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Nyadarsingh v. Chensingh
Structured Summary of the Opinion (Nyadarsingh v. Chensingh — Registrar)
Factual and Procedural Background
The petitioner Nyadarsingh sought a writ of certiorari under Article 226 of the Constitution to quash an order of the Registrar, District Nimar, which cancelled the registration of a sale deed executed by the opponent Chensingh in favour of the petitioner.
The facts as recited in the opinion are: on 17-3-1951 Chensingh sold a house to the petitioner for Rs. 200 and executed a sale document which he presented the same day in the office of the Sub-Registrar, Khargone. Because the Sub-Registrar was absent, a clerk received the document and no endorsement required by Section 52 of the Registration Act was made. Nothing further happened until 30-12-1951 when the petitioner applied to the Registering Officer complaining that Chensingh was avoiding appearance for registration; a notice was issued, Chensingh appeared and raised objections, and the Sub-Registrar overruled those objections and on 3-3-1952 directed registration of the sale deed. Chensingh appealed to the Registrar, who held that the document had not been validly presented on 17-3-1951 (because the Sub-Registrar was absent and the clerk receipt did not constitute presentation under S. 23), deemed presentation to have occurred on 3-2-1952 when the clerk first placed it before the Sub-Registrar, and found the registration time-limit exceeded; consequently he cancelled the registration of the deed by order dated 9-4-1952.
The opinion notes the Madhya Bharat Registration Act (Act No. 48 of 1949) was in force on 17-3-1951 and that its provisions did not differ from the Indian Registration Act for the material sections considered.
Legal Issues Presented
- Whether the presentation of the document in the office of the Sub-Registrar on 17-3-1951 by handing it to a clerk (while the Sub-Registrar was absent) constituted a valid presentation under Sections 23 and 28 of the Registration Act.
- Whether defects arising from the clerk's failure to obtain endorsements required by Section 52 (and delays in placing the document before the Sub-Registrar) vitiate a valid presentation and the subsequent registration, or are procedural defects curable under Section 87.
- Whether the Registrar had jurisdiction under the Registration Act (including Section 68 and other relevant provisions) to cancel a registration already effected by a Sub-Registrar.
- Whether the petitioner was precluded from seeking relief by way of writ under Article 226 on the ground that he had an alternative remedy (for example, a suit under Section 77 of the Registration Act).
Arguments of the Parties
Petitioner's (Mr. Chitale) Arguments
- Under Sections 23 and 28 a document is duly presented if presented in the office of the Sub-Registrar within whose sub-district the property is situated; it is not necessary that the document be handed to the Sub-Registrar personally.
- The presentation on 17-3-1951 by handing the deed in the Sub-Registrar's office was therefore a valid presentation, conferring jurisdiction on the registering officer.
- Failure to follow the procedure in Section 52 and the executants' appearance more than four months after execution (without condonation by the Registrar) are procedural defects that cannot vitiate registration once the registering officer has jurisdiction.
- In any case, the Registrar had no power under the Registration Act to cancel a registration effected by a Sub-Registrar.
Opponent's (Mr. Gokhale) Arguments
- The petitioner had an adequate remedy by a suit under Section 77 of the Registration Act and therefore was not entitled to relief under Article 226.
- The Registrar purported to cancel the registration under the Registrar's powers in Section 68 of the Act (as argued by counsel for the opponent).
