Smt. Darpi & Others vs The A.D.M., Gorakhpur & Others
2011 Latest Caselaw 1316 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(AFR)
 
Court No. - 28
 
Case :- WRIT - C No. - 31989 of 1996
 
Petitioner :- Smt. Darpi & Others
 
Respondent :- The A.D.M., Gorakhpur & Others
 
Petitioner Counsel :- S.S. Tripathi
 
Respondent Counsel :- C.S.C.,S.N. Tripathi,Sankatha Rai,Vijai Kumar Rai,Vinod Kumar Rai
 
Hon'ble Sudhir Agarwal,J.

1. Petitioners Smt. Darpi, Chandra Bhan, Girijesh and Om Prakash have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari quashing the order dated 09.09.1996 (Annexure No.5 to the writ petition) passed by respondent no.1, Additional District Magistrate (Finance and Revenue), Gorakhpur (hereinafter referred to as 'ADM') holding execution of sale-deed in question by Sri Sadhoo (who died on 03.05.1993) valid and thus directing Sub-Registrar, Bansgaon to register the same by complying with Sections 56 to 61 of The Registration Act, 1908 (hereinafter referred to as the 'Act').

2. The case, set-up in the writ petition is, that the sale-deed was presented in the office of Sub-Registrar on 03.05.1993 by respondent no.3, purchaser of the property described in the sale-deed. The property belongs to one Sadhoo son of Mata Palat. While the office of Sub-Registrar was in the midst of completing formalities, Sadhoo felt uneasiness and left the office of Sub-Registrar. He died in evening on the same day. The Sub-Registrar thereafter declined to register the document. Respondent no.3 moved an application under Section 35 of the Act before A.D.M. On 11.07.1994, praying that the Sub-Registrar be directed to register the document. This application was opposed and contested by petitioners by filing objections on 19.08.1994. The petitioners disputed execution of sale-deed before Sub-Registrar. Appearance of late Sadhoo on 03.05.1993 before Sub-Registrar was also disputed. The Sub-Registrar submitted a report dated 11.07.1994 stating that execution had not been made in accordance with provisions of the Act and therefore, the document was rightly returned. He also said that the alleged execution is dated 03.05.1993, and more than eight months have passed, hence the document is not registrable being barred by limitation under Sections 23 & 25 of the Registration Act. The respondent no.1 thereafter has passed the impugned order.

3. The respondent no.1 while allowing application of respondent no.3, has observed that late Sadhoo got the sale-deed drafted from Sri Jitendra Bahadur Shahi, Advocate and placed his thumb impression thereon which was verified by two witnesses namely Surendra Pratap Singh son of Ram Murat Singh and Ram Vilas son of Baijnath Singh in the office of Sub-Registrar who also affixed his seal at the back of the first page of the document and completed all the columns. The said seal also contains signature of Sub-Registrar which he subsequently scored out. The A.D.M. also held that Ram Das was the real brother of Sadhoo and Dhurandhar-respondent no.3 was his son. The respondent no.3 had accepted execution of sale-deed, therefore, the Sub-Registrar ought to have registered the document in question.

4. In order to find out, what was the position of document and what formalities were completed, this Court vide order dated 05.02.2004 required respondents no.1 and 2 to produce the alleged sale deed for perusal. The document was later on actually perused by the Court on 30.04.2004 and following observations were recorded:

"Sri S.P. Shukla, D.I.G. Registration, Gorakhpur and Sri Brij Lal Singh, Prabhari Sub Registrar are present before this Court.

After looking into the original sale deed, which has been produced before this Court, both Sri S.P. Shukla, D.I.G. Registration, Gorakhpur and Sri Brij Lal Singh, Prabhari Sub Registrar have stated that it is not necessary that the attesting witness should sign all the pages of the sale deed. It is further stated that since attesting witness has signed on the first page of sale deed, it is sufficient. Attesting witness is not required to attest the signature of executant on the pages.

Sri Brij Lal Singh has not been able to explain as to what is the figures 14/1994 as mentioned on the left hand top corner of the first page of sale deed suggest.

It has further been specifically stated that Prapatra, which is necessary to be submitted with the sale deed when presented for the registration, bears absolutely no signature nor any alteration has been done. It is stated that by mistake the sale deed was accepted for registration without ensuring as to whether proforma was complete or not.

Heard Sri K.P. Tiwari on behalf of the petitioner and Sri S.N. Tripathi on behalf of the respondent no. 3 and Standing Counsel on behalf of the respondent nos. 1 and 2.

This writ petition has been filed by Smt. Darpi daughter of late Sri Sadhoo against the order passed by the Additional District Magistrate (F & R) Gorakhpur in Case No. 7/94/96 dated 9.9.1996. By means of the said order dated 9.9.1996 the Additional District Magistrate (F & R) Gorakhpur, at the relevant time, has directed that the sale deed, alleged to have been executed by Sri Sadhoo, presented for registration on 3.5.1993 before the Sub Registrar, Gorakhpur, be registered.

It is not in dispute that Sri Sadhoo had expired on the same date i.e. 3rd May, 1993.

This Court on 5th February, 2004 called for the original record pertaining to the sale deed as presented for registration as also the report of the Sub Registrar submitted in respect of registration of the said sale deed dated 11.7.1994. The original record has been produced before me today.

