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Petitioner: M. PEARJAHAN MIAN AND OTHERS VS Respondent: GURU CHARAN ROY CHOWDHURY AND OTHERS
P L D 1963 Dacca 389
P L D 1963 Dacca 389
Before Asir and Idris, JJ
M. PEARJAHAN MIAN AND OTHERS‑--Appellants
versus
GURU CHARAN ROY CHOWDHURY AND OTHERS
Respondents
First Appeal No. 97 of 1940, decided on 17th January 1962.
(a) Registration Act (XVI of 1908), Ss. 77 & 74‑Scope of suit under S. 77‑Limited; of same nature as enquiry before District Registrar under S. 74.
Manindra Nath Sanfui alias Manilal Sanfui v. Lalit Mohan Sadhukhan and others 55 C W N 166 ref.
(b) Registration Act (XVI of 1908), S. 77‑Document admitted to have been signed by executants‑Allegations by defendant about alterations having been made in documents‑Onus of proof lies on defendants.
(c) Evidence Act (1 of 1872), S. 114‑Document alleged to be in possession of plaintiff‑Plaintiff not in need of producing of document‑Defendant not taking any steps for discovery of docu ment by following procedure laid down in Civil Procedure Code (V of 1908)‑No adverse inference can be drawn against plaintiff for non production of document.
Murugesam Pillai v. Manickavasaka Pandara and others 44 I A 98; Haji Yar Ali Khan Chowdhury v. Mobarak Ali Chowdhury and others and Mobarak Ali Chowdhury and another v. Haji Yar Ali Khan Chowdhury and others P L R 4 Dac. 497 = 1955 7 D L R 6 and Kunwar Mohabir Singh v. Kunwar Rohini Ramanandhwaj Prasad Singh 37 C W N 657 (P C) ref.
(d) Registration Act (XIV of 1908), Ss. 23 & 23‑Construc tion.
The operation of section 23 of the Registration Act, 1908 is dependent upon section 25 of the Act and as soon as effect is given to provisions of section 25 it will control section 23. On a fair construction of sections 23 and 25 of the Act the period of four months as provided in section 23 is to be added to the period of delay condoned in terms of section 25.
Murlidhar Shrinivas v. Motilal Ramcoomar 13 D L R 765 ref.
(e) Bengal Tenancy Ordinance (I of 1938)‑Applicable in cases of occupancy tenancy only.
(f) Registration Act (XVI of 1908), S. 74‑Registrar not competent to make roving inquiry as regards validity or otherwise of document on score of want of consideration or on other grounds Registrar, however, to be satisfied as to genuineness of document in so far as it might be suggested that there had been material or sub stantial change in identity of same.
Rajendra Singh v. Ramaganit Singh A I R 1954 Pat. 556; Bolla Guruvayya and others v. Cherukuri Venkatarathnam A I R 1924 Nag. 810; Hardwar Singh and another v. Hari Prashad Rai A I R 1943 All. 24 and Gour Chandra Das v. Prosunno Kumar Chandra 10 C W N 768 ref.
Azizul Islam for the Deputy Registrar for Appellants.
Syed A. B. M. Hossain and D. C. Bhattacharee with A. Rab for Respondents.
JUDGMENT
ASIR, J.‑This appeal which was filed sometime in 1940 arises cut of a suit under section 77 of the Registration Act (hereinafter referred to as the Act) in regard to kabala which has been marked as Exh. 1 consisting of eleven sheets of paper with four stamps purchased on the 19th Kartick 1944 B. S. corresponding to 5‑11‑37 and on 24th Kartick 1344 B. S. corresponding to 10‑11‑37. The kabala purports to convey 2.71 acres out of 3. 45 acres of land appertaining to C. S. Khatian No. 248 of mouja No. 251 Mad angani. The kabala appears to have been dated as 27th of Chaitra 1344 B. S. corresponding to 10‑4‑38. This kabala was presented before the Sub‑Registrar of Narayanganj for registration on 11‑10‑38 and, after payment of the legal penalty required under section 25 of the Act, was accepted for consideration as to whether this document could be registered in the absence of the twelve executants who failed to appear before the Sub‑Registrar and admit execution thereof. In due course the Sub‑Registrar issued notices but as the executants who were defendants in the suit failed to turn up in response to the notices, the Sub- Registrar regarded this attitude of the defendants as one of the denial of execution. The document was accordingly refused to be registered. Thereupon the plaintiffs who are the recipients of the document by an application under section 73 of the Act approached the District Registrar who upon an enquiry according to the pro visions of section 74 of the Act made an order refusing registration of the document in terms of section 76 (1) (b) of the Act. This order was passed on 21st of March 1939. Thereupon the present suit out of which this appeal has arisen was instituted.
