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2006 DIGILAW 594 (RAJ)

Ganga Das Vyas v. Swaroop Prakash

2006-02-20

BHAGABATI PRASAD BANERJEE, S.N.JHA

body2006
Honble PRASAD, J.—Heard. (2). The present Special Appeal has been filed by Gangadas against the judgment of the learned Single Judge of this Court in first appeals one filed by appellant and another filed by Swaroop Prakash. The litigation was initiated by Gangadas by filing a suit for partition of property. (3). The partition suit as filed by plaintiff Gangadas was decided on 26.4.1972 by the Court of Additional District Judge No. 1, Jodhpur. the Trial Court has decreed the suit for partition holding Issue No. 7 in favour of the plaintiff. (4). For the purpose of the present appeal, it is not necessary to go into the extensive details of the suit and it contents because findings of the first appellate Court have only been challenged before us qua Issue No. 7. (5). Issue No. 7 relates to admissibility of the document Exhibit A/2. This document purports to be a relinquishment deed. By virtue of the deed Exhibit A/2, it is alleged that plaintiff Gangadas alongwith Hari Das relinquished their share in the house in favour of Swaroop Prakash and Moolchand minor sons of Mathura Das. The Trial court after considering the case of the plaintiff, came to the conclusion that Exhibit A/2, the relinquishment deed as purportedly signed by plaintiff Gangadas and Hari Das was presented for registration before the Sub-Registrar, Jodhpur City by Hari Das on 28.12.1955. The plaintiff Gangadas was not present when Exhibit A/2 was presented before the Sub-Registrar for registration. This document recites that for a consideration of Rs. 3000/-, the two executants, namely, Hari Das and Gangadas relinquished their share in favour of Swaroop Prakash and Moolchand, minors through their natural guardian Smt. Magi Wd/o Shri Mathura Das, mother of these two minors. It was also averred in this deed that Rs. 2500/- were received earlier and Rs. 500/- were received before the Sub-Registrar. Dy. Registrar accordingly ordered for registration of the document on 18.1.1956. This is an admitted position that at the time when this document was presented for registration, Gangadas had no presented himself before the Sub-Registrar. (6). It was also averred in this deed that Rs. 2500/- were received earlier and Rs. 500/- were received before the Sub-Registrar. Dy. Registrar accordingly ordered for registration of the document on 18.1.1956. This is an admitted position that at the time when this document was presented for registration, Gangadas had no presented himself before the Sub-Registrar. (6). The Trial Court while deciding in favour of the plaintiff, held that the document is inadmissible in evidence qua Gangadas, plaintiff because at the time when registration was ordered, he did not appear before the Registrar to accept the terms of Section 73 of the Registration Act, 1908 (hereinafter referred to as the Act) that an executant should make himself available before the registering authority personally or through his representative or assign. Since, Gangadas had not appeared before the registering authority, the document is not binding on Gangadas. . . (7). In appeal, the leaned Single Judge of this Court was of the opinion that the execution of the document Exhibit A/2 has been held to be established by the trial Judge also to be there. Learned Single Judge of this Court held that once the execution of the document is held to be made by plaintiff Gangadas, what remains is to be seen is that effect of his non-appearance before the Sub-Registrar for admitting or denying the execution as delineated in Section 73 of the Registration Act. Learned Single Judge of this Court in his judgment has noted as under:— "The learned Additional District Judge has found that the signatures of Gangadas and Haridas have been proved on the relinquishment deed Exhibit A/2. Learned counsel for the plaintiff Gangadas did not seriously assail the finding of the learned Additional District Judge that the relinquishment deed Exhibit A/2 bears the signatures of the plaintiff Gangadas." (8). Thus, the proceedings as recorded by the learned Single Judge clearly establish that signature on Exhibit A/2 are more or less admitted to be that of Gangadas. Thereafter, the learned Single Judge has relied on a decision of this Court in the matter of Smt. Gomti vs. Rameshwar Das, reported in 1971 (1) RLW 1, which is based on a Privy Council decision, decides the question on following lines:— "43. Thereafter, the learned Single Judge has relied on a decision of this Court in the matter of Smt. Gomti vs. Rameshwar Das, reported in 1971 (1) RLW 1, which is based on a Privy Council decision, decides the question on following lines:— "43. In view of what has been said above, we hold that the correct proposition deducible from the above decisions of the Privy Council is that if a document purporting to have been executed by A, B and C has been registered by the Registering Officer on A alone appearing before him and admitting execution then it is to be regarded as validly registered and is admissible in evidence the plaintiff proves at the trial that B and C also executed the deed it will be effecting against them also." (9). If we examine the scheme of the Registration Act it shows that as and when a document is presented before the registering authority and all the executants do not appear and deny the execution, then Registrar is required to hold an inquiry on being approached under Section 74 of the Act and if the Registrar finds that the documents have been executed as alleged and the requirements of law for the time being in force have been complied with, he shall order for registration, provisions of Section 74 and Section 75 of the Act are quoted herein below for ready reference:— "74. Procedure of Registrar on such application.