Nemichand Vs. Ganeshmal and ors. - Court Judgment

C.M. Lodha, J.

1. The facts giving rise to this second appeal by the plaintiff lie within a narrow compass:

2. Defendants Nos. 1 and 2 Ganeshmal and Sardarmal executed a mortgage deed dated 1-3-54 for a sum of Rs. 8000/-in favour of the plaintiff Nemichand. Shri M.K. Rathi, an Advocate of Aimer presented the mortgage deed on behalf of the mortgagee plaintiff Nemichand before the Sub-Registrar, Ajmer on 1-7-1954 which was the last date for presentation of the deed, the limitation prescribed for the purpose being four months from the date of execution. The Sub-Registrar returned the document the same day with the following endorsement:--

'Mr. M.K. Rathi counsel for Nemichand present. The above presentation along with the document does not appear to be valid, and further the time prescribed for registration expires to-day and there is no time left to enforce the appearance of the opposite party. Therefore, in view of Section 4 of the Indian Registration Act no further action can be taken. The document is therefore returned.'

What exactly happened thereafter is not known but there is a further endorsement of the Sub-Registrar dated 9-10-1954 which runs thus;--

'The document received from the Registrar of Assurances, Aimer under his No. 3416- XXII-D-21 dated 15-7-1954 with the direction to register it on payment of 10 times the amount of proper registration fee as fine.

Mr. M.K. Rathi Advocate appeared on 22-7-1954 and put in an application under Section 36 of the Indian Registration Act.'

There is yet another endorsement of the Sub-Registrar of the same date to the effect that Shri Badge! filed power for both the opposite parties requesting for time to file objections but did not undertake to produce the opposite parties. It is further mentioned in this endorsement that notice was issued to the opposite party No. 1, namely, Ganeshmal, and it was not received after service but Shri Badgel stated that substituted service had been effected on Shri Ganeshmal. The opposite party No. 2, namely Sardarmal was reported to be absent in spite of service. Consequently, the Sub-Registrar observed that the absence of boththe executants in spite of service amounted to denial of execution of the document and therefore he refused to register it. Dissatisfied with the latter order of the Sub-Registrar of 9-10-1954 the plaintiff moved an application under Section 73 of the Indian Registration Act of 1908 (which for shortness will hereinafter be called 'the Act') before the Registrar who also by his order dated 22-5-58 refused to register the document on the ground that it had not been properly presented before the Sub-Registrar. Ajmer. Incidentally he also observed that the document had not been proved to be duly executed.

The plaintiff thereupon filed the present suit under Section 77 of the Act on 30-6-1958 in the Court of Civil Judge, Ajmer praying that a direction may be issued for registration of the mortgage deed. The suit was resisted by the defendants Nps, 1 and 2 who while admitting their signatures on the document pleaded lack of receipt of consideration. They also pleaded that there was no valid presentation of the document and consequently the suit was liable to be dismissed. They raised a further objection to the maintainability of the suit on the ground that the order of the Sub-Registrar dated 1-7-1954 was appealable and no appeal having been filed from that order the present suit did not lie.

3. The learned trial Court dismissed the plaintiff's suit. Aggrieved by the judgment and decree of the trial court the plaintiff filed appeal in the Court of the District Judge, Aimer but was unsuccessful. Consequently, he has come in second appeal to this Court.

4. Learned counsel for the appellant has urged that the lower courts had passed an order dt. 15-7-1954 directing the Sub-Registrar to register the was no valid presentation of the mortgage deed. It is contended that the Registrar had passed an order dated 15-7-1954 directing the Sub-Registrar to register the document on payment of ten times the amount of the proper registration fee as fine. This order of the Registrar according to the learned counsel was passed under Section 25 of the Act and the validity of the same could not be called into question in a suit under Section 77 of the Act. In nut shell his contention is, that it must be presumed, in the facts and circumstances of the case, that the document had been validly presented before the Registrar and by virtue of the powers conferred upon him by Section 25 of the Act he directed the registration of the document even after the expiration of the prescribed period of four months from the date of execution on payment of fine. He has further argued that the Registrar had no jurisdiction thereafter to refuseto register the document by his order dated 22-5-1958.

