' This is a second appeal against the decree passed by the learned trial Court under section 77 of the Registration Act in favour of the respondent on 21-10-1970 and maintained by Qazi Muhammad Latif, Additional District Judge, Gujranwala camp at Sialkot on 25-10-1972.
2, One-third of House No, 1/247-228-229-SLK, Nehal Chand Street, Sialkot City, was transferred by the Settlement Department to the appellant. The balance two-third portion of the house is owned by the plaintiff-respondent. On the 3rd of May, 1962 the appellant executed an agreement to sell his portion of the house to the respondent for a consideration of Rs, 23,875 out of which he received an advance of Rs, 2,875 before the Sub-Registrar. It was agreed upon that the balance will be paid at the time of registration of the sale deed, which would be executed within 3 months of the issuance of P. T. D. The appellant had been receiving from the respondent various amounts of money out of the sale consideration. On 21-12-1963 he executed a supplementary agreement to sell in which he acknowledged having received a further advance of Rs, 6,540. The agreement was registered. Again in a second supplementary agreement dated 14-6-1964 which was also registered he acknowledged having received a further sum of Rs, 2,000. He further admitted that the balance now left was Rs, 14,460. The condition that the sale deed would be executed within 3 months of the issuance of the P. T. D. Was reiterated in this document also.
3. The permanent transfer deed was admittedly obtained by the appellant on 9-8-1965. Thereafter he received a cheque of Rs, 1,188 from the respondent by which he purchased stamp papers at which a sale deed, copy of which is Exh. P. 2, was written and signed by the appellant on 24-8-1965.
4. Prior to the registration of the sale deed clearance certificate from the Income-tax Department had to be obtained which was obtained by the appellant on 29-10-1965.
5. According to the plaint the appellant then started putting off the respondent mostly on the pretext of his illness and did not get the sale deed registered. On the other hand he submitted an application to the Collector for refund of the value of the stamps purchased for the sale deed and in that application he stated that the delay was caused on account of his illness. A medical certificate, copy of which is Exh. P. 3 was filed in those proceedings stating that the appellant had been confined to bed from 15-10-1965 to 17-11-1965. The respondent then applied to the Sub- Registrar for registration of the sale deed. The appellant admitted having executed the sale deed but lie stated that the respondent had himself gone back upon the agreement and for this reason the document should not be registered at his instance. In view of the plea taken by the appellant the Sub-Registrar dismissed the application on 21-12-1965.
6. The respondent submitted an application Exh. P. 5 to the Registrar on 4-1-1966 but it was dismissed on 1-8-1966 on the ground that the sale deed was not complete. This order was passed since the deed did not bear the names or signatures of any witness. Thereafter the present suit under section 77 of the Registration Act was filed for a direction to be given for registration of the document.
7. The appellant contested this suit on the grounds of its non-maintainability, legality of the orders of the Sub-Registrar and Joint Registrar, jurisdiction of the trial Court and the alleged default of the plaintiff-respondent in carrying out the terms of the agreement in question.
8. The following issues were framed by the learned trial Court :-
(1) Whether the plaintiff himself defaulted in carrying out the terms of the agreement in question ?
If so, what is its effect ? 0. P. D. Additional issues :
(1) Whether the impugned order of Sub-Registrar and the Joint Registrar are illegal ? 0. P. D.
(2) Whether this Court has no jurisdiction to try the suit ? 0. P. D.
(3) Relief.
9. He decided Issue No, 1 against the appellant. Under additional Issue No, 1 it was held that the question of illegality of the order of the Registering authority could not be raised. Under additional Issue No, 2 he held that if the Registrar finds under section 75 that the documents had been executed and requirement of law had been complied with, he was bound to order the document to be registered and the suit was therefore competent under section 77.
10. The Additional District Judge made a thorough probe into the questions of law and facts. It was argued before him that the suit should have been for specific performance of the contract and that the sale deed was incomplete. Moreover the order of the Registrar fell within the purview of section 73 and not sections 72 and 75. Consequently the suit itself was not competent. He answered all these questions against the appellant.
11. The learned counsel repeated the same arguments before me. He referred to sections 72 to 77 of the Registration Act and submitted that under section 72 the Registrar has the power to hear the appeal from the order of Sub-Registrar refusing registration on ground other than denial of execution. Section 73 deals with an application to the Registrar where the Sub-Registrar refuses to register a document on the same grounds as given in section 72. Section 74 deals with the procedure of the registration. Section 75 deals with a case where the Registrar can order the document to be registered. Section 76 deals with a contingency where the Registrar refuses to register a document and under section 77 a suit can be filed only in a case where the Registrar dismisses the application submitted under section 73 under the provisions of section 75 and not under section 76.