—In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall as soon as conveniently may be, enquire— (a) whether the document has been executed; (b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document registration." "75. Order by Registrar to register and procedure thereon.—(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered. Order by Registrar to register and procedure thereon.—(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered. (2) If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60. (3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration. (4) The Registrar may, for the purpose of any enquiry under Section 74, summon and enforce the attendance of witnesses and compel them to give evidence, as if he were a Civil Court and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908." (10). In the scheme of the powers under the Registration Act, it will be seen that the Sub-Registrar was required to hold the inquiry when he found that the executant has not presented himself before him to deny or admit the execution. If summon had been issued and Gangadas would have appeared before the registering authority either to deny or admit the execution. If summon had been issued and Gangadas would have appeared before the registering authority either to deny or admit the execution. In case of refusal, the Registrar could hold enquiry under Section 74 of the Act and order as delineated under Section 75 of the Act. Ultimately, if the Registrar also had to say "No" for registration, then the powers have been assigned to the Civil Court. (11). The matter in hand where a finding has been recorded by the Civil Court that executant Gangadas has in fact appended his signature, the Trial Court and the first appellate Court both have held that the document exhibit A/2 has been signed by Gangadas. Once the execution is established and no fraud, deceit or misrepresentation have been pleaded, the facts have to be so concluded that the document was properly executed but having not followed the procedure as delineated in the Act, the authority committed an illegality. Once the execution is established and no fraud, deceit or misrepresentation have been pleaded, the facts have to be so concluded that the document was properly executed but having not followed the procedure as delineated in the Act, the authority committed an illegality. Such procedural illegality is found curable under Section 87 of the Act by the law laid down by this Court in Smt. Gomti vs. Rameshwar Das. In that view of the matter, the learned Single Judge has found that the document Exhibit A/2 is a validly registered document and the plaintiff Gangadas was also bound by it. That being the position, the registration of Exhibit A/2 though was not found strictly in accordance with the provisions of the Act but the execution having been held to be made by Gangadas by the Trial Court and the finding being not seriously challenged before the learned Single Judge, it has been safely concluded by the learned Single Judge that the document has been rightly registered. That follows that the plaintiff has given up his right vide Exhibit A/2. Such rights as claimed by him in he suit cannot be made available to him through the process of the Court. (12). The main thrust of the learned Counsel for the appellant was that since there was procedural illegality, the document should have been held to be inadmissible and finding of execution alone should not have been sufficient. He placed reliance on the decision in the matter of Smt. Gomti (Supra). He also placed reliance on a decision of Honble Supreme Court in the matter of Smt. Dularia Devi vs. Janardan Singh & Ors., reported in AIR 1990 SC 1173 , wherein, Honble Supreme Court has held as under:— "6. Ningawwa vs. Byrappa, AIR 1968 SC 956 , (Supra), this Court referred to the well-established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it was avoided. This Court then said (Para 5): "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the the contents thereof. The transaction remains valid until it was avoided. This Court then said (Para 5): "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the the contents thereof. With reference to the former, it has been held that the transaction is void, while in case of the latter, it is merely voidable. In Foster vs. Mackinnon, 1869 LR (4) CP 704, the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed:— If (signature) is valid not merely on the ground of fraud, where fraud exists, but on the ground that be mind of the signer did not accompany the signature, in other words, that he never intended to sign, and therefore, in contemplation of law never did sign, the contract to which his name is appended.The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable, he was deceived, not merely as to the legal effect, but as to the actual contents of the instrument." (13). He also places reliance on another decision of Honble Supreme Court in the matter of Mrs. Mary Joyce Poonacha vs. M/s. K.T. Plantations Pvt. Ltd., reported in 1995 Supp (2) Supreme Court Cases 459, wherein the Honble Supreme Court directed that the document should be looked into for the