1. This appeal arises out of a suit brought by the daughter of one Anwar Ali to recover certain property as one of the heirs of her deceased father, and to set aside certain conveyances This appeal relates only to one of these conveyances which is said to have been executed in favour of Anwar Ali's wife, the first defendant.
2. The suit was decreed by the Munsif. The defendant No. 1, appealed to the Subordinate Judge of Chittagong and her appeal was dismissed by that Officer, on the ground that the document in her favour not having been duly registered, her defence to the plaintiff's suit, therefore, failed.
3. The widow appeals to this Court, and it is argued on her behalf that the learned Subordinate Judge was wrong in refusing to go into the merits of the case and in disposing of it on the finding that the appellant's conveyance was not duly registered. This document is said to have been executed by Anwar Ali on the day of his death and was presented for registration about three months later by the present appellant, who was only one of Anwar Ali's heirs. The Subordinate Judge considers that as all the heirs of Anwar Ali did not join in the application for registration, the registration was invalid and that, therefore, the document was not duly registered and cannot be treated as effecting a valid sale.
4. The appellant relies particularly on the case of Pakran v. Kunhamm 23 M. 380. In that case also the execution of the deed in suit was admitted before the Registering Officer by but one out of three representatives of the deceased. The learned Judges did not hold that such an application was sufficient in law to warrant registration, but they held that the error committed by the Sub-Registrar, if any, in registering the deed was merely a defect of procedure and did not render the registration invalid. They relied on certain quoted decisions of the Privy Council and other Courts. It appears to us that it may be open to question whether Section 87 of the Registration Act, 1877, which cures defects in the procedure of the registering officer, can be extended to cure also the shortcomings of persons who apply to have documents registered; and in this connection we may refer briefly to the case of Mujib-un-nissa v. Abdur Rahim 23 A. 233.
5. But having regard to the authorities cited in Pakran v. Kunhamma 23 M. 380 the learned pleader for the respondent considers that a document presented for registration after the death of the executant by one out of several of his representatives is not precluded by Section 49 of the Registration Act from affecting the immovable property specified in it. We feel ourselves bound to follow these authorities and to hold that the learned Subordinate Judge was wrong in treating the conveyance now under consideration as not duly registered.
6. It has been argued by the learned pleader for the respondent that the Subordinate Judge intended to find that the document was not a genuine one and was not executed by Anwar Ali at all. But after reading the whole judgment of the Subordinate Judge, we are unable to accept this as a correct description of his conclusions. We do not think that he applied his mind or intended to apply his mind to the question whether the document was duly executed by Anwar Ali or not.
7. This being our opinion we must allow the appeal and remand the case to the Subordinate Judge in order that he may dispose of the other points arising for determination.
8. The costs of this appeal will abide the result.