to decide the present writ in brief are as under :-
One Late Brij Lal father of petitioner No.2, was bhumidhar having transferable right of agricultural plot No.2807 and 3636 having area 0.23 and 1.09 acer respectively. Late Brij Lal was literate and used to sign the documents. He executed sale deed and his own registered will having his signatures thereon before his death on 21.01.2001. Brij Lal left behind petitioners as his only legal heirs and legal representatives. Respondent No.2 Dinesh is nephew of Brij Lal. A sale deed alleged to had been executed by Brij Lal in his life time in favour of Dinesh, Respondent No. 2 of plots mentioned above. After execution of sale deed Brij Lal disappeared from Sub-Registrar office on the pretext of stomach pain and did not return for getting the sale deed registered. The Respondent No.2 presented the sale deed for registration before Sub Registrar under section 34 of Indian Registration Act, hereinafter referred to as 'Act'. After issue of notices the execution Brij Lal did not turn up. Sub-Registrar treating the absence of Brij Lal as his denial to accept the execution of sale deed refused the prayer of respondent no.2 for registration of Sale deed vide its order dated 12.7.1997(Annexure-2 to writ petition). Aggrieved by the order of Sub- Registrar Respondent No.2 preferred the appeal under section 73 of the Act before District Registrar, respondent no.1. In appeal Brij Lal alleged to had been appeared before Registrar through an Advocate Sri C.P.Singh who filed the written Statement of Brij Lal , wherein the execution of sale deed has been denied. Brij Lal did not turn up before Respondent no.1 inspite of notice, resultantly Registrar, respondent no.1 proceed ex-parte against Brij Lal and after recording statement of respondent no.2 and the alleged witness of sale deed ordered the Sub-Registrar to register the Sale deed by its order dated 4.7.1998 against which this petition has been filed.
4. The petitioners filed this writ petition after registration of sale deed in pursuance of impugned order, mutation of name of respondent No.2 in the revenue records on 27.1.1999 and death of Brij Lal on 21.01.2001 mainly on the following grounds
a) Brij Lal never signed and executed alleged sale deed
b) Never engaged any advocate nor filled written statement before respondent No.1.
c) Brij Lal never received any summon or notice of appeal from the office of respondent no.1 nor he ever appeared before respondent No.1, District Registrar.
d) Brij Lal never appeared before Sub-registrar or District Registrar and did not accept execution of sale deed.
e) Consideration never passes under the alleged Sale deed.
5. No Counter affidavit filed by the respondents. However, Sri Janardan Singh Advocate appeared for respondent no.2 and learned standing counsel for respondent No.1.
6. It is well settled law that disputed questions of fact cannot be decided in writ jurisdiction when other efficacious remedy like civil suit is available. However if a legal question is based on undisputed facts the same may be looked into and may be decided.
7. It is evident from perusal of the impugned order that respondent no.1 on the basis of evidence of Respondent no.2 and his witnesses formed an opinion that Brij Lal executed sale deed.
8. In view of undisputed facts and submissions of the counsels for parties two impotent questions arise for consideration to decide this writ petition.
any relief could be granted to the petitioners in this writ petition after death of Brij Lal ?
Question No.(A)
9. Admittedly, neither before Sub-Registrar nor before District Registrar Brij Lal appeared in person to admit the execution of sale deed. Sub-Registrar on his turn refused to register the sale deed. However, District Registrar considering the evidence led by Respondent No. 2 opined that Brij Lal executed the sale deed in favour of Respondent No. 2 and directed the Sub- Registrar to register the sale deed in exercise of powers vested under section 73 of the Act.
10. It has been submitted from the side of the petitioners that unless Brij Lal appeared before District Registrar personally to admits the execution of sale deed, District Registrar under section 73 of the Act have no authority to direct Sub-Registrar to register the sale deed.