2. According to the plaintiffs the agreement for sale as between the parties was entered into on or about 5th of Kartick, 1344 B. S. and it was agreed that C. S. Dags 236, 237, 238, 239, 240, 241 and 242 comprising a total area of 2.71 acres were to be conveyed by a regular deed of sale for a sum of Rs. 7,000. It was also the case of the plaintiffs that out of Rs. 7,000 payments were made from time to time including a sum of Rs. 51 paid as earnest money and before the date of execution in all a sum of Rs. 4,051 in cash had been paid and a further sum of Rs. 650 realised from them by the defendants as advance rent on account of a lease executed in respect of a portion of the suit land was to be set‑off. It was also pleaded that a similar sum of Rs. 500 realised by the defendants as advance rent from one Bhupendra Nath Saha who had taken lease of another portion of the suit land was also to be set‑off against the settled consideration of Rs. 7,000. The further plaint case was that on the date of execution, namely, 27th Chaitra 1344 B. S. corresponding to 10th April 1938, a cash amount of Rs. 1,799 was paid and the document was executed by the defen dants on that date on receipt of the entire consideration money in the aforesaid manner but one of the intending vendors, namely, Sudhir Chandra Dutta failed to turn up for the purpose of execu tion and the document could not be presented for registration in due course. The plaintiffs, therefore, prayed for a decree in terms of section 77 of the Act for a direction so that the document could be registered in the appropriate office according to law.
3. The defence in substance was that the document was actually signed by the twelve defendants in the expectation of payment of the entire amount of consideration then and there, that is, on 5th of Agrahayan 1344 B. S. corresponding to 21st of November 1937. But as it appeared after the signing of the document by the twelve defendants that the plaintiffs were not ready with the entire amount of consideration Sudhir Chandra Dutta who was made proforma defendant No. 13 in the suit refused to execute the document and thereupon it was agreed that necessary execution of Sudhir Chandra Dutta would be secured as soon as the plaintiffs could be ready with the balance consideration and were also ready for getting the document executed and registered within four months from the date of such execution, namely, 5th Agrahayan 1344 B. S. It was further pleaded that by 18th of Falgoon 1344 B. S. a total sum of Rs. 4,051 had been paid in cash and on 21st Falgoon 1344 B.S. a Toka Hishab was given by plaintiff No. 1 as an evidence of the fact that a total sum of Rs. 4,051 in cash had been paid by the plaintiffs by that time. The further defence of the defendants was that the actual date of execution, namely, 5th Agrahayan 1344 B. S. was not in fact inserted on that date although the document had been signed by the twelve defen dants but taking advantage of the document being in the possession of the plaintiffs the latter had altered the case materially by insert ing a false date, namely, 27 Chaitra 1344 B. S. and by making a few other alterations in the body of the document such as inserting the word "year" in between the two "current" and "Agrahayan" in the 8th sheet of the document and also by inserting "and witness" after the word "writer" and also by inserting of "witness" in the second column in the last sheet of the document as also by adding an unwarranted "explanation" at the bottom of the document. In substance the defence case was that the document having been materially altered this identical document could not be said to have been executed by the contesting defendants and as such the District Registrar rightly refused to register this document.
4. Issues were framed duly on or about 21‑6‑39. Thereafter on 5‑9‑39 a petition of compromise between the plaintiffs and defendants Nos. 5 and 6 with a separate Vakalatnama was filed and on 6‑10‑39 another compromise petition between the plaintiffs and defendant No. 11 Sailendra Dutta together with a separate Vakalatnama executed by Sailendra Dutta in favour of another Pleader Durga Kumar Dutta was filed. It also appears that there after on or about 23‑11‑39 a petition for cancellation of the compromise petition as between the plaintiffs and defendant No. I1 was filed on behalf of Sailendra Chandra Dutta. It further appears that on the same date of filing the compromise petition, that is, on 6‑10‑39 a kabala with respect to C. S. Plot No. 252 ap pertaining to the same Khatian No. 248 was executed by Sailendra Chandra Dutta in favour of the plaintiffs for a consideration of Rs. 40 only. In due course on or about 19‑12‑39 the plaintiffs also filed an objection to the prayer for cancellation of the com promise petition as filed by defendant No. 1 Sailendra Chandra Dutta.
