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2015 DIGILAW 818 (CAL)

Prasanta Chowdhury v. State of West Bengal

2015-09-24

JOYMALYA BAGCHI

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JUDGMENT : Joymalya Bagchi, J. Order dated October 08, 2013, passed under Section 72 of the Registration Act, 1908, by the District Registrar, Birbhum, reversing the decision of the District Sub-Registrar dated February 05, 2007, refusing to register the gift deed is called into question in this writ petition. One Juthika Chowdhury, since deceased, executed a deed of gift in favour of Shibani Chowdhury (Mondal). The said deed of gift was presented for registration before the District Sub-Registrar, Birbhum on October 4, 2006. As it appears from the endorsement on record, the said Sub-Registrar refused to register the deed of gift as the executant was senseless when he visited her residence on commission for the purpose of registration and no steps were taken thereafter for registration of the said instrument. Such refusal was purportedly made under Section 35(3)(b) of the Registration Act, 1908. In appeal, being R.A. Case No. 01/72/2007, the District Registrar, Birbhum by order dated October 8, 2013, reversed the decision as per the version of the claimant, the deed writer as well as the attesting witnesses who unequivocally stated that Juthika Chowdhury had instructed the drafting of the deed and executed the said instrument by putting her L.T.I. thereon. It was further deposed that Juthika Chowdhury had put her L.T.I. as her hands were paralysed. Learned advocate for the petitioner submits that the District Registrar erred in law as the witnesses who deposed with regard to execution of the instrument were interested parties and other heirs and successors of Juthika Chowdhury were not examined. The Sub-Registrar found that the executant was in a senseless condition which ultimately led to her death on the very next day and had rightly refused to register the instrument under Section 35(3)(b) of the Registration Act, 1908. Learned advocate for the State submits that the order passed by the District Registrar is a well-reasoned one and does not call for any interference. Learned advocate for the private respondent submits that Section 35(3)(b) of the Registration Act, 1908, has no manner of application because on the date of registration of the instrument the executant was neither a minor nor a lunatic or idiot. In order to resolve the aforesaid controversy, let me examine Section 35 of the Registration Act, 1908. Said Section is quoted as below: “35. In order to resolve the aforesaid controversy, let me examine Section 35 of the Registration Act, 1908. Said Section is quoted as below: “35. Procedure on admission and denial of execution respectively.— (1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or (c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61 inclusive. (2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3) (a) If any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead: Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII: Provided further that the State Government may, by notification in the 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 purposes of this sub-section and of Part XII.” 35(3)(c) of the Registration Act, 1908, entitles the registering officer to refuse to execute the deed if the executant is dead or his representative or assigns denies execution. As it appears from the endorsement recorded by the concerned Sub-Registrar in the course of his commission the executant was in a senseless condition. It is nobody’s case that the executant was dead at the time of holding commission. As it appears from the endorsement recorded by the concerned Sub-Registrar in the course of his commission the executant was in a senseless condition. It is nobody’s case that the executant was dead at the time of holding commission. Thereafter nobody appeared before the concerned Sub-Registrar within stipulated time and the latter refused registration purportedly under Section 35(3)(b) of the Registration Act, 1908. I am unable to appreciate as to how the registration could have been refused under the aforesaid provision as the executant was merely senseless on the date of holding commission and could not be treated as a minor, idiot or lunatic justifying refusal of registration under the said Sub-Section. On the other hand, I find that the claimant under the deed who is the representative/assign of the executant admitted before the appellate authority such execution and the respondents in spite of notice did not appear before the Registrar to deny the same. The version of the claimant was corroborated by the deed writer as well as the attesting witnesses who have unequivocally stated that the executant had executed the deed of gift in their presence dispelling any doubt as to be execution of the instrument by the donor during her life. In view of such fact, I am unable to accept the submission of the learned counsel for the petitioner that further enquiry by examining other legal heirs and successors of the executant was required in the instant case. It is not duty of the appellant authority to examine all the legal heirs of the executant, if the execution is admitted by representative/assign of the deceased before it. Evidence to such effect was led by the appellate authority and the latter was duly satisfied as to the execution of the instrument. The registering authority is concerned with the due execution of the instrument and not with the legal validity of the gift deed in every aspect. Accordingly, I find no reason to interfere with the findings of the appellate authority in the instant case. For the aforesaid reasons, I do not find any merit in the instant writ petition and the same is dismissed. Accordingly, I find no reason to interfere with the findings of the appellate authority in the instant case. For the aforesaid reasons, I do not find any merit in the instant writ petition and the same is dismissed. I make it clear that observations made by me are for the disposal of the writ petition and I have not expressed any opinion as to the validity of the gift deed in all aspects except the fact that its execution by the donor during her lifetime was duly admitted before the appellate authority under Section 72 of the Registration Act, 1908. There will be no order as to costs.