ATHIAPPA NARAYANA REDDY Vs. AUDILAKSHMI AMMAL (LATE A MINOR) DECLARED A MAJOR AND GUARDIAN ON RECORD DISCHARGED

JUDGEMENT

(1.) This appeal arises out of a suit filed by the respondent (who was the plaintiff acting by her father and next friend) under Section 77 of the Registration Act to direct registration of a document purporting to be a will executed by the husband of the minor plaintiff. The Sub- Registrar to whom the document was presented for registration refused to register it on the ground that execution was not proved and his decision was confirmed by the District Registrar on appeal. A suit was filed by the plaintiff by her father as next friend to compel registration. The defendants were the members of the undivided family consisting of themselves and the deceased Guruswami Reddi, husband of the minor plaintiff. The Subordinate Judge was of the opinion that execution of the document was proved and directed registration. Hence this appeal.

(2.) The document presented for registration purports to be a will executed by Guruswami Reddi, husband of the minor plaintiff. The minor plaintiff had not attained puberty at the date of the death of her husband and was living under the protection of her father. She had not gone to join her husband's family. The document purports to be a will. It states that the testator while on a pilgrimage got fever, that he was suffering from fever and was growing worse and that he was an undivided member of the joint family which consisted of Venkatasubba Reddi and Narayanappa Reddi. It gives power to his wife to adopt; Ramachandra Reddi, the son of his sister and nobody else and says that Ramachandra Reddi should enjoy his share of the moveable and immoveable properties. The document was presented for registration by Bala Reddi, the father of the widow, who, under the will, is directed to make the adoption. No adoption admittedly was made at the date of the death of the deceased or at the time when the document was presented for registration. The only person who could ordinarily present it for registration would be the widow, who was given power to adopt but as she was a minor it was presented by her father Bala Reddi. It is contended in appeal that the presentation by Bala Reddi was not a valid presentation under the Registration Act and that even if the Sub-Registrar registered the document the registration would be invalid and that, therefore, no suit would lie in a Court to direct the Registrar to register the document presented by a person who had no authority to present it. It is also contended in appeal that the Subordinate Judge's judgment was wrong on the merits as the evidence and probabilities point to the conclusion that the will was not executed by the deceased. Mr. Patanjali Sastri has laid stress on various circumstances which he says go to show that the deceased could never have executed the will, but we consider that it is unnecessary to go into the question of the execution of the will as we are of opinion that the other ground, namely that the document was not presented by a person who in law was entitled to present, is sufficient to dispose of the appeal. Section 32 of the Registration Act provides for persons who under the Registration Act are entitled to present a document for registration. Clause (a) refers to a person executing or claiming under the document; Clause (b) refers to the representative or assign of any such person, and Clause (c) refers to the agent of such person, representative or assign duly authorised by power-of-attorney executed and authenticated in the manner prescribed by the Registration Act. Section 2, Clause 10 defines a representative as including the guardian of a minor and the committee or other legal curator of a lunatic or idiot. Section 40 deals specially with presentation of wills and authorities to adopt. It runs as follows: (1) The testator or after his death any person claiming as executor or otherwise under a will may present it to any Registrar or Sub-Registrar for registration. The donor or after his death the donee of any authority to adopt or the adoptive son may present it to any Registrar or Sub-Registrar for registration.

(3.) Section 41 provides for the registration of wills and authorities to adopt and the procedure to be followed. Section 40 contains no such provisions as are contained in Section 32, Clauses (a), (b) and (c). It is argued for the appellant that so far as Section 40 is concerned there being no provisions as are contained in Sec. 32, Clauses (a) and (c), the only persons who can present a document are, in the case of wills, the executor or the legatees, and in the case of documents giving authority to adopt, the person who executes the document or the person to whom power is given to adopt or the adopted son. It is argued that in the case of minority there is no power in the guardian to present a document for registration. It is contended for the respondents that Section 40 which deals with these two classes of documents, namely wills and authorities to adopt, must be read as subject to the general law, that in the case of minors the de facto or de jure guardian can act for a minor and that the omission of Clauses (a), (b) and (c) does not restrict but on the contrary enlarges the scope of persons who are entitled to present a document for registration. Reference has been made to Venkalappayya v. Venkataranga Rao (1919) I.L.R. 43 M. 288 : 38 M.L.J. 149, where it was held that a document containing authority to adopt presented for registration by the natural father of a minor was validly presented. Sadasiva Aiyar, j., though he thought that it was unnecessary to go into these questions because of the other findings, still referred to some English authorities and thought that the presentation by a natural guardian was sufficient. This decision was given in May 1919. Reference has also been made to an earlier decision of Ayling and Napier, JJ., in Appeal No. 200 of 1908. The document there was a will and it was held that Section 40 was wide enough to cover the presentation of a document by the guardian of thi minor interested under the will. This decision was given ii October, 1912. These decisions no doubt support the contention of Mr. Krishnamachariar, but we think that the matter is coneluded by the decision of their Lordships of the Privy Council in Amba alias Padmavathi V/s. Srinivasa Kamathi (1921) 26 C.W.N. 369 (P.C.). This decision was an appeal from a decision of Abdur Rahim and Oldfield, JJ., in Appeal No. 24 of 1916 which is reported in Padmavathi V/s. Srinivasa Kamathi (1917) 7 L.W. 339. The facts of that case, so far as registration is concerned, are similar to the facts of the present case. There the donor was a member of an undivided family. The property was given to the minor daughter-in-law of the donor and the gift deed was presented for registration by the natural father of the minor. The minor had not joined her husband and she was under the protection of her natural father who would be the de facto guardian of the minor. The only difference is that that case would fall under Section 32 of the Registration Act because it was a deed of gift and although Section 32 makes provisions for presentation of documents in the case of minors, the question was still raised whether the father of a married minor could be the guardian entitled to present a document under Section 2, Clause 10 and Section 32 of the Registration Act. Oldfield, J. in that case was of opinion that the presentation by the natural father of the minor was invalid under Section 32. The learned Judge observed: I should moreover be ready to hold that they were invalid because under Section 32 of the Registration Act the documents could be presented only by plaintiff's representative or assign and P.W. 7 who presented them was not her assign, or her representative under Section 2(10) since he had ceased to be her natural guardian on her marriage and had not been appointed her legal guardian. Abdur Rahim, J.