Research › Browse › Judgment

Delhi High Court · body

1968 DIGILAW 128 (DEL)

MOTI RAM v. RITTOO

1968-09-17

HARDAYAL HARDY

body1968
Hardayal ( 1 ) THE petitioners Moti Ram and Brijial have filed this application under Article 227 of the Constitution in which they pray that the order of the Sub-Registrar. Bao)ar, District Kulu dated August 10, 1968 whereby he refused to register the will executed by Mst. Dilbaroo on December 13, 1965 and confirmed on appeal by the Registrat, Kulu District by his order dated January 16, 1967 be set aside and a direction be issued to the Subrtgistrar to admit the said document tor registration. The brief facts as stated in the order of the registrar are that Mst. Dilbaroo was the owner of certain property. She died on December 22, 1965. The petitioners alleged that before her death she had made a will bequeathing the property to them. After the death of Mst. Dilbaroo the petitioners presented the will before the Sub-Registrar, Banjar, District Kulu under Sections 40 and 41 of the Indian Regitration Act, 1908 for registration. Smt. Kittu Devi daughter of Mst. Dilbaroo deceased opposed the registration of the will and filed her written statement on January 29, 1965 but she did not raise any objection on the ground that the will was not written by a licensed deed-writer. ( 2 ) THE petitioners examined 5 witnesses before the Sub-Regstar including Devi Singh (Public Witness -1) who is the scribe of the will and Jaishi Ram and Man Singh who had attested the will. Mohan Singh prohit who had performed the last religious rites of the deceased was also produced as a witness. The Sub registrar however refused to accept the will for registration on the ground that Devi Singh who had written the will was not a licensed document writer. The order of the Sub Registrar was confirmed on appeal by the Registrar. District Kulu and has now been challenged by the petitioners in this Court. ( 3 ) THE Sub-Registrar has declined to accept the will for registration on the basis of Rule 3 framed by the Inspector-General of Registration, Punjab in exercise of the power conferred on him by clause (bb) of Sub-section (1) of Section 69 of the Indian Registration Act, 1908. The said rule reads as under :- "3. ( 3 ) THE Sub-Registrar has declined to accept the will for registration on the basis of Rule 3 framed by the Inspector-General of Registration, Punjab in exercise of the power conferred on him by clause (bb) of Sub-section (1) of Section 69 of the Indian Registration Act, 1908. The said rule reads as under :- "3. Persons by whom documents may be written.- (1) After a month of the publication of these rules in the official Gazette no person shall practise as a document writer except under a licence granted by the Licensing Authority. (2) No registering officer shall accept any document for registration which is not written by a licensed document writer or the executant himself. ( 4 ) LEARNED counsel for the petitioners has argued that sub rule (2) of Rule 3 is ultra tires in as much as it is in excess of the rule making power of the Inspector General of Registration under Section 69 of the Registration Act. In order to appreciate the argument of the learned counsel it is necessary to set out the history of this rule. It appears that formerly there was no check on the writing of deeds and applications falling under the Indian Registration Act and also the fee s charged by the deed-writers. Often, people with little experience and knowledge of the laws on Stamp and Registration, used to write out those documents at very high rates. To remedy this evil the Indian Registration Act was amended by enactipg the Indian Registration (Punjab Amendment) Act, 19ki in its application to the State of Punjab One of the amendments introduced by the said Act was to amend Section 69 of the Indian Registration Act, 1905 by inserting in sub-rule (1) of Section 69 of the principal Act, after clause (b), the following clause, namely :- " (BB) declaring what persons shall be permitted to act as document writers in the offices of registering officers, regulating the issue of licences to such persons, the conduct of business by them, the scale of fees to be charged by them and determining th authority by which breaches of such rules shall be investigated and the penalties which may by imposed. " ( 5 ) PURSUANT to the powers conferred by the aforementioned Section be the Inspector-General of Registration, Punjab with the previous approval of the Governor of Punjab made certain rules called the Punjab Docunoent Writers Licensing, Rules 1961. Clause (1) of Rule 3 prohihits persons from practising as document-writers except under a licence granted by the Licensing Authority Clause. 2) prohibits the registering officer from accepting any document for registration which is not written by a licensed document-writer or the executant himself. Sub-rale (2) of Rule I excludes the application of these rules to jegal practitioners. Rule 4 lays down conditions of eligibility for being licensed as document writer or, if licensed, to continue as a documentwriter. Rule 5 prescribes academic qualifications necessary for obtaining a licence. Rules 6 and 7 deal witn holding of a special examination and with applications for permission to take that examination. Rule 8 provides for scrutiny of applications to sit in the examination, while Rule 9 prescribes the syllabus for special examination. These rules are followed by rules for issuing licences, prescribing the highest fees chargeable by document-writers, conditions of licence and penalties for breach ofconditions of licence Rule 2 (b) defines a document. It reads :- " (B) document means a document written for presentation to a registering officer and includes an application for copy, inspection search, extension of period and issue of summons or warrants and an application under section 73 or a memorandum of appeal under section 72 of the Act;"rule 2 (c) defines a document-writer, It reads - " (E) document-writer means a person holding a licence for practising as a writer of documents for hire. " ( 6 ) EXAMINATION of these rules makps it clear that the will presented by the petitioners is a document within the meaning of that term as defined in Rule 2 (b ). There is also no doubt that if Rule 3 (2) is a valid rule the Sub-Registrar was perfectly justified in refusing to accept the will presented by the petitioners for registration as the same is admittedly not written by a licensed document writer or by the executant herself. The question for consideration however is whether Rule 3 (2) is a valid rule. The question for consideration however is whether Rule 3 (2) is a valid rule. ( 7 ) THE contention of the learned counsel for the petitioners is that the conditions necessary for the presentation of a will forregistration are laid down in Sections 40 and 41 of the Indian Registration Act. Under Section 40 (1) the will may be presented for registration by the testator or after his death by any person claiming to be his executor or otherwise under the will. Undersection 41 (1) a will when presented for registration by the testator