ARUNACHALA MUDALI Vs. VENKATACHALA PILLAI

JUDGEMENT

(1.) THE question arising here for determination is whether where the executant of a transfer of a mortgage dies after the execution of the transfer, and the document is presented for registration by the transferee and execution is admitted by a person purporting to be but not in fact the representative of the deceased, the registration of the document on such admission is a nullity as made without jurisdiction, or whether the defect was one of procedure falling within Section 87 of the Registration Act and therefore not invalidating the document. Section 35(1)(c) of the Act provides that if the person executing the document is dead and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document. This appeal has been argued on the assumption that the person, who appeared before the registering officer, was not in fact a person legally entitled to represent the deceased transferor, the transfer having been made by the widow of the mortgagee, and execution being Admitted by the widow of the divided brother of the mortgagee. THE lower appellate Court has taken the view that admission of execution by a person who is not the representative of the deceased executant involves a defect of jurisdiction which is not cured by Section 87. In appeal it is argued that the defect is one of procedure. It is well settled that where a document is presented for registration by a person not entitled to do so under Secs.32 and 33, the Registrar has no jurisdiction to register, and Section 87 cannot be invoked (Jambu Prasad V/s. Muhammad Aftab Ali Khan (1914) L.R. 42 I.A. 22 : I.L.R. 37 All. 49 : 28 M.L.J. 577 (P.C.) and Eziekiel and Co. V/s. Annada Charan Sen (1922) I.L.R. 50 Cal. 180). And the former decision has been relied on for the proposition that a failure to comply with the strict terms of Secs.34 and 35 also creates a failure of jurisdiction. Sir John Edge there states: One object of Secs.32, 33, 34 and 35 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under the Act.

(2.) BUT the question there dealt with was under Secs.32 and 33, and these decisions are no authority for cases falling under Secs.34 and 35. In Sah Mmkhun Lall V/s. Sah Koondun Lall (1875) L.R. 2 I.A. 210 (a case falling under Section 35 of the Act) Sir Barnes Peacock stated "innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer, on whom they would naturally place reliance". . And the appellant argues from this that the Registrar having jurisdiction to decide whether the person admitting execution is prima facie the representative of the deceased, had jurisdiction to decide this wrongly, and that the assignee is not to be prejudiced by his erroneous decision. BUT the matter need not rest on this broad ground, as there are decisions that deal directly with cases falling under Section 35. Section 35(1)(a) provides that all persons executing a document shall admit execution, and if any such person denies execution, the Registrar shall refuse to register. In Pakran V/s. Kunhammed (1900) I.L.R. 23 Mad. 580 it was held that where only one out of three sons, entitled to represent a deceased executant admitted execution, that assuming all three ought to have so admitted and that the Registrar was in error in considering that the one brother was the due representative of the deceased, such error was merely an error in procedure. To a similar effect are the observations in Rafat-un-nissa Begam V/s. Husaini Begam (1924) I.L.R. 47 All. 294 and a case more directly in point is to be found in Datlatraya Keshav Naik V/s. Gangabai Narayan Naik (1925) 94 I.C. 560, where the widow of one of two executants admitted execution along with the surviving executant. The Court held that assuming the registering officer was in error in accepting the widow as a representative for the purpose of the section, it was only a defect in procedure not sufficient to invalidate registration. Following these authorities I hold that where a person is accepted by the registration officer as the representative of a deceased executant, though in fact he may not be legally entitled to represent the deceased, and the document is registered, this constitutes merely an error in procedure on the part of the registering officer, and does not invalidate the registration. The appeal will be allowed with costs, and the suit will be remanded to the lower appellate Court for further disposal in the light of this judgment.