Madras High Court
Abdul Kalam Azad vs Ananthalakshmi on 6 February, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 06.02.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.41 of 2007 1. Abdul Kalam Azad 2. Mohammed Farooq 3. Mohammed Yasin @ Rafi 4. Mohammed Rasool 5. Haneefa Bivi 6. Basheera Begum 7. Minor Mohammed Jaffar ... Appellants vs. 1. Ananthalakshmi 2. Chitra 3. Indhumathi 4. Kamala ... Respondents Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 05.04.2006, passed by the Principal District Court, in A.S.No.56 of 2005, reversing the judgment and decree, dated 23.03.2005, passed in O.S.No.17 of 1993, by the Additional Subordiate Court, Vridhachalam. For Appellants : Mr.S.Venkateswaran for Mr.R.Subramanian For Respondents : Mr.V.Raghavachari J U D G M E N T
The appellants herein filed a suit as plaintiffs in O.S. No.17 of 1993 on the file of the Additional Sub Court, Vridhachalam, seeking a direction to the Ponnadam Sub Registrar to register the Sale Deed executed on 21.11.1988.
2. The facts giving rise to the present appeal are as follows:-
The immovable property described in the schedule of the plaint originally belonged to the first defendant Thayarammal. On behalf of the minor plaintiffs, their mother Haniffa Bi on the one side and the first defendant on the other side entered into an agreement to sell the property on 31.03.1988, for a sale consideration of Rs.1,25,000/-. As per the said agreement, the first defendant received a sum of Rs.38,200/- from the guardian of minors. In the said agreement, it was agreed that the mortgage in favour of one Duraisamy Padayachi for Rs.10,000/- and Rs.7,000/-, amounting to Rs.26,140/-, shall be discharged by the plaintiffs. The balance of Rs.60,660/-, out of the total consideration, shall be paid on or before 31.12.1988 and the sale deed shall be executed. In pursuant to the sale agreement, the first defendant executed the sale deed dated 21.11.1988 in favour of the plaintiffs. The receitals in the sale deed would show as to how the first defendant received the major portion of the sale consideration in several ways from the plaintiffs and those recitals also would show that the remaining sale consideration of Rs.15,660/- was agreed to be received by the first defendant before the Sub Registrar at the time of registration of the sale deed. After scribing the sale deed dated 21.11.1988, it was duly signed by the first defendant in the presence of the witnesses. Indeed, the first defendant's son Thambusamy also signed it as one of the attesting witnesses. Hence, the first defendant was duty bound to help the plaintiffs to get the sale deed registered. However, when the first defendant was asked by the Haniffa Bi to help her to get the sale deed registered, the first defendant deferred it. Hence, Haniffa Bi presented the sale deed for compulsory registration at Pennadam Sub Registrar's office. Subsequently, when the Sub Registrar sent a summon to the first defendant, the first defendant did not respond to the notice. Therefore, the Sub-Registrar refused to register the document on 28.12.1988.
3. Being aggrieved by the same, Haniffa Bi approached the Chidambaram District Registrar and filed the necessary objection, which was taken as Case No.1/1999. However, the said appeal was dismissed on 09.12.1992. Aggrieved by the said order, the plaintiffs filed a statutory suit under Section 77 of the Registration Act, 1908, before the Additional Sub Court, Virudhachalam, being O.S.No.17 of 1993, for a direction to the Sub-Registrar, Ponnadam, to register a sale deed executed on 21.11.1988 with costs.
4. During the pendency of the suit, the first defendant died on 11.01.1999. Thereupon, her deceased son Thumbusamy's wife, the second defendant and Thumbusamy's daughters, the defendants 3 to 6 were impleaded as legal heirs of the first defendant. The sixth defendant is the daughter of the first defendant. The defendants 7 and 8 are the sons of Lakshmi bai, one another daughter of the first defendant.
