Tirtha Nand Jha v. Sakuntala Devi — 1955 DIGILAW 127 (PAT)

Judgment Imam, J. 1. This is an application under Articles 226 and 227, Constitution of India with a prayer that a writ in the nature of certiorari be issued quashing the order of the District Sub-Registrar by which order it was directed that the sale deed said to have been executed by the petitioner be registered. 2. It is alleged on behalf of the petitioner that the scribe of the sale deed of Tirtha Nand Jha had, in collusion with Bhagwan Mandal, husband of opposite party 1, Srimati Sakuntala Devi, got the said sale deed executed and signed by the petitioner. . It is alleged that the petitioner had gone to the Sub-Registrar at Katihar for execution of five genuine sale deeds in favour of five different persons, and that along with these five genuine sale deeds the said scribe managed to get the petitioner to execute and sign the sale deed in question in favour of opposite party 1, Srimati Sakuntala Devi. It is said that the petitioner after having gone to the Sub Registrar at Katihar for presentation of the five genuine sale deeds returned home on the morning of 23-12-1953. Opposite party No. 1, it is alleged, presented the said deed for registration before the Sub Registrar at Katihar on 17-2-1954. The sale deed, however, was not registered as the Sub Registrar refused to register it on the ground of denial of the execution of the document by the petitioner. Against this order of the Sub Registrar, opposite party No. 1 filed an application before the District Sub Registrar at Purnea and the said District Sub Registrar, Mr. K.C. Sinha, after hearing the application ordered the registration of the sale deed in question, namely, the one in favour of Srimati Sakuntala Devi, opposite party No. 1, if presented before the Sub Registrar at Katihar for registration. It is alleged that the order of the District Sub Registrar was without jurisdiction, inasmuch as under Section 73, Registration Act, the District Registrar is alone empowered to entertain the application against the order of the Sub Registrar refusing to register a document on the ground of denial of the execution by the executant. 3. It is alleged that the order of the District Sub Registrar was without jurisdiction, inasmuch as under Section 73, Registration Act, the District Registrar is alone empowered to entertain the application against the order of the Sub Registrar refusing to register a document on the ground of denial of the execution by the executant. 3. The only point urged before us is that the application before the District Sub Registrar was not maintainable and, therefore, that order of the District Sub Registrar in question was without jurisdiction and, therefore, it should be set aside. 4. In order to appreciate the point raised, it is necessary to refer to certain sections of the Indian Registration Act. Section 73, Registration Act provides that "when a Sub Registrar has refused to register a document on the ground that any person by whom it purports to be executed..... may, within thirty days alter the making of the order of refusal, apply to the Registrar to whom such Sub Registrar is subordinate in order to establish his right to have the document registered". There can be no doubt that under this section the application has to be made before the Registrar, and it is, therefore, the Registrar who can entertain the application against the order of the Sub Registrar refusing to register a document on the ground of denial of execution. Section 75 of the Act empowers the Registrar to pass orders for registration of a document. It is upon the basis of these two sections that the submission on behalf of the petitioner has been made. In this connection it is necessary to refer to Section 7(2) of the Act. It is as follows: "The Local Government may amalgamate With any office of a Registrar any office of a Sub Registrar subordinate to such Registrar, and may authorize any Sub Registrar whose office has been so amalgamated to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar " to whom he is subordinate. Provided that no such authorization shall enable a Sub Registrar to hear an appeal against an order passed by himself under this Act." It is thus clear from this section that the Sub Registrar can be empowered by the Local Government to exercise and perform the duties of the Registrar, but of course it is not open to the Local Government to authorise the Sub Registrar to hear an appeal against his own order. 5. The next question that arises for consideration is whether the Local Government has acted under Section 7(2) of the Act. For this purpose it is necessary to refer to the Registration Manual, Bengal, 1918, at p. 103. Part IV under the heading. "Statutory Orders of Government". Order No. 3 is the relevant order which is as follows: "By notification dated 21-6-1871, the offices of the Sub-Registrars at the headquarters of districts styled District Sub-Registrars have, under Section 7, Registration Act, been amalgamated by the Local Government with those of the Registrars. Sub-Registrars have been authorized to perform all the duties of a Registrar with the exception of those laid down in Sections 68 and 72....." Section 68 of the Act gives powers to the Registrars to superintend and control the Sub-Registrars, and Section 72 provides for an appeal to the Registrar from the orders of Sub-Registrars refusing registration on the ground of denial of execution. Neither of these two sections are, in any way, concerned with the present case. In the present case, no appeal was preferred before the District Sub Registrar, but an application was filed under Section 73 of the Act. So far as Sec. 68 is concerned, as I have already pointed out, it gives powers to the Registrars to superintend and control the Sub-Registrars. At this stage, I would refer to the Bihar Registration Manual, 1946, Vol. II, at p. 219, Part 20, Rule 277. It is as follows: "Sub-Registrars at district headquarters have been empowered by the Local Government to hear applications under Section 73 except those against their own orders of refusal. Applications against the orders of refusal by the Sub Registrar at headquarters and all appeals under Section 72 must be heard by the Registrar himself. The enquiry under Section 74 should also be made by the Registrar himself. Applications against the orders of refusal by the Sub Registrar at headquarters and all appeals under Section 72 must be heard by the Registrar himself. The enquiry under Section 74 should also be made by the Registrar himself. He cannot delegate this power to any one else." It is thus clear from what I have stated above that the District Sub Registrar has every jurisdiction to entertain the application of the opposite party No. 1 under Section 73, Registration Act. 6. Mr. B.C. De appearing on behalf of the petitioner referred us to Sec.35 of the Act and more specially to the last proviso of that section which is as follows: "Provided