At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE VISWANATHA SASTRI
For the Appellant: V. Parthasarthi, Advocate. For the Respondent: S. Venugopala Rao, Advocate.
(Prayer: Appeal (disposed of on 26-1-1949) against the decree of the Court of the Subordinate Judge, Amalapuram, dated 18-3-1946 in A.S. 81 of 1945 preferred against the decree of the Court of the District Munsif, Razole dated 29-8-1945 in O.S. 34 of 1944.)
This is an appeal by the plaintiff against the decree of the learned Subordinate Judge of Amalapuram in A.S. No. 81 of 1945, dismissing her suit filed under S.
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7 of the Registration Act for directing the sale deed, Ex. P. 1, dated 5-11-1943, executed by the defendant, to be registered by the Sub Registrar of Razole. The suit has been dismissed by the lower appellate Court on the ground “that the defendant did not execute the deed understanding it to be a sale deed and that his finger impression was taken by representing that he has to attest a document, i.e., sale deed executed by his brother in favour of plaintiff.” The defendant, who is an illiterate person unable to sign his name, did not, in his written statement, dispute the fact that the thumb impression appearing on the two pages of the sale deed, Ex. P. 1, was his thumb impression. He stated, however, that his brother obtained his thumb impression on Ex. P. 1 on a fraudulent misrepresentation that his thumb mark was taken as an attester to the sale deed executed by the brother and not as a vendor under Ex. P. 1. The contention of Mr. V. Parthasarathi, the learned Advocate for the appellant in this second appeal, is that the lower appellate Court has erred in dismissing the suit on a mistaken view of the powers of a Court trying a suit under S. 77 of the Registration Act. I am of opinion that this contention is sound and must prevail. In a suit under S. 77 of the Registration Act the civil Court has got to do only what the registering officer should and could have done under the powers conferred on him by the Registration Act. The Court should be guided by the same considerations which guide the Registrar in registering or refusing to register a document presented to him. Under S. 35 of the Registration Act, a Registrar is bound to register a document if the ostensible executants admits his signature to the document. This is the admission of execution referred to in S. 35 of the Registration Act. If a person admitting his signature or thumb impression proves that he signed it under a misapprehension believing it to be a different kind of document from what it was or that he was induced to sign the document as a result of a deception practiced upon him and that he was therefore unaware of the real nature of the document, it is a ground for setting aside the document or having it adjudged void and inoperative in an ordinary suit in a civil Court. But neither the Registrar nor the Court in a suit under S. 77 of the Registration Act has jurisdiction to enter into these questions. In a suit under S. 77, the Court is concerned with two questions: (a) whether the document has been executed, that is to say, whether the document bears the genuine signature of the executants or his thumb impression if he is unable to sign his name; and (b) whether the requirements of the law for registering documents have been complied with. If these points are decided in favour of the plaintiff, then registration ought to be directed. The Court cannot in such a suit go into such defence as whether the document was obtained by fraud or misrepresentation or even a defence that the mind of the executants did not accompany his signature [ Vide Ramaswami Chettiar v. Srinivasa Pillai , (66 M.L.J. 424 = 38 L.W. 1000) S. 77 provides a statutory right of a suit of a very limited scope. A great deal of evidence recorded and relied upon by the Courts below is beside the point in a suit of this sort. In this view, I hold that the lower appellate Court, in its own findings of fact, should have directed the registration of the document. I therefore set side the decrees of the Courts below and pass a decree in favour of the plaintiff with costs throughout.Having regard to the fact that the document, Ex. P. 1, has to be presented for registration within 30 days of the decree of this Court, I direct that the document Ex. P. 1 be returned to the appellant-plaintiff within a week from the date of this judgment.
" 1949 (62) LW 282"