From the original sale deed, so produced, it is apparently clear that the proforma required to be submitted for registration of a document with the Sub Registrar, as has been enclosed, bears no signatures nor the date of presentation of the said proforma has been mentioned. It is completely blank so far as the verification part is concerned. Similarly, the sale deed appears to bear thumb impression of Sadhoo in all pages. However, the identification of the thumb impression of Sadhoo has been done by one Sri Surendra Pratap Singh and one Sri Rambelas only on first page of the sale deed and in no other page of the alleged sale deed.

It is further apparent from the record that absolutely no registration fee has been deposited in the Government Treasury with regards to registration of the said document. On the back of the first page of the sale deed, signatures of Sub Registrar have been appended. However, subsequently the said signatures have been scribbled over without assigning any reason for the same.

In the report submitted by the Sub Registrar dated 11.7.1994, it was specifically reported that the sale deed is not fit for registration for want of reasons which have been mentioned in the report as well as noticed hereinabove.

The Additional District Magistrate (F&R), Gorakhpur has, however, passed impugned order directing that the said sale deed be registered under Section 56 of the Indian Registration Act. The reasons borne out from the aforesaid order is that Sri Dhurandhar son of Sri Ram Das, in whose favour alleged sale deed is alleged to have been executed, had admitted the execution of the sale deed.

In the circumstances stated above, before any decision can be taken with regards to the illegality or otherwise of the order passed by the Additional District Magistrate (F&R), it is necessary that an enquiry be conducted by the I.G. Registration U.P. with regards to the said sale deed being fit for registration or not and as to whether in absence of any money (registration fee) having been deposited the Sub Registrar was justified in making the endorsement at the back of the page and in signing the same (subsequently scribbled). The I.G. Registration shall also submit his report with regards to requirement of the signatures of the attesting witness on every page of the sale deed.

The I.G. Registration shall conduct a detailed enquiry specifically with regards to role played by the Additional District Magistrate (F&R), Gorakhpur at the relevant time in passing the order dated 9.9.1996.

The I.G. Registration is directed to submit his report in respect of the aforesaid matter within two months from the date a certified copy of this order is forwarded to him by the Registrar of this Court. The report must reach this Court on or before the date fixed in the matter i.e. 12th July, 2004.

List on 12th July, 2004 as part heard.

The original record produced today may be forwarded to the I.G. Registration by the Registrar General of this court along with the copy of the order passed today for necessary action within one week.

The copy of this order may also be supplied to the Standing Counsel so as to communicate the same to I.G. Registration for necessary action.

The original record may be transmitted to Registrar General to be forward to the I.G. Registration for the purposes of submitting report referred to above.

Sri S.P. Shukla, D.I.G. Registration, Gorakhpur and Sri Brij Lal Singh, Prabhari Sub Registrar, present in person, are not required to be present on future dates."

5. In compliance of the aforesaid order Sri Balvinder Kumar, I.G. Registration, U.P., Allahabad submitted report on 18.8.2004. He agreed with the order of respondent no.1 giving following reasons:

(i) The document was duly executed and two attesting witnesses had signed the sale deed. Hence it was fit for presentation for registration.

(ii) The Sub-Registrar was wrong in scribbling his endorsement on the document and instead document should have been presented by the purchaser as provided under Section 32 of Registration Act in absence of the seller due to sudden demise.

(iii) Non-payment of registration fees is immaterial since it can be realized as arrears of land revenue.

(iv) There is no requirement under the Registration Act that the attesting witnesses should sign each and every page of the sale deed.

(v) The A.D.M. has passed a correct order. The question of fraud, however, can be adjudicated by a competent civil court.

6. In arriving at this conclusion, the I.G. Registration relied on the report submitted by one Shiv Prasad Shukla, Deputy Inspector General, Registration, Gorakhpur wherein he also justified the order passed by respondent no.1.

7. This matter was argued before the Court on 08.03.2011 when the learned counsel appearing for respondent no.3 sought to dispute certain observations made by the Court in its order dated 30.04.2004. To put the record straight, I directed learned Standing Counsel representing respondents no. 1 & 2 to produce original record again for perusal of this Court on 14.03.2011. A strange stand was taken by respondents no. 1 & 2 on 14.03.2011 which was noticed by this Court in its order dated 14.3.2011. The Court directed I.G. Registration to appear in person. The order dated 14.03.2011 reads as under:-

"By order dated 8th March, 2011, Sub-Registrar concerned was directed to produce record pertaining to registration of the sale deed in question.

Sri Brij Lal Singh, Incharge Sub Registrar, District Gorakhpur is present but has not brought the concerned record stating that the same is not traceable. He also admits that no report in this regard has been lodged either with the higher authorities or with the police.

In the circumstances, I direct I.G. (Registration), Lucknow himself to appear before this Court along with concerned Registrar on the next date to show cause as to why action be not taken treating that such loss of record is deliberate on the part of the said authorities since this Court had made certain observations in respect of the aforesaid record adverse to the authorities concerned.

List this matter on 30th March, 2011 on which date both the said officers shall appear before this Court to explain the above. This order has been passed in the presence of Sri Brij Lal Singh.

Learned Standing Counsel shall be provided copy of this order by the office within twenty four hours to convey to I.G. (Registration), Lucknow for information and compliance."