5. The parties went into trial and by a judgment and decree dated 4th of March 1940, the learned Subordinate Judge found in favour of the defence holding that there was material alteration in the deed as alleged by the defendants and that the deed had been executed on 5th Agrahayan 1344 B.S. and not on 27th Chaitra 1344 B. S. and that as such the District Registrar was perfectly right in refusing registration thereof. It is apparent that if the deed appears to have been executed on 5th Agrahayan, 1344 B. S. and presented for registration on 11‑10‑38 ordinarily even after taking advantage of section 25 of the Act the deed would appear to have been presented beyond eight months and as such a ques tion of limitation might arise but for reasons to be discussed herein below it has to be considered as to whether this could be said to have been presented for registration within time. So far as the decree was concerned the learned Subordinate Judge took the view that as the document appeared to have been executed actually on 5th Agrahayan 1344 B. S. the Solenamah as filed between the plaintiffs and defendants Nos. 5 and 6 as also by defendant No. 11 could not materially change the position in law. In that view of the matter the entire suit was dismissed.
6. Ever since the appeal was filed as stated above, it appears there have been many deaths amongst the parties and the hearing of the matter was accordingly delayed from time to time. The appeal which was originally filed in the Calcutta High Court was almost ready there but the Partition of the country intervening this appeal was transferred to this Court. It is now understood that the appeal is otherwise ready and the learned Advocates appearing in the case also submit that there is no defect of parties in this appeal at the present moment.
7. On behalf of the plaintiff‑appellants Mr. Syed A. B. M. Hussain contends that the learned Subordinate Judge erred in his finding that the date of execution was not 27th Chaitra 1344 B. S. but 5th Agrahayan 1344 B. S. He has also contended that there was no material alteration as found by the trial Court. He has further contended that there was no failure to pay the entire consideration and whatever defence has been set up in this connec tion was nothing but a false plea. Last of all he has contended alternatively that even if it were assumed for the sake of argument that deed had actually been executed on 5th Agrahayan 1344 B. S. corresponding to 21st November 1937 yet in that case the deed could not be said to have been presented for registration beyond time in view of the fact that an Ordinance being Bengal Tenancy Ordinance No. 1 of 1938 had been promulgated on or about 3rd June 1938, with retrospective effect from 31st of May 1938, and this Ordinance having actually expired on or about 8th September 1938, and the lands in question being occupancy raiyati lands, the period during which the Ordinance was in force was liable to be deducted and on that calculation the plaintiffs were entitled to get an order from the District Registrar in favour of the registra tion of the document.
8. Mr. D. C. Bhattacharjee appearing on behalf of the con testing defendant‑respondents joined issue on all the points `raised on behalf of the appellants.
9. The only point for determination in this appeal is as to whether the District Registrar rightly refused registration of the document in terms of section 76 (1) (b) of the Act and, if not, whether the plaintiffs can get a decree in terms of section 77 of the Act.
10. On a reference to the relevant order of the District Registrar which has been marked as Exh. 1 it appears that the learned District Registrar in his enquiry took the view mainly relying upon two documents marked Exhs. B and E in the present suit that the execution actually took place on 5th Agrahayan 1344 B.S. and further that there had been interpolations as alleged with the motive of fraudulently altering the date of the execu tion and putting in a false date. It is not disputed that the scope of enquiry in the present suit instituted under section 77 of the Registration Act is more or less the same as before the District Registrar under section 74 of the said Act. This is more or less settled and the learned Advocates a4o do not dispute the soundness of this proposition. In the case of Manindra Nath Sanfui alias Manilal Sanfui v. Lalit Mohan Sadhukhan and others (55 C W N 166) it has been held that the scope of suit tinder section 77 of the Act is a very limited one and is of the same nature as an enquiry before the registering authority. We do not think that this proposition of law can be said to be in any way wrong or unsound. It is also more or less settled that in a dispute like this if the document in question appears to have been signed by the relevant executants then the initial onus that might lay upon the plaintiff should be deemed to have been shifted on to the defendants as soon as the latter admit that they had signed the document. It will be then for them to prove that the alterations as alleged including the date of execution were not in existence at the time when the document according to them was actually signed. Keeping in view this legal position it has to be seen whether the defendants have been able to discharge their onus of proof in so far they have to prove that the date of execution which according to the plaintiffs was 27th Chaitra 1344 B. S. was not the actual date of execution and that the alleged alterations in regard to the interpolations indicated above were actually not in existence on 5th Agrahayan 1344 B. S. when admittedly according to the defence the document had been signed and a substantial part of he consideration money had been paid.