12. This argument is without force. Section 77(1) itself says that "where the Registrar refuses to order the document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within 30 days after the passing of such decree. The reference to subsections (2) and (3) of section 75 is only in subsection (2). Section 75 (2) (3) provides that "if the document is duly presented for registration within thirty days after the making of such order, the Registering Officer 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." In fact section 75 deals with the order of acceptance of the application under section 73 and section 76 is the only section which deals with Registrar's refusal to register a document and such refusal can be challenged by a civil suit under section 77.
11. The respondent in the present case had applied to the Registrar under section 73 after the Sub- Registrar refused to register the document A and that application was rejected by the Registrar and that order, therefore, operated as an order refusing to register a document under section 76 which could be challenged by a suit under section 77.
12. The learned counsel next argued that the registration can be of a document which should be complete in all respects but the present document was not complete at all. He, however, could not show me any law unde which a sale deed may be required to be signed by witnesses. He mad reference in support of his plea to the principle of attestation of documen but he had to concede that a sale deed is not a document which requires t be attested under the provisions of Transfer of Property Act. He made, reference to rules 126 and 127 of the rules for Registration. Rule 126 provides for establishing the identity of the parties and rule 127 allows the Sub-Registrar to call witnesses for identification. He argued that if the Registrar had held the document to be incomplete, he should be deemed to have been dissatisfied with the identification of the appellant.
13. This argument is not based on any evidence on record. It is clea from the orders of Sub- Registrar and Registrar that none of them had an doubt about the identity of the appellant nor they wanted any witness to establish that identity. The argument based on rules 126 and 127 is, therefore, misconceived.
14. The basis of the order of the Registrar could not be maintained since a sale deed should be considered to be complete if the executant thereof has signed the document. It is not necessary for its completion that it should also bear the signatures of the witnesses who saw the executant signing. No attestation of a sale deed is required under law but even in cases where such an attestation is required while one view is that the document must be attested before its presentation for registration, some Courts have taken the view that signatures of the Registering Officer and of the attesting witnesses on the Registrar's endorsement made to satisfy the requirements of the Registration Act constitute a valid attestation if made in the presence of the executant. Veerappa Chettiar v. Sabramania Ayyar (1), Sarada lrasad Tej v. Triguna Charan Ray (2), Alapati Venkatramayya and others v. Alapati Nagamma (3) and Kanchhedilal v. Jabbarsha and another (4).
15. It is not necessary for me to decide whether this view is correct or not but I have referred this view in support of my finding that even in cases where documents are required to be attested, there is a conflict of view and attestation before the Sub-Registrar is deemed to be sufficient attestation. If this view be correct, it would follow that a document required to be attested would not be considered to be incomplete, if it is unattested prior to presentation before the Registering Officer.
(1) (1929) 52 Mad. 123 (2) (1922) 1 Pat. 300
(3) 136 I C 343 (4) 166 I C 686
16. Lastly the learned counsel argued that the inquiry as to default was not germane to the suit and the judgment of the learned Additional District Judge to the extent of finding on this issue was ultra vires.
17. Legally I agree with the argument that such an inquiry is not germane to the suit but in the present case the appellant himself has been asking the Court to give a finding on this issue. It was he who had raised the issue. He had argued the same before the trial Court and had challenged the finding on this issue before the learned Additional District Judge also. It is established from the statement of account Exh. P. 1 C-2 that even on the date when the application was made to the Sub-Registrar (21-12-1971) the respondent had a sum of Rs, 35,818.29 in his current account and in his own statement the respondent had stated that he had at least a sum of Rs, 60,000 in his saving bank account. The evidence produced by the appellant is mostly about the alleged refusal of the respondent to get the sale deed registered in November, 1965 when the war had already come to an end in the month of September that year. If despite this evidence the appellant insisted on the issue being decided and the Court answered it in the only way it could be answered, he cannot turn back now and say that this issue should not have been decided by the Court. Anyway the decision on this issue cannot affect the decision of the Court below on the applicability of section 77 and on the question of there being no reasonable ground for the Sub-Registrar and the Registrar to refuse to register the document. The Sub-Registrar could refuse to register the document if the execution had been denied by the appellant but in the present case all the facts relating to the agreement, the payment of money by a cheque by the respondent to the appellant for purchase of the stamp papers, the purchase of the stamp papers, the execution of the sale deed and the award of no objection certificate are admitted by the appellant. The order of the Sub-Registrar was not sustainable in law. The Registrar has only to make a inquiry either about the execution of the document or whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration (section 74). But as stated above the execution of the document was admitted and no default could be found out about the completion of any requirement of law. The law does not require the sale deed to be signed by witnesses in order to be a complete document. His order also was thus unsustainable.
The suit under section 77 was rightly decreed.
18. The appeal is, therefore, dismissed with costs.