LAISANGTHEM CHAOBA SINGH Vs. THONGAM NINGOL YUMNAM ONGBI KETUKI DEVI AND OTHERS
LAWS(GAU)-1970-1-3
HIGH COURT OF GAUHATI
Decided on January 27,1970

Laisangthem Chaoba Singh Appellant
VERSUS
Thongam Ningol Yumnam Ongbi Ketuki Devi And Others Respondents

JUDGEMENT

R.S. Bindra, J.C. - (1.) ON the basis of mortgage deed dated 11 -10 -1956 L. Chaoba Singh filed a suit for the recovery of Rs.4,300/ - against Y. Ibomcha Singh. The mortgage deed, it was alleged, had been executed for a sum of Rs. 3,000/ -and that that sum was to carry interest at the rate of 3 per cent per month.
(2.) THE suit was resisted by Ibomcha Singh who denied that he had taken Rs. 3,000/ - from the plaintiff or had executed mortgage deed in his favour. The mortgage deed was described as a forged document. It was alleged further that the Sub -Registrar had refused to register the mortgage deed, that the plaintiff had preferred an appeal against that order of the Sub -Registrar to the Registrar Shri W.C. Sikka, and that despite the denial of execution of the mortgage deed by Ibomcha Singh, Shri Sikka illegally and without jurisdiction directed the document to be registered. The defendant pleaded further that since the mortgage deed had been illegally registered at the direction of an officer who had no jurisdiction in the matter, no suit could be founded on the basis thereof. The trial Court settled the following issues between the parties: (1) Had the registering Officer granting registration in appeal no jurisdiction to grant registration? If so, its effect on the admissibility of the document? (1 -A) Is the order of the Registrar granting registration of the deed void because of its being passed without enquiry under the law? (2) Did the defendant borrow Rs. 3,000/ -from the plaintiff by executing the alleged mortgage deed? Is the deed genuine? (3) To what relief, if any, is the plain tiff entitled? Issues Nos. 1, 1 -A and 2 were decided by the trial Court in favour of the plaintiff with the consequence that the suit was decreed with costs. The decretal amount, it was directed, shall carry future Interest at the rate of 6 per cent per annum. The defendant Ibomcha Singh having died during the pendency of the suit, his representatives were brought on the record. Those representatives having felt aggrieved with the decree made by the trial Court filed an appeal in the Court of the District Judge. The appeal came up for hearing before Shri M.H. Khan, Additional District Judge, Manipur Shri Khan accepted the contention of the defendants that the order dated 9 -9 -1957 by which the Registrar Shri Sikka had directed the registration of the deed was illegal. He therefore held that the deed could not be said to have been registered in the eye of law. Towards the close of the arguments before Shri Khan, an application was made on behalf of the plaintiff for permission to amend the plaint to enable the plaintiff to claim decree for the amount advanced to Ibomcha Singh independent of the mortgage transaction. That application was accepted by Shri Khan. He, therefore, set aside the decree of the trial Court and remanded the case to him with the direction that after the amended plaint and the written statement were filed, the trial Court shall formulate the additional issues and then dispose of the suit in the light of the evidence led. The plaintiff Chaoba Singh felt aggrieved with the order of Shri Khan and so filed the instant second appeal.
(3.) THE only point that was debated in this Court was whether the order dated 9 -9 -1957 of the Registrar Shri Sikka was bad in law and without jurisdiction. Shri Ibopishak Singh, representing the defendants, submitted that the Sub -Registrar had refused to register the mortgage deed for the reason that Ibomcha Singh had denied the execution thereof and that in such circumstances Chaoba Singh, the plaintiff, could have moved an application before the Registrar under Section 73 of the Registration Act rather than to file an appeal under Section 72 of the Act as done by him. The counsel urged further that assuming that the Registrar could have treated the memorandum of appeal filed under Section 72 as an application under Section 73, still the order made by him was invalid because it was obligatory for the Registrar to hold an enquiry in terms of Section 74 of the Act and such an enquiry was never held by him (the Registrar). These submissions correspond with the stand taken by the defendant before the first appellate Court. That Court held in para 14 of its judgment that the order of Shri Sikka was not valid because, firstly, instead of an application under Section 73 Shri Sikka had been moved by Chaoba Singh by an appeal under Section 72, and, secondly, Shri Sikka had held no enquiry as enjoined by Section 74 of the Act. These conclusions would be valid only if it were established that Ibomcha Singh had denied the execution of the mortgage deed before the Sub -Registrar, and that the Sub -Registrar had refused to register the deed on that basis. Section 72(1) of the Act enacts that except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub -Registrar refusing to admit a document to registration to the Registrar to whom such Sub -Registrar is subordinate. Section 73(1) of the Act, on the other hand, provides that when a Sub -Registrar has refused to register a document on the ground that any person by whom it purports to be executed, denies Its execution, any person claiming under such document may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub -Registrar is subordinate in order to establish his right to have the document registered. Therefore, very clearly the Registration Act provides different procedure to meet the situation created by an order of the Sub -Registrar refusing the registration depending on the fact whether the refusal is on the ground of denial of execution or on some other basis. Section 71(1) states, inter alia, that every Sub -Registrar refusing to register a document shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words "registration refused" on the document Sub -section (2) of that section contains the injunction that no registering officer shall accept for registration a document so endorsed unless and until the document is directed to be registered in the manner provided by the Act. The defendants of this suit did not place either the statement, if any, made by Ibomcha Singh before the Sub -Registrar or the order made by the Sub -Registrar refusing registration. Therefore, there :is no evidence on the present record on behalf of the defendants to establish that either Ibomcha Singh had denied the execution of the mortgage deed before the Sub -Registrar or that the Sub -Registrar had refused registration on the basis of such denial. The burden of issues 1 and 1 -A lay squarely on the defendants, and if no evidence was led by them to establish that Ibomcha Singh had denied the execution of the document or that the Sub -Registrar had refused registration thereof on that basis, it cannot be contended plausibly that the registration had been refused for that reason. If the refusal for registration was for any ground other than the denial of execution, the only remedy available to Chaoba Singh, the mortgagee, for getting the deed registered was to lodge an appeal with the Registrar under Section 72 of the Act, and this is exactly what he did.;


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