Decided on April 25,1944



Leach, C.J. - (1.) THE facts in this case are very unusual. The plaintiff is the widow of one Virraju, who died on 27th March 1941. She alleges that he executed a will on 25th March 1941, which was duly attested. One of the attesting witnesses was Penumoody Venkataratram, a divided brother of the deceased. On 1st May 1941, the plaintiff applied to the Sub -Registrar of Coconada for the registration of the will. There was no opposition to her application. On the other hand, she was supported by Venkataratnam. The order of the Sub -Registrar has not been exhibited, but apparently he was not satisfied that the will was genuine Consequently he rejected the application for registration. The Sub -Registrar's order was confirmed on appeal by the District Registrar. Here again, the plaintiff was unopposed. The Registrar's order was passed on 8th August 1941. On 1st September 1941, the plaintiff filed the suit which has given rise to this appeal. It was filed Under Section 77, Registration Act, 1908. She made Venkataratnam the defendant, but did not join the Registrar. Venkataratnam filed a written statement in which he alleged that the alleged will was a forgery; but, before the action came on for hearing with the consent of the Court, he filed an additional written statement in which he averred that the alleged will could not bind his reversionary right and that no cause of action existed against him. At the hearing the Subordinate Judge accepted this contention and expressly held that the defendant was not a necessary party. Consequently he went on to hold that, as there was no defendant, the suit could not be maintained. Having arrived at this conclusion the Subordinate Judge should have dismissed the suit. Unfortunately, in spite of the absence of the defendant, he went into the question of the validity of the will and came to the conclusion that it was not a genuine document. It was on this ground that he dismissed the suit.
(2.) THERE can be no suit without a cause of action against some one and the person against whom the cause of action arises must be made a party. Here no cause of action existed against Venkataratnam. On the other hand, as we have already pointed out, he supported the plaintiff before the Sub -Registrar and before the Registrar. The Sub -Registrar rejected the application on his own initiative and his action was concurred in by the Registrar. The Registrar's order was the final order and it is his order which must be regarded as rejecting the plaintiff's application for registration. There was a cause of action by reason of the rejection of the plaintiff's application and, in the circumstances, she should have made the Registrar the defendant if she wished to proceed with the matter. The fact that registration was refused would not, of course, affect the validity of the will, should it prove to be 'a genuine document. In Wishambhar Pandit v. Prabhakar Bhat, (1984) 8 Bom. 269 a Bench of the Bombay High Court held that neither the registering officer nor the Government was a necessary party to a suit Under Section 77, Registration Act, 1877, but in that case the registration had been opposed. The Court was of the opinion that the proper defendant was the person who had opposed the registration. We have no doubt that in such circumstances it would be sufficient to join as the defendant the opposing party; but here there is no opposing party. The only opposition comes from the Registrar himself. As Venkataratnam was not a necessary party the Subordinate Judge should, as the case stood, have non -suited the plaintiff without going into the merits. In going into the merits he erred. The suit should have been dismissed on the ground that it was not maintainable in the circumstances. This means that the appeal will be dismissed. We wish, however, to make it quite clear that the decision of the Subordinate Judge will not operate as res judicata on the question of the genuineness of the will. This question will be left entirely open for decision in proper proceedings should they be instituted. The appellant has made Venkataratnam the respondent in this appeal and she must pay his costs.;

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