5. It may be stated at the outset that the learned counsel for the appellant did not rely on the presentation of the document before the Sub-Registrar by Shri M.K. Rathi on behalf of the plaintiff Nemichand on 1-7-1954, and his sole emphasis is on the presentation of the document before the Registrar. Aimer sometime thereafter which resulted in the order by the Registrar dated 15-7-1954. It is important to note that the order of the Registrar dated 15-7-1954 on which the plaintiff appellant has rested his whole case has not been produced. There is even no reference to it in the plaint. The only proof regarding the order of the Registrar dated 15-7-1954 is the endorsement by the Sub-Registrar dated 9-10-1954. But unfortunately for the plaintiff even this endorsement does not show that the document was presented before the Registrar by the plaintiff by any person duly authorised in this behalf, nor is it mentioned that any application had been moved on his behalf before the Registrar disclosing the circumstances under which benefit was being claimed under Section 25 of the Act for registration of the document after the expiration of the prescribed period of four months, nor is there any mention in this endorsement that for certain reasons, good, bad or indifferent the Registrar thought it fit to issue a direction for registration of the document. Thus there is absolutely no evidence on the record to show that the document had been validly presented before the Registrar.

6. That the requirement regarding valid presentation is a necessary condition precedent for registration of the document does not admit of any doubt and there is a plethora of authorities in support of this view.

7. In Jambu Prasad v. Muhamad Nawab Aftab Ali Khan, 28 Ind Cas 422 = (AIR 1914 PC 16) their Lordships of the Privy Council were pleased to observe that want of proper presentation was not a mere defect in procedure under Section 87 but rendered the deed invalid, and that the object of Sections 32, 33. 34 and 35 of Act III of 1877 (which was in force prior to the present Act of 1908) was to prevent, fraud by means of registration under the Act and therefore the provisions were imperative. It was further observed that the jurisdiction of a Sub-Registrar only comes into force if and when a document is presented to him in accordance with law.

8. Again in Mujibunnissa v. Abdul Rahim (1900) 28 Ind App 15 (PC) their Lordships held that the power and jurisdiction of the Registrar only come into play when he is invoked by some person having a direct relation to the deed.It is for those persons to consider whether they will or will not give the deed the efficacy conferred by registration. It was observed that the Registrar could not be held to exercise the jurisdiction conferred on him, if hearing of the execution of a deed, he got possession of it and registered it.

9. It is needless to multiply the authorities on the point as the law seems to be well-settled that proper presentation by an authorised agent is an indispensable foundation for giving the registering officer jurisdiction to register the document.

9-A. Learned counsel for the appellant, however, submitted that initially even if a document is not validly presented the defect can be remedied by its subsequent valid presentation. In this connection he has placed reliance on Bharat Indu v. H. M. H, Ali Khan. AIR 1921 PC 93; Chottey Lal v. Collector of Morada-bad, AIR 1922 PC 279; Ramprasad v. Pannalal, 1953 Raj LW 104 = (AIR 1954 Raj 36). The proposition submitted by the learned counsel is correct so far as it goes. But in the present case, as already observed above, there is no evidence at all of presentation of the document before the Registrar and much less of a valid presentation. It must, therefore, be held that the plaintiff has failed to prove that the mortgage deed in question was ever validly presented for registration.

10. Faced with this position learned counsel submitted that a presumption should be drawn in favour of there being a valid presentation of the document when an order is passed by the Registrar under Section 25 of the .Act. In support of his contention he relied upon Tullokchand v. Gokulbhoy. (1897) ILR 21 Bom 724; Ranjithammal v. Soubagyathammal. AIR 1962 Mad 421 and Apaya V. Govind, AIR 1956 Bom 625.

11. In Durga Singh v. Mathura Das, (1884) ILR 6 All 460 the document was presented before the Sub-Registrar by the person claiming under the deed after the expiration of the period of four months prescribed under Section 23 of the Act. The Sub-Registrar forwarded it to the Registrar who directed that the document should be accepted for registration on payment of fine prescribed. The executant, however, denied the execution of the document before the Sub-Registrar, and consequently the registration was refused. The plaintiff made an application under Section 73 of the Act, but the Registrar refused to register the document on the ground that it had not been presented within the lime allowed by law, even though he held that its execution was proved and thereby overruled hispredecessor's order for registration of the document. In the suit filed by the plaintiff under Section 77 of the Act praying for a decree directing registration. If was held that the previous order passed by the Registrar for registration was a final and binding order.

