Indian Kanoon - Search engine for Indian Law

The Sub-Registrar appointed under Section 7 of the Indian Registration Act, 1908, for registration of documents is no doubt a person in charge of a public office who has to perform the duty and function of registering a document under the Registration Act, and when a document is presented before him for registration it comes up before him in the performance of his functions.

Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be registered by any public officer unless such instrument is duly stamped This provision thus casts a duty on the registering officer to examine whether an instrument presented for registration is duly stamped. If, as Section 35 says, an instrument chargeable with duty shall not be registered unless such instrument is duly stamped, then it follows that the registering officer must perform the duty of seeing whether an instrument presented for registration is or is not duly stamped before admitting it to registration and not afterwards If he finds that the document is not duly stamped, then he must impound it under Section 33 of the Act. Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the registering officer registers a document presented to him for registration, the function in the performance of which the document was produced before him is over and thereafter becomes functus officio having no power under Section 33 to impound the instrument.

It was observed by the Supreme Court that the power to impound only exists when an instrument is produced before judicial officers or other officers performing judicial functions as evidence of any fact to be proved, or before other public officers who have to perform any function in regard to those instruments as, for example, registration. The Supreme Court also approved the decisions in Collector. Ahmednagar v. Rambhau, AIR 1930 Bom 392 (FB); Paiku v. Gaya, ILR (1948) Nag 950 (AIR 1949 Nag 214) and Panakala Rao v. Kumaraswami, AIR 1937 Mad 763 where the doctrine of functus officio was applied and it was held that the Court had no power to recall and impound a certificate of sale after executing it and delivering it to the purchaser, or to reopen a case and impound documents proved after signing the decree, or to impound an instrument admitted in evidence after delivery of judgment. Here, when the Sub-Registrar had registered the document in question on 31st October 1956 he became functus officio on that date and thereafter he had no power to impound the same In the present case, the Sub-Registrar purported to act under paragraph 232 of the Registration Manual when he made a report to the Collector that the 'Takseemnama' was not duly stamped But on reading paragraphs 231 and 232 it is clear that they do not say that after a document is admitted to registration the registering officer can make a report to the Collector that it was not sufficiently stamped. On the other hand, paragraph 231 expressly lays down a direction that before taking any further action that is to say, in the matter of registration, the registering officer must see that the document is duly stamped The words "after registering the document" occurring in paragraph 232 obviously refer to the entry of the document in the Register maintained of documents presented for registration. They do not mean that the registering officer can make a report about insufficiency of stamp after the document has been admitted to registration.

The views expressed by the Supreme Court should properly be read along with the views expressed by the High Court of Allahabad which were being upheld in appeal therefrom in Mohammad Amir Khan v. Deputy Commr., (S) AIR 1956 All 453 (FB). It will then be very clear why there was no question of any authority being functus officio, although that expression has been used by the Allahabad High Court also.

10. So far as the other cases relied upon are concerned, a perusal of the same would disclose that the doctrine of functus officio did arise and was rightly applied. There the authority concerned having fully and finally performed its function including that with respect to the instrument in question, could not retrace its steps and start over again by impounding the document and proceeding to recover the penalty and stamp duty. In this connection Section 36 of the Stamp Act may be seen. In the instant case also if the registering authority had parted with the instrument it could not have been, entitled to call it back and impound it or deal with it for that purpose What the expression "produced or comes in the performance of his functions" means has been pointed out in In re Narayandas, ILR (1943) Nag 520: (AIR 1943 Nag 97). So, though in the case before the Supreme Court views expressed in the aforesaid cases relied upon have been upheld, the acceptance has to be understood in the light of the circumstances involved in those cases.

12. So if the invalidity or insufficiency in the matter of stamp duty on any instrument had no bearing one way or the other on the function of the registering authority, it cannot be correctly said that it became functus officio so soon as it registered the instrument. For, it was no part of its function as registering authority under the Registration Act to examine the instrument from the point of its liability under the Stamp Act. 1 am aware that under Rule 4 of the Rules framed under Section 69 of the Registration Act it is provided that the registering authority shall examine the instrument with a view to see if it is duly stamped or not But the very fact, that the Act itself lays down no such provision or debars the registering authority from registering the instrument not duly stamped, rather supports my view that examination of the instrument to see whether it is duly stamped or not, even though expected under the rules to be done before proceeding to register the instrument, is not by way of any function or part of function which the registering authority as such performs under the Registration Act. Since the infirmity in the matter of stamp duty paid on the instrument does not affect the jurisdiction as such of the registering authority, the examination of the instrument as aforesaid would not also be a step in aid of its registration or in due performance of the function of registration. In this view there can be no question of the registering authority being functus officio after the registration of the instrument by it.