In the second place, the expression ' proper party' means the party who may be interested in the result of the suit and who may have a right to seek the assistance of the Court in coming to a decision on the point in issue.
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Calcutta High Court
Baikuntha Kumar Shil vs Sarat Chandra Nath And Ors. on 23 February, 1925
1. This Rule is directed against) an order of the Munsif, Comilla, adding the opposite party as defendants in a suit brought by the petitioner under Section 77 of the Indian Registration Act. The petitioner's case is that one Jaladhar San executed a kobala in his favour which the petitioner presented for registration before the Sub-Registrar. Execution was denied by Jaladhar and registration was refused by the Sub-Registrar as well as by the District Registrar on appeal and the petitioner consequently brought the present suit under Section 77 of the Registration Act for the purpose of having the document registered by the civil Court. The opposite party applied to the Munsif to be added as defendants on the ground that they had previously purchased the property purporting to be conveyed by the kobala. The learned Munsif admits that the only real issues in the suit are first: whether defendant has executed the deed and secondly, whether the document is a genuine one. But as he is of opinion that the opposite party should be added as defendants in order to enable the Court to completely and effectively adjudicate upon and settle all the questions involved in the suit, he allowed the application of the opposite party to be added as defendants. The learned Munsif does not explain, what he means by 'all the questions involved in the suit.' In a suit under Section 77 of the Registration Act the only question is whether or not the document purported to have been executed by a certain person is executed by that person. When a document is presented for registration and the execution of it is denied, the Sub-Registrar refuses to register it under Section 71. An application is thereupon made to the Registrar against the order refusing to register the document under Section 73 by any person claiming title under the document. Under Section 74 of the Registration Act the only issue, which the Registrar is called upon to decide is whether the document) has been executed. If the Registrar is of opinion, that the document has not been executed by the person purported to have executed it, ha shall refuse registration under Section 76. Section 77 provides that " where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person claiming under such document may .... institute in the civil Court... a suit for a decree directing the document be registered in such office, if it be duly presented for registration." Reading these sections together it is clear that the only person, who can present a document for registration or institute a suit is the person claiming under the document, and the only person who is entitled to deny the execution is the person who is purported to be the executant of it. The scope of Section 77 of the Registration Act is limited only to the enquiry as to whether the document has been executed by the person alleged to have executed it. In the case of Dwijendra Narain Roy v. Jogish Chandra Dey it was observed at page 47 "it may be conceded that in a suit instituted under Section 77, the Court is concerned not with the validity but with the genuineness of the document sought to be registered, i.e., whether the document has been executed by the person by whom it is alleged to have been executed; the question of its validity must be determined in a suit) properly framed for the purpose." The case cited in the above case shows that even a defence as to the executing power of the alleged executant or the document being one void for want of consideration; fraud or undue influence is foreign to a suit under Section 77. The learned Vakil for the opposite party argues that his clients want to be parties to the suit in order to show that, as a master of fact the defendant never executed the document. In our judgment he 'cannot be allowed to do so. The only person who is entitled to deny execution is the person, who is alleged to have executed the document.
2. It is next argued that the opposite party are proper parties because they are interested in the result of the suit. In the first place, they are not the persons interested in the result which only means if the suit is decided in favour of the plaintiff, that the document is executed by Jaladhar Sen. It would not necessarily show that Jaladhar had a transfer-able interest in the property. In the second place, the expression ' proper party' means the party who may be interested in the remit of the suit and who may have a right to seek the assistance of the Court in coming to a decision on the point in issue. In the present case, if the opposite party is added as defendants and Jaladhar Sen comes into Court and admits execution of the document, the opposite party will have nothing to say against in. We do not think that they are persons who ought properly to be joined as defendants in the suit in order to convert a simple suit under Section 77 of the Registration Act into a title suit, which may involve intricate questions.
3. The Rule is made absolute and the order of the lower Court set aside. The petitioner is entitled to his costs of this Rule. We assess the hearing-fee at two gold mohurs.
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