Thursday 1 March 2012

Proper presentation is matter of fact

Registration of document follow a bad presentation is illegal. There cannot be any presumption of document being presented by the proper person before sub-registrar. On the contrary, it is matter of fact which has to be proved
Allahabad High Court
Khalil-Ud-Din Ahmed vs Musammat Banni Bibi on 5 November, 1912
Equivalent citations: 17 Ind Cas 274

Bench: H Richards, G Knox, Banerji, Tudball, Chamier

1. This appeal arises out of a suit brought on foot of a mortgage dated the 11th of July 1893. Various defences were pleaded, and, amongst other things execution and consideration were denied. The Court below has found nearly all the issues in favour of the plaintiff. It has found that the bond was duly executed by Musammat Banni Bibi, the mortgagor, and that the consideration was duly paid to her. The Court, however, somewhat reluctantly found that the bond had not been duly registered. This question of registration was the question which came before a Bench of this Court. It appears that on the day on which the mortgage purported to have been registered, the husband of Musammat Banni Bibi made an application to the Sub-Registrar of Bareilly Tahsil. The actual application is not before us but there is endorsed on the bond the following note: "This document was presented by Muiz-ud-din Ahmad on Wednesday, the 12th July 1893, between 8 and 9 A.M. in the office of the Sub-Registrar of Parganah and District Bareilly. He stated that Musammat Banni Bibi, the executant of the document, was a parda-nashin lady. The document may be attested from the Musammat at her residence by means of a Commission. As the Musammat above-named resides within the local limits of the Municipality, this document may be sent to the Departmental Sub-Registrar of Bareilly for attestation. (Sd ) Wasi-Uddin, Sub-Registrar (Sd.) Muiz-ud-din Ahmad, the person presenting this document, in autograph".

2. It next appears that the Departmental Sub-Registrar of Bareilly went the same day to the lady's house, The lady was duly identified and she admitted execution of the deed. The money was paid over and the Departmental Sub-Registrar sent the document to the Sub-Registrar of Tahsil Bareilly who registered the same. It further appears from the endorsement upon the bond that the person who "presented" the document for registration to the Sub-Registrar of Tahsil Bareilly was the husband. It is clear that the Sub-Registrar understood the husband to be the person who was "presenting" the document to him for registration. In the Court below and in this Court, it was admitted that when Muiz-ud-din Ahmad, the husband, "presented" the document for registration, he was not authorised in the manner prescribed by Sections 32 and 33 of the Registration Act of 1877, which was then in force. It was, however, strongly contended that what subsequently happened at the residence of the lady amounted to a good "presentation" within the meaning of the Act, and that the document ought, therefore, to be considered as having been duly registered.
3. At the first hearing of the appeal in this Court, it was never pointed out that the gentleman who attended at the residence of the lady was not the same Sub-Registrar who had, in the first place, received the document from her husband and the question which the Court considered it had before it was whether or not the lady having admitted execution and communicated to an officer competent to accept and register the document her desire to have it registered, the document was not sufficiently "presented" within the meaning of the Act. The Bench before whom the appeal came considered that it was desirable that the question should be decided by a larger Bench and the case was accordingly referred to the Bench as at present constituted.
4. The arguments in the first instance entirely proceeded upon the basis that the Departmental Sub-Registrar was entitled to receive the document for registration, if in fact it had been duly "presented" to him. It has now, at the very close of the arguments, been pointed out that the Departmental Sub-Registrar had no such authority, and the question which it was intended to have decided by this Bench does not really arise. It seems to me that we have now only to decide whether or not the "presentation" which was made by the husband can, from any point of view, be regarded as a good "presentation"; and, secondly, whether the fact that the Registrar received the deed for registration from an unauthorised person is merely a defect of procedure which might be disregarded under the provisions of Section 87. It seems to me that the "presentation" by Muiz-ud-din Ahmad was a complete nullity. He had no authority whatever to present the document for registration, and, in my opinion, this question is completely covered by the ruling of their Lordships of the Privy Council in the case of Mujib-un-nissa v. Abdur Rahim 23 A. 233 : 28 I.A. 15 (P.C.). I am also of opinion that, under no circumstances, can what subsequently happened at the house be deemed a good presentation because the gentleman who attended at the house had no authority to receive the document for registration. His authority was confined to ascertaining that the document had been duly executed, that is to say, to examine the executant under the provisions of Section 38. I would dismiss the appeal.
George Knox, J.
5. I concur and have nothing further to add.
Banerji, J.
6. I also agree in the conclusion at which the learned Chief Justice has arrived. In the case decided by the Privy Council, namely, the case of Mujib-un-nissa v. Ahdur Rahim 23 A. 233; 28 I.A. 15 (P.C.) their Lordships observed: "It is clear that the power and jurisdiction of the Registrar only come into play when he is invoked by some person having a direct relation to the deed. It is for those persons to consider whether they will or will not give to the deed the efficacy conferred by registration. The Registrar could not be held to exercise the jurisdiction conferred on him if, hearing of the execution of a deed he got possession of it and registered it; and the same objection applies to his proceeding at the instigation of a third party who might be a busy body." In the present case, the document was not presented for registration by a person having a direct relation to the deed, and the subsequent admission of execution by the executant was before an officer who had no jurisdiction to accept the document for registration. Therefore, there was no presentation to a Sub-Registrar having jurisdiction, and the registration of the document must, according to the ruling of the Privy Council, be held to be invalid. I also would dismiss the appeal.
Tudball, J.
7. I fully concur and have nothing farther to add.
Chamier, J.
8. I agree with the order proposed by the learned Chief Justice. It appears to me that there was neither in fact nor in law any "presentation" of this document by any qualified person to any person authorised to receive it for registration.
9. The order of the Court is that the appeal is dismissed but without costs. The objection raised by the respondent as to costs is also dismissed without costs.
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