11. Evidence has been adduced by the parties and they have relied upon documentary as also on oral evidence. On the defence side Exh. B, a Toka Hishab or memorandum of account and Exh. C, series which show entries in certain account books as also Exh. D, an installment bond executed on 23‑11‑37 by the defendants in favour of a third party, their creditor, and Exh. E dated 24‑11‑37, a special power‑of‑attorney said to have been executed by Sailendra in favour of his elder brother Mohini Mohan Dutta, and Exh. F series which are Rokar accounts (corresponding to Exh. C series) and Exh. G series showing attendance register of one Mohendra Chandra defendant No. 2 in the case as also the deposition of certain witnesses on the side of the plaintiffs before the District Registrar marked Exh. H series have been relied upon. On the plaintiffs side the deed in dispute marked Exh. 1 and the certified copy of the
kabala said to have been executed by Sailendra in favour of the plaintiffs marked Exh. 1(A) and registered kabala executed by Sudhir Chandra Dutta in favour of one Sadek Ali Bepari Exh. 1 (B) executed on 30th June 1939, and a few other documents have been put in. It also appears that the same witnesses who gave evidence before the District Registrar have been examined before the trial Court. The documents relied upon by the defendants would indicate certain circumstances which might be very relevant for consideration of the question of pro bability as to whether the deed could be said to have been executed on 5th of Agrahayan 1344 B.S. as alleged by the defence or on 27th Chaitra 1344 B. S. as alleged by the plaintiffs. The oral evidence however, seems to be the direct evidence as given by the parties in this case. It appears that six witnesses have been examined on behalf of the plaintiffs and five on the side of the defence. Of the six witnesses examined on behalf of the plaintiffs P. W. 1 Alam Chand Bepari is plaintiff No. 1; P. W. 2 Dwijendra Chandra Danda is the scribe of the disputed document; P. W. 3 Durga Kumar Mitra is a Pleader v ho had filed the sulenamah between the plaintiffs and defendant No. 11 Sailendra; P. W. 4 Monoranjan Chakraborti is a Pleader's clerk who had something to do with the sulenamah; P W 5 Jobed Ali Bepari and P. W. 6 Abdul Majid Munshi appear to be attesting witnesses in the document in question. On behalf defence D.W. 1 Behari Lal Roy is a non‑practising Pleader attesting witness; D.W. 2 Adhar Chandra Saha is also another attesting witness in the disputed document; D. W. 3 Dwarka Nath Gun is a formal witness; D. W. 4 Mohini Mohan Dutta is defendant No. 8 and D.W. 5 Mohini Mohan Das seems to be a teacher of a School where defendant No. 2 Mahendra Chandra is said to be working as a teacher. Guru Charan Roy or any other defendant has not been examined. Of the five defence witnesses Behari Lal Roy admits that they had transaction with the defendants firm and the defendants owned money to them. According to this witness the debt payable by the defendants to them at the time when he was deposing, was Rs. 2,500 and accord ing to him their transactions with the defendants continued for 15/20 years. D. W. 2 Adhar Chandra is cousin brother of Guru Charan defendant No. 1, and D. W. 5 Mohini Mohan Das is also a relation of Guru Charan and Mahendra, defendants Nos. 1 and 2 respectively. It also appears that Guru Charan was the Secretary of the School to which D. W. 5 Mohini Mohan Das and Mahendra were probably attached. It is thus quite clear that it is very difficult to expect any independent or disinterested evidence from D. W. 1, D. W. 2 and D. W. 5. D. W. 4 Mohini Mohan Dutta being himself a defendant and having taken up the burden of contest throughout on his shoulder can also hardly be said to be an independent or disinterested witness. D. W. 3 Dwarka Nath is more or less a formal witness who had deposed in connection with Exh. C and Exh. D and has no personal knowledge as to the transaction in question. On the side of the plaintiffs P. W. 1 Alam Chand being one of the plaintiffs is not an independent and disinterested witness. P. W. 5 Jobed Ali, though an attesting witness, is said from the side of the defence to be not present at the time of the actual execution of the document and it is also said that he being a brother of one Sadek Ali in whose favour the kabala Exh. 1 (B) has been executed by Sudhir Chandra is not dependable. P. W. 6 Abdul Majid Munshi appears to be a serving officer under the plaintiffs. It is very difficult to take all these witnesses, namely, P. W. 1, P. W. 5 and P. W. 6 as thoroughly independent or disinterested witnesses. Of the other witnesses, namely, P. W. 2 Dwijendra and P. W. 3 Durga Kumar and P. W. 4 Monoranjan it does not appear that any serious challenge as to their veracity and integrity has been made. On the other hand, according to D. W. 1 Behari Lal Dwijen Chandra Danda who was known to him for nearly ten years as a deed writer had the repu tation that he was an honest. P. W. 3 Durga Kumar is a Pleader and he has proved the filing of Solenamah as between the plaintiffs and defendant No. 11 Sailendra. P. W. 4 Monoranjan has cor roborated the fact that the Solenamah was prepared and filed on behalf of Sailendra. Although it appears that almost all the defence witnesses are not independent or disinterested yet their evidence for what it is worth has to be considered as there is no other direct evidence even in support of the defence contention in this case.
