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Selamatulla Chaudhuri Vs. Aktarernessa - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1931Cal664
AppellantSelamatulla Chaudhuri
RespondentAktarernessa
Cases ReferredMujibunnissa v. Abdul Rahim
Excerpt:
- .....the suit, out of which this appeal has arisen, and if they were bound by the acts of their alleged benamidar defendant 2. the trial court gave its decision against the plaintiffs, and dismissed the suit. on appeal by the plaintiffs, the learned district judge has upheld the decision arrived at by the court of first instance. in the present appeal, it has been urged before us that the learned district judge has erred in law in holding that the plaintiff's had no locus standi to bring the suit; it has been argued that the court had jurisdiction to decide in the present action, the question as to whether defendant 2 was the benamidar of the plaintiff's in respect of the document in question. it has further been contended that the courts below have erred in holding that the suit.....
Judgment:

Guha, J.

1. This is an appeal by the plaintiffs in a suit instituted under the provisions contained in Section 77, Registration Act. The document in respect of which the suit was brought, is a deed of sale alleged to have been executed by defendant 1 in the suit as originally instituted in favour of defendant 2. In view of the question arising for consideration in this appeal, the facts, as they appear from the pleadings of the parties, may be briefly stated. The document was not presented for registration by defendant 1, and it was, accordingly, presented for registration by defendant 2, under Section 32, Registration Act. The execution was denied by defendant .1 and registration was refused by the Sub-Registrar. Defendant 2 appealed from the order of the registering officer, refusing registration; the appeal was not however, proceeded with, defendant 2 filing a petition refusing to go on with the appeal preferred by him. The appeal against the order of the Sub-Registrar was accordingly dismissed for non-prosecution. The plaintiffs' case, as stated in the plaint, was that defendant 2 acted in collusion with defendant 1 in not prosecuting the appeal against the order of the Sub-Registrar refusing registration of the document. The case of the plaintiffs further was that defendant 2, their benamidar, had played false with them and that they were entitled to have the question of benami decided in the suit and have a declaration that defendant 2 was their benamidar, and have a consequential relief in the shape of a decree as contemplated by Section 77, Registration Act.

2. The contesting defendants, the heirs and legal representatives of the original defendant 1, resisted; the plaintiffs' claim and contended that the plaintiffs had no locus standi to maintain the suit, that the plaintiffs must be held to be bound by the acts of their alleged benaimidar, defendant 2. The main question discussed before the Courts below, and the question that has been raised in the appeal to this Court, relates to this: whether the plaintiffs had any locus standi to institute the suit, out of which this appeal has arisen, and if they were bound by the acts of their alleged benamidar defendant 2. The trial Court gave its decision against the plaintiffs, and dismissed the suit. On appeal by the plaintiffs, the learned District Judge has upheld the decision arrived at by the Court of first instance. In the present appeal, it has been urged before us that the learned District Judge has erred in law in holding that the plaintiff's had no locus standi to bring the suit; it has been argued that the Court had jurisdiction to decide in the present action, the question as to whether defendant 2 was the benamidar of the plaintiff's in respect of the document in question. It has further been contended that the Courts below have erred in holding that the suit under Section 77, Registration Act, did not lie, for the reason that defendant 2, the alleged benamidar, did not proceed with the appeal preferred by him against the order of the Sub-Registrar, refusing registration of the document.

3. Now with reference to the first branch of the argument advanced in support of this appeal, the question for consideration is whether the plaintiffs were persons who could, under the law, present the document for registration: are they persons claiming under the same or could they be said to be the representatives of defendant 2 or his agents or assigns. It is admitted in this case that there has been no assignment. It is the case of the plaintiffs that defendant 2 is acting in collusion with defendant 1, and the plaintiffs could not therefore be the agents of defendant 2. According to the definition of the word ' representative ' as contained in the Registration Act, the plaintiffs are not the representatives of defendant 2. In the above view of the case, the plaintiffs could not be said to be persons having a direct relation to the document, and who could therefore present the document for registration under Section 32, Registration Act. See in this connexion the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Mujibunnissa v. Abdul Rahim [1900] 23 All. 233.

4. It is further to be noticed that so far as the conditions precedent to the institution of a suit under Section 77, Registration Act, were concerned, in the case in hand, two of the most essential conditions had not been and could not possibly be fulfilled; the nonfulfilment of any of these conditions was however fatal to the plaintiffs' case, which rests upon the special provisions of the statute. There could be no presentation of the document by the plaintiffs for registration,, under the law, as it stands; there was and there could be no appeal by the plaintiffs to the registrar under Section 72. An appeal under this provision of the law was a prerequisite of a suit under Section 77, Registration Act. In point of fact, as has been mentioned already, defendant 2 had appealed, and having given up his appeal even he could not have instituted a suit under Section 77. The plaintiffs could not therefore be heard to say that their alleged benamidar defendant 2 having given up his appeal, they were in a position to exercise a right conferred by the 'provisions contained in Section 77, Registration Act. The learned District Judge is correct 'in the view he has taken of the case, and we are in agreement with him in holding that the plaintiffs cannot be allowed in a suit of the present description to have the question of benami determined, and then get a decree from the civil Court directing the document to be registered. The learned Judge' is also right in holding that on the plaintiffs' case, as presented in the plaint, they were bound by the act of their alleged benamidar defendant 2. Defendant 2, having given up the appeal presented by him under Section 72, could not bring a suit under Section 77, Registration Act, and the plaintiffs had no locus standi to bring the suit, on the footing that defendant 2 was their benamidar.

5. We hold therefore that the suit out of which this appeal has arisen, to compel registration, that is, a suit for a decree directing the deed of sale, dated the 23rd Agrahayam, 1329 B. S., said to have been executed by defendant 1 in the suit (as originally instituted), in favour of defendant 2 upon a declaration that defendant 2 was a benamidar of the plaintiffs, in the matter of the transaction evidenced by the document of sale, was not maintainable and we affirm the decisions arrived at by the Courts below.

6. The appeal is dismissed with costs.

M.C. Ghose, J.

7. I agree.


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