ALLAHABAD HIGH COURT
Pankaj Mithal, J.
Rama Pati Tiwari — Appellant
versus
District Registrar, Allahabad & Ors. — Respondents
Second Appeal No.1421 of 2007
Decided : 23-01-2009.

IMPORTANT POINT
Where the document sought to registered is not required to be compulsorily registerable the party so presenting the same has no right to maintain civil suit for direction to authority to register the same.

Headnote:(A) Registration Act, 1908, Section 77 - Presented the ‘Will’ dated 11.03.1979 of Smt.Rani Lalli for registration after death of testator - Registration refused – Institution of Original Suit under section 77 of the Registration Act - Maintainability of the suit – Objection as to - Not raised in the Courts below - Is a pure question of law - Can certainly be raised and considered in second appeal before the High Court

        (B) Civil Procedure Code, 1908, Section 100 – Second appeal – Appeal court – Power as to - Maintainability of the suit – Objection as to - Not raised in the Courts below - Is a pure question of law - Can certainly be raised and considered in second appeal before the High Court

        (C) Registration Act, 1908, Section 17, Section 18 and Section 77 - Registration of “Wills”- Optional in nature - No obligation upon the registering authority to register - Person presenting a ‘Will’ for registration - No legally enforceable right to get a ‘Will’ registered - Provisions of section 77 of the Act enabling a party presenting a document for registration to maintain a suit in the event its registration is refused - Not applicable in case of refusal to register will - Suit for a decree directing for the registration of documents - Confined only to documents which are set out for compulsory registration under section 17 of the Act and not to any other document covered by section 18 of the Act – Suit not maintainable.

        (D) Civil Procedure Code, 1908, Section 100 – Second appeal – Appeal court – Power as to - Decree having been passed in a civil suit - Passed in ignorance of settled law – Appeal there of – Competent - No reason to deny its correction in appeal or second appeal.

       Facts of the case :

        The suit/appeal owes its origin to a dispute relating to ownership of a plot of land 22-B, Church Lane, Allahabad on which a huge house was constructed by one Tribhuwan Sukh Tiwari who was an Assistant Commissioner of Excise, U.P. On his death the said property had devolved upon his wife Smt.Ram Lalli who died on 21.03.1979. They had no issue. The two nephews of late Tribhuwan Sukh Tiwari set up two contradictory unregistered ‘Wills’ of Smt. Ram Lalli. One dated 20.02.1979 by Rama Pati and the other dated 11.03.1979 by Girja Prasad, both sons of Param Sukh one of the elder brothers of late Tribhuwan Sukh Tiwri. Girja Prasad presented the ‘Will’ dated 11.03.1979 of Smt.Rani Lalli which is said to be in his favour for registration before the registering authority on 25.04.1979. The registration of the said ‘Will’ was refused to him by an order dated 10.11.1980 against which he preferred an appeal under section 72 of the Registration Act, 1908. It was dismissed on 27.03.1982. Therefore, he instituted Original Suit No.289 of 1982 on 21.04.1982 under section 77 of the Registration Act, 1908 for a decree directing the registering authority to register the ‘Will’. In the suit the other nephew Rama Pati was impleaded as one of the defendants as he had set up a different ‘Will’ dated 20.07.1979. The suit after due contest was dismissed vide judgment and order dated 24.09.1994 passed by the Court of first instance. However, in appeal the judgment, order and decree of the Court of first instance has been set aside and the suit has been decreed vide judgment and order dated 17.10.2007 with the direction to the registering authority to register the ‘Will’. The present second appeal as such has been preferred by one of the defendants i.e., Rama Pati assailing the judgment, order and decree passed by the Lower Appellate Court.

       Finding of the court :

        Since the registration of “Wills” is optional in nature and there is no obligation upon the registering authority to register “Wills”, it does not appeal to reason to compel the registering authority to register the same when the act does not provide for its mandatory registration. The person presenting a ‘Will’ for registration as such has no legally enforceable right to get a ‘Will’ registered. Therefore, logically the provisions of section 77 of the Act enabling a party presenting a document for registration to maintain a suit in the event its registration is refused by the registering authority and the District Registrar, would not be applicable where the document presented for registration is a ‘Will’. Therefore, by a necessary implication section 77 of the Act providing for a suit for a decree directing for the registration of documents is confined only to documents which are set out for compulsory registration under section 17 of the Act and not to any other document covered by section 18 of the Act.