ABIRJAN BIBI, WIDOW OF LATE SHEIKH BASIR Vs. SHEIKH GOLE MAHAMED, LEGAL REPRESENTATIVES, AYMAN BEWA (AYMANNESSA BIBI IN VAKALATNAMA)

JUDGEMENT

(1.) THIS appeal is preferred by the defendants Nos. 1 and 2 against the decision of the learned Subordinate Judge of Mymensingh, dated the 31st of January 1917, reversing the decision of the Third Munsif at Kishoreganj. The suit was brought by the plaintiffs in the Court of the Munsif under the provisions of Section 77 of the Indian Registration Act for the purpose of enforcing a release. The case made by the plaintiffs is this: The defendants Nos. 1, 2 and 3 executed in their favour a certain release. The defendant No. 3 admitted execution, but the other two defendants would not go to the Sub Registrar. Under the provisions of the Registration Act or the practice of the Court that is deemed to be equivalent to refusal to registration and the document can only be registered in proceedings instituted under the provisions of the Indian Registration Act. The plaintiffs did institute these proceedings and they terminated in this way. That the application was refused by the District Sub-Registrar. That is what the Registrar says in his order. It is quite true that it was refused because the applicants were not present at the time the learned Registrar was prepared to take up the case. But that itself is not sufficient to preclude a suit under the provisions of the Indian Registration Aot. The right of suit is given by Section 77 where the Registrar refuses registration and the authorities in this Court are clear that the mere fact that the Registrar refuses the application because the applicant or his witnesses are not present is not itself sufficient for holding that the suit is not maintainable. In support of that it will be sufficient to refer to the decision of this Court in Sajibullah Sirkar v. Hazi Khosh Mohamed 13 C. 264 That case has been approved of recently in the decision reported as Surendra Nath Nag Chowdhury v. Gopal Chunder Ghosh 8 Ind. Cas. 794 : 12 C.L.J. 464 at p. 467. So, the mere fact that the application was dismissed by the Registrar owing to the applicants not being in attendance is not sufficient to take away the plaintiffs right of suit. If the plaintiffs have got a right of suit, there is nothing in this Case to say because the learned Judge of the lower Appellate Court has found definitely that the defendants Nos. 1 and 2 executed the release. In my opinion, the appeal fails and must be dismissed with costs. Duval, J.

(2.) I agree.