5. Learned Additional Subordinate Judge, Virudhachalam, after considering the case of both sides by adducing the oral and documentary evidence, decreed the suit vide Judgement dated 23.03.2005. The unsuccessful defendants filed an appeal by preferring A.S.No.56 of 2005, before the learned Principal District Court, Cuddalore. After considering the rival submissions of both sides, the Lower Appellate Court, by its judgment dated 05.04.2006, reversed the decree passed by the Trial Court. Aggrieved by the same, the plaintiffs have filed the present Second Appeal.
6. At the time of admission, the following substantial questions of law were framed for consideration:-
i) Whether in law the lower appellate Court was not wrong in holding that the plaintiffs ought to have sought the assistance of an expert when the trial court had compared the signature and had found them to be true exercising its power under Section 73 of the Indian Evidence Act?
ii) Whether in law the lower appellate Court was right in failing to see that Exs.A1 and A2 had been proved by examining the attestor?
iii) Whether in law the lower appellate Court was right in failing to see that there was a joint decree against the respondents and that as all of them had not filed the appeal, it was not maintainable?
7. Learned counsel appearing for the appellants/plaintiffs submitted that the learned lower appellate Court has committed a serious error in holding that the plaintiffs ought to have sought the assistance of an expert when the trial court had compared the signature and found them to be true while exercising its power conferred under Section 73 of the Indian Evidence Act. Ex.A1-Sale agreement and Ex.A2-Sale deed were being denied by the defendants/respondents herein, saying that they have not executed the same and the signatures found in the above said documents were forged by the plaintiffs with a view to grab the property from the defendants. The learned trial Court, after making comparison of the signatures of both Thambusamy and Thayarammal in Exs.A1, A2 and A4 came to the conclusion that they were not forged signatures as claimed by the defendants/respondents herein. Per contra, the learned counsel for the respondents would argue that the trial court has no power to compare the parties signature when the parties to the disputed signatures have denied the same.
8. In this context, it is relevant to refer Section 73 of the Indian Evidence Act, which is extracted as under:--
"73. Comparison of signature, writing or seal with others admitted or proved.-- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."
A mere reading of Section 73 shows that the Court can direct any person present in Court for the purpose of enabling the Court to compare the words or figures alleged to have been written by such person. When Section 73 of the Indian Evidence Act, empowers trial Court to compare the signature of the parties to the suit in order to ascertain whether the signature is that of the person by whom it purports to have been made, and such exercise having been properly discharged by the learned trial Court to come to a conclusion that the disputed signatures were made only by Thayarammal and Thambusamy, the learned lower appellate court is not right in holding that the trial court has failed to give any reason for holding that the disputed signatures and the admitted signatures are one and the same. Therefore, the contention made by the learned counsel for the respondents that the trial Court does not have jurisdiction to compare the signatures, is wholly misconceived.
9. It is also pertinent to note that when the defendants/respondents have also taken steps to send these documents for comparison of their signatures by moving I.A.No.678 of 1996, the defendants/respondents herein failed to prosecute the said application and it was dismissed and as against that no appeal was filed, thereafter, the trial Court has rightly come to the conclusion that the signatures found in Exs.A1 and A2 are true signatures of the defendants. The further claim of the defendants is that Thayarammal was not in the village and she had gone to Thirukoilur to attend the death ceremonies of her son-in-law and she returned to Pennadam only after one month. But, the perusal of Ex.A3 would reveal that the last rite ceremonies were over by even 19.11.1988 itself. Therefore, there was every possibility that the first defendant was in Pennadam and executed the sale deed in Ex.A2 on 21.11.1988. But, the lower appellate Court has also lost sight on the above said reasonings given by the trial Court.
10. In respect of doctrine of non est factum, it has been contended by the learned counsel for the appellants that when the defendants in their written statement filed before the trial Court and memorandam of appeal before the lower appellate Court have not even taken that plea of non est factum, it is not open to the lower appellate court to invoke the said doctrine against the plaintiffs/appellants herein. However, even without considering the circumstances under which the above mentioned Exs.A1 and A2 Sale deed and Sale agreement were executed and their inaction in prosecuting the I.A.No.678 of 1996, the lower appellate Court has erroneously come to the conclusion that the trial Court, by invoking Section 73 of the Indian Evidence Act for comparing the disputed signatures, failed to give reasons, whereas the trial Court, after comparing the signatures, have cited the acceptable reasons as stated above. Therefore, the said findings rendered by the lower appellate Court is not tenable in law. Accordingly, this Court answers the first substantial question of law in favour of the appellants as stated above.