further that the Local Government may, by notification in the local official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purpose of this sub-section and of Part 12." Section 73 undoubtedly falls in Part 12 of the Act. It was submitted that as the District Sub Registrar was not authorised to hear an application under Section 73 by name, the District Sub Registrar had no power to entertain the application. In my opinion, the last proviso of Sec.35 of the Act does not, in any way, affect the powers of the Local Government under Section 7(2) of the Act. Section 7 of the Act gives powers to the Local Government to amalgamate with any office of a Registrar any office of a Sub-Registrar subordinate to such Registrar, and may authorize any Sub-Registrar whose office has been so amalgamated to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar to whom he is subordinate. It is thus clear that Section 7 is of a wider scope than the last proviso of Sec.35. The last proviso gives the Local Government the power to nominate any Sub Registrar to function as a Registrar in respect of documents the execution of which is denied. It is thus clear that Section 7 is of a wider scope than the last proviso of Sec.35. The last proviso gives the Local Government the power to nominate any Sub Registrar to function as a Registrar in respect of documents the execution of which is denied. In other words under Section 7 the Local Government can empower the Sub Registrars to exercise not only the powers of the Registrar in respect of documents the execution of which is denied, but other powers of the Registrar also; whereas the last proviso of Sec.35 is concerned for a limited purpose, namely, that the nominated Sub Registrar may exercise the powers of the Registrar in respect of documents the execution of which is denied. It is therefore, in my opinion, not necessary for the Local Government to nominate the Registrar in every case concerning the documents the execution of which is denied. Hence, there is no substance in the point raised by Mr. B.C. De. 7. Mr. B.C. De in the course of his submissions has referred to us certain decisions-- two of the Calcutta High Court and one of this Court. The decision of this Court referred to, is -- Hirday Narain Singh V/s. Emperor, AIR 1929 Pat 500 (A) where it was observed that the provisions of Section 74 are mandatory and the District Registrar has no jurisdiction to refer the matter to his Deputy the Sub Registrar, and if it is so referred, any proceedings or order made by the Sub Registrar ordering the petitioner to be prosecuted is illegal. In my opinion, this decision has no application to this case. Section 74 provides for the procedure how the Registrar has to proceed on an application under Section 73 of the Act. The decision of the Patna High Court referred to merely says that it is not open to the Registrar, namely the District Registrar, to delegate his powers to the Sub Registrar. Section 7, however, has nothing to do with the question of delegation of any powers by the District Registrar to a Sub Registrar. Section 7 is concerned with the powers of the Local Government and not with the powers of the Registrar. A decision of the Calcutta High Court on similar lines has been cited and it is reported in -- Mata Dayal V/s. Queen Empress, 24 Cal 755 (B). Section 7 is concerned with the powers of the Local Government and not with the powers of the Registrar. A decision of the Calcutta High Court on similar lines has been cited and it is reported in -- Mata Dayal V/s. Queen Empress, 24 Cal 755 (B). There it was observed as follows: "An inquiry under Section 74, Registration Act should be made by the Registrar himself. He cannot delegate his power to anyone else. A Sub Registrar holding such an inquiry under an order of the Registrar cannot be said to be acting in execution of the Registration Act in any proceeding or inquiry under that Act. An order for the prosecution under Section 82, Registration Act of a witness who gives evidence before the Sub Registrar in such an inquiry is wrong in law." This again observes that the Registrar cannot delegate his powers. We are not concerned with this aspect of the case whatsoever. There is no question of the Registrar having delegated his powers to the District Sub Registrar, and this decision also, therefore, has no application to the present case. The other Calcutta decision cited is -- Jekali Sheikh V/s. Tailannessa Bibi, AIR 1914 Cal 183 (2) C). I am not able to appreciate how this decision is in favour of the petitioner. On the other hand, there are observations which go to show that the decision is in favour of the opposite party. I would quote the relevant portion: "With reference to Section 7 of the Act the rule framed by the Inspector General is to the following effect: "The Sub Registrar at the headquarters of a District. (Special Registrar) whose office has been amalgamated with that of the Registrar, will, besides performing his own duties as Sub Registrar act as the working Deputy of the Registrar exercising as a matter of routine all the functions of a Registrar, except the powers of supervision and control under Sec. 68, and that of hearing appeals against orders refusing to register under Section 72. On such occasions the Sub Registrar should describe himself as acting for the Registrar". Under Sec. 69 of the Act this rule has the force of law. On such occasions the Sub Registrar should describe himself as acting for the Registrar". Under Sec. 69 of the Act this rule has the force of law. It is therefore clear that excepting the power hearing an appeal against an order of refusal by a Sub Registrar on the ground of a denial of execution by the executant, he can, in accordance with the above rule, act for the Registrar in the case of an application under Section 73. If under Section 73 of the Act an application is made to the Registrar, the Sub Registrar on the strength of the above rule can exercise the powers of a. Registrar as given in Clause 4 of Section 75 of the Act. The above being the view that we have taken of the law on the subject we hold that the Sub Registrar, Mahomed Amiruddin, had the power to summon witnesses and to compel their attendance before him to give evidence that being our view we are of opinion that the proceeding during which the Sub Registrar summoned the witnesses, examined them and recorded their statements on solemn affirmation and when the defendant cross-examined those witnesses, was not an improper one." 8 In view of what I have said above, in my opinion, it is quite clear that the District Sub Registrar at Purnea had every jurisdiction to entertain the application of opposite party No. 1 under Section 73, Registration Act, and that his order passed on the application is with jurisdiction. In the result, the application is dismissed with costs and the prayer for the issue of a writ in the nature of certiorari is rejected. Hearing fee, Rs. 50/-. Ramaswami, J. 9. I agree.