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Shama Charan Das Vs. Joyenoolah and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal750
AppellantShama Charan Das
RespondentJoyenoolah and anr.
Cases ReferredLakhimoni Ghowdhrain v. Akroomoni Chowdhrain I.L.R.
Excerpt:
registration act (iii of 1877), sections 23, 34 and 77 - presentation for registration--limitation for completion of registration--attendance of executant before registrar, time for--refusal to register. - .....refused. that is done in two cases--the case in which the sub-registrar refuses to register on the ground that execution is not admitted, and the case in which he refuses, on any other ground. section 72 deals with the case where the refusal of the sub-registrar is on any ground other than the denial of execution, in which case there is an appeal to the registrar within a month from the refusal; and the registrar is to deal with the matter, and to order registration or refuse it. sections 73 and 74 deal with cases where registration is refused on the ground of denial of execution, whether before the sub-registrar or the registrar himself. in the case of denial of execution before the sub-registrar, again, there is an appeal to the registrar, and he is to deal with the matter in the.....
Judgment:

Wilson and Beverley, JJ.

1. This was a suit brought under Section 77 of the Registration Act to compel registration of an alleged mortgage bond.

2. The bond was executed by the defendants on the 10th June 1882. It was presented for registration by the plaintiff, the mortgagee, on the 6th October of the same year. It was then found by the Sub-Registrar to whom it was presented, that the stamp on the document was insufficient. The Sub-Registrar, acting under the directions contained in the Stamp Act, impounded the document and sent it to the Collector. The Collector thereupon issued an order directing that the deficiency of stamp duty, with a penalty, should be paid by the person who was bound to pay the stamp duty on the document, that is to say, the defendants. It is not necessary to go into details of what happened with reference to that matter. It is enough to say that the money not having been recovered from the defendants, the executants of the document, the plaintiff ultimately paid the deficiency of stamp duty and the penalty on the 10th August 1883.

3. On the 23rd August, the Sub-Registrar refused to register the document and made the proper endorsement upon it that registration was refused, and made the entry, which the law requires, in his book. Upon that the plaintiff appealed to the Registrar under Section 72 of the Registration Act. On the 7th September 1883 the Registrar dismissed that appeal and refused to order the the registration. This plaint was filed on the 27th September 1883.

4. The suit has been dismissed in both the lower Courts without investigation into the merits, on legal grounds arising on the construction of the Registration Act. Before examining those grounds it will be convenient to point out in outline what the scheme of the Registration Act is as bearing upon this matter.

5. Section 23, which is in Part IV of the Act, the title of which is 'of the time of Registration,' directs as a general rule that every document of this nature shall be presented for registration within four months from the date of its execution, which time may in certain contingencies be extended to four months more, the total period being eight months.

6. The next matter of importance to notice is what is required by Section 32. That section says:' Except in the cases mentioned in Section 31* and Section 89+, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office, by some person executing or claiming under the same.' Then we come to Section 34, which says no document shall be registered, 'unless the persons executing such document appear before the registering officer within four months from the date of execution'; provided again that in certain contingencies that period of four months may be extended to eight months. But it must be observed that that section is expressly made subject, amongst other sections, to Section 77, under which this suit is brought. Now, for those matters, periods of limitation are provided, but there is one matter for which no limitation is provided for at all, and that is for the fact of registration. Accordingly, it has been held by the Privy Council in the case of Sah Mukhun Lall Panday v. Sah Kundun Lall 15 B.L.R. 228 that there is in law no limitation for registration, provided the requirements of the law have been complied with in those matters for which a limitation of time is provided.

7. Now, several objections have been taken to the proceedings in this case, and effect has been given to them in the Courts below. In the first place in the lower Appellate Court it has been said that the document was not presented in, due time. And the ground on which that is said is, because it was found not to have been duly stamped when presented. But there is no provision in the Registration Act or in the Stamp Act which says that if the document, when presented, is insufficiently stamped, the presentation shall be no presentation. On the contrary, the procedure provided is wholly inconsistent with that idea, because what the procedure requires (and the procedure was carried out in the present instance) is that the registering officer, to whom the document is presented, receives it and makes his entry accordingly; he impounds it and sends it to the Collector; the Collector takes the necessary steps to compel payment of the proper stamp duty and the penalty; he then returns the document to the registering officer, who shall proceed with the matter. The effect is that the presentation is a good presentation, though the actual registration is delayed. But, as I have pointed out, there is no period limited for registering. We think, therefore, that the lower Appellate Court is wrong in saying that there was no proper presentation of this document within four months as required by law.