11. In respect of the second substantial question of law, it is not in dispute that Thambusamy, the son of the first defendant has also signed as a witness both in Ex.A1 as well as Ex.A2. But, the signatures of the said first defendant-Thayarammal as well as Thambusamy, son of the first defendant, were denied alleging that they were forged by the plaintiffs. However, in view of subsequent demise of Thambusamy, who predeceased Thayar Ammal, it was not possible for the Court to examine them as one of the witnesses.
12. Further, the learned lower appellate Court failed to see another vital aspect that, when Thambusamy, the son of the first defendant and one Nambian, who signed the documents as one of the witnesses, were dead, obviously, they could not be examined by the Court. Therefore, their signatures properly compared by the trial Court, as stated above, by comparing the signatures found in Exs.A1 and A2. Overlooking these practical problems, the learned Appellate Court committed a serious error in failing to see that Exs.A1 and A2 have been sufficiently proved by comparing the disputed signatures in exercising the power conferred under Section 73 of the Indian Evidence Act. In a suit under Section 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 Section 35 of the Registration Act, a Registrar is bound to register a document if the ostensible executant admits his signature to the document. This is the admission of execution referred to in Section 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 practised 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 Section 77 of the Registration Act has jurisdiction to enter into these questions. In a suit under Section 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 executant 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. In this case, the learned trial court having seen that the document has been executed by the defendant, on satisfaction of the signatures in the agreement for sale, rightly decreed the statutory suit filed under Section 77 of the Registration Act. Therefore, this Court answers the second substantial question of law in favour of the appellants herein as stated above.
13. In respect of third substantial question of law, though the learned trial Court has decreed the suit as against 8 defendants, only four of them filed an appeal before the lower appellate Court challenging the correctness of the judgment and decree passed by the trial Curt. As it is settled law that the judgment in rem will bind all the parties not only to the suit, but also to the appeal and thereby, the appeal being a continuous one flowing from the original suit proceedings, the issue has to be answered against the appellants herein and accordingly, the same is answered.
14. Learned counsel appearing for the respondents/defendants submitted that the statutory suit filed under Section 77 of of the Registration Act was not amenable as it became incompetent, since the plaintiffs have not impleaded the Sub-Registrar, Pennadam, as a necessary party, who has refused to register the sale deed-Ex.A1 and Ex.A2, when it was presented by the plaintiffs, therefore, he contended that the appellate authority under the Registration Act being a necessary party, the learned trial Court should have refused to entertain the statutory suit on the ground that the plaintiffs/appellants herein failed to implead the Sub-Registrar as one of the necessary parties. In respect of his contention, he has also relied upon a judgment of this Court made in L.P.A.No.15 of 2002, dated 28.07.2005 (D.Ravi and others v. Raghunath and others), to say that as the appellate authority, namely, the Registrar, being not made as a party, direction to compulsorily register the document, which he has also refused, cannot be given.
15. In reply to the said submission, learned counsel appearing for the plaintiffs/appellants herein submitted that the said judgment is not in favour of the respondents. A mere reading of the said Judgment completely supports the case of the appellants. As per the Judgment, if the defendant denies his signature and refused to appear, the registrar need not be made as a party to the proceedings. On the other hand, if a person, against whom compulsory registration is sought for appeared before the Registrar and admits his execution of the sale deed and thereafter, if the Registrar refuses to register the documents, under such circumstances, the refusal of the Registrar can be challenged by making him as one of the necessary parties. But, in the present case, since the defendant denies his signature and refuses to appear before the registrar, the suit has been properly filed by making the defendants as a necessary party, without dragging the registrar, as he was not a necessary party. This submission is covered by a judgment cited supra in D.Ravi's case.
