V K MANIKKA MUDALIAR Vs. KMAHAMMAD ZIAVUDDIN SAHEB

JUDGEMENT

(1.) This Second Appeal arises out of a suit to obtain registration under Section 77 of the Registration Act. The facts are as follows : The suit document (Ex. A) was executed on 29 November, 1919, by defendant in favour of plaintiff. The plaintiff presented it before a Sub-Registrar for registration on 24 March, 1920, i. e., within four months of the execution. The Sub-Registrar ordered notice to the executant who appeared on 19 April, 1920, i. e., beyond four months. The Sub- Registrar referred the matter to the Registrar under Section 34 (4) of the Act. In so referring the matter, he seems to have forwarded the document also to the Registrar though this is not necessary under Section 34 (4), the Office of the Registrar and the Joint Sub-Registrar being situate in the same building. The Registrar passed an order on 4 May, 1920 "Registration refused" and gave reasons in which he held that the delay of the parties in appearing beyond four months does not "come under urgent necessity or unavoidable accident" (Ex. B). The document was then returned to the Sub-Registrar, who furnished to the plaintiff a copy of the order on 8 June, 1920. The present suit was filed on 14th June, 1920, the re-opening day of the District Munsif's Court of Vellore. The District Munsif dismissed the suit on the ground that the plaintiff's remedy was to have appealed against the order of the Sub-Registrar under Section 72 or made an application to the District Registrar under Section 73. On appeal the Subordinate Judge reversed the decision of the District Munsif and gave a decree. The defendant files this Second Appeal.

(2.) Where a matter is referred to the Registrar under Section 34 (4) and proviso to Section 34 (1), the Registrar may direct the registration if he is of opinion that the delay was due to "urgent necessity or unavoidable accident." The proviso does not describe the form of the order to be passed by the Registrar if he is not so satisfied about the delay. But, it may be conceded in favour of the appellant, that the proper form of the order is to express his opinion that the delay is not due to urgent necessity or unavoidable accident. When he so expresses his opinion (such opinion being remitted to the Sub-Registrar), the Sub-Registrar ought to follow it up by endorsing on the document "Registration refused" and then the remedy of the person who seeks registration is to file an appeal under Section 72. This is the view taken by the Bombay High Court in Fattechand Anandram V/s. Umaji (1922) ILR 47 B 290 and by the Punjab Chief Court in Harkishen Singh V/s. Sarmukh Singh (1917) 43 IC 294, where the exact reason for the refusal of the Sub-Registrar does not appear. A similar view is taken in the parallel Section 26 in Gangadara v. Sambasiva (1916) ILR 40 M 759 : 33 MLJ 51 (FB). [Cf. Gangava V/s. Sayava (1896) ILR 21 B 699]. I agree with these decisions. So far the District Munsif is right. But, in the present case, the District Registrar did not pass the order which is the proper one according to the above decisions, viz., an order expressing his opinion about the delay. On the other hand he passed an order on the document "Registration refused." Nor did the Sub-Registrar follow up the order of the Registrar by passing an order "Registration refused." The District Munsif is in error in paragraph 7 of his judgment where he stated," The Sub-Registrar on receipt of the order has endorsed on the document registration refused on the same date 4 May, 1920. "This mistake of the District Munsif has been pointed out by the learned Subordinate Judge. The question that arises before us is--What is the effect of the irregular procedure of the Registration Officers should the party suffer for their mistakes? One way of construing the order of the Registrar is to regard him as having abridged the proper and regular procedure, i. e., instead of the matter going before the Sub-Registrar for his endorsement and an appeal being filed against the order of the Sub-Registrar and the Registrar passing final orders on such appeal, he anticipated such last order in appeal and passed his final order at an earlier stage. If so, the plaintiff's suit is maintainable. But, even if this view of the Registrar's order cannot be taken, the question is, not, what is the proper order which the Registrar ought to have passed but, what is the effect of the order he has actually passed. The question is whether it falls under Section 76 (a) so as to enable the plaintiff to sue. In my opinion, the language of Section 76 (a) is wide enough to cover ail orders of the Registrar refusing registration--whether such orders are passed on documents presented to him in the first instance or otherwise. Mr. Anantakrishna Aiyar argues that the clause is limited to the first class of cases only. If the Registrar passes orders properly it is true no other class will fall under Section 76 (a). But if the Registrar passes an. order refusing registration by following an irregular procedure, I do not see why such an order should not fall under Section 76(a). Mr. Anantakrishna Aiyar argues that the aggrieved party must first take some steps to make the Registering Officers follow the proper procedure and then come to the Civil Court at the proper stage of the proceedings as contemplated by the Act and he argues that the arm of law is strong enough to compel the Registering Officers to follow the proper procedure. It may be that the arm of law is strong enough to get the procedure rectified. Yet I do not see why the party should suffer for the Registrar's irregularity, i. e., why he should take some extraordinary remedy (such as a mandamus) to get the Registering Officers to observe the proper procedure and why, when the language of Section 76 (a) is wide enough to cover the actual order passed, he should not go to the Civil Court at once.

(3.) The order of the District Registrar misled the Sub-Registrar who, seeing that his superior officer passed an order "Registration refused," thought it would be presumptuous on his part to pass the same order once again and abstained from doing so. On the actual events that happened, the view of the Subordinate Judge is right and I would dismiss the Second Appeal with costs. Venkatasubba Rao, J.