It may be noticed that in that casa there was no dispute about valid presentation of the document, and the order having been passed for registration of the document after the expiration of the prescribed period on account of the circumstances disclosed before the Registrar his successor in office had no jurisdiction to sit in judgment over his predecessor's order. The facts of that case were radically different and the principle laid down therein has, in my opinion, no application to the facts of the present case.

12. Similarly in (1897) ILR 212 Bom 724, the question canvassed before the Court was that a direction given by the Registrar under Section 24 of the old Act (which is equivalent to Section 25 of the present Act) could not be called into question before a Civil Court on the ground that there were no sufficient reasons before the Registrar for giving such a direction. It was held that when the direction had been given, the fine paid and all the requirements of law on the part of the applicant complied with, there was no obligation upon the applicant that the Registrar shall properly perform the duties of his office.

It would be relevant to point out, here, that there is no dispute in the present case about the sufficiency or insufficiency of the reasons with respect to an order passed under Section 25 of the Act. and, therefore, this case is also of no assistance to the appellant. In the present case, it is even difficult to say whether the Registrar at all passed any order under Section 25 of the Act. I have looked into the other two authorities also cited by the learned counsel and am of the opinion that they do not support the view propounded on behalf of the appellant.

13. Learned counsel for the respondent has strenuously urged that there is no basis for the appellant to submit that the Registrar had passed any order under Section 25 of the Act on 5-7-1954. He has argued that the plaintiff had never set up such a case in the plaint nor had developed it at any stage on these lines. He has also contended that the document having been presented within the prescribed period of four months before the Sub-Registrar under Section 23 of the Act, there was no scope left for the plaintiff to press into service Section 25 of the Act, which applies only when the document is presented after the expiration of the prescribed period of four months. The only remedy, according tothe learned counsel, open to the plaintiff, was to file an appeal from the order of the Sub-Registrar dated 1-7-1954 under Section 72 of the Act within the prescribed period of 30 days. He has also submitted that in any view of the matter no presumption can be drawn under Section 114 of the Evidence Act that the requirements of valid presentation had been fulfilled at the time when the Registrar la alleged to have passed the order dated 15-7-1954.

14. In Nandeswar Chakravarty v. Mahendra Nath. AIR 1956 Assam 123 it was held that where a party seeks to rely on a registered document on the face of which it is obvious that it was presented for registration beyond four months of its execution the onus lies heavily on the party to show that the requirement of the law had been fulfilled before it could be assumed by any court that the document had been registered within the meaning of Section 25. It was further observed that no presumption can be raised in favour of the party under Section 114, Evidence Act, in view of the registration as no presumption can arise unless it is shown that the requirements of the law had been complied with.

15. The plaintiffs' case is on a much lower footing than the Assam case referred to above. The document is not registered. The order of the Registrar alleged to be under Section 25 of the Act has not been produced and as already observed above there Is nothing on the record to show that the Registrar had passed the order dated 15th July, 1954 under Section 25 of the Act after valid presentation and after compliance with the provisions of that section. The defendant took specific objection in his written statement that there was no valid presentation of the document yet the plaintiff did not care to put on record any evidence to show that the document had been validly presented. One of the essential conditions for a plaintiff to be successful in a suit under Section 77 of the Act is that he must show that the document had been presented for registration by a person authorised to 'do so had been presented for registration within time prescribed by Sections 23 to 26. The plaintiff, however, failed to do so and in this view of the matter the lower courts cannot be said to have gone wrong in dismissing the plaintiff's suit in absence of evidence of valid presentation of the document. The decision on this point is sufficient to non-suit the plaintiff.

It is, therefore, not necessary to decide the larger question canvassed by the learned counsel for the respondents that the document having been once presented though by an unauthorised person within the prescribed time under Section 23 of the Act, could not have been represented after the expiry of the prescribed period under Section 25 of the Act.

16. The result is that this appeal has no force, and is hereby dismissed, but in the circumstances of the case, I leave the parties to bear their own costs.