16. In this context, it is pertinent to extract Sections 75 and 77 of the Registration Act.
75. Order by Registrar to register and procedure thereon.--
(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.
(2) If the document is duly presented for registration within third 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.
(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration.
(4) The Registrar may, for the purpose of any enquiry under section 74, summon and enforce the attendance of witnesses, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908.
77. Suit in case of order of refusal by Registrar.-
(1) 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 the 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 thirty days after the passing of such decree.
(2) The provisions contained in sub-sections (2) and (3) of Section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit."
A mere reading of Section 77 shows that, within 30 days after passing the order of refusal, the suit has to be filed for a decree seeking registration of the document in the office of the Registrar. In the present case, the plaintiffs presented the sale deed dated 21.11.1988, before the Sub-Registrar, Pennadam, for registration. In turn, the Sub-Registrar sent a summon to the first defendant to appear before him for registration. But, the first defendant did not come forward for registration of the document. Under these circumstances, in the absence of any objection from the first defendant, the Sub-Registrar ought to have registered the document in question. But, unfortunately, the Sub-Registrar, by order dated 28.12.1988, had refused to register the document and he has also not given any reason for refusal. Therefore, the matter was appealed before the District Registrar, Chidambara, where the appeal filed by the plaintiffs was rejected. Therefore, the plaintiffs filed a statutory suit before the trial Court. Under these circumstances, arraying the Sub-Registrar and Registrar as necessary parties to the suit proceedings, is not necessary, as held by the Calcutta High Court in Radhakissen Rowra Dakna v. Chooneeloll Dutt ((1880) ILR 5 Cal 445). Relevant portion of the said judgment is extracted hereunder:-
"....... I further think that 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. It follows that in this case, there was a denial within the meaning of Section 74, and, that the refusal to register was a refusal under Section 76, and therefore, this suit is properly brought under Section 77. I do not think the Registrar is a necessary party to the suit. Had there been anything in the circumstances of the case that led me to think he ought to be made party, I should have adjourned the hearing to allow of this being done."
17. In similar circumstances, in the case of Sripat v. Vishwanath and others (AIR 1973 ALLAHABAD 527 (V 60 C 183), the Allahabad High Court has also held that if a statutory suit is filed under Section 77 of the Registration Act, the Registrar need not be made as a party to such proceedings. Because, it is immaterial whether the order passed by the Registrar was erroneous. The order obviously was made against the plaintiffs who were interest in the deed and was passed in favour of the defendants. The plaintiffs being aggrieved would have for his adversary not the Registrar, or Sub-Registrar. That being so, the Registrar would not be necessary to the suit filed under Section 77 of the Indian Registration Act. Para 4 of the said judgment is extracted hereunder:-
"4. The learned counsel for the applicant urged that the alleged compromise was unlawful and no decree could be passed in terms thereof inasmuch as the plaint was amended after the alleged compromise was filed and the Sub-Registrar was not impleaded as a defendant in the case. The contention that the Sub-Registrar was a necessary party to the suit has, however, no substance. The suit was obviously filed under Section 77 of the Registration Act to obtain registration of a document. Section 77 of the Registration Act says that when registration has been refused under Section 72 or Section 76, a suit may be brought in the Civil Court having local jurisdiction where the registration office is situate to enforce the registration. In the present case the sale deed was presented before the Sub-Registrar for registration. The Registrar issued a summons to Sripat to appear before him to admit execution. Sripat, however, did not turn up to admit execution. Consequently the Sub-Registrar refused to register the document. An application was thereupon filed before the District Registrar. Sripat appeared before him through a counsel but filed no objection. Sripat in his statement recorded before the District Registrar admitted that he had signed the deed in question but did not go to the office of the Sub-Registrar to get the deed registered because the amount mentioned in the deed was low. The District Registrar having found the contention of Sripat to be correct rejected the application of Viswanath and Ayodhya Prasad Vide his order dated 3rd April, 1968. The plaintiff therefore filed the suit under Section 77 of the Registration Act. The Registrar obviously passed that order under the provisions of the Indian Registration Act after making the necessary enquiries. He took evidence and provisionally adjudicated upon the right of the plaintiffs to have the document registered. He thus exercised his jurisdiction under the provisions of the Indian Registration Act. The said order was thus passed in the exercise of a judicial function. Consequently there is no reason why the Registrar should be made a party to a suit under Section 77 of the Indian Registration Act. It is immaterial whether the order passed by the Registrar was erroneous. The order obviously was made against the plaintiffs who were interested in the deed and was passed in favour of the defendants. The plaintiff being aggrieved would have for his adversary not the Registrar or Sub-Registrar but the defendant, the [Registrar, being in no way interested in the final adjudication. That being so, the Registrar would not be necessary party to the suit filed under Section 77 of the Indian Registration Act."
