Order on C.M. Application No.84166 of 2019 Heard learned counsel for the parties.
The application for impleadment is allowed.
Let the applicant Nos.1, 2, 3 and 4, as per particulars shown in the application be impleaded as party respondent Nos. 3, 4, 5 and 6 to the writ petition during the course of the day.
Order on the memo of petition Supplementary affidavit filed today is taken on record.
Heard Mr. Indrajeet Shukla, learned counsel for the petitioners, Mr. Anant Pratap Singh, learned State Law Officer, appearing on behalf of respondent No.1. No one appears on behalf of respondent Nos.2/1 and 2/2. Mr. Rishab Tripathi, appears on behalf of the newly impleaded respondent Nos. 3, 4, 5 and 6. No counter affidavit has been filed by the State.
The short point involved in this petition is whether an order admitting a document to registration passed by the Sub-Registrar under Section 40 of the Registration Act, is amenable to appeal under Section 72(1) of the Act, last mentioned, before the Registrar. Here an order directing registration of a Will dated 02.09.1997 executed by one Babulal in favour of Nand Ram and Sant Ram, sons of Bachchu Lal, was directed to be admitted to registration vide order dated 02.09.1997, passed by the Sub-Registrar, Tarabganj, District Gonda. An appeal from the said order was filed by respondent No.2 Smt. Birja Devi (since deceased) to the Registrar, that is to say, the Additional Collector, Gonda. The appeal preferred under Section 72 of the Registration Act was registered as Case No.58 of 2004. The appeal was heard and allowed by the impugned judgment dated 25.07.2005 setting aside the order dated 02.09.1997 passed by the Sub-Registrar. This writ petition has been preferred by the two legatees under the Will of Babulal, to wit, Nand Ram and Sant Ram, who say that the Registrar/Additional Collector, Banda had no jurisdiction to entertain an appeal under Section 72 of the Registration Act from the order of the Sub-Registrar, admitting the Will to registration.
It is not in dispute that the order directing the document to be admitted to registration was passed by the Sub-Registrar under Section 40 of the Registration Act.
Section 72 of the Registration Act reads:
"72. Appeal to Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution.--
(1) 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 (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.
(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration."
Learned counsel appearing for respondent Nos. 3 to 6 has submitted that the Registrar is an Officer superior to the Sub-Registrar and if he has, on facts and evidence, found the order admitting the Will to registration to be manifestly illegal, he was within his rights to set aside the same. It is further submitted that the order impugned being substantially just should not be interfered with by this Court under Article 226 of the Constitution.
I have considered the rival submissions advanced by learned counsel for the parties.
A perusal of the provisions of Section 72(1) of the Registration Act, extracted hereinbefore shows that the appeal envisaged under the said provision is from an order of the Sub-Registrar refusing to admit a document to registration; by no means, from an order admitting a document to registration. It is well known that an appeal is a creature of Statute and if the Statute envisages an appeal from the order of an Authority, the order being of a particular nature, an appeal lies to the Appellate Authority as provided by the Statute. There is no inherent right of appeal available to a party, merely because an Officer otherwise superior in rank to the one, who has passed the original order is available. Clearly, Section 72 does not envisage any appeal from an order admitting a document to registration, whether the document is compulsorily registerable or optionally.
This point fell for consideration before the Orissa High Court in Binod Chandra Panigrahi @ Binod Panigrahi Vs. Laxmi Narayan Panigrahi & Others, 2015 SCC Online Ori 319 where it has been held:
"Similarly Section 72(1) provides for appeal only against order refusing registration. It does not contemplate an appeal against an order allowing registration. Therefore, the appellate order under Annexure-6 passed by the Additional District Magistrate holding that the petitioner's appeal was not maintainable is legally justified."
In this view of the matter, the order passed by the Registrar/Additional Collector, Gonda is clearly without jurisdiction.
In the result, this petition succeeds and is allowed. The impugned order dated 25.07.2005 passed by the District Registrar/Additional Collector, Gonda, in Case No.58 of 2004, Birja Devi Vs. Nand Ram and Others, is hereby quashed. It is, however, left open to the respondents or anyone else to question the validity of the Will in such proceedings as may be advised, and nothing said in this order shall be construed as expression of opinion on the merits of the case of either party, that may be suited before a Court of competent jurisdiction.
There shall be no order as to costs.
Order Date :- 25.10.2021 NSC