has to be registered in the same manner as any other document. The condition that the will must either be written by the executent by himself or by a licensed document-writer is not one of the conditions which is necessary for the purpose of presentation and registration of the will. If the will is presented for registra tier. by the testator it is to be registered in the same manner as any other document i. e. that the registering officer may satisfy himself by following the procedure laid down in Section 35 of the Act and be may make an enquiry as to the minority or sanity of the testator, etc. But when the will is presented for registration by any other person entitled to present it the registering officer is bound to register the same under sut-section (2) of Section 41 if he is satisfied that the will was executed by the testator, that the testator is dead and the person presenting the will is under Section 40 entitled to present the same. ( 8 ) IN the present case all these requirements were satisfied. The petitioners who had presented the will were entitled to prevent the same under Section 40 of the Act. They also led evidence to show that the will was executed by the testatrix and that she was dead. The requirements of Sections 40 and 41 of the Act having thus been satisfied there is no other requirement of the Act which still remained to be satisfied and thus stood in the way of the document being accepted for registration. They also led evidence to show that the will was executed by the testatrix and that she was dead. The requirements of Sections 40 and 41 of the Act having thus been satisfied there is no other requirement of the Act which still remained to be satisfied and thus stood in the way of the document being accepted for registration. ( 9 ) SECTION 69 of the Registration Act confers powers on the Inspector General to frame rules but the rules made by him must be consistent with the Act and they must also be strictly in accordance with the authority conferred by the stitute Clause (bb) of sub-section (1) of Section 69 permits the framing of the rules declaring what persons shall be permitted to act as document writers in the offices of the registering officers, regulating the issue of licences to such persons, the conduct of business by them, the scale of fees to be charged by them and determining the authority by which breaches of such rules shall be investigated and the penalties which may be imposed. The object of the rules therefore is to regulate the practice and profession of document writers. The use of the expression "in the offices of the registering officers" may not be strictly construed to include only those persons who "hall be permitted to act as document writers by accommodation being provided to them in those offices and may well include even other persons who may not be sitting in the offices of registering officers but may still be writting documents which ultimately come up tor registration. But the ambit of the rules can by no means be extended to prohibit all persons other than licensed document writers from writing such documents. The rule making power under this clause certainly permits the laying down of the condition that after the publication of the rules no person shall practise as a document-writer except under a licence granted by the Licensing Authority. The rule making power under this clause certainly permits the laying down of the condition that after the publication of the rules no person shall practise as a document-writer except under a licence granted by the Licensing Authority. It also brings within its sweep the eligibility of persons to be licensed the academic qualifications for obtaining a licence, the holding of an examination, the scale of fes to be charged, the condition subject to which a licence may be granted and the penalties for breach of those conditions ; but there is certainly no warrant or a rule which provides that no registering officer shall accept any document for registration which is not written by a licensed document-writer or by the executant himself As such the rule, in my opinion, has nothing to do with regulating the practice and profession of document writing and it also amounts to the creation and imposition of an additional requirement which is not to be found in the Act itself. ( 10 ) LEARNED counsel for the Registrar argued that the policy and object of the Registration Act is to prevent fraud and to ensure conditions that the documents and deeds which purport to be executed by persons are actually executed by them According to Section 52 (l) (c) of the Indian registration Act, 1908 all documents registerable under the Act are copied in relevant books before they are returned to the executants. Documents written by unlicensed document-writers often raise problems of authenticity and genuineness The rules framed are therefore consistent with the object of the Act. Just as the Courts of law refuse to grant audience to any person who is not a legal practitiner and to appear and plead the case of a litigant in much the same way the impugned rule prohibits registering officer from accepting documents written by unlicensed document-writers. ( 11 ) THE analogy between the case of a licensed document-writer and a legal practitioner, is in my opinion wholly inapt. The embargo in the case of a person other than a legal practitioner is created by a statute and is in express terms. It is not there under any general principle of law or by virtue of a rule made under a statute without there being any prohibition in the statute itself. The embargo in the case of a person other than a legal practitioner is created by a statute and is in express terms. It is not there under any general principle of law or by virtue of a rule made under a statute without there being any prohibition in the statute itself. Its validity is therefore referable to the presence of power in the relevant statute and not to the rule dehors the statute. ( 12 ) IN the present case sub-rule (2) of Rule 3 obviously travels outside the powers conferred by clause (bb) of sub-section (1) of Section 69 as it no-where provides that the registering officers shall refuse to accept documents written by persons other than licensed documentwriters. The scope of rule-making authority is strictly confined to rules declaring what persons shall be permitted to act as document-writers, the licensing of such persons and other matters incidental thereto. ( 13 ) I therefore agree with the learned counsel for the petitioners that subrule (2) of Rule 3 of the Punjab Document Writers Licensing Rules, 1961 is ultra vires inasmuch as it travels beyond the limits pre scribed for rule-making authority by clause (bb) of Sub-section (1) of Sections 69 of the Indian Registration Act, 1908 Since the registration of the document has been refused by the registring officer on this ground alone the order made by him and confirmed on appeal by the Registrar is set aside and the Sub Registrar, Banjar is directed to proceed with the registration of the document in accordance with the provisions of Sections 40 and 41 of the said Act.