- Separately, the opponent asserted (as the "sheet anchor" of his contention) that he had not received consideration for the sale, implying rights to pursue recovery or challenge on that ground.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Decisions of the Privy Council (as noted in Chitaley's Registration Act 1945, 1st Edn., p. 316) | When the registering officer obtains jurisdiction by proper presentation of the document, failure to follow procedure under Section 52 is a procedural defect curable under Section 87 and does not render an effected registration invalid. | The court relied on this principle to hold that receipt of the document in the Sub-Registrar's office by a clerk constituted valid presentation; omissions under S.52 were procedural and did not justify cancelling an already effected registration. |
| Hussain Ali Shah v. Sardar Ali Shah, AIR 1933 Lah 786 (Lahore High Court) | Under the Registration Act the Registrar has no power to cancel a registration already completed by the Sub-Registrar; Section 68(2) does not confer such power. | The court cited this decision to support the conclusion that the Registrar's order cancelling the registration was unauthorised and could not be upheld. |
Court's Reasoning and Analysis
The court proceeded step-by-step through statutory interpretation and application of authorities, staying strictly within the material stated facts and the Registration Act provisions referred to in the opinion:
- Interpretation of Sections 23 and 28: The court read these sections together to conclude that the "proper officer" to whom a document must be presented is the Sub-Registrar of the appropriate sub-district and that the document must be presented in the office of that Sub-Registrar. Nothing in these provisions requires that the Sub-Registrar personally receive the document; presentation in the office suffices.
- Effect of the clerk's receipt and omissions under Section 52: The court acknowledged that the clerk who received the sale deed on 17-3-1951 failed to put it before the Sub-Registrar until 3-2-1952 and that endorsements required by Section 52 could not be made because the Sub-Registrar was absent. However, the court characterized these as omissions and defects for which the presenter was not responsible. Reliance was placed on Privy Council authorities (as noted in Chitaley's book) that treat such failures as procedural defects curable under Section 87 rather than as vitiating the registration.
- On the Registrar's asserted power to cancel: The court analysed Section 68 and held that it empowers the Registrar to supervise and issue directions in respect of ministerial functions and duties of Sub-Registrars but does not confer power to cancel a registration already completed by a Sub-Registrar. The court reinforced this interpretation by citing the Lahore High Court decision in Hussain Ali Shah v. Sardar Ali Shah which held that the Registrar cannot cancel an already completed registration.
- On appellate jurisdiction and remedies under the Act: The court noted that under Section 72 an appeal to the Registrar lies only against an order refusing to admit a document to registration (other than denial of execution). The Act provides no appeal against an order admitting a document to registration. Consequently, the Registrar had no jurisdiction to entertain an appeal that amounted to cancelling an admission/registration already made by the Sub-Registrar.
- On availability of alternative remedies: The court rejected the opponent's contention that the petitioner had an adequate remedy under Section 77. The opinion explained that a suit under Section 77 presupposes a refusal to register by the Sub-Registrar and a timely appeal to the Registrar; those prerequisites were absent. The court observed that even if other suits might be possible (e.g., for recovery of consideration or for specific relief), such remedies would be less convenient and not equally efficacious, particularly where the Registrar clearly lacked power to cancel registration made by the Sub-Registrar.
- On the opponent's point about consideration: The court indicated that the question of payment of consideration is a matter for a regular suit for recovery and does not affect the due execution and registration of the document for the limited purpose of the present petition.
Holding and Implications
HOLDING: The court set aside the Registrar's order dated 9-4-1952 cancelling the registration of the sale deed (the deed having been registered by the Sub-Registrar following presentation in the Sub-Registrar's office and the Sub-Registrar's order of 3-3-1952). The court concluded that the Registrar was unauthorised to cancel the registration.
Direct consequences for the parties:
- The Registrar's order cancelling the registration of the sale deed executed by Chensingh (referenced in the opinion as executed on 15-3-1951 in favour of the petitioner) was quashed and set aside.
- The registration effected by the Sub-Registrar stands (subject of course to any separate regular suit concerning consideration or related rights, which the court indicated would be the opponent's remedy).
- The court ordered no costs in respect of the petition, having regard to the nature and peculiar circumstances of the case.
Implication regarding precedent: The decision applies existing authorities (Privy Council decisions as noted in Chitaley's book and the Lahore High Court decision cited) to resolve the dispute; the opinion addresses the direct dispute between the parties and does not purport to lay down a new, generalized rule beyond that application.
Disposition
The petition under Article 226 was allowed; the Registrar's order dated 9-4-1952 cancelling the registration of the sale deed was set aside. Chaturvedi, J. concurred. There was no order as to costs.
