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1994 Supreme(Cal) 393
High Court Of Calcutta
Gitesh Ranjan Bhattacharjee
COACH BIHAR DIST.DEED WRITERS ASSN - Appellant
Versus
DISTRICT REGISTRAR OF COACH BIHAR - Respondent
C. O. 2369 (W) Of 1993
Decided On : 12/23/1994
G.R.SAHA, TAPAN KUMAR CHAKRABORTY, TULSHI DAS MAITY
Lawyers' clerks can write out deeds drafted by their employer advocates as part of their professional work, subject to certain conditions.
Headnote:
DEED WRITERS - LAWYERS' CLERKS - REGISTRATION OF DEEDS - WEST BENGAL REGISTRATION (DEED WRITERS) RULES, 1982 - CIVIL RULES AND ORDERS VOL. 1 - INTERPRETATION - SCOPE OF WORK PERMITTED TO LAWYERS' CLERKS IN RELATION TO DEED WRITING AND REGISTRATION - HELD, LAWYERS' CLERKS CAN WRITE OUT DEEDS DRAFTED BY THEIR EMPLOYER ADVOCATES AS PART OF THEIR PROFESSIONAL WORK, SUBJECT TO CERTAIN CONDITIONS.
Fact of the Case:
Writ petition challenging circulars issued by respondents excluding lawyers' clerks from doing any function of deed writer in Registration Offices. Petitioners contended that lawyers' clerks are not entitled to write out any deed and impugned memos authorising or permitting them to do so are bad in law.
Finding of the Court:
The court held that lawyers' clerks can write out deeds drafted by their employer advocates as part of their professional work, subject to certain conditions. The court found that the West Bengal Registration (Deed Writers) Rules, 1982 do not specifically prohibit lawyers' clerks from writing out deeds, and that rule 4 of the Rules permits advocates to engage in the profession of a deed writer without a license. The court also found that rule 7 of the Rules allows non-testamentary documents to be prepared by licensed deed writers, advocates, or the executants of the document, provided that the handwriting is neat and legible. The court further found that rule 18 of the Rules requires that any document drafted by a lawyer shall bear the full name and signature of the lawyer, and that rule 867 of the Civil Rules and Orders Vol. 1 defines 'licensed clerk' as a clerk employed by a pleader or Mukhtear in connection with his legal business and is licensed as such. The court concluded that a licensed clerk of an advocate can assist the advocate in the matter of his professional work by performing ministerial and clerical parts of the work of his employer, including writing out documents required to be prepared by the advocate in connection with his professional work.
Issues: Whether lawyers' clerks are entitled to write out deeds for registration.
Ratio Decidendi: The court held that lawyers' clerks can write out deeds drafted by their employer advocates as part of their professional work, subject to certain conditions. The court found that the relevant rules and regulations do not specifically prohibit lawyers' clerks from writing out deeds, and that such work falls within the scope of their duties as licensed clerks. The court also found that the requirement of good handwriting for deed writers is also a requirement for licensed clerks, and that the requirement of a lawyer's signature on a deed drafted by a lawyer does not preclude the use of a licensed clerk to write out the deed.
Final Decision: The court dismissed the writ petition, holding that the impugned circulars are not illegal or unlawful.
( 1 ) THIS is a writ petition under Article 226 for quashing certain circulars issued by the respondents and for reliefs intended to exclude the lawyers' clerks from doing any function of deed writer in the Registration Offices. The petitioner no. 1 is the Coach Bihar District Deed Writers' Association of which the petitioner no. 2 is the Secretary. The petitioner no. 2 is himself also a licensed deed writer. Under memo no. 5060- (17) dated the 11th May, 1984 which is Annexure A to the writ petition the Inspector General of Registration, West Bengal issued certain clarifications about which the petitioners are aggrieved. The clarifications given by the Inspector General of Registration in the said memo is thus :" (I) A Law Clerk has got no right to act as a deed writer independently of his employer, that is, Advocate or Pleader. (ii) A document drafted by a lawyer may be written out by his licensed clerk in view of the fact that the drafting and preparation of documents for registration being a part of the professional duties of a lawyer, the help and assistance or in other words the service of his licensed clerk in doing so, may be available to him. "the other impugned document is Annexure B to the writ petition which is memo no. 3073 (11)/d. W. dated the 9th December, 1992 issued by the District Registrar, Coach Bihar, clarifying that the lawyers' clerks have been forbidden to write any document independently, but as before there is no bar of writing documents by lawyers' clerks provided such document is certified by the concerned lawyer to the effect that the document has been drafted by him and such certificate is followed by the signature of the lawyer concerned and his registration number. Both these memos have been challenged by the deed writers in this writ petition on the ground that the lawyers' clerks are not entitled to write out any deed and as such the impugned memos authorising or permitting the lawyers' clerks to write out deeds drafted by their lawyers for registration are bad in law and, therefore, liable to be quashed. It is the further contention of the petitioners that the lawyers' clerks cannot do any work of deed writer in the Registration Office.
( 2 ) SECTION 32 of the Indian Registration Act, 1908 provides that except in the cases mentioned therein every document to be registered under the Act, whether such registration is compulsory or optional, shall be presented at the proper registration office, (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such person, or (c) by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in the required manner. Section 36 of the said Act prescribes the procedure for summoning the executor of the deed or witness where appearance of such person is desired. Section 52 inter alia requires the signature of the person presenting a document for the registration to be endorsed on every such document at the time of presenting the deed, and it also requires that a receipt for such document shall be given by the Registrating Officer to the person presenting the same. Section 61 inter alia requires that on completion of the registration of the document the same shall be returned to the person who presented the same for the registration or to such other person, if any, as he bas nominated in writing in that behalf on the receipt mentioned in section 52. Thus in view of section 61 anyone can be nominated in writing by the person presenting the document for registration on the receipt mentioned in section 52 for taking delivery of the document from the Registration Office. Obviously, it is not necessary that if the person presenting the document does not personally come to take back the document on completion of registration, he shall have to nominate in writing