8. The I.G. Registration filed his affidavit stating that original sale deed is not traceable in the office of D.I.G. Registration, Gorakhpur. He stated that pursuant to Court's order dated 30.04.2004, file was received back by Shiv Prasad Shukla, D.I.G. Registration, Gorakhpur. He found that original sale deed was not there. He made an endorsement to this effect on 22.06.2004:

 
	^^ek0 mPp U;k;ky; ds vkns'k dh izfr ,oa ftyk Lrj dh okn la0 [email protected]@96 laca/kh i=koyh izkIr gqbZ gSA lEcfU/kr ewy cSukek dh izfr izkIr ugha gqbZ gSA	
 
						g0 f'ko izlkn 'kqDyk 					         fnukad 22-6-04** 
 
9.	Relying on the above endorsement, I.G. Registration took a categorical stand in his affidavit dated 29.3.2011 that the document was lost. Taking the matter seriously, this Court passed a detailed order on 30.03.2011 as under:-
 

"Sri Amit Kumar Ghosh, Inspector General (Registration), Uttar Pradesh, Allahabad is present pursuant to this Court's order dated 14th March, 2011 and has also filed his affidavit, a perusal whereof shows that a letter sent by the Additional Inspector General (Registration), Allahabad on 19th June, 2004 directing Deputy Inspector General (Registration) Gorakhpur to conduct enquiry and submit report pursuant to this Court's order dated 30th April, 2004 and submit report. Thereupon the then Deputy Inspector General (Registration), Gorakhpur on 22nd June, 2004 made an endorsement to the following effect:

 
	^^ek0 mPp U;k;ky; ds vkns'k dh izfr ,oa ftyk Lrj dh okn la0 [email protected]@96 laca/kh i=koyh izkIr gqbZ gSA lEcfU/kr ewy cSukek dh izfr izkIr ugha gqbZ gSA		
 
						g0 f'ko izlkn 'kqDyk 					      fnukad 22-6-04"
 

However, it is evident from the record said endorsement was not communicated to anyone either any officer in the Registration Department or to this Court and endorsement made kept in the file of DIG (Registration) Gorakhpur. Now, it is only when the order dated 14th March, 2011 was passed by this Court, some correspondence has been made by Addl. Inspector Genral (Registration) U.P. Allahabad and three letters of same date i.e. 22nd March, 2011 have been placed on record along with this affidavit.

This Court is satisfied that the respondents are guilty of serious lapses with regard to the non traceability of the relevant record which has not been produced before this Court despite orders dated 8th March, 2011 and 14th March, 2011. This is also evident that they have also not taken action against anyone which prima facie shows collusion of all the responsible higher authorities in this matter. This Court intend to take serious view in the matter directing for registration of a criminal case against all erring responsible persons and investigation by an independent investigating agency, if necessary, by Central Beroue of Investigation. However, learned Chief Standing Counsel vehemently persuaded this Court by stating that if some short time is allowed to the respondents, they shall take remedial measures in the matter to find out the guilty persons in the matter.

Considering all the facts and circumstances, I defer this matter for three weeks, within which period respondents/ competent authority shall take appropriate steps as they find suitable and shall inform the Court accordingly.

In case no effective steps are taken by the next date, besides Inspector General (Registration) U.P. Allahabad, the Principal Secretary, Finance shall also appear before this Court.

List this matter on 25th April, 2011."

10. The order proved its efficacy. Today, another affidavit has been filed by Sandeep Kumar Sharma, Additional Inspector General, Registration (Administration), U.P., Allahabad holding the charge of Office of I.G. Registration, U.P., Allahabad, stating that with due diligence and search, original sale deed has been traced out and the same is being produced for perusal of the Court. The documents were also shown to the learned counsel of respondent no.3.

11. I find from the perusal thereof that whatsoever has been observed by Hon'ble Arun Tandon, J. in order dated 30.04.2004 is absolutely correct. The learned counsel for respondent no.3 also could not dispute the same.

12. Before coming to other aspects of the matter, I intend to deal first with the question whether document could have been registered by Sub-Registrar though seller died on the same day, and, whether order of respondent no.1 impugned in this writ petition is correct or not.

13. For adjudicating this question, it would be necessary to refer certain provisions of the Act.

14. Initially the codified enactment was made vide Registration Act No. XVI of 1864 which came into force in the Presidencies of Bengal, Madras and Bombay. It was replaced by Indian Registration Act, 1866 (XX of 1866), 1871 (VII of 1871), 1877 (III of 1877) and thereafter by the present Act of 1908.

15. Section 23 prescribed time for presenting documents. It says, subject to the provisions contained in Sections 24, 25 & 26, no document, other than a will, shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution.

16. Here three things are mentioned. One is 'presentation' before proper officer, execution of the document and third is the time i.e. four months from execution.

17. The term 'Presentation' as such has not been defined but Part-6, Sections 32 to 35 deals with 'Presentation of document for registration'.

18. Section 32 says that the document shall be presented at the proper registration office by a person, executing or claiming under the same or by the agent of such person, representative or assign, duly authorized by power of attorney executed and authenticated in the manner mentioned in subsequent sections.

19. Section 32(A) inserted by U.P. Act No.29 of 1989 which came into force on 11.5.1989 provides for supplying photostat copies of documents presented for registration alongwith the document.

20. The provisions are wide enough to cover presentation of document before the registering officer having jurisdiction to register the same as it can be presented either by the person executing it or any one authorized by him or otherwise represented in a valid manner.