11. Section 73 deals with an application to District Registrar if Sub- Registrar refuses to register the documents on the ground of denial of execution. It is not an appeal under section 72 of the Act which provides that where the refusal is made to register the document by Sub-Register on the grounds other than of denial of execution an appeal shall lie against such an order of Sub Registrar. The basic differences between two sections is obious. Language of the two sections is not the same. All that is similar is that the class of persons who are empowered to make the applications under sections 73(1) are included in those who may present a document under section 32 of the Act for registration. Secondly, there is no question of presentation at all under section
73. All that section 73 requires in making an application is that if the Registrar is satisfied that the person making the application is entitled to do so, the application may be made in any way which is satisfactory to him. It may be presented in person or may be sent by post as observed in Chittoori Chinnammi Immanni V/S Immanni Venkayamma, AIR, 1933 Madras, Page 407.
12. Now, the question comes what is the meaning of denial of execution. Sections 34 and Section 35 of the Act give the procedure ordinarily to be observed on the presentation of documents for registration and the case in which it is and is not to be registered. Among the cases excepted in Section 34 are those which falls under section under section 75 and 77 of the Act . Again sec. 34 excepts cases under section 75 and 77 from its provisions, which in other cases rigidly requires the attendance before the Registrar of the person by whom the documents purport to have been executed. It, therefore, implies that there may be a denial other than an actual denial in presence of the Registrar. Section 73 dealing with the proceedings before Sub-Registrar merely speaks of his refusal to register a document on the ground that the person is in question denies its execution. Section 74 says that in such case, and also where such denial is made before the Registrar in respect of a document presented for registration to him he may inquire about the execution of the documents. This section speaks of a denial before the Registrar. But, it means only a denial in a proceeding before the Registrar. A refusal to admit execution is a denial within the meaning of the Act. A willful refusal or neglect to attend and admit execution in obedience to a summon for that purpose is a refusal to admit and, therefore, a denial.
13. The registrar dealing with application under section 73 shall follow the procedure provided under section 74 of the Act. Section 74 contemplates that original documents, which has been refused to register by Sub-Registrar must be presented before the Registrar for registration . In such case, when a document is presented before this Registrar and where such denial as aforesaid is made before Registrar in respect of documents presented for registration than the Registrar shall inquire whether the document has been duly executed and whether the requirements of law for the time being have been complied with on the part of the applicant or person presenting the documents for registration, as the case may be, so as to entitled the document for registration.
14. Now, the question comes before this court is whether this denial should be made after personal appearance of the executant and his actual denial before Registrar or willful refusal or neglect to attend and admit execution would equivalent to denial of execution within the meaning of the Act. Reading of section 35 and section 74 altogether, it will be clear that Section 35 is a complete bar to the Sub-Registrar registering the document, if the execution has been denied by the executant or by the heirs of the deceased executant. But there is no such restriction to the power of the Registrar when an application is made to him under section 73 and also where the denial is made before him. Section 35 makes it evidently clear that if the denial is made before Sub- Registrar the procedure laid down in section 35 of the Act to be followed and if, execution is denied like denial as contemplated under section 35, the registrar shall bound to follow the procedure laid down in part XII of the Act.
15. Generally, an Appellate Court has no greater power than the court from whose order the appeal has been preferred. But, if the statute gives an Appellate Court greater powers it can, undoubtedly, exercise those powers. Section 74(a) is an example of greater power being given to the District Registrar then to Sub-Registrar, whereas the Sub-Registrar cannot register a document if a party denies execution, the District Registrar can.
16. The crux of the whole scheme is that registration not depends upon consent of executant but on Registrar's finding. Admission by casual statement by the counsel for the executant regarding the execution of a document on behalf of executant of the document reserving the right to challenge its validity implies admission as to execution of documents. In view of section 75(1) of the Indian Registration Act, the District Registrar can order for registration of document on such admission.
17 Section 77 is a remedy provided under the statute in case of refusal to register the document by the Registrar. It is well settled that the suit under section 77 does not decide the title of executant. The court is only concerned with the genuineness of the document sought to be registered and not its validity. The suit under section 77 of the Act is a suit to compel registration , It is also well settled that mere registration of document by self is not the proof of title of the vendee. The purpose of registration of document is to comply the statutory requirement where for the enforcement of a document Registration is compulsory. It is also clear that if the Registrar order for the registration of document in spite of denial of execution before him the person aggrieved with that order has two options; firstly may file a suit within the ambit of Section77 to set aside the order of Registrar directing registration of the deed and secondly he may file a suit for cancellation of document registered in pursuance of the order of District Registrar.