8. The next objection taken is that this suit will not lie, because the second requirement has not been complied with, inasmuch as the parties who executed the document did not, as required by Section 34, appear to admit, execution before the registering officer within four months, nor within eight months. That ground appears to have been relied on in both Courts. In the first Court it is said: 'According to the provisions of Section 34 of the Registration Act, a deed can only be registered if the persons executing the document or their representatives, assigns or agents appear before the registering officer within the time allowed.' And in the lower Appellate Court also the same view appears to have been taken. But it must be observed, as we have already pointed out, that that section is expressly subject to Section 77; and Section 77 is the section which enables the Civil Court to direct registration of a document. In Section 77 there is no such provision as to the time within which the parties are to appear to admit execution.; and, indeed, one of the most obvious reasons which may make it necessary for any party to come to the Civil Court under Section 77 to compel registration, must be his inability to procure the attendance of the party executing before the registering officer. We think therefore, that on that point also the lower Appellate Court is in error.

9. Then, thirdly, it is said in the first Court, 'registration could not have been directed after eight months.' We are not sure whether the Munsiff intended to lay this down broadly as a proposition, or whether it ought not to be justified by the contest, If he intended to lay that down as a broad proposition of law, it is clear that that is inconsistent with the decision of the Privy Council.

10. Let us now turn to see the exact sequence of the sections immediately connected with Section 77 under which the suit is brought. The first of those sections, which it is necessary to notice, is Section 71. The Sub-Registrar, if he refuses to register, is to make an endorsement on the document that the registration is refused. That is done in two cases--the case in which the Sub-Registrar refuses to register on the ground that execution is not admitted, and the case in which he refuses, on any other ground. Section 72 deals with the case where the refusal of the Sub-Registrar is on any ground other than the denial of execution, in which case there is an appeal to the Registrar within a month from the refusal; and the Registrar is to deal with the matter, and to order registration or refuse it. Sections 73 and 74 deal with cases where registration is refused on the ground of denial of execution, whether before the Sub-Registrar or the Registrar himself. In the case of denial of execution before the Sub-registrar, again, there is an appeal to the Registrar, and he is to deal with the matter in the manner provided in the following sections:

Then, according to Section 76, the Registrar also is to endorse his refusal.

11. Then comes Section 77, which deals with both cases--the ease in which the refusal has been on the ground of denial of execution, and the case of refusal on any other ground; and it says that within a month from the Registrar's order, a suit may be filed in the Civil Court.

12. Now, it seems pretty clear on the face of those sections that what is required in order to maintain a suit under Section 77 is that the procedure laid down in those sections shall be followed, that is to say, that there must be a refusal to register by the Sub-Registrar, an appeal within due time to the Registrar, a refusal by the Registrar, and a suit filed in the Civil Court within time. That is exactly what has happened in this case.

13. Of the cases bearing on the matter the first in point of time is the case of Bhagwan Singh v. Khuda Buksh I.L.R. 3 All. 397. There the Sub-Registrar refused registration on the ground of denial of execution. Instead of taking the course that the Act points out, by appealing to the Registrar, the plaintiff in that ease brought a suit in the Civil Court, and the suit was dismissed on the ground that he failed to fulfil the necessary preliminaries required by the preceding sections which lead up to a suit under Section 77.

14. The same point came before the Calcutta High Court, in the case of Edun v. Mahomed Siddik I.L.R. 9 Cal. 150. There, again, the same thing was said, that in order to entitle a person to bring a suit under Section 77 (the refusal in that case being on a ground other than denial of execution) the previous step must have been taken of appealing against the Sub-Registrar's order of refusal.

15. The last case, which will be found in the same volume at page 851, is the case of Lakhimoni Ghowdhrain v. Akroomoni Chowdhrain I.L.R. 9 Cal. 851. That case appears to decide substantially the same thing. It is exactly similar to the Allahabad case.

16. Now, those cases appear to us to establish exactly the conclusion which we should be disposed to arrive at on the construction of Sections 72 to 77, but we do not think that they support the propositions laid down in the Courts below, namely, that deficiency of stamp duty will invalidate the presentation, or that the non-attendance of the executing party within four or eight months is fatal to a suit in the Civil Court under Section 77, or that registration cannot be made after eight months.

17. For these reasons, we think that the decree of the lower Court cannot be sustained. The case has been dealt with only on this preliminary point, the merits have not been gone into. The case must, therefore, go back to the Munsiff's Court for trial on the merits with this statement of the law.

18. Costs of this appeal will abide the result.

--------------------------------------Foot Note----------------------------------

*[Registration or acceptance for deposit at private residence.

Section 81: In ordinary cases the registration or deposit document under this Act shall be made only at the office of the officer authorized to accept the same for registration or deposit.

But such officer may, on special cause being shown, attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will.]

+[Certificates under Land Improvement Act, 1871.

Section 89: Every officer granting a certificate under the Land Improvement Act, 1871, shall send a copy of such certificate to the registering officer within the local mimits of whose jurisdiction the whole or any part of the land to be improved, or of the land to be granted as collateral security, is situate, and such registering officer shall file the certificate in his book No. 1.]


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