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Taraprosad Prodhan Vs. Sri Shyam Bera and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 835 of 1952
Judge
Reported inAIR1959Cal775,63CWN709
ActsRegistration Act, 1908 - Section 77
AppellantTaraprosad Prodhan
RespondentSri Shyam Bera and ors.
Appellant AdvocateJoy Gopal Ghose, ;Purnendu Sekhar Basu and ;Satkari Chattopadhya, Advs.
Respondent AdvocatePanchanan Pal and ;Soumendra Nath Mukherjee, Advs. for Respondent No. 1
DispositionAppeal allowed
Cases ReferredManindra Nath v. Lalit Mohan
Excerpt:
- .....by appellant tara prosad prodhan for enforcement of registration of kobala under section 77 of the indian registration act. the case of the plaintiff in brief was that the defendants agreed to sell the lands described in the plaint to the plaintiff for a consideration of rs. 300/- and that they actually executed a kobala in favour of the plaintiff on 2nd may, 1948 in furtherance of the agreement. the case of the plaintiff further was that when the kobala was presented for registration before the sub-registrar of egra, the defendants did not turn up and so registration was refused by the sub-registrar on october 4, 1948. thereafter the plaintiff filed an application before the district registrar of midnapore for directing the defendants to register the kobala but as the defendants.....
Judgment:

Renupada Mukherjee, J.

1. This appeal arises out of a suit instituted by appellant Tara Prosad Prodhan for enforcement of registration of kobala under Section 77 of the Indian Registration Act. The case of the plaintiff in brief was that the defendants agreed to sell the lands described in the plaint to the plaintiff for a consideration of Rs. 300/- and that they actually executed a kobala in favour of the plaintiff on 2nd May, 1948 in furtherance of the agreement. The case of the plaintiff further was that when the kobala was presented for registration before the Sub-Registrar of Egra, the defendants did not turn up and so registration was refused by the Sub-Registrar on October 4, 1948. Thereafter the plaintiff filed an application before the District Registrar of Midnapore for directing the defendants to register the kobala but as the defendants appeared and denied execution of the kobala, the District Registrar dismissed the application of the plaintiff on August 29, 1949. Thereafter the present suit under Section 77 of the Indian Registration Act was instituted by the plaintiff on September 20, 1949.

2. The suit was contested by the defendants. Their defence, in short, was that they had never agreed to execute a kobala in favour of the plaintiff and their thumb impressions were taken by one Bepin Mahapatra on some blank papers on false and fraudulent representations.

3. The trial court accepted the defence of the defendants and dismissed the suit. The plaintiff preferred an appeal which was also dismissed. So the plaintiff has preferred this Second Appeal.

4. Mr. Ghose who argued the appeal on behalf of the plaintiff appellant submitted that the point raised in this appeal is concluded by a decision of this Court reported in Manindra Nath v. Lalit Mohan, (55 Cal W.N. 166). In that case it has been held that the scope of enquiry in a suit brought under Section 77 of the Indian Registration Act is of the same nature as an enquiry before the registering authority and it is not open to the court to enter into questions relating to the validity of the document. This case was also cited before the lower appellate court, but that court is of opinion that the decision in question does not apply to the present case inasmuch as the document was not legally or validly executed. In my opinion the lower appellate court has committed an error in law by misappreciating the effect of the decision mentioned above. The legality or validity of a document is an irrelevant factor for the consideration of the court in a suit under Section 77 of the Indian Registration Act. The validity cannot be questioned by a defence that fraud or coercion or undue influence was practised upon the executant or that the executant signed a blank paper without knowing what document was going to be written thereon. In the present case the defence taken by the respondents was of the last description. In my opinion such a defence cannot be taken and such a defence should not be the subject matter of enquiry by the Civil Court in a suit under Section 77 of the Indian Registration Act. It would be sufficient for the plaintiff of a suit of this nature to establish that the document, registration of which has been refused by the Registrar, was either signed or thumb-impressed by the executant. In this case it has been clearly established by the evidence of a hand-writing expert and also by the admission of defendant Shyam Bera himself that the thumb impressions which appear on the document are the thumb impressions of the defendants respondents. That being the case, there was prima facie execution of the document and the courts below should not have entered into the question whether the document is an invalid one because those thumb impressions were originally given on blank sheets of paper. Those findings of the courts below are expunged in this case. If the respondent are sure that the document in question is not a valid document because their thumb impressions were taken on blank sheets of paper, then they would certainly be entitled to file an appropriate suit for obtaining proper relief, unless otherwise barred. But so far as this suit is concerned there must be a direction for registration of the document under Section 77 of the Indian Registration Act. In my opinion the case reported in 55 Cal W. N. 166 and already cited by me fully supports this view.

5. On grounds stated above, I allow this appeal and set aside the judgments and decrees passed by the courts below and decree the suit of the plaintiff.

6. I hereby direct that the kobala in question shall be registered by the Sub-Registrar of Egra in the district of Midnapore if it is duly presented for registration within thirty days after the passing of this decree.

7. Regard being had to the result of the suit and to the findings of the courts below I direct that parties will bear their own costs throughout.


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