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1877 Supreme(SC) 10
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, AND SIR ROBERT
MOHAMMED EWAZ - Appellant
Versus
BIRJ LALL - Respondents
On Appeal from the High Court of Allahabad.
Decided On : June 13-1877
Solicitors for the Appellant:Watkins & Lattey. Solicitors for the Respondents: W. & A. Ford.
Section 35 of the Indian Registration Act, 1871, is construed distributively; a registrar's refusal to register a document upon denial of execution applies only to the party denying it, not to other parties who admit execution, ensuring partial registration is valid.
Headnote:(A) Indian Registration Act, 1871 - Sections 17, 23, 34, 35, 49, 60, and 85 - Registration of sale deed - Partial admission of execution - Effect of denial by one of several vendors - Interpretation of Section 35 - Whether refusal to register applies to the entire document or only to the party denying execution - The words in Section 35 must be read distributively, meaning the registering officer shall refuse to register the document only as regards the persons who deny the execution - A literal construction would lead to injustice and be inconsistent with the proviso to Section 23, which contemplates partial registration and re-registration - Registration is a condition for admissibility in evidence, and once registered, the document is prima facie admissible, subject to objections on merits - Any defect in the registering officer's procedure done in good faith does not render the registration invalid under Section 85. (Paras 15-25)
(B) Admissibility of Registered Documents - Section 60 - Once a registering officer endorses a certificate of registration, the document is admissible for proving it has been duly registered - It would be inconvenient if courts were required to inquire into the registrar's performance of duty before receiving a registered deed in evidence, unless fraud is alleged. (Paras 27-30)
Facts of the case:
A sale deed was executed by three vendors. Upon presentation for registration, two of the vendors admitted their execution, while the third denied it. The registering officer proceeded to register the deed. Subsequent purchasers challenged the validity of the registration, arguing that under the law, the denial of execution by any one of the purported executors requires the registrar to refuse registration of the entire document. The lower appellate court held the registration was null and the deed inadmissible.
Findings of Court:
The registration is valid as regards the vendors who admitted execution. The denial by one vendor does not invalidate the registration for the others.
Issues: Whether the requirement under Section 35 of the Registration Act to refuse registration if any person purports to execute the document denies its execution applies to the entire instrument or only to the specific person denying execution.
Ratio Decidendi: Section 35 must be construed distributively to avoid injustice and maintain consistency with Section 23, which allows for partial registration. The act of registration is a procedural requirement for admissibility; it does not preclude the court from examining the merits of the execution. Furthermore, Section 85 protects the registration from being invalidated by a mere defect in the registering officer's procedure if acted upon in good faith.
Result: Decree of the High Court reversed; decree of the lower court affirmed.
Legal Category Hierarchy
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practice and procedure
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registration of documents
- validity of registration
- partial registration
- evidentiary value of registration
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registration of documents
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property law
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transfer of property
- sale deeds
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transfer of property
Judgement
APPEAL from a decree of the High Court (March 16, 1875), reversing a decree of the Judge of Bareilly (August 4, 1874), which confirmed that of the Subordinate Judge of Bareilly (March 7, 1874).
The facts of the case are stated in the judgment of their Lordships.
The suit was instituted by Shere Mohammed and continued by his sons, the Appellants, after his death against the three vendors, Mobaruk Jan and her sons, and also the Respondents, who were subsequent purchasers of the same property, for completion of the Plaintiffs sale-deed, and recovery of possession of the whole interest of the three vendors. Mobaruk Jan and the Respondents appeared and denied the Plaintiffs right to recover under the registration law, and on other grounds. The subordinate Judge decreed in favour of the Plaintiffs for completion of their deed as l against the male vendors who had not appeared. The Judge dismissed the appeal, but the High. Court held that the Plaintiffs deed had not been registered in accordance with the Indian Registration Act of 1871, and was, therefore, inadmissible in evidence. It accordingly dismissed the suit.
Cowie, Q.C., and Graham, for the Appellants, contended that the sale-deed to Shere Mohammed having been admitted by the sons of Mobaruk Jan, and the same having been registered, it ought to have been held that the deed passed the title so far as regarded the shares of the sons as against all subsequent purchasers. Even if the sub-registrar had acted wrongly in registering, no irregularity in his procedure ought to deprive Shere Mohammed of his title as regards the shares of the sons. They referred to sects. 17, 23, 34, 35, 37, 38, 48, 49, and 71 of Act VIIL of 1871; also to Futteh Chand Sahoo
v. Leelumber Singh Doss ((1) 14 Moores Ind. Ap. Ca. 129.), which was decided under Act XX. of 1866, ss. 17 and 49, corresponding with the same section of Act VIII. of 1871 ; Sah Mukhun Lall Panday v. Sah Koondun Lall ((2) Law Rep. 2 Lid. Ap. 210; 24 Suth. W. R. 75.), in which sect. 88 of the Act there referred to corresponds with sect. 85 of the present Act. The effect of it is that a registration is not rendered null and void by reason of any defect of procedure on the part of the registering officer.
Doyne, for the Respondents, contended that the sale-deed of the Appellants was not registered in accordance with the provisions of sect. 35 of Act VIIL of 1871, and, therefore, under sect. 49, did not affect any of the properties comprised therein, and was not receivable in evidence. The policy of the Act was to check forgery and fraud. Any person who intends to rely on a conveyance must go before a registrar and have the issue tried whether the deed was really executed or not. He referred to sects. 17, 23, 32, 35, 37, 49, 58, and 60 of Act VIII. of 1871, and submitted that under none of the provisions of the Act does an instrument of sale required to be registered, and in fact duly registered, operate to divest, on registration, an estate which has previous to such registration passed to third parties, such as the Respondents in this case, under another instrument of sale duly executed and registered previous to the registration of the first instrument. The Respondents moreover were bond fide purchasers, without notice of the Appellants claim. [Sir James Colvile—You did not take that defence in the Courts below,] Irrespective of registration, the Appellants, who had not paid the consideration for the purchase, or obtained possession, had at most a right to recover damages from their vendors for a breach of contract, and acquired no vested estate as against subsequent purchasers bona fide and for consideration.
Cowie, Q.C., replied.
The judgment of their Lordships was delivered by
SIR MONTAGUE E. SMITH—
This is a suit brought by the Appellants, the sons and heirs of Shere Mahammed, the vendee under a deed of sale which on the face of it purports to have been made by three persons, Mobaruk Jan, and her two sons, Hyat Mohammed
