KAMJULA SUBBARAMA REDDI Vs. MANGAMURI SUBBA REDDI

JUDGEMENT

(1.) The broad question in this appeal is whether the judgment of the Privy Council in Venkatapayya V/s. Venkata Ranga Rao ( 29) 16 A.I.R. 1929 P.C. 24 has stated a rule different from that stated in Amba V/s. Sbrinivasa Kamathi ( 22) 9 A.I.R. 1922 P.C. 135 with regard to the presentation of documents for registration under the Registration Act, 1908. Before discussing these judgments and the judgments in the other cases quoted in the course of the arguments, we will state the relevant facts. One Rami Reddi died on 12 December 1913. He was survived by his widow, Subbamma, who was then a minor. By a will executed on the day before his death, Rami Reddi bequeathed to her two-thirds of his estate and one-third to his sister's son who is defendant 4 in this suit. The will was registered on 20 January 1914 having been presented for registration by Venkatasubba Reddi, the father of Subbamma. Subbamma died in the year 1934, leaving a will dated 20 June 1934. By this will she left to her brothers (defendants 1 to 3, who are the appellants) the whole of her properties. The suit was filed by respondent 1. He is the son of Rami Reddi's brother, Linga Reddi. When Rami Reddi died, respondent 1 was only five years of age and was the only surviving agnate of Rami Reddi. Respondent 1 claimed to be entitled to the properties left by Rami Reddi on the ground that the will executed by him was not a genuine document. It purported to be attested by four witnesses. Three of these persons were dead when the suit was heard and the fourth was not called to give evidence. The only witness who was called to prove the will was the writer, but he was not an attesting witness. In these circumstances the District Munsif held that the appellants had not proved the will and consequently decreed the suit. The District Munsif was under the impression that the law then, as now, requires the will of a Hindu to be attested. The District Judge concurred in this opinion.

(2.) The appellants appealed to this Court. The appeal was heard by Somayya J., who rightly held that the law in 1913 did not require a will of a Hindu to be attested and that, therefore, the decisions of the lower Courts had proceeded on a wrong basis. The learned Judge remanded the case to the District Judge to be decided in the light of his judgment. The appellants asked to be allowed on the remand to put in evidence, under the provisions of Section 33, Evidence Act, the depositions of three of the attesting witnesses recorded by the Sub. Registrar when the will was registered. Somayya J. held that they were not entitled to do this. He considered that he was bound by the decision of this Court in Narayana Reddi v. Audilaksbmi Ammal ( 28) 15 A.I.R. 1928 Mad. 537 which was based on the judgment of the Judicial Committee in Amba V/s. Sbrinivasa Kamathi ( 22) 9 A.I.R. 1922 P.C. 135 and that the decision of the Board in the later case in Venkatapayya V/s. Venkata Ranga Rao ( 29) 16 A.I.R. 1929 P.C. 24 had stopped short of laying down a different rule. Section 32, Registration Act, requires documents presented for registration to be presented, (a) by a person executing or, claiming under it or (b) the representative or assign of such person or (c) by an agent duly authorized by power of attorney executed and authenticated in the manner required by Section 33. Section 2 (10) states that the word "representative" includes the guardian of a minor. Part 8 of the Act deals with the presenting of wills and authorities to adopt. There are two sections in this part- Secs.40 and 41. Section 40 (1) says that the testator, or after his death, a person claiming as executor or otherwise under a will, may present it for registration. Sub-section (2) says that the donor, or after his death, the donor of an authority to adopt, or the adoptive son, may present it. Sub-section (1) of Section 41 states that a will or an authority to adopt, presented for registration may be registered in the same manner as any other document, and Sub-section (2) says: A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied: (a) that the will or authority was executed by the testator or donor, as the case may be; (b) that the testator or donor is dead; and (c) that the person presenting the will or authority is, under Section 40, entitled to present the same.

(3.) In Amba V/s. Sbrinivasa Kamathi ( 22) 9 A.I.R. 1922 P.C. 135 the facts were these: One Krishna Kamathi executed deeds of gift in favour of his daughter-in-law. The deeds were presented for registration by the natural father of the donor who was a minor. The question was whether the registration was lawful. The Privy Council held that it was not. Delivering the judgment of the Board Lord Atkinson said: Their Lordships are clearly of opinion that as the appellant was not only a minor, but a married woman, her father had ceased to be her natural guardian, and had never been appointed her legal guardian, and was not, therefore, her assignee or representative within the meaning of Section 3, Registration Act, 1877. He was not an executant of the said deeds or either of them; neither was, within the meaning of Section 34 of that Act, the representative, assign or agent duly authorized on the behalf of Krishna Kamathi, deceased, the only executant. The presentation by him of the two deeds for registration was in direct conflict with the express provisions of this Section 34. The deeds were consequently never legally registered. The registration of them which was procured was illegal, invalid and a nullity.