Banerji, J.:— This revision is against an order passed by Mr. R.P Sinha, Additional Subordinate Judge, Patna, directing the parties in Title Suit no. 73/51/63/53 to adduce evidence only on certain points.

A few facts may be stated with certain advantage. A sale deed is said to have been executed by the defendant-petitioner on the 24th of January, 1950. After the execution of the deed, the defendant refused to admit execution on the ground of want of consideration and the plaintiff-opposite party presented the original sale deed before the Sub-Registrar for compulsory registration. The Sub-Registrar having refused to admit the document to registration, an application was moved under section 73 of the Registration Act (Act XVI of 1908), hereafter referred as the Act, and the defendant alleged in that proceeding that he had put his signature and thumb mark on blank papers and blank stamp papers and that deception had been practised on him. The. Registrar also refused to register the sale deed on the 30th of July, 1951, and awarded costs. The plaintiff-opposite party then brought the suit under section 77 of the Act praying the sale deed to be registered.

It appears that the suit commenced before another Subordinate Judge, who was transferred, and, when the present Subordinate Judge had examined two witnesses on the 10th February, 1954, and trial was resumed on the next day, an application was filed on behalf of the plaintiff praying that evidence be restricted only to the points which arose for determination in the suit. In the meanwhile, the defendant had adduced evidence on the question of valuation, non-passing of consideration under the sale deed, fraud, non-execution of the deed of agreement, absence of necessity for sale, the date portion in the sale deed not being in the handwriting of the defendant and his signatures having been affixed on blank sheets of paper which were utilised by the plaintiff afterwards for engrossing the terms of the deed thereon.

The learned Subordinate Judge, after having discussed the law on the subject, directed that evidence should be adduced only on the following points:—

(1) Whether the plaintiff has come to Court within the period fixed?

(2) Whether the kebala in question actually bears the signatures and thumb impressions of the defendant?

(3) Whether these signatures and thumb impressions had been affixed by the defendant on blank pieces of paper, as alleged by him, or, whether they had been affixed after the kebala had been faired out, as contended by the plaintiff?

He further directed that the evidence recorded by his, predecessor in office with regard to other points was to be completely ignored.

The defendant has now moved this Court for setting aside that order, and Mr. N.K Prasad no. I, Counsel on his behalf, has argued that the Court below has acted illegally in the exercise of its jurisdiction in shutting out evidence which was relevant, for the purpose of determining the points arising in the suit.

A number of decisions have been cited on behalf of the parties, and it appears there is some difference of opinion when a document is said to have been ‘executed’ in certain circumstances. There is hardly any controversy, however, in regard to the nature of the enquiry under section 77 of the Act. It is generally accepted that the Court is only concerned with the genuineness of the document sought to be registered; that is, whether the document is executed by the person by whom it is alleged to be executed, and not its validity. The question of its validity has to be determined in a suit properly framed for that purpose. In Manindra Nath Sanfui alias Manilal Sanfui v. Lalit Mohan Sadhukhan a Division Bench of the Calcutta High Court held:—

“Under section 77, all that the Court is required to see was whether the party has come within the period fixed and also whether the document has been executed by the party…………. The interpretation of the term ‘executed’ for the purpose of the Registration Act is to be examined with reference to section 35 of the Act. Under section 35 the registering authority, may refuse to register a document only if the signature or mark on the document is not proved to be that of the person said to have made it.”

There is no disagreement up to this point as in Jhaman v. Amrit* the same principle about the scope of an enquiry under section 77 of the Act was reiterated by a Division Bench of this Court, holding that the claim of the plaintiff under section 77 has to be confined only to the registration of the document because a Court trying a suit of this nature is only concerned with the genuineness of the document sought to be registered and not its validity which has to be determined in a suit properly framed for that purpose. In explaining when a document is considered to be genuine in such a proceeding, it was observed that the genuineness of the document depended on the fact whether it was executed by the person by whom it was alleged to be executed. In Jogesh Prasad Singh v. Ramchandar Prasad Singh their Lordships Reuben (as he then was) and Jamuar, JJ. followed this decision (A.I.R 1946, Patna, 62) and held that the Court trying a suit under section 77 of the Registration Act was only to see whether the document was executed by the person by whom it was alleged to be executed and not its validity.

