2007 Supreme(Kar) 288

Karnataka High Court
Judges : N.Kumar
N.M.RAMACHANDRAIAH - Appellant
Versus
STATE OF KARNATAKA - Respondent
W. P. 5168 Of 2005
Decided On : 04/19/2007

Headnote:Specific Relief Act, 1963 - Section 31 - Challenge as to execution of document - Order of District Registrar - Should be challenged by an aggrieved party in a suit filed under - Findings recorded by District Registrar would not operate as re judicata - Invocation of writ jurisdiction is not the remedy.

       Cases Referred: AIR 1996 Mysore 310; AIR 1950 Madras 289; AIR 1950 Patna 370; ILR Volume VII Calcutta ;AIR 1985 Orissa 96 ; AIR 1972 Assam and Nagaland 15.

       Code of Civil Procedure, 1908 - Section 11 - Res judicata - Proceedings before Registrar under Section 74 of Registration Act - Registrar - Not a civil court - Proceedings cannot be treated as one before a competent court - Findings recorded by Registrar - Would not operate as res judicata when validity and execution of the very same document is challenged in a competent civil court. [N. Kumar, J.]: The proceedings before this quasi-judicial authority do not part take the character of trial. The very fact that the said authority has to be conferred power of a Civil Court to summon witnesses and documents shows that it is not a Civil Court. It is a Civil Court only to the extent that the powers of the Civil Court is vested in them. The proceedings of the Registrar to adjudicate whether the document had been duly executed or not were in no sense those of a competent Civil Court. Registrar has no power to enter into a roving enquiry into the probabilities and surrounding circumstances. He is merely to find out whether the document now tendered actually is in the state in which it as executed by the parties to it. The nature of enquiry by him under the provisions of the Registration Act cannot be said to be similar to that of a Court with regard to the genuineness of the document or with regard to the circumstances under which the said document is alleged to have been executed. The entire object of an enquiry is to come to the conclusion as to whether a document has been duly executed. Once it is proved that the executant has signed the document which is produced before him for registration and before executing the said document he was aware of the contents and understanding the contents he has affixed his signature, then if the Registrar records a finding that it is duly executed, the said finding would satisfy the requirement of law and the same cannot be found fault with. The only question which the said authority is competent to go into is the due execution of the document and nothing else. In other words, the said authority cannot go into the question whether the execution of the document is vitiated by fraud, undue influence, mistake, misrepresentation or any other ground which invalidates the said sale deed. It is only the competent Civil Court which can go into all those questions. Therefore, any finding recorded by the District Registrar in a proceeding under Section 74 of the Registration Act would not operate as res judicata when the validity and execution of the very same document is challenged in a competent Civil Court.

       Cases Referred: AIR 1996 Mysore 310; AIR 1950 Madras 289; AIR 1950 Patna 370; ILR Volume VII Calcutta ;AIR 1985 Orissa 96 ; AIR 1972 Assam and Nagaland 15.

       Indian Registration Act, 1908 - Section 74 - Proceedings under - Findings recorded in - Challenge before civil court - If operate as res judicata. See, Code of Civil Procedure, 1908 - Section 11.

       Cases Referred: AIR 1996 Mysore 310; AIR 1950 Madras 289; AIR 1950 Patna 370; ILR Volume VII Calcutta ;AIR 1985 Orissa 96 ; AIR 1972 Assam and Nagaland 15.

       Indian Registration Act, 1908 - Sections 25 and 60(2) - Execution of document - Meaning - It does not mean merely signing, but signing by way of assent to terms of contract embodier therein. [N. Kumar, J.]: Execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put the signature after knowing the contents of document fully. To be executed, a document must be in existence; where there is no document in existence there cannot be execution. Mere proof or admission that a persons signature appears on a document cannot by itself amount to execution of a document. Registration does not dispense with the necessity of proof of execution when the same is denied. Thus, execution of document is not mere signing of it.

       Cases Referred: AIR 1996 Mysore 310; AIR 1950 Madras 289; AIR 1950 Patna 370; ILR Volume VII Calcutta ;AIR 1985 Orissa 96 ; AIR 1972 Assam and Nagaland 15.

       Indian Registration Act, 1908 - Sections 71 and 77 - Refusal to register - Remedy against. [N. Kumar, J.]: If any person by whom the document purports to be executed denies its execution, then the Registering Officer shall refuse to register the document. If the Sub-Registrar refuse to register the document except on the ground that the property to which it relates is not situated within the said District, shall make an order of refusal and record the reasons for such order in his Book N 0.11 and endorsed the words "registration refused" in the document in terms of Sec.71 of the A ct. Thereafter on an application made by any person executing or claiming under the document, shall, without unnecessary delay give him a copy of the reasons so recorded. Thereafter the Registering Officer shall not accept for registration of a document so endorsed unless and until the document is directed to be registered under the provisions of the Act. When once the Sub-Registrar refuses to register the document and has endorsed on the said document the words "registration refused" the aggrieved person, has a right to appeal to the Registrar against the orders of Sub -Registrar refusing registration on ground of denial of execution. The said application shall be filed within 30 days after making the order of refusal. Such application shall be in writing and shall be accompanied by a copy of the reasons recorded u/s.71 of the Act and the application shall be verified by the applicant in the manner required by law for the verification of the application. Thereafter the Registrar shall as soon as and conveniently may hold an enquiry to find out whether the document has been executed and whether the requirement of the law for the time being in force have been complied with, on the part of the applicant or person presenting the document for registration, as the case may be, so as to enable the document for registration. If the Registrar refuses to register the document on the ground that the document has not been duly executed, he shall make an order of refusal and record the reasons for such order in Book No.II. On an application made by any person executing or claiming under the document shall without unnecessary delay give him a copy of the reasons so recorded. The said order is not appealable. However, the aggrieved person has a remedy by way of a suit u/s.77 of the Act. The said suit should be filed within 30 days after making of the order of refusal and in such suit he may pray for a decree directing the document to be registered in such office as if it is duly presented for registration within 30 days after the passing of such decree.

       Cases Referred: AIR 1996 Mysore 310; AIR 1950 Madras 289; AIR 1950 Patna 370; ILR Volume VII Calcutta ;AIR 1985 Orissa 96 ; AIR 1972 Assam and Nagaland 15.

       Legal Remedies - Alternate remedy - Order of District Registrar under Section 74 of Registration - Should be challenged in a suit - Writ petition is not a proper remedy.

       Cases Referred: AIR 1996 Mysore 310; AIR 1950 Madras 289; AIR 1950 Patna 370; ILR Volume VII Calcutta ;AIR 1985 Orissa 96 ; AIR 1972 Assam and Nagaland 15.