limited purpose for finding out whether Devika Rani had executed the impugned sale deed alleged to have been executed by her and not for any other purpose. (14). Per contra, learned Counsel for the plaintiff has asserted that arguments of the learned Counsel for the defendant are of no consequence. Once when the execution stands established, then registration is only a formality. In the scheme of Registration Act, such registration can be ordered to be registered after holding enquiry. Here the findings of the Civil Court has come, which in the Scheme of the Act could be obtained by either of the parties after the orders of the Registrar. Once when the execution stands established, then registration is only a formality. In the scheme of Registration Act, such registration can be ordered to be registered after holding enquiry. Here the findings of the Civil Court has come, which in the Scheme of the Act could be obtained by either of the parties after the orders of the Registrar. Thus, once when the execution is there and if the impediments as delineated in Section 74 of the Act is not there where requirements of law are required to be complied with, then the registration so made cannot be considered to be of any consequence and this Court in case of Smt. Gomti (Supra) has held that such illegality are curable under Section 87 of the Act. (15). Learned Counsel for the defendants further asserted that in the plaint, the plaintiff had not mentioned even the existence of Exhibit A/2. Thus he had tried to mislead the Court and as such, the plaintiffs have been held to be persons who based their case on falsehood and such persons should be held to have no right to approach this Court and such persons should be summarily thrown out of the Court. He places reliance on the decision of Supreme Court in the matter of S.P. Chengalvaraya Naidu vs. Jagannath, reported in AIR 1994 SC 853 , wherein, Supreme Court has held as under:— "The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the Court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by anothers loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the Court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial ten-tamounts to playing fraud on the Court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approached the Court, is bound to produce all he documents executed by him which are relevant to the litigation. If the withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party." (16). We have considered the arguments advanced on behalf of both the parties and have given our thoughtful consideration. In the backdrop of the findings of two Courts below that Exhibit A/2 was signed by Gangadas and he had not cared to mention these facts, plaint has led us to believe that Gangadas was not a bonafide litigant. He having signed Exhibit A/2 has failed to appear before the registering authority. He failure though was only a procedural lapse because the Registrar could have enquired and then ordered registration because there was no other defect of following of relevant law. Execution being established, the document could have been otherwise ordered to be registered which was registered by the Dy. Registrar in hot haste. In any case, after the findings of the Civil Court about the execution by Gangadas and registration of the document with a curable defect can safely held to be admissible in evidence. (17). Learned Single Judge having considered the execution of the document by Gangadas has held that it was rightly registered. We are in agreement with the findings of the learned Single Judge that such registration is a registration in violation of the procedural law provided under Section 73 of the Act but then procedure of Section 73 of the Act would only give an opportunity to Gangadas to deny execution and that denial was subject to enquiry under Section 75 of the Act. However, in that enquiry, execution would have been established, the Registrar could order the registration if the document was not otherwise executed in violation of the Act. No fraud or mis-representation has been alleged by the plaintiff in its execution, he had tried to evade the question of execution by not mentioning the fact of document Exhibit A/2 in his plaint and thus has tried to withhold material information from the Court about a list which he wanted the Court to execute. Such plaintiffs who do not come with clear facts and try to withhold material information, have been held to be litigants guilty of playing fraud on the Court, as has been held by the Honble Supreme Court in the matter of S.P. Chengalvaraya Naidu (Supra). (18). In the result, we are in agreement with the learned Single Judge that the execution being not seriously disputed and held by learned Single Judge to be valid the registration as done cannot be found fault with to make the document Exhibit A/2 in- admissible. Once the document Exhibit A/2 is held admissible, the entire case as set up by the plaintiff in his plaint gets knocked down. The document Exhibit A/2 though is a document styled as relinquishment deed but is infact, a sale for consideration because consideration has been taken by the executant and acknowledged through this document. Thus, it is seen that Gangadas has bound himself by Exhibit A/2 and in that light, the Trial Court has erred in deciding Issue No. 7 in his favour. Learned Single Judge in first appeal has reversed the findings and we affirm the findings of the learned Single Judge and consequently dismiss the suit of the plaintiff. Costs are made easy.