MAHESH CHAND v. BOH RAM MURTI SHARMA — 1995 DIGILAW 232 (ALL)

D. S. SINHA, J. Heard Sri Vinod Swarup, learned counsel appearing for the plaintiff-appellant and Sri R. P. Goel, learned counsel representing the defendant-respondents. 2. This second appeal under Section 100 of the Code of Civil Procedure 1908, hereinafter called the Code, is directed against the decree and judgment of the Civil Judge, Aligarh dated 12-12-1974 passed in Civil Appeal No. 348 of 1973 confirming the decree and judgment of the Additional Munsif, Hathras rendered in Original Suit No. 198 of 1968 between Sri Mahesh Chand and Boh. Ram Murti and others dismissing the suit. 3. The plaintiff had instituted a suit against the defendants for re covery of rent amounting to Rs. 1,798 in respect of four shops, one Almirah and adjoining stairs including their upper storeys situate in Bazar Sarafa Ganj Kolma, Hathras, owner whereof was one Sri Har Swarup till he died on 15th January, 1967. The plaintiff had founded his right to claim the recovery of rent on the basis of a registered will dated 24th September, 1966 alleged to have been executed in his favour by Sri Har Swarup. 4. The defendants disputed the will. 5. The plaintiff produced in the trial Court the original will and also examined Mangal Sen (PW-1) who was one of the two attesting witnesses. To counter the evidence of the plaintiff, the defendants produced Gaya Prasad (PW-1), who typed out the will. 6. Disbelieving the oral evidence produced on behalf of the plaintiff, the courts below have declined to accept the will in his favour and dismissed his suit. 7. Sri Vinod Swarup, learned counsel appearing for the appellant, urges that the courts below have committed grave illegality in not considering the evidence in the shape of endorsements of the registering authority on the will regarding presentation of the will, admission of Sri Har Swarup regarding execution and text of the will, existence of signatures and thumb-impression of Sri Har Swarup and the attesting witnesses and the certificate of registra tion appearing on the will. Learned counsel, therefore, contends that the judgments and decrees of the courts below cannot be sustained and are liable to be set aside. Sri R. P. Goel, learned counsel representing the respondents, contends that the courts below will be presumed to have considered the evidence of the aforesaid endorsement. 8. Learned counsel, therefore, contends that the judgments and decrees of the courts below cannot be sustained and are liable to be set aside. Sri R. P. Goel, learned counsel representing the respondents, contends that the courts below will be presumed to have considered the evidence of the aforesaid endorsement. 8. Will dated 24th September, 1966, which was presented before the registering authority on 24th September, 1966 was registered in Book No. 3 Volume No. 59 at pages 73 and 74 on 24th October, 1966, is available on record as Ext. No. 15. The will bears endorsement that Sri Har Swarup presented the will before the registering authority on Saturday, the 24th September, 1966 between 2. 00 and 3. 00 p. m. Further endorsement on the will is that Sri Har Swarup admitted the writing and execution of the will; and that he was old and could walk slowly. The registering authority also endorsed that Sri Kanhaiya Lal and Sri Mangal Sen had identified Sri Har Swarup. Beneath these endorsements the will bears the signatures and thumb-impressions of Sri Har Swarup, Kanhaiya Lal and Mangal Sen. The endorse ment is followed by a certificate to the effect that the will had been registered in the relevant book on 24th October, 1966. 9. Section 40 (1) of the Registration Act, 1908, hereinafter called the Act, provides that the testator may present the will to any Registrar or Sub-Registrar for registration. Section 41 (1) of the Act envisages that a will presented for registration by the testator may be registered in the same manner as any other documents. Part-VI of the Act relates to the presentation of documents, other than will, for registration. Section 34 (3) occurring in Part-VI of the Act provides that on presentation of a docu ment for registration the registering authority shall enquire whether or not such document was executed by the parson by whom it purports to have been executed; satisfy himself as to the identity of the person appearing before him and alleging that he has executed the document. Section 35 provides the procedure to be adopted by the registering authority on ad mission or denial of the execution of a document. Section 35 provides the procedure to be adopted by the registering authority on ad mission or denial of the execution of a document. Clause (a) of sub-section (1) of Section 35 deals with the case where the person executing the docu ment appears personally before the registering authority and the registering authority either knows him personally or is otherwise satisfied that he is the person representing himself to be, and if he admits the execution of the document, the registering officer shall register the document as directed in Sections 58 to 61. 10. Section 59 of the Act requires the registering authority to affix the date and his signatures to all endorsements made under Sections 52 and 58, relating to the same document and made in his presence on the same day. Under Section 52 (1) (a) the day, hour and place of person presenting the document for registration has to be endorsed on every such document at the time of presenting it. Section 60 provides for the certification of the registration. Sub-section (?,) of Section 60 envisages that after a document is certified to have been duly registered shall be admissible for the purpose of proving that the document has been registered in the manner provided in this Act and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein. 11. A Division Bench of this Court in its decision rendered in the case of Misri Lal v. Bhagwati Prasad, reported in AIR 1955 All 573, has opined that the Registrars Certificate is evidence of admission of execution by the executant and that itself is evidence admissible to prove due execution of the document. The question whether it is sufficient evidence must depend upon the circumstances. 12. Thus, it is clear that the endorsements by the registering authority and the certificate of registration made by the registering authority upon will were material and admissible evidence, entitled for due consideration. It cannot be gainsaid that the courts below were legally obliged to consider the entire admissible evidence on record including the evidence in the shape of endorsements and certificate by the registering authority. The court has read and re-read the impugned judgments and does not find anything which may lead to the conclusion that the aforesaid evidence was considered by them. 13. The court has read and re-read the impugned judgments and does not find anything which may lead to the conclusion that the aforesaid evidence was considered by them. 13. The contention of Sri Goel that the courts below will be presumed to have considered the aforesaid evidence in the shape of endorsement and certificate by the Registrar is untenable. No such presumption arises in law. Consideration necessarily implies application of mind and the application of mind must be exhibited in the judgment. 14. Oral evidence of Mangal Sen (PW-1) has been disbelieved merely on the ground that he was closely related to the plaintiff. Mere relationship with the part cannot be a rational basis for rejecting the testimony of a witness if there is no other strong reason for discarding it. There is another striking feature, namely, the absence of the denial of typing of the will by Ganga Prasad, who was produced by the defendants themselves as their witness to attack the execution of the will. The will beats the signature of the aforesaid witness of the defendants and he no where denied his signature testifying the fact that he typed out the will. This also fortifies the case of the plaintiff regarding the execution of the will by Bar Swamp. 15. The evidence in the shape of endorsement and certificate by the Registrar regarding the presentation, writing execution and identification of the executor has not been effectively controverted by any cogent evidence. The courts below have illegally declined to accept the will on wholly illogical inferences drawn from the oral testimony. 16. For the foregoing reasons, decrees and judgments of the courts below cannot be sustained. The appeal is allowed and the judgments and decrees of the courts below, except to the extent that the plaintiff will be entitled to arrears of rent @ Rs. . 60 per month, are set aside. The suit shall stand decreed accordingly. No order as to costs. Appeal allowed. .