18. In yet another case, namely, Sk.Md.Ismail v. Sk.Anwar Ali and others (AIR 1991 CALCUTTA 391), the Calcutta High Court has held that the non-addition of the Sub-Registrar (as) a party would not in this case be fatal to the suit. It was statutory suit against the decision of a public Officer and as such the officer deciding the matter had hardly any duty to justify his decision. The order of the court of a competent jurisdiction was binding on him in spite of his non-joinder as a party.
19. The Hon'ble Apex Court, in Savitri Devi v. District Judge, Gorakhpur and others (1999-3-L.W.227), highly deprecated the practice of impleading Judicial Officers as parties, while challenging the Judicial Orders passed by them. Paras 9 to 11 of the said judgment are extracted hereunder:-
"9. Order I, Rule 10 C.P.C. enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code.
10. In Khernchand Shankar Choudhari and Another versus Vishnu Hari Patil others(1983) 1 S.C.C. 18 this Court held that a transferee pendente lite of an interest in an immovable property which is the subject matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII C.P.C. The Court said:
"...It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so inpleaded and heard..."
11. In Ramesh Hirachand Kundanmal versus Municipal Corporation of Greater Bombay and others (1992)2 S.C.C. 524 this Court discussed the matter at length and held that though the plaintiff is a 'dominus litis' and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said:
" The case really turns on the true construction of the rule in particular the meaning of the words "whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit". The Court is empowered to Join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct, the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-mat matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions."
The Court also observed that though prevention of actions cannot be said to be main object of the rule, it is a desirable consequence of the rule. The test for impleading parties prescribed in Razia Begum versus Anwar Begum 1959 S.C.R. 1111 that the person concerned must be having a direct interest in the action was reiterated by the Bench."
20. Further, a Division Bench of this Court in D.Ravi's case (cited supra) has held thus in para 22:-
"22. From the aforesaid decision of the Madras High Court, it is apparent what where the registration is refused on account of opposition by a private party, it may be sufficient to implead such party as a defendant because the refusal is on account of such opposition by the private party, but where the opposition is from the Registrar, the latter should be impleaded as defendant."
21. The above observation of a Division Bench of this Court clearly held in favour of the appellants that where the registration is refused on account of opposition by a private party, it may be sufficient to implead such party as a defendant. Since in the present case the first defendant after receipt of the summon, refused to appear before the Sub-Registrar and District Registrar, as held by the various decision as stated above, the suit filed by the plaintiffs/appellants herein under Section 77 of the Registration Act is rightly maintainable and therefore, the reasoning given by the learned lower appellate Court, by applying the doctrine of non est factum, which was not even pleaded by the defendants/respondents herein before the trial Court, needs to be interfered with. Accordingly, the order passed by the Principal District Court in A.S.No.56 of 2005 is set aside. The order passed by the learned Additional Subordinate Judge in O.S.No.17 of 1993, dated 23.03.2005, is restored.
22. In result, the Second Appeal is allowed. No costs.
06.02.2012.
Index : yes Internet : yes rkm To
1. The Principal District Court, Cuddalore.
2. The Additional Subordinate Court, Vridhachalm.
T.RAJA, J.
Rkm Pre Delivery Order in Second Appeal No.41 of 2007 06.02.2012.