12. Coming now to the question of the alleged material alterations in the document, on a reference to the evidence of P. W. 2 Dwijendra it appears that the deed was read over by him and Sudhir was not present and so he did not sign. According to him the deed was attested and he wrote the term "and witness" after the executants signed. His further evidence in cross‑examina tion is that after writing the part of the Kaiat the executants signed under it and after signatures under Kaifiat the attesting witnesses signed. He has also said that he read the deed; Guru Charan and Mohini also read the deed and that by finishing the writing he put the date in the deed. In his cross‑examination he also says that after comparing the deed with the draft he put the word "year" in the 8th sheet. Guru Charan held the draft when he read the deed. It was suggested to him that he wrote the deed in his residence (house) and he repudiated such suggestion. D. W. 1 Behari Lal, on the other hand, says that when he attested the deed it had no date. According to him he attested in Agrahayan 1344 B. S. and Rs. 3,350 was paid on that date. He admits that D. W. 2 Adhar also attested in his presence but denies that P. W. 2 Dwijendra was present when the execution and the attestation took place. In his cross‑examination he says that after reading when he found no date he enquired of the scribe but he was told that the scribe was not present. He raised an objec tion that without date the deed could not be executed although he did not insist on the presence of the scribe at that time. D. W. 2 Adhar, who is a cousin brother of Guru Charan and acts in the Gaddi of the defendants and pays rent to them, says that he depended on Behari Babu D. W. 1 entirely. According to him no Kaifiat existed in the deed when he attested and no date existed at that time. But curiously enough he has deposed that Behari Babu after reading the deed said nothing. According to D. W. 2 Adhar Behari Babu read the deed and Guru Charan and Mohini and others read the deed though he himself did not read the deed. It thus appears that there is some contradiction even between D. Ws. 1 and 2. According to D. W. 1 he did not distinctly remember whe ther the Kaifiat was in the deed or not when he attested. On the point as to whether the Kaifiat was in the deed or not at the time of attestation by D. Ws. 1 and 2 the evidence of D. W. 1 being not helpful as he did not distinctly remember, we have to examine the comparative evidence of P. W. 2 and D. W. 2 alone. As already observed P. W. 2 Dwijendra being an independent and disinterested witness who has the reputation of an honest man and D. W. 2 Adhar being interested and not independent we consider it safe to accept the evidence of Dwijendra Danda in this behalf. It is very difficult, in our opinion, in this state of contradictory nature of evidence as between D. Ws. 1 and 2 to rely upon the evidence of D. W. 4 Mohini Dutta who himself is a defendant and is surely interested to support his case in whatever manner possible. We, therefore, hold that the Kaifiat was there and the de fendants signed underneath the same and we also hold that at least Guru Charan and Mohini read the document and understood the contents thereof while signing underneath the Kaifiat.
13. In regard to the other alterations as alleged, that is, interpolation of the words "year" in the 8th sheet and "witness" and "and witness" in the 11th sheet no evidence has been given on the side of the defendants except by D. W. 4 Mohini Mohan Dutta. . D. W. 1 or D. W. 2 throw no light on the same. In this respect, as already quoted, P. W. 2 Dwijendra has proved that he wrote the term "and witness" after the executants signed and that he put the word "year" in the 8th sheet after comparing the deed with the draft which was being held by Guru Charan. As against that the evidence of D. W. 4 does not appear to us to be very convincing. In regard to the question as to whether the term "Ishadi" was there just above the second column of the signatures of the witnesses, it appears from the evidence of P. W. 2 Dwijendra that after signatures under the Kaifiat the witnesses attested and in further cross‑examination he says that he knew Jobed Ali only on the date of execution and so was the case of Abdul Majid Munshi. Thus it seems quite clear that his evidence is to the effect that Jobed Ali and…
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