 W. R., 323) is quoted. Now, that case we think to have been virtually overruled by the case of Prasanna Kumar Sandyal v. Mathurnath Banerjee (8 B. L. R., Ap., 26), which latter case has been since followed in several other cases in this Court. Most decidedly, if we had to form an independent opinion, our view would be the same as that taken by the learned Judges in the latter case; but we think that, whatever may have been the state of the law before the passing of the present Registration Act and the present Specific Relief Act, these two enactments have put the point beyond doubt. The case of Bam Chunder Paul v. Becharam Dey (10 W. R., 329) was decided when Act XX of 1866 was in force, and under the provisions of Section 84 of that Act, it was the District Judge who heard the petition made against the order of the registering officer refusing registration. PHBAE, J., who delivered judgment in that case, certainly regarded that as a decision of a 'competent Court.' The present Registration Act enacts, that where the registering officer refuses to register, the procedure is by way of an appeal to the Registrar, and the Registrar is then to enquire---first, whether the document has been executed; and secondly whether the requirements of the Registration law have been complied with. It appears to us, that it is impossible to say that the proceedings of the Registrar, when he enquired whether the document had been executed, are in any sense proceedings of a 'competent Court.' They are the proceedings of an executive officer invested with quasi-judicial functions for the limited purposes of the Registration Act. In this view we think that, even if the case of Ram Chunder Paul v. Becharam Dey (10 W. R. 329) had not been overruled and dissented from in several other cases, it would no longer have a binding effect, regard being had to the alteration made in the Registration law. Then, if we turn to Section 39 of the Specific Relief Act, I of 1877, we find that a suit of this nature is there contemplated and provided for. That section enacts, that 'any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion so adjudge it and order it to be delivered up and cancelled.'

2. It then proceeds: 'If the instrument has been registered under the Indian Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered, and such officer shall note on the copy of the instrument contained in the books the facts of its cancellation.' We think, having reference to these specific enactments of the Legislature, there can be no doubt that a suit of this kind is maintainable.

3. The second point taken is, that the burden of proof has been wrongly placed upon the defendant. It appears to us that this contention is untenable. The plaintiff himself came forward and denied the execution of the document, and this was sufficient to cast upon the defendant the burden of proving its execution and its genuineness. Under these circumstances, we think that this appeal must be dismissed with costs.


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