Dixit, O.C.J:— By this petition under Article 226 of the Constitution of India the applicant Nyadarsingh seeks a writ in the nature of ‘certiorari’ for quashing an order of the Registrar, District Nimar, cancelling, the registration, of a sale deed executed by the opponent Chensingh in favour of the petitioner.
2. The facts out of which this petition arises-are as follows:
On 17-3-1951 Chensingh sold to the petitioner a house belonging to him for a sum of Rs. 200/- and executed a document of sale. On the same day he presented the document in the office of the Sub-Registrar, Khargone, for registration. As the Sub-Registrar was out, the document was received by a clerk in the office and no endorsement required by Section 52 of the Registration Act could be made on the document.
3. Nothing happened after the presentation of the document till 30-12-1951 when Nyadarsiaigh made an application to the Registering Officer complaining that Chensingh was avoiding appearing before the Sub-Registrar for the registration of the sale deed and that he be compelled to appear before the Sub-Registrar. On this application a notice was issued to Chensingh to show cause why the sale deed should not be registered. In response to this notice Chensingh appeared before the Sub-Registrar, and while not denying the execution of the sale deed raised various objections to the registration of the deed. The Sub-Registrar overruled Chensingh's objections and passed an order on 3-3-1952 directing the registration of the sale deed. Chensingh then preferred an appeal before the Registrar.
4. In appeal the Registrar took the view that as at the time of presentation of the document on 17-3-1951, the Sub-Registrar was absent and the document was received by a clerk in his office, there was no valid presentation of the document under Section 23 of the Registration Act; that the sale deed would be deemed to have been presented on 3-2-1952, when the clerk who received the document placed it for the first time before the Sub-Registrar, and that as on 3-2-1952, the eight months' time within which the document could have been presented from the date of its execution after condonation of the delay under S. 25 of the Act, had already exceeded, the document could not be registered under S. 34 of the Act. He, therefore, passed an order cancelling the registration, of the deed.
5. On 17-3-1951, When Chensingh presented the document in the office of the Sub-Registrar, the Madhya Bharat Registration Act (Act No. 48 of 1949) was in force. The provisions of this Act were in no way different from those of the Indian Registration Act; in order to avoid constant reference to the provisions of corresponding sections of both the Acts, I will only refer for the sake of convenience to the material section of the Indian Registration Act.
6. There is no dispute as to the facts. The argument of Mr. Chitale, learned counsel for the petitioner, is that under Ss. 23 and 28 a document is duly presented if it is presented in the office of the Sub-Regstrar within whose sub-district the whole or some portion of the property to which the document relates is situated and that it is not necessary that the document should be handed over to the Sub-Registrar personally; that the presentation on 17-3-1951 by Chensingh of the sale deed in the office of the Sub-Registrar was, therefore, a valid presentation; that registering officer having thus got jurisdiction by the proper presentation of the document, the failure to follow the procedure laid down by S. 52 of the Act, and the appearance of the executants more than 4 months after the execution of the document without the delay being condoned by the Registrar could not vitiate the registration proceedings, and that in any case the Registrar had no power under the Registration Act to cancel the registration of a document by the Sub-Registrar.
7. In my opinion all these contentions advanced on behalf of the petitioner are well founded and must be accepted. Under S. 23 a document other than a will must be presented for purposes of registration to the proper officer within 4 months from the date of its execution. Section 28 says that every document mentioned in the sections referred to therein shall be presented for registration in the office of the Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.
8. On reading these sections together it is plain that the proper officer to whom a document must be presented is the Sub-Registrar within whose subdistrict the whole or some portion of the property to which the document relates is located, and that the document must be presented in the office of the Sub-Registrar. There is nothing in these provisions to indicate that the physical act of receiving a document in the office must be done by the Sub-Registrar himself.