21. The 'Presentation', however, does not mean a mere physical handing over the document to the Registrar.

22. In "Jambu Prasad Vs. Muhammad Nawab Aftab Ali Khan and others, AIR 1914 Privy Council 16", two mortgage deeds were presented for registration by the Sub-Registrar. One was presented by Nathu Mal, an agent of the mortgagee and another by Ilahi Baksh, another agent of the mortgagee. Ilahi Baksh held a power of attorney of the mortgagee which did not empower him to present document for registration. The mortgagors also appear before Sub-Registrar and acknowledged execution and completion of mortgage deed as also the receipt of money whereupon the Sub-Registrar registered the document. This was a matter under old Registration Act namely Act III of 1877.

23. The Privy Council approved and followed an earlier decision of this Court in Ishri Prasad v. Baijnath (I.L.R. 28 All. 707) wherein the Court has observed "His (the Sub-Registrar's) jurisdiction only comes into force if and when a document is presented to him in accordance with law". The Court, referring to another decision, observed that Registrar or Sub-Registrar under Act III of 1877 would have no jurisdiction to register document unless he is moved to do so by a person who has executed or claims under it, or by the representative or assign, duly authorized by power of attorney executed and authenticated in the manner prescribed in Section 33 of that Act. It also observed that the executants of a deed who attend the Registrar or Sub-Registrar merely to admit that they have executed it, cannot be treated for the purpose of Section 32 of Act III of 1877 as presenting the deed for registration. They, no doubt, would be assenting to the registration, but that would not be sufficient to give the Registrar, jurisdiction to register the document.

24. The Privy Council also observed that object of Sections 32, 33, 34 & 35 of Act III of 1877 was to make it difficult for any person to commit fraud by means of registration under the Act. It is the duty of the Courts not to allow imperative Provisions of the Act to be defeated.

25. In "Sri Sri Sri Kishore Chandra Singh Deo Vs. Babu Ganesh Prasad Bhagat and others", AIR 1954 SC 316, four Judges Bench of the Apex Court, in the context of Sections 32 & 33 of Registration Act, 1908 observed "Where, therefore, a document is presented for registration by a person other than a party to it or his legal representative or assign or by a person who is not an agent authorized in the manner prescribed in Section 33, such presentation is wholly inoperative, and the registration of such a document is void".

26. With reference to Section 68, the Court said that statement by attesting witness deposing that he has attested the document executed by A in favour of B and that other attestators also witnessed its execution is a sufficient evidence of valid attestation.

27. In "Deo Singh and others Vs. Mt. Rani Dulaiya Judeo, AIR 1932 Allahabad 63", a Division Bench of this Court with reference to Section 32 of Registration Act, 1908 held that a document, though physically handed over by the servant of a Pardanashin lady in her presence, at her request, would amount to presentation of document by lady herself. The Sub-Registrar was right in making endorsement on the document that it was presented by the lady herself. Has it been done in absence of the lady, situation would have been different and in that case the servant ought to have produced a proper authentication and authorization.

28. In "Bharat Indu and others Vs. Hakim Mohammad Hamid Ali Khan and others, 1921 Privy Council 93", considering Section 33 of Registration Act, 1877 (old Act) it was held that provisions of Registration Act had been carefully designed to prevent forgeries, procurement of conveyances or mortgages by fraud or undue influence. It also said, sometimes it may seem to be somewhat technical to insist upon exact compliance with the provisions of the Act but in order to achieve object of the Act, it is necessary to do so. The Privy Council relied on its earlier decision in Jambu Prasad (supra).

29. In "Puran Chand Nahatta Vs. Monmotho Nath Mukherjee and others, 1928 Privy Council 38", considering Section 35 of Registration Act, 1877 explaining the word 'executing', it said that vide Section 35, registration is directed when certain persons have appeared, duly identified, and have admitted execution of the document propounded. The necessary persons are "the persons executing the document." The appellant contends that in these words, 'executing' means and means only "actually signing". The Privy Council did not accept this. A document is executed, when those who take benefits and obligations under it have put or have caused to be put their names on it. Personal signature is not required, and another person, duly authorized, may, by writing the name of the party executing, bring about his valid execution, and put him under the obligations involved. Hence the words "person executing" in the Act cannot be read merely as "person signing". They mean something more, namely the person, who by a valid execution enters into obligation under the instrument. When the appearance referred to is for the purpose of admitting the execution already accomplished, there is nothing to prevent the executing person appearing either in person or through an authorized and competent attorney in order to make a valid admission.

30. In Wilaiti Begum Vs. Fazal Husain Khan, 9 A.L.J.R 148=13 Ind Cases 961, the father of lady did not have authority by power of attorney within the meaning of Section 32 of the Registration Act, 1877. The Court found that she herself had gone to registration office, was present in a Doli when the document was handed to the Registrar by her own father, and admitted execution and receipt of money. The Court held it a presentation of document by the lady herself.

31. In Nath Mal and another Vs. Abdul Wahid Khan and others, 1912 (34) ILR (All.) 355, Section 32 of Registration Act, 1877 was considered. The Court said:

"It seems to us that the word "presented" has a technical meaning................... We think, however, that where the executants were present acquiescing in the handing over of the document to the Registrar for registration, the document was being "presented" by them for registration within the meaning of the Act."

32. In Maung Mya Maung Vs. A.R.M.M. Meyappa Chettyar, AIR 1940 Rangoon 297, the Court said that no doubt it is not necessary that physical act of presentation be performed by the executor. But it is necessary to show more than mere attendance for the purpose of admitting execution. It is necessary to show that the obliger joined in the presentation or the presentation was made at the request of the obliger or on behalf of the obliger.