18. In the aforesaid scenario, it is clear that in the case in hand a written statement has been filed on behalf of Brij Lal wherein the execution has been specifically denied. Executant Brij Lal did not appear in person in pursuance of the summons issued to him by the Registrar. So far as the first part of Section 73 is concerned, denial of executant is there before the Registrar and thereafter, the Registrar made an inquiry on the basis of evidence produced before him and opined that Brij Lal actually executed the sale deed and failed to get it register. Consequently, the Registrar directed for registration of document to the Sub-Registrar.
19. The learned counsel for the petitioners also raised a question that petitioner Brij Lal neither engaged Sri C.P.Singh as advocate to contest the proceedings before Registrar nor filed written statement. He also submits that no notice has ever been served upon Brij Lal of the proceedings under section
73. Therefore, the entire proceeding conducted by the Registrar are void.
20. It is a pure question of fact, whether the service was affected upon Brij Lal during pendency of the proceeding under section 73 ? If the petitioner wants to challenge the service upon Brij Lal, he must approach to the Registrar first by making an application to this effect because, the Registrar has power to set-a side an order to proceed exparte or to restore the application U/S 73 of the Act after its dismissal in default. The petitioners in the alternative have a right to file civil suit as discussed above and not to file this present writ petition.
21. Similarly, whether Brij Lal engaged Sri C.P. Singh as advocate or Brij Lal ever filed written statement before the Registrar is also a question of fact which ought to have been decided by the Registrar and for getting it decided the petitioners are required to approach the Registrar first and not to approach this court. These questions of fact cannot be considered and decided in this writ petition.
22 Considering all the aspects of this case, Question No. (a) is decided in negative and held the personal appearance of Brij Lal before the Registrar to admit or deny the execution of the deed was not necessary to constitute the denial of execution. After specific denial of execution in any form, the Registrar can direct for registration of the deed or the document and the same is within the powers of the District Registrar to direct the Sub- Registrar to register the documents.
Question No. (b)
23. It is not in dispute that Brij Lal was alive when Sub-Registrar and Registrar passed orders. The Sub-Registrar after treating the denial of execution by non-appearance refused to register the sale deed. On the other hand, in the similar circumstances and also in view of the written statement filed on behalf of Brij Lal the Registrar further proceeded and passed an order for registration of sale deed on 4.7.98. Admittedly, the death of Brij Lal occurred (as per admission of the petitioners) on 21 January, 2008. This shows that Brij Lal remain alive for more than 2 and ½ years after passing of the impugned order by the Registrar. It is also important to mention here that from perusal of pleadings of petitioner mutation proceeding were also taken place and on 27 January, 1999 the name of Respondent No. 2 was recorded in the revenue records. It is also an admitted fact that Brij Lal neither take any recourse to challenge the order of registration of document passed by Registrar or for mutation of the name of Respondent No. 2 in the revenue records over the subject matter of the sale deed. The petitioners claiming themselves that they are not aware with the order passed by the Registrar being not the party to those proceedings nor they were aware of the mutation proceedings and they came to know for the first time on 12 June, 2001 when the rumors of mutation of Respondent No. 2 spread out. Thereafter petitioners obtained extract of Khationi. It is also important to mention here that the Petitioner No. 3 also lodged an F.I.R. against OP No. 2 for his alleged misdeed and the same was said to be under investigation when the writ petition was presented. As this court has already held that the questions of fact regarding service of notice and summon upon Brij Lal in the proceeding under section 73 of the Act or question of filing of Vakalatnama and written statement in those proceeding cannot be gone into in this writ petition.
24. This court is of the view that this petition cannot be allowed specially after the death of Brij Lal.. It is not in dispute that this petition has been presented after the death of Brij Lal. Therefore, this court of equity declines relief to the petitioner as claimed in this writ petition.
25. It is also important to mention here that the petitioner had also efficacious and effective remedy to challenge the sale deed which was ordered to be registered under the impugned order. Therefore, on this ground too, the writ petition deserves to be failed.
26. Question 'B' is accordingly answered Conclusion
27. On the basis of the conclusions arrived at on aforesaid questions and findings recorded thereon the writ petition is dismissed.
There is no order as to cost.
Dated: 03.07.2012.
S. Kumar.