9. It is true that the clerk who received the sale deed omitted to put it up before the Sub-Registrar until 3-2-1952, and that as the Sub-Registrar was not present in his office on 17-3-1951, the particulars required by S. 52 of the Act could not be endorsed upon it. But these are omissions and defects for which the person presenting the document was in no way responsible. The document having been validly presented to the registering officer having jurisdiction, the Registrar was not justified in cancelling the registration on the grounds that he did. The decisions of the Privy Council which have been noted in Chitaley's Registration Act 1945 1st Edn. at p. 316, clearly lay down the principle that when once the registering officer gets jurisdiction by the proper presentation of the document a failure to follow the procedure prescribed by S. 52 is only a defect in procedure curable under S. 87 of the Act and that on account of this omission or for the reason that the executant did not appear before the Sub-Registrar within the time prescribed by the Act, the registration of the document if effected is Dot rendered invalid.
10. The order of the Registrar cancelling the registration effected by the Sub-Registrar cannot, therefore, be upheld.
11. In fact the Registrar had no jurisdiction to entertain an appeal from the decision of the Sub-Registrar registering the document. Under the Registration Act the decision of the Sub-Registrar has been made final subject to an appeal under S. 72 to the Registrar. Under this section an appeal lies only against an order refusing to admit a document to registration on grounds other than the denial of execution.
12. The Act does not provide for any appeal against an order of the Sub-Registrar admitting a document to registration. Learned counsel for the opponent said that the Registrar cancelled the registration of the sale deed in the exercise of his powers under S. 68 of the Act.
13. This section only provides that every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar and that every Registrar shall have authority to issue any order consistent with the Act, to any Sub-Registrar in respect of any act or omission on his part or in respect of rectification of any error regarding the book or the office in which any document has been registered. To me it appears that S. 68 only empowers the Registrar to issue directions to the Sub-Registrars in respect of their ministerial functions and duties.
14. That section does not confer on the Registrar the power of cancelling the registration of a document, the execution of which is not denied and which has already been registered by a Sub-Registrar. I am fortified in this view by a decision of the Lahore High Court in — ‘Hussain Ali Shah v. Sardar Ali Shall’, AIR 1933 Lah 786 (A), where it has been pointed out that under the Registration Act, the Registrar has no power to cancel a registration already completed by the Sub-Registrar and that S. 68(2) does not confer any such power on the Registrar. In my opinion, the order of the Registrar dated 9-4-1952, cancelling the registration was absolutely unaudiorised.
15. Mr. Gokhale learned counsel for the opponent Chensingh urged that the petitioner was not entitled to any relief under Article 226 as he had remedy by way of a suit under Section 77 of the Registration Act. This contention must be rejected. Section 77 has no relevance whatsoever in the present case.
16. In order to maintain a suit under S. 77 there must be first refusal to register by the Sub-Registrar and an appeal within time to the Registrar.
17. In the present case there has been no refusal by the Sub-Registrar and no appeal against any order of the Sub-Registrar refusing to register the sale deed. Learned counsel did not indicate the nature of the suit which the petitioner could file independently of S. 77.
18. Even assuming that it is open to the petitioner to file a suit for setting aside the Registrar's decision or a suit for registration, or a suit for specific performance of the contract, or for possession of the property I do not think this doubtful remedy of a suit can be regarded as equally convenient and efficacious remedy when the Registrar had clearly no power to cancel the registration of a document made by the Sub-Registrar, and the execution of the document validly presented had not been denied by the opponent.
19. The sheet anchor of the opponent's contention is that lie has not received any consideration for the sale. If the opponent has not received the full price or any part of the price his obvious remedy is to file a suit for its recovery claiming a charge against the property sold. So far as the due execution and registration of the document is concerned it is wholly immaterial whether the consideration for the sale was or was not paid. The payment of the consideration is a matter which the opponent has to contest only in a regular constituted suit. For the above reasons I would set aside the order dated 9-4-1952 of the Registrar, District Nimar, cancelling the registration of the sale deed executed by Chensingh on 15-3-1951 in favour of the petitioner. Having regard to the nature and peculiar circumstances of the case there will be no order as to costs of this petition.
Chaturvedi, J.:— I agree.
20. Order accordingly.
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