MATHAI OUSEPH PANACKAL Vs. JOSEPH

JUDGEMENT

(1.) At the end of this Order, what I say at the beginning, induced by the number of rulings cited at the bar, will be better understood. The revision relates to the soundness of the lower court's finding on a preliminary issue. But before going into it let me quote a passage from Paton (Jurisprudence):

(2.) The defendant, the revision petitioner, executed a sale of the plaint property to the first plaintiff, pursuant to an earlier agreement. But when the deed was presented for registration, denied execution, whereupon the Sub Registrar refused to register it under S.35(3) of the Registration Act. Instead of applying under S.73 to the Registrar to establish his right to have the document registered, the plaintiff sued for a decree directing the defendant to get the deed registered and to deliver possession of the property to him together with profits. The defendant denied the very agreement to sell and the execution of the document. He also contended that since the plaintiff did not file any application to the District Registrar against the refusal of the Sub Registrar to register the document the plaintiffs have not exhausted the remedies provided for in the Registration Act and so the suit filed before that for compulsory registration is not maintainable and should be dismissed. On this last contention, issue 6 was framed, tried preliminary and found for the plaintiff. This finding is strenuously canvassed before me, based on a long line of decisions, matched, of course, by another long line taking the contrary view. In the absence of a Kerala decision or a declaration of the Law by the Supreme Court I shall align myself with those Judges whose reasoning appears to me as more logical and equitable.

(3.) When a document is presented for registration but the person by whom the document purports to be executed denies its execution, the registering officer shall refuse to register the document as to the person so denying (S.35.3). Part 12 of the Registration Act provides for the procedure for refusal of registration and follow up action by the aggrieved party. Where refusal is the result of denial of execution "any person claiming under such document , may, within 30 days after the making of the order of refusal, apply to the Registrar in order to establish his right to have the document registered." (S.73.1). S.74 lays down the procedure to be followed by the Registrar in his enquiry as to whether the document has been executed.