33. A Full Bench of this Court in Khalil-Ud-Din Ahmad Vs. Banni Bibi, 1913 (35) ILR (All.) 34 (decided on 5.11.1912), observed that registration following a bad presentation is illegal. It also held that there cannot be any presumption of document being presented by the proper person before Sub-Registrar. On the contrary it is a matter of fact which has to be proved.

34. In Barkhurdar Shah Vs. Mt. Sat Bharai and another, AIR 1931 Lahore 677, the deed was brought to the Sub-Registrar for registration by donor's counsel. Sub-Registrar endorsed it as having been presented by counsel and returned to donor. Subsequently, the Sub-Registrar went to donor's residence and registered deed after presentation by donor and admission of execution by donor. The word 'presentation' could not be recited on the deed. It was held to be a proper presentation.

35. Similarly in Satrohan Singh Vs. Ganga Bakhsh Singh, AIR 1919 Oudh 201, the executant of a document was present. The document was presented to the registering officer on his behalf and with his assent. Mere not presenting physically by him was held immaterial. The document was held as presented validly.

36. Section 35 requires for satisfaction of the Registrar about execution of the document. If a document is properly presented and its execution is admitted by the competent person, as prescribed in statute, the Registrar has no option but to register the document. The purpose of Registration Act was to mitigate litigation in regard to property which in the absence of any documentary evidence was creating lot of administrative and otherwise problem to the then Government. It neither confers title upon the concerned person nor validates it but only recognizes execution of document relating to a transaction pertaining to property of the person concerned and acts like evidence to prove such transaction in the manner it is written in the document and registered with the Registrar.

37. In Jogi Das and others Vs. Fakir Pandey, AIR 1970 (Orissa) 22, it was observed that the object and purpose of Registration Act, amongst other things, is to provide a method of public registration of documents so as to give information to people regarding legal rights and obligations arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance, and also to prevent fraud. Registration lends inviolability and importance to certain classes of documents.

38. This was also reiterated in Hakim Gulam Mohd. Vs. Dr. Zahoor Ismail., AIR 1970 (Rajasthan) 171, that the object of Registration Act is to prevent people being duped into purchasing a property from a person who does not own it. There is a distinct public policy behind the Registration Act. Hence the purpose which governs the interpretation of Stamp Act can not be applied to the interpretation of Registration Act.

39. The registration, therefore, in the light of provisions of Registration Act is an act of officer appointed by law who is bound to register the document, if the conditions prescribed by the Act are satisfied. If the document is presented to the Registrar by a person entitled to present a document for registration, the registering officer shall not inquire whether the executant of the document has executed with a willing mind or not; nor he is supposed to inquire about the truth or falsity of any recital in the deed etc. What Section 35 requires is that he has to satisfy himself only about the execution of document by the person concerned. Section 35 also contemplates that a person executing the document if is dead, but his representative or assign appears and admits the document, the same shall be registered as directed in Sections 51 to 61. But if a person executing the document denies its execution or is minor or idiot or is dead and his representative or assign denies its execution, then the registering officer shall refuse to register the document.

40. Section 58 requires a Registrar to endorse the signature of a person admitting execution of document. Section 59 requires the registering officer to affix date and signature to all endorsements made under Section 52 and 58 relating to the same document and made in his presence on the same date.

41. Section 60 thereafter provides that after compliance of Section 34, 35, 58 and 59, the registering officer shall endorse a certificate containing the word 'Registered' together with the number and page of the book in which the document has been copied. Meaning of registration, therefore, as provided in Sections 58 to 61 is "Registration in accordance with the provisions of the Act". It is in fact recording of the copy in Registrar office. Section 61 thereafter requires endorsement and certificate referred to and mentioned in Sections 59 and 60, to be copied into margin of the register book and the copy of the map or plan, if any, mentioned in Section 21 which is to be filed in Book No.1. Section 71 provides the reasons where the Registrar can refuse a document to be registered.

42. Therefore, first step which is of utmost importance for registration of a document under the Act is the execution and its presentation before the registering authority in the manner provided in the Act. On this aspect some light can also be thrown by the Rules framed under the Registration Act, published and compiled in Registration Manual of U.P. This was first published with a preface of the then I.G., Registration, U.P. Sri T. Stoker dated 15.10.1895 which reads as under:-

"Since the publication of the Registration Rules sanctioned in North-Western Provinces and Oudh Government notification no. 92/VII-III-6, dated the 5th February, 1886, many changes have been made and circulars issued dealing with matters both of importance and of subordinate detail. The existing rules have now been thoroughly revised, and, as far as possible, all obsolete or superfluous matter has been expunged; while the many and apparent deficiencies and shortcomings in the older rules have been supplied, and the whole re-arranged and classified under main heads in separate chapters.

2. Every effort has been made to render the publication both useful and complete; but it is not unlikely that errors, inaccuracies, and omissions may have crept in. A list of errata will, if necessary, be issued as soon as practicable after distribution, and registering officers are invited to communicate any defects that they may detect.

3. These rules supersede all existing orders whether issued by Government in the form of notifications, or by the Inspector General in the form of circular orders. All subsequent additions and alterations will be made by errata slips and the system of circular orders restricted as far as possible in future."

43. Thereafter second edition contained preface dated 22.3.1905 and third edition comes with the preface dated 1.8.1914. The third Edition was published after enactment of Act 16 of 1908. Rule 284 and onwards contain procedure for acceptance of a document for registration. Rule 285 provides for certain aspects, to be looked into by the Registering Officer when a document is presented for registration. It says:-

"285. When a document is presented for registration the points requiring the attention of the registering officer may be summarized as follows:

(1) Whether he has jurisdiction to register the document?

