Mamota Begum vs Sukhomoy Goyenka
2023 Latest Caselaw 3604 Cal

19.05.2023
 SL No.20
Court No.8
    (gc)




                         SAT 502 of 2016
             CAN 1 of 2016 (Old No: CAN 10896 of 2016)

                           Mamota Begum
                               Vs.
                         Sukhomoy Goyenka

                                        Mr. Pratip Kumar Chatterjee,
                                                      ...for the Appellant.


                   The confirmatory judgment and order passed by the

             Appellate Court in a suit under Section 77 of the Indian

             Registration Act is a subject matter of challenge in this

             second appeal.

                   Since the defendant/respondent did not contest the

suit or the appeal, we propose to dispose of the appeal in

absence of the respondent. In order to appreciate the

nature and scope of the suit, it is relevant to refer to

Sections 77 and 72 of the Indian Registration Act. The

said provisions are:-

"77. Suit in case of order of refusal by Registrar.- (1) Where the Registrar refuses to order the document to be registered, under section 72 or a decree section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.

(2) The provisions contained in sub-sections (2) and (3) of section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the documents shall be receivable in evidence in such suit.

72. Appeal to Registrar from orders of Sub- Registrar refusing registration on ground other than denial of execution.- (1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub- Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration."

The transactions between the parties are not in

dispute. However, it appears that the Registrar refused

registration on the ground that the deed was not

presented by the executants but by the alleged purchaser.

The learned Trial Judge has noted that on the

backside of page 2 of the deed, A.D.S.R., Salar put an

endorsement to the effect "refused under Section 34(1) of

IR Act, 1908 and under Section 62(1) of IR Rule, 1962".

Under Section 34(1) of the I.R. Act, no document shall be

registered unless the persons executing such document or

their representatives, assigns or agents authorized appear

before the registering officer within the time allowed for

presentation under Sections 23, 24, 25 and 26. Section

23 of the Act stipulates that other than a Will, no

document shall be accepted for registration unless

presented for registration within four months from the

date of its execution. It appears from the evidence that

Sukhomoy Goenka did not present it before the Sub-

Registrar, Salar for its registration from the date of

execution, that is, 27th February, 2009 and probably it

could be the reason for refusal of the registration of the

deed by the Sub-Registrar, Salar.

The learned Trial Judge was of the view that the

plaintiff has resorted to some unethical practice to

manipulate the dates of its presentation, assessment,

refusal, etc. and it clearly shows a collusion and

conspiracy between the plaintiff and some Government

officials. The learned Trial Judge has relied upon the

certified copy of the order passed by the District Registrar,

Murshidabad in Appeal Case No.13/2009 wherefrom it

transpires that the respondent did not appear before him

in spite of service of notice. On such consideration, the

suit was dismissed.

The First Appellate Court although had arrived at a

finding that the execution of the deed is not in dispute but

did not interfere with the order of the registration

authority since the document was not presented by the

executants. Strictly going by the provisions of the

Registration Act, we do not find any infirmity in the order

passed by the registration authority in refusing to register

the document as the executants did not come forward to

execute the document.

We have read the original plaint. Although,

specifically the appellant has not asked for a direction

upon the respondent to present the document before the

A.D.S.R. for registration but in effect, the plaintiff has

asked for the said relief. In the facts and circumstances

of the case, it was open for the Court to mould the relief

and pass appropriate order having regard to the fact that

the execution of the document by the respondent is not in

dispute.

The original certified copy of the plaint is kept with

the record.

Under such circumstances, we allow this second

appeal.

We direct the respondent to be present before the

A.D.S.R., Salar within six weeks from date. The

Registering Authority shall execute the said document

without insisting further executants to be present.

The department is directed to draw up the decree as

expeditiously as possible.

The Registering Authority and the respondent shall,

however, act on the operative portion of the judgment.

Accordingly, the second appeal and the connected

application stand disposed of.

This order shall be immediately communicated to

the respondent by Speed Post with A.D.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

(Uday Kumar, J.)                         (Soumen Sen, J.)