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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S. SIVAGNANAM, V. BHAVANI SUBBAROYAN, JJ.
S. Sarvothaman – Appellant
Versus
The Sub-Registrar, Pondicherry – Respondent
Writ Appeal No. 336 of 2019
Decided On : 07-02-2019
Registration Act, 1908 - Sections 23,25 and 71 - Quashing of order - Challenge - Whether respondent could have refused registration of said decree passed on ground that it was presented beyond time limit prescribed under Section 23 of Act - Since legal question is no longer res integra and respondent having not taken note of legal issue this Court is of view that said writ petition is maintainable and appellant need not be driven to avail alternate remedy available under Act - Accordingly preliminary objection raised by Additional Government Pleader stands rejected - Writ petitioner never got any right or interest in compromise decree in any of immovable properties - This argument made on behalf of respondent by Government Pleader was recorded by Single Judge in paragraph of impugned order in said writ petition - Additional Government Pleader would submit that said contention is factually incorrect and that under said compromise decree appellant gets a right over immovable properties - Whether at all law of limitation as prescribed under Section 23 of Act would apply to a court decree - Whether there was any delay in presentation of decree and in other words Whether court decree was presented beyond period of four months - Whether compromise decree passed in file of Principal District Court Puducherry is not binding on plaintiff’s share - Held, In interpreting any procedural law when more than one interpretation is possible one which curtails procedure without eluding justice is to be adopted that procedural law is always subservient to and is in aid of justice and that any interpretation which eludes or frustrates recipient of justice is not to be followed - Whether Section 77 of Indian Registration Act bars a suit on basis of an unregistered Will when Sub-Registrar refused to admit it for registration - It was that Section 17 of Act enumerates documents which require registration and effect of failure to observe it is stated in Section 47 and that under Section 18(c) of Act registration of a Will is purely optional and that being so Full Bench expressed that they did not think that consequences contemplated by Section 49 would flow from not having recourse to Section 77 of Act - It was further that a party cannot be compelled to get document registered if such an obligation is not cast by provisions of Registration Act that necessity for registration arises only in regard to document set out in Section 17 that no penalty can attach to omission to get a document registered when it is excepted by Section 17 and that therefore Full Bench felt that Section 77 can have relation only to instrument falling within ambit of Section 17 - Time limit stipulated under Section 23 of Act will have no application to a court decree - For above reasons Court are of considered view that reasons assigned by respondent for refusing to register decree vide order is unsustainable in law - Appeal Allowed
T.S. SIVAGNANAM, J.
1. We have elaborately heard Mr. K. Selvaraj, learned counsel for the appellant and Mr. D. Ravichander, Additional Government Pleader (Puducherry) accepting notice for the respondent.
2. This appeal is directed against the order passed in W.P. No. 18593 of 2018 dated 23.1.2019.
3. The said writ petition was filed by the appellant praying for the issuance of a Writ of Certiorarified Mandamus to quash the order passed by the respondent dated 05.7.2018, by which, the respondent refused to register the decree dated 29.4.1970 passed in O.S. No. 6 of 1968 on the file of the Principal District Court, Puducherry. The reasons assigned in the impugned order in the said writ petition were that the date of decree is 29.4.1970, that the said decree was presented belatedly after a period of 48 years and that this is beyond the time limit prescribed under Sections 23 and 25 of the Registration Act, 1908 (for brevity, the Act). Accordingly, the order of refusal to register the said decree was passed under Section 71 of the Act.
4. Mr. D. Ravichander, learned Additional Government Pleader (Puducherry) has raised a preliminary objection stating that the said writ petition itself is not maintainable, since, under the provisions of the Act, the appellant has got an effective alternate remedy.
5. Countering the said submission, Mr. K. Selvaraj, learned counsel for the appellant would submit that the said order passed by the respondent dated 05.7.2018 suffers from lack of jurisdiction, that it is arbitrary, unreasonable and against the legal position as settled by this Court in several decisions and that therefore, the appellant is entitled to approach the learned Single Judge seeking to quash the said order dated 05.7.2018.
6. The legal question involved in the instant case is as to whether the respondent could have refused registration of the said decree passed in O.S. No. 6 of 1968 dated 29.4.1970 on the ground that it was presented beyond the time limit prescribed under Section 23 of the Act. Since the legal question is no longer res integra and the respondent having not taken note of the legal issue, this Court is of the view that said the writ petition is maintainable and the appellant need not be driven to avail the alternate remedy available under the Act. Accordingly, the preliminary objection raised by the learned Additional Government Pleader stands rejected.
7. Next, we proceed to examine as to whether the said writ petition should have been rejected on the ground that the said decree dated 29.4.1970 was presented beyond the time limit prescribed under Section 23 of the Act and whether the respondent had no power to condone the delay beyond the period of eight months (i.e. 4 months + 4 months).
8. Before the learned Single Judge, an argument was advanced by the respondent stating that the appellant – writ petitioner never got any right or interest in the compromise decree in any of the immovable properties. This argument made on behalf of the respondent by the learned Government Pleader (Puducherry) was recorded by the learned Single Judge in paragraph 4 of the impugned order in the said writ petition. The learned Additional Government Pleader would submit that the said contention is factually incorrect and that under the said compromise decree dated 29.4.1970, the appellant gets a right over the immovable properties.
9. The learned Single Judge denied the relief as sought for in the said writ petition on the ground that admittedly, the said decree was passed on 29.4.1970, that the challenge to the same was in the year 1980 and that when C.S. No. 149 of 1980 was filed, there was no explanation offered for not registering the document within the period of eight months as contemplated under the Statute. It was also observed that as against the decree passed in C.S. No. 149 of 1980, an appeal in O.S.A. No. 299 of 1996 was filed, in which, the compromise decree passed by the learned Single Judge was upheld vide judgment
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