(2) Whether the document is time-barred?

(3) Whether the document is free from the objections in sections 19, 20 and 21?

(4) Whether the document is properly stamped?

(5) Whether the document is presented by a proper person?

(6) Whether the document was executed by the persons by whom it purports to have been executed?"

44. For the person who would present the document the matter needs be considered by the registering officer, Rule 300 provides:-

"300. If the document be not open to any of the objections set forth above, the registering officer, before finally accepting it for registration, should satisfy himself that the person presenting it has legal authority to do so. The persons who may present a document for registration are the following:

(a) in the case of a will, the testator, and after his death any person claiming under it as executor or otherwise;

(b) in the case of an authority to adopt, the donor, and after his death, the donee or the adopted son;

(c) in the case of a copy of a decree or order, any person claiming under the decree or order;

(d) in any other case, any person executing or claiming under the document;

(e) the representative or assign of any of the foregoing;

(f) the agent of any of the foregoing."

45. About the identity of the person appearing, procedure is prescribed in Rule, 304, 305, 306, 307 and read as under:-

"304. When a document is accepted for registration the prescribed fees should be levied and the necessary entries made in the fees book. The counterfoil receipt should then be prepared and the receipts for the document and the fees delivered to the presenter. The registering officers should then, with as little delay as possible, enquire whether the document was executed by the alleged executant, and satisfy himself as to the identity of the person appearing before him to admit execution. He should also satisfy himself that the person admitting execution has read and understood the contents of the document and should if the person is illiterate or cannot read and understand the document will explain the nature and contents to him. If the presenter be the executant, or his representative, assign or agent, and if such executant, representative, assign or agent be present, the registering officer shall make the necessary enquiry at once.

When the registering officer is not personally acquainted with executants, he shall require them to produce persons to testify to their identity. Such persons shall, if possible, be persons known to the registering officer personally, or failing these, persons of apparent respectability. Witnesses who are unknown to the registering officer shall have their thumb impressions recorded as in the case of executants (vide rule 308, so far as it is applicable). Any distinctive physical peculiarity or marked deformity in a party or witness should be noted in the endorsement. But a descriptive roll need not be recorded except in suspicious cases. This procedure must be in addition to, and not take the place of, the procedure required by section 34, that the registering officer shall satisfy himself of their identity. Such descriptive rolls afford in themselves no proof identity.

305. The registering officer must take care that the witness is really able to identify the person to be identified. To this end the witness should be clearly and specially asked whether that person is or is not the person he professes himself to be, and what the nature of his the witnesse's acquaintance with that person is. The testimony of an identifying witness should be rejected if he has had no personal acquaintance with the person identified, but has merely been told his name for the purposes of that identification. Care should be taken that identification does not become a trade among the petition-writers, menials and hangers-on of the office. The testimony of persons who make such a trade should not be accepted.

306. In the case of documents executed by parda-nashin ladies, registering officers should be careful to obtain an admission of execution from the executant's own lips. The mere statement of the relatives or other persons accompanying her is not sufficient. The lady should be seen and identified by some person acquainted with her appearance, and the name and relationship of such person to the executant should be noted in the endorsement. The terms of the document should be explained to the executant, and if while admitting execution, she objects to any of the terms, such objection should be noted. The instructions apply to the case of all documents executed by pardanashin ladies, whether registered at the registration office or on visit or by commission at the executant's residence.

307. If execution by the alleged executant is admitted and the registering officer is satisfied on the points laid down in paragraph 1 of rule 304 he should record on the instrument the endorsement required by section 58 in one or other of the forms given in rule 384, and such endorsement should be signed by the registering officer, the executant, and all the witnesses examined; but no such endorsement is necessary on a copy of a decree or order, or on a certificate sent under section 89 of the Registration Act."

46. In the context of the above mentioned statutory provisions and the authorities discussed above, it has to be seen whether the document in question in the present case was validly presented before the Registrar (Sub Registrar) or not. From order of A.D.M. itself, it is evident that the document was presented to the Sub Registrar by Dhurandhar son of Ram Das i.e. the purchaser of the land in question. Ram Das himself stated before the Sub Registrar that vendor i.e. Sadhoo son of Mata Palat has executed the document on 3.5.1993 in favour of Dhurandhar; Sadhoo has obtained consideration (price) of property in question and has himself put in his thumb impression on the document which have been identified by witnesses. From order of A.D.M. it is not evident that all these facts were admitted by Sadhoo before the Sub Registrar, though it suggests that Sadhoo was present in the office of Sub Registrar.

47. From report dated 11.7.1994 submitted by the Sub Registrar he has not said anywhere that Sadhoo had admitted execution of the document before him or that whatever was said by Dhurandhar, it was in presence of Sadhoo. The persons competent to present the document for registration are mentioned in Section 32 which reads as under:-

"32. Persons to present documents for registration.--Except in the cases mentioned (Sections 31, 88 and 89), every document to be registered under this Act, whether such registration be 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 authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.

48. Dhurandhar who was purchaser of the property under the aforesaid document can not be said to be a claimant under Sadhoo. Since he had his own interest in the matter, he would also not come in the category of representative or assign. The term representative has been defined in Section 2(10) reads as under:-

"2(10) "representative" includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot.

