Authored By : Macpherson, T. Ameer Ali

Macpherson and T. Ameer Ali, JJ.

1. The plaintiffs are four-anna shareholders of a taluk,within which the first three defendants have a raiyati holding. They purchaseda two-anna share of this taluk in 1287 (1880), and the other two-anna share in1296

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Baidya Nath De Sarkar and Ors. vs. Ilim and Ors. (16.07.1897- CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 16.08.1897

Appellants: Kudrathi Begum

Vs.

Respondent: Najibunnessa

Honble Judges/Coram:

Trevelyan and J.F. Stevens, JJ.

Subject: Property

Catch Words

Mentioned IN

Case Note:

Registration Act (III of 1877), Sections 35, 73, 76, 77 -Denial of execution--Suit to enforce registration--Right of suit.

JUDGMENT

J.F. Stevens, J.

1. This appeal arises out of a suit under Section 77 of theRegistration Act. Registration was in the first instance refused by the SubRegistrar under the following order: "Eight months from the date ofexecution have passed. Although summons was issued against the executant toappear, she did not appear to admit execution. I refuse registration under Section35 of Act III of 1877, paragraph 159 of the Registration Manual." Theplaintiff (now appellant) who was the party interested in the deed in question,then presented a petition under Section 73 of the Registration Act to theDistrict Registrar of Mozufferpore, praying that an order for the registrationof the document might be made after taking of evidence. The Registrar made overthis application to the Special Sub-Registrar for the necessary action andreport. The Special Sub-Registrar passed the following order: "This deed,dated the 24th November 1894, was presented by Mahomed Hossein, agent ofKudrathi Begum, before the Sub-Registrar of Mozufferpore on the 18th March1895. The executant Najibunnessa did not appear either personally or by herauthorized agent within eight months from the date of execution. TheSub-Registrar refused registration under paragraph 159 of the RegistrationManual on the 26th July 1895. The appeal does not lie under Section 73 of ActIII of 1877. I reject the application accordingly." It was in consequenceof this order of the Special Sub-Registrar that the present suit was institutedunder Section 77 of the Registration Act.

2. The learned Subordinate Judge has held that the suit doesnot lie. He takes the order to be equivalent to an order of the Registrar,which is apparently the correct view, looking to the provisions of Section 7 ofthe Registration Act, and the first of the rules made by the Inspector-Generalunder the provisions of Section 69 of the Act. Under that rule theSub-Registrar at the head-quarters of a district, whose office has beenamalgamated with that of the Registrar, is authorised to act as the workingdeputy of the Registrar exercising, as a matter of routine, all the functionsof a Registrar, except the powers of supervision, and control under Section 68,and that of hearing appeals from orders refusing to register under Section 72.He is authorised to deal with applications under Section 73 of the Act as amatter of course.

3. The ground on which the learned Subordinate Judge hasheld that no suit lies in this case is that registration had been refused on aground other than the denial of execution, and therefore the proper remedy ofthe plaintiff was an appeal to the Registrar under Section 72 against the orderof the Sub-Registrar refusing to admit the document to registration, and not anapplication under Section 73. He says: "When plaintiff ought to haveappealed to the Registrar under Section 72, but mistaking her remedy she madean application under Section 73, it is the same as if she did not at all go tothe Registrar. It is thus abundantly clear that the plaintiff has not compliedwith the provisions of the Registration Act. She is therefore out ofCourt."

4. The attention of the learned Subordinate Judge does notappear to have been directed to the case of Luckhi Narain Khettry v. SatcowriePyne (1888) I.L.R. 16 Cal. 189 and the case of Radhakissen Rowra Dakna v.Chconee Lall Dutt I.L.R(1879) . 5 Cal. 445 where it has been held that a wilfulrefusal or neglect to attend and admit execution is equivalent to a denial ofexecution within the meaning of the Registration Act; and that where suchrefusal or neglect occurs a suit will lie under Section 77 of the Act for thepurpose of having the document registered. In paragraph 146 of the rules madeby the Inspector-General, the latter case and another case, In re Abdul AzizILR (1887) 11 Bom 691, are referred to as authority for that proposition, andit is stated that as soon as such refusal or neglect is proved before him, aregistering officer may record his refusal to register the document underSection 35. It is remarked that an appeal, by which is apparently meant anapplication, will then lie to the Registrar under Section 73, who will makeinquiry and pass orders under Sections 74 and 75 just as if execution had beenspecifically denied. We think that in accordance with the rulings to which wehave referred and the practice of the Registration Department, the plaintiffdid not mistake her remedy in applying in the present case to the Registrarunder Section 73. The original order of refusal was on the face of it an orderparsed under Section 35 of the Act, and it was passed in consequence of theneglect of the executant to attend and admit execution. Taking the order of theSpecial Sub-Registrar on the application under Section 73 as equivalent to anorder of the Registrar, the case comes under clause (a) of Section 76 of theAct, (sic)and, therefore, the plaintiff had a right of suit under the provisionsof Section 77.

The decree of the lower Court must be set aside, and thecase remitted to Court for disposal on the merits.

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Kudrathi Begum vs.Najibunnessa (16.08.1897 - CALHC)