Straight, J.:— This reference to the Full Bench which concerns the determination of the second appeal referred, involves three questions.
The first of those questions is, whether the deed of gift of the 1st December, 1885, was admissible in evidence as not being barred by any provision to be found in the Registration Act of 1877.
Secondly, whether any inference from the findings recorded in the Court below, or from any other materials, is warranted that the donee obtained possession under the gift.
[324] And thirdly, whether in regard to the finding of the learned Judge as to the division wall, the decision of the first Court should be modified.
The first of these questions is not res integra, as far as this Court is concerned, because a number of rulings more are less bearing upon it have been referred to by Pandit Sundar Lal who appeared on behalf of the appellant. Those rulings are Har Sahai v. Chunni Kuar, Ikbal Begam v. Sham Sundar, Bishunath Naik v. Kalliani Bai Husaini Begam v. Mulo. In those rulings a decision of the Calcutta High Court in Sheo Shunkar Sahoy v. Hirdey Narain Sahu was referred to, approved and followed, and in one of those rulings reference was also made to a judgment of their Lordships of the Privy Council, Muhammad Ewaz v. Birj Lal. In this connection I may also refer to another ruling of their Lordships of the Privy Council, a portion of which is recited in Sah Mukhun Lall Panday v. Sah Koondun Loll.
The determination of the question as to whether under s. 60, para. 2 of the Registration Act, the deed of gift of the 1st December, 1885, was duly registered, turns upon the meaning to be attached to s. 49 of the same Act, which must be looked at to see whether it in any way cuts down the operation of the second paragraph of s. 60 to the effect the certificate endorsed upon a document by a registering officer shall have to show it was duly registered. S. 49 provides that no document required by s. 17 to be registered, shall, among other things, be received as evidence of any transaction affecting such property, “unless it has been registered in accordance with the provisions of this Act.”
I have given the construction and language of this section the best consideration I can, and in my opinion the word “registered” as used in s. 49 has reference to the act of registration by the registration officer, and is not directed to or concerned with any matter of procedure or conduct of parties seeking registration, which is to [325] be guided and governed by those provisions of the registration law which direct what they should do for the purpose, of effecting or bringing about registration of a document. I take s. 49, read in conjunction with s. 60, to mean nothing more than this, that a document to be admissible in evidence for the purposes of s. 49 must be registered, that is to say, the registration officer must under s. 60 have put upon that document the certificate which s. 60 requires him to put, and if he has done so the document bearing such certificate under s. 60 becomes admissible in evidence, but if he does not do so or there has been no registration of such document, then the document cannot be received as evidence because it has not been registered. This view is not without authority because I observe that Sir Barnes Peacock in the course of his judgment in Sah Makhun Lal Panday v. Sah Koondun Lall observes:—“Again it is not clear that the words ‘unless it shall have been registered in accordance with the provisions of this Act’ in s. 49, are not, especially as regards strangers to the deed, confined to the procedure on admitting to registration without reference to any matters of procedure prior to registration or to the provisions of ss. 19, 21, 36 of the Act or other provisions of a similar nature. In considering the effect to be given to s. 49, that section must be read in conjunction with s. 88, and with the words of the heading of part 10, ‘of the effect of registration and non-registration.’ Now, considering that registration of all conveyances of immoveable property of the value of Rs. 100 or upwards is by the Act rendered compulsory, and that proper legal advice is not generally accessible to persons taking conveyances of land of small value, it is scarcely reasonable to suppose that it was the intention of the Legislature that every registration of a deed should be null and void by reason of a noncompliance with the provisions of s. 19, 21 or 36 or other similar provisions. It is rather to be inferred that the Legislature intended that such errors or defects should be classed under the general words ‘defect in procedure’ in s. 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through [326] any error or inadvertence of a public officer, on whom they would Naturally place reliance. If the registering officer refuses to register the mistake may be rectified upon appeal under s. 83 or upon petition under s. 84, as the case may be; but if he registers where he ought not to register, innocent persons may be misled and may not discover, until it is too late to rectify it, the error by which, if the registration is in consequence of it to be treated as a nullity, they may be deprived of their just rights. It is unnecessary, however, to express any opinion on this point, as it has been decided between these parties that, notwithstanding the first registration, the deed must be considered as unregistered. Neither of the parties appealed from the decision, and therefore whether right or wrong in point of law, they are both bound by it in this suit, and it must be assumed as against them in this appeal that the first registration was a nullity.”
It is to be remarked that there was no specific decision upon the precise point involved in the present case, but nevertheless their Lordships of the Privy Council do seem to have broadly stated their opinion that non-compliance with the provisions of s. 36, that is to say, non-attendance of the executant of an instrument before the Registrar, and his registering the instrument under those circumstances, would not on that account render his proceedings invalid.
Again it seems to me that the ruling of their Lordships of the Privy Council in the case of Majid Hosain v. Fazl-un-nissa favours the view that I have been putting forward. Their Lordships in that case thought that although there had not been a strict compliance with the specific directions of the rules laid down in the Registration Act, a party must go to the office of the Registrar and present the instrument there, nevertheless where the Registrar had gone to the house of the executant and having ascertained all necessary particulars, had then registered the instrument, such a registration was a substantial compliance with the provision of the registration law. Indeed, to use the words of their Lordships, [327] “This registration, in fact, took place at the office of the pargana Registrar, though the officer attended to receive the deed to receive its acknowledgment, and to compare the deed with the copy. He brought it all to his own office and the registration is, in fact, the recording of the copy in the office of the pargana Registrar, all the other requisites provided by the rule having been otherwise complied with.”
That case is an authority for this, that though a direction in the statute to parties seeking registration of a document had not in terms been complied with, nevertheless the certificate of the Registrar was held to be sufficient and satisfactory proof of due and proper registration.
In the present case we have before us a specific certificate from the Registrar to the effect that the particular document, i.e, the deed of gift, was registered. It is not necessary for me to go at length through the reasons that seem to underlie the rulings of their Lordships of the Privy Council, for they are very fully stated in Muhammad Eiuaz v. Eirj Lal, and Sir Montague E. Smith has explained in that case how the object of the registration law being to afford notoriety to instruments relating to immoveable property, the circumstance that a document has been, in fact, registered, satisfies the object at which the statute aimed. Here the deed of gift was registered on the 5th of January, 1886, the object of the registration law was satisfied, and there was notice from that time that such instrument was in existence. I am therefore of opinion that this document, bearing as it did a registration certificate, was registered within the meaning of s. 60 of the Registration Act, that under para. 2 of that section it became admissible in evidence, and that there is nothing in s. 49 which militates with that view or interferes to prevent the operation of the second paragraph of s. 60. I think that the learned Judge was wrong in holding that this document was not admissible in evidence, and that the Court below ought to have looked at it and dealt with it to the extent it deserved.
[328] The second question is, are there materials before us which sustain the inference that the donee Musammat Hardei obtained possession under the deed of gift. Looking to the matters detailed by the learned Judge and to all facts stated in the judgment, it seems to me they are consistent with the plaintiff having received possession under the deed of gift, at any rate there are no facts inconsistent with that view, and I think we may fairly assume that she did have possession.
With regard to the finding as to the wall, that seems to be more or less in accordance with what was found by the first Court. I would suggest that the proper order to be made is that the appeal of the plaintiff being allowed and the decree of the learned Judge set aside, that of the first Court should be restored, and the plaintiff appellant will have her costs in all the Courts.
Sir John Edge, C.J:— I am of the same opinion, and for the same reasons as given by my brother Straight.
Tyrrell, J.:— I concur.
Appeal allowed.