49. In "The Concise Oxford Dictionary of Current English" Eighth Edition, the meaning of word "Assign" is given as under:

"Assign:-1. (a) allot as a share or responsibility, (b) appoint to a position, task, etc. 2. fix for a specific purpose, 3. ascribe or refer to, 4. transfer formally to a person to whom property or rights are legally transferred"

"The New Lexicon Webster's Dictionary The English Language", Deluxe Encyclopedic Edition, defines the word "Assign" as under:

"Assign:- to give as a share, allot, to assign positions to people; to nominate, appoint, to assign a person to a position; to give or make over; to fix or determine; to ascribe to a given time, authorship, origin, class; to give as a task"

50. Even if this Court for the moment treats Dhurandhar as an assign and competent to present the document, one of the important requirements under Section 34(3) is that the registering officer has to enquire whether the document was executed by the person by whom it is alleged to have been executed. He has to satisfy himself as to the identity of the person appearing before him and alleging that he has executed the document. In case any person appears as a representative, assign or agent, the Sub Registrar has to satisfy himself of the right of such person to appear. A cumulative reading of all three aspects would show, where the person who is alleged to have executed a document himself is present before the Sub Registrar, there is no reason or occasion to hold that instead of that person somebody else should tell the Registrar that the document has been executed by such person though not acknowledged by such person himself before the Sub Registrar unless it is a case of a Pardanashin lady etc. There is no document or material on record to show that any such occasion had arisen before the Sub Registrar where he could comply with the requirement of his satisfaction under Section 34(3) of the Registration Act. In fact the documents available do not show and prove that Sadhoo was present in the office of Sub Registrar for some time, he felt uneasiness, went away and died.

51. Lack of satisfaction on the part of Sub Registrar on the contrary stands fortified from the fact that Sub Registrar himself scored out his signature made on his seal without making any comment at all. It is also not evident who has identified thumb impression of Sadhoo before the Sub Registrar. In the applications submitted before A.D.M. by the contesting respondent Dhurandhar on 11.07.1994, he tried to suggest in para 1 thereof as if the document was presented before Sub Registrar by Sadhoo himself and admitted his thumb impression and execution of document etc. but what has actually been found by A.D.M. in his order impugned in this writ petition is somewhat different.

52. It appears that document was presented by Dhurandhar himself stating that Sadhoo has executed the document and has admitted its execution. The Sub Registrar however did not find any occasion to satisfy himself on this aspect of the matter. If that be so, it could not be said that the document was validly presented and its execution was admitted before Sub Registrar. Sadhoo died and thereafter his legal heirs have clearly denied execution of sale deed in favour of Dhurandhar.

53. The A.D.M. and other authorities while considering the matter of presentation and admission of execution, have also looked into another aspect of the matter that the purchaser was also a relative to Sadhoo being son of Sadhoo's brother. In my view, this aspect goes to show otherwise. Scope of undue influence etc. was much stronger in such a case. Hence the matter ought to have been considered with extra care and caution but the A.D.M. has failed to do so.

54. Section 32 in this case as such may not be applicable for the reason that on the date of alleged presentation during the office time of Sub Registrar, the seller was not dead as is evident from the record that Sadhoo died in the evening at about 6:00 or 6:30 P.M., meaning thereby that during working period of Sub Registrar's office when the document is alleged to have been presented before him, Sadhoo was not dead but alive. Further he was present in the office of Sub Registrar but there is nothing on record to show nor even Sub Registrar in his report has said anything about admission of execution of document by Sadhoo before him.

55. It appears, while the document was presented, the officials in the office of Sub Registrar started looking into examination of the document. In the meantime Sadhoo who probably was present in the office of Sub Registrar fell ill, went outside and in the evening died. In absence of anything otherwise available on record, the execution of document by the executant on 03.05.1993 when during the daytime he was alive and present in the office of Sub Registrar can not be assumed. Its importance can not be ignored by observing that the seller though suddenly died but the purchaser is also relative to him and therefore he is competent to prove execution of the document and its execution can be assumed on his statement.

56. The A.D.M. and D.I.G. (Registration) as also I.G. (Registration) in the orders passed have basically relied on the fact that in the prescribed form submitted for the purpose of registration, necessary entries have been made by Jitendra Bahadur Sahi, Advocate, Deed Writer himself. They have completely ignored the fact that neither in the document, Deed Writer is a witness to identify seller nor it contains his signatures or photographs. In the column of witnesses, the names of Surendra Pratap Singh and Ram Kailash are mentioned. Whether these witnesses had signed in the presence of Jitendra Bahadur Sahi, Advocate or not is not clear from the document itself.

57. Similarly in the prescribed form prepared by the Deed Writer column reads as under:-

" QkeZ Hkjus okys ys[k&[email protected][kd dk lEiw.kZ gLrk{kj**

58. Jitendra Bahadur Sahi is only a person who has filled in various entries in the form and is not a witness or attestor either of signatures or thumb impression or photographs of alleged executor of the document. In the sale deed, aside the seal of the Registrar, on the back side of the first page, at two places the words " fn0 vifBr lk/kq ¼fu'kkuh vaxwBk½" i.e. thumb impression of Sadhoo is mentioned but no thumb impression has been put thereon which shows that before Sub Registrar Sadhoo had not put in his thumb impression which may be for the reason that Sadhoo in fact was not confronted with Sub Registrar at any point of time when document was presented by Dhurandhar.

