P L D 1960 Dacca 217 (PLP)

AMIN AHMED, C. J.‑This Letters Patent Appeal is on behalf of defendant No.

1. It is from a decision in 'Second Appeal No. 689 of 1953, affirming the decisions of two Courts below.

2. This appeal arises out of a suit for declaration of plaintiffs' khai khalashi right in the suit plots Nos. 383 and 410 appertaining to a raiyati holding and for recovery of possession and also for mesne profits. The plaintiffs' case inter alia is that the suit land and some other lands originally, belonged to one Baburali who made a gift of the entire jote on the 1st of Bhadra, 1341 B. S., in favour of his second wife Chhoto Bibi. Chhoto Bibi then made a gift back in favour of her husband by a hiba‑bil‑iwaj on the 28th of January, 1944, corresponding to 14th of Magh, 1350, B. S., but, before the document of hiba‑bil‑iwaj could be registered, she died leaving as her heirs her husband, her brother and a daughter of the ‑ name of Sabura Bibi by her former husband. So after that Baburali presented this document of hiba‑bil‑iwaj executed by Chhoto Bibi on the 19th of February, 1944, and the Sub‑Registrar registered it on the admission of execution by Baburali, the donee. On the 10th of September, 1949, corresponding to 24th of Bhadra, 1356 B. S., the heirs of Baburali, that is, his sons transferred the suit lands and other lands by way of usufructuary mortgage to the plaintiffs and pro forma defendant No. 1 by a mortgage deed and the plaintiffs have since been in possession of the suit lands, but, in Agrahayan, 1356 B.S., that is, sometime in