There is, however, difference between the Calcutta case and the decision reported in A.I.R 1950 Patna, 370, relating to the question whether putting one's signature or thumb impression on a blank piece of paper will amount to execution for the purposes of a suit of this nature. Their Lordships of the Calcutta High Court in the case referred above (55 Calcutta Weekly Notes, 166), following Prosunna Coomar v. Mothoora Nath a case of signature obtained by coercion—and David Yule v. Ram Khelawan—a case of signing a blank sheet of paper filled in afterwards differently from what was agreed upon gave rather a too narrow meaning to the word “execution” in holding that it would amount to execution even if the signature or thumb impression were put on blank pieces of paper, or without understanding the contents of the document. It may be mentioned here that in the Calcutta case (55 C.W.N 166) one of the defendants had pleaded that the deed in question had not been fully explained to her and that she had affixed her thumb impression on a document without fully appreciating the real nature of the transaction. It further appears from the latter part of the decision that her another plea was that she had put her thumb impression on a blank piece of paper. It was observed even then that matters like these might arise for consideration in a future proceeding properly constituted.

The interpretation, restricted to this extent, has not been favoured by this Court in the decision reported in A.I.R 1950 Patna, 370, where it has been distinctly pointed out that ‘execution’ consisted in signing a document written out, read over and understood and did not consist in merely signing a name upon a blank sheet of paper. I entirely agree with this decision that a document to be executed must be in existence and, where there is no document in existence, there cannot be execution. To the same effect was the decision of this Court in another case, namely, Ebadut Ali v. Muhammad Fareedi, where it was held that a document to be executed must be in existence and, if an executant merely said that he had signed on a blank paper and the document, which is sought to be executed, was not the one which he had contemplated, such a statement is denial of execution and not admission of the same.

There may be certain instances where a person, against his wish, is physically compelled to put his signature on a document or is otherwise coerced to do the same. There may be cases where a document is surreptitiously changed and signature is put in the belief it is the real one. Could it be said in those circumstances that the document was executed by the person whose signature or thumb impression is found on the document?

In an early case of the Calcutta High Court, that is, Chundra Kishore Munshi v. Dinendra Nath Sanyal, their Lordships Norris and Banerjee, JJ. refused to accept such a signature brought under duress to be “execution” as understood by the provisions contained in sections 35 and 77 of the Registration Act. In this case a considerable pressure was brought to bear upon the executant, who was detained for a whole day without food and also intimidated. It was held that signing in such circumstances was not “execution” within the meaning of the Act, as an “execution” must mean a voluntary one, arising out of executant's free will. The learned Judges observed that there was no difference in law between such a case and one in which the executant's hand was guided by force by some one. This decision was considered in the later Calcutta case (55 Calcutta Weekly Notes, 166), but effect was given only to the other proposition which ran in the following words:—

“When execution of the document tendered for registration is proved or admitted, the registering officer has no authority to consider any extraneous matter, such as, non-receipt of the full consideration, the possible operation of the document as regards third parties or the existence of a collateral agreement which would render the document of no legal force; they leave entirely untouched the question of what amounts to execution.”

To me, it seems that the word “execution” with reference to a suit under section 77 of the Act should be interpreted strictly within a limited compass and without giving to it any wider meaning as it is generally understood. The scope of the enquiry before the Courts should be of the same nature as an enquiry before the registering authority, and it is not for the Court, in such suits, to give a finding as to whether all the ingredients of execution had been duly proved. Sometimes, a little confusion is likely to arise in one's mind in determining the real meaning of the word “execution” and in ascertaining in what sense, the word ‘genuine’ has been used in several decisions. If these terms are given wider significance, there can hardly be doubt that a Court trying a suit under section 77 will have to decide questions, such as want of consideration, coercion, undue influence, improbabilities, absence of necessity and matters of similar nature, as no document can be said to have been properly executed by a person when these elements are present there. Nor can such documents be called genuine when the wider and the more popular meaning is attached to it. In such a suit, as already observed, the Court has to put a restricted meaning both to the words “execution” and “genuine”, and it has only to find if the document was executed by the person by whom it was alleged to be executed and nothing more. At the same time, too narrow and restricted a view cannot be taken in case of signing or putting thumb impressions on blank pieces of paper, as pointed out in the two Patna decisions. It is difficult to set out in what particular instances a document will be considered to be “executed” within the scope of an enquiry under section 77 of the Act. This will depend upon the facts of each case. But this much is clear that the validity of such a document or the legal effect of the signature or thumb impression of a person on such a document is entirely beyond the scope of an enquiry under section 77. The Court will not go into defences, such as, want of consideration, undue influence and such other extraneous matters. The learned Subordinate Judge, in the present case, was, therefore, justified in ruling out evidence adduced by the defendant in this case relating to the matters referred to already. The trial of this suit should strictly be limited to the points as drawn up by the Court below.

I felt certain difficulties at the outset before arriving at the conclusion that the learned Subordinate Judge was right in pointing out a channel through which the evidence in this case should pass, and these difficulties, although resolved later on a maturer consideration, should better be pointed out now. According to section 11 of the Evidence Act (Act I of 1872), facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact or, if by themselves or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The section has been expressed in very wide language, and, if construed widely, questions of valuation, non-passing of consideration, absence of necessity for sale and matters of such nature will certainly be relevant. It has been laid down in many cases, however, that though the terms of the section are wide, it does not mean that any and every fact, however remote, is relevant because it is shown to have a bearing on a fact in issue or a relevant fact. The section, to my mind, does not admit of collateral facts which have practically no connection with the main fact. In considering only the sole question whether a deed has been executed within the meaning of section 35 of the Registration Act, questions like valuation, absence of necessity for sale, etc., as referred above, cannot be relevant under section 11 of the Evidence Act. It would appear that such questions do not come within the first part of the section as they cannot be said to be truly inconsistent with the fact in issue, which is the proof of execution of the document within the scope of sections 35 and 77 of the Registration Act. If I may be allowed to say so, there is no inconsistency as a person may execute a deed although he has no necessity to sell a property and although he received no consideration. Applying the second part of the section, such facts either by themselves or in connection with others do not render the factum of execution highly probable or improbable (the underlining is mine). The words “highly probable” are of great importance, and the facts sought to be proved must be so closely connected with the fact in issue or the relevant fact that a Court will not be in a position to determine it without taking them into consideration. In a suit properly framed and not under section 77 of the Registration Act, such facts will be admissible under section 11 of the Evidence Act as the question of validity of the document and the effect of the execution will be the fact in issue. For an enquiry in a suit under section 77 of the Registration Act I do not consider these collateral facts to be so mediate as to render the issue of mere execution highly probable or improbable. In my opinion, therefore, the determination of collateral facts has rightly been negatived by the learned Subordinate Judge. It was for him to decide the admissibility of evidence under section 136 of the Evidence Act and to exclude all irrelevant evidence. The petitioner can derive no advantage of paragraphs 2 and 3 of section 136 of the Evidence Act as the evidence excluded by the learned Subordinate Judge can hardly be said to be admissible in the Tight of the observations made above and as they are not dependent on the determination of the question in issue in this particular suit.

The other difficulty which I felt was if a successor-in-office could override an order which had been passed by his predecessor. In allowing extraneous evidence to be adduced, the previous Subordinate Judge did not in fact give any decision. It was not broached before him by any party that such evidence was inadmissible and was beyond the scope of the suit. If a wrong or an illegal order has been passed, through mistake or inadvertence, it is always open to a Court to vacate it in a proper case in exercise of its inherent jurisdiction. Order 18, rule 11, Civil Procedure Code, can, possibly, be no bar to the order passed by the present Subordinate Judge as there was no question objected to and allowed by the Court which required a decision thereon.

The application, to my mind, has no merit and is, accordingly, dismissed with costs hearing fee Rs. 32.

Sinha, J.:— I agree that the application in revision should be dismissed. The trial Court has got a very wide discretion in regard to the admissibility of evidence. That discretion is controlled only by the Evidence Act. If, however, there has been an improper exercise of discretion, that could be corrected only by the appellate Court and not by the revisional Court.

I would, however, like to add that the scope of a particular suit is determined by law relating to the subject matter of the suit, and that scope of the suit is and should be reflected in the issues framed by the Court. What evidence has to be adduced in support of the issues so framed or in opposition thereof has, however, to be determined by the Evidence Act. The trial Court has got very wide powers of admitting evidence in a particular case, but those powers are circumscribed by the Evidence Act alone. section 136 of the Evidence Act lays down that, when either party proposes to give evidence of any fact, the Judge may ask the party proposing to give evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence when the fact, if proved, would be relevant and not otherwise. This means that the Judge has to decide the question of admissibility or otherwise of the evidence at the time when the evidence is offered. The evidence proposed to be given has to be considered at the time it is offered as to whether that evidence is admissible under any of the provisions of the Evidence Act relating to the relevancy of facts (Chapter II of the Evidence Act). It is for the Judge, before whom evidence is offered, to decide whether a particular evidence proposed to be given is or is not covered by any of the provisions contained in the said chapter. In the case of Dandy Swami Jagannath Asram v. Pandit Srijib Nyayatirtha their Lordships observed as follows:—

“As to what evidence will be allowed or will not be allowed, cannot be anticipated or decided at this stage, or under cover of framing of issues. That is a matter which must be left to the trying Judge to determine if and when evidence is offered. The Evidence Act contains sufficient provisions for the purpose of guarding against the introduction of useless or irrelevant evidence.”

I have no doubt that the Court below will strictly enforce the provisions of the Evidence Act regarding the relevancy and admissibility of evidence, and if any evidence, which ought to have been admitted, is not admitted, the remedy of the aggrieved party lies in an appeal from the decree itself.

S.H

Rule discharged.