59. Moreover, in his report the Sub Registrar has also not said that Sadhoo was actually present in his office at all when the document was presented by Dhurandhar on 03.05.1993 and this fact has been mentioned only in the application submitted by respondent no.3 wherefrom the A.D.M. or higher authorities have taken this fact as a gospel truth without examining its veracity. Such facts have not been corroborated by Sub Registrar himself in his report, copy whereof has been annexed as Annexure No.4 to the writ petition.

60. The legal heirs of Sadhoo have categorically and seriously disputed story of execution of the document. This has not been given any attention by the authorities concerned though there was more reason when the instrument of sale is said to have been executed by an uncle to his nephew. The role of authorities in the registration department in view of the subsequent facts also makes entire things seriously suspicious and doubtful. The document was presented before this Court (Hon'ble Arun Tandon, J.) on 30.04.2004. Sri S.P. Shukla, the then D.I.G., Registration, Gorakhpur and Sri Brij Lal Singh, Incharge Sub Registrar were also present before the Court. In their presence and to the knowledge of counsel for the parties, the Court perused the record and observations were recorded in order dated 30.04.2004. The documents were directed to be returned to the said authorities. When this case came up for hearing before me, counsel for the respondent no.3 again disputed the observations and demanded that original document should be made available for perusal of this Court whereupon I directed respondents 1 & 2 to produce the record for perusal of the Court again. It is the same D.I.G. (Registration) namely S.P. Shukla who made an endorsement in the records that sale deed in original was not received by him. This very D.I.G. had passed the order on 12.8.2004, copy whereof has been annexed as Annexure No.S.A.-1 to the supplementary affidavit sworn by Sri S.P. Shukla himself upholding the impugned order of A.D.M. Though in the report of Sub Registrar dated 11.7.1994 nothing has been mentioned about the presence of Sadhoo or his admission about the execution of the document. On the contrary it says that: "fu"iknudrkZ lk/kq dh e`R;q fdl le; gqbZ ;g nLrkost ns[kus ls Li"V ugha gSA**

61. However, later on the same D.I.G. obtained a letter from Sub Registrar. A copy of letter of Sub Registrar, Sri Umesh Chandra Gupta dated 7.7.2004 has been filed alongwith supplementary affidavit dated 26.08.2004 which is addressed to D.I.G., Registration stating that the seller fell ill and died and since registration fee was not received, therefore, the document was not registered. It also appears that another letter dated 08.07.2004 was obtained by Sri S.P. Shukla, the then D.I.G. from Clerk Rajeshwar Dubey wherein he has mentioned that the document was presented on 03.05.1993 by Sadhoo and he was examined by the then Sub Registrar late Ram Bihari Singh and thereafter the document was given to the said Registration Clerk for making necessary entries. After completion of those entries the Registration Clerk handed over the document to Sub Registrar but in the meantime Sadhoo fell ill and went out of the office and did not come again for depositing registration fee placing a thumb impression hence the Sub Registrar scored out his signature. After more than 11 years these letters have been written and obtained authenticity whereof obviously cannot be verified for the reason that not only the seller Sadhoo but also the then Sub Registrar had already died. The D.I.G. Sri S.P. Shukla, instead of placing reliance on the report submitted by the then Sub Registrar on 11.07.1994, chose to obtain a letter from the Registration Clerk after 10 years and also from the Advocate Jitendra Bahadur Sahi and thereafter submitted his report dated 12.08.2004 in the purported compliance of this Court's order dated 30.04.2004.

62. In the office of Sub Registrar large number of documents are presented every day. After 11 years what transpires exactly on a particular day, 11 years ago, could be difficult to remember and tell correctly. This itself raises a serious doubt on the conduct and manner in which Registering Authorities have proceeded.

63. The A.D.M. in the impugned order dated 09.09.1996 has not found all these facts. No such statement was made before him either by Jitendra Bahadur Sahi or by the Registration Clerk. The A.D.M. in his order has simply mentioned that the document enclosed was admitted by Sadhoo but for the said purpose no document is referred wherefrom such admission becomes evident to him. He has also considered admission of execution by Ram Das, brother of Sadhoo treating him legal heir of Sadhoo though the petitioner being the daughter of Sadhoo comes in the first category of legal heir, hence question of brother of Sadhoo for being treated legal heir would not have arisen. It appears that registration authorities passing orders for registration of the document, have passed subsequent orders also to support respondent no.3 even by going to the extent of making false and incorrect statements before this Court, sometimes by pleading that the original document has been lost. It is only when this Court took the matter seriously and passed a strict order summoning the I.G., Registration himself, only then the document has been produced. This conduct of suppressing document cannot be without any reason. The conduct or attitude of D.I.G. (Registration) is really objectionable.

64. In view of the above discussion, I have no hesitation in holding that the impugned order directing for registration of the document in question cannot sustain. Further the conduct of the registration authorities has also not been found fair and impartial. They have gone to the extent of misleading this Court resulting in that the highest officer of the Registration Department namely I.G., Registration at one time had to file a false affidavit which he subsequently retracted. In my view, this is a fit case where an exemplary cost should also be imposed upon respondents no.1 and 2 with liberty to the Government to recover the amount of costs from the officers/officials who actually are responsible for such misdeeds.

65. In the result, the writ petition is allowed. The impugned order dated 9.9.1996 is hereby quashed.

66. The cost is quantified to Rs.75,000/-.

67. At the first instance the amount of cost shall be paid by the respondent no.1 but it has liberty to recommend the State Government to recover the said amount from the official(s) concerned responsible for creating such situation of filing false affidavit before this Court after making such enquiry as permissible in law.

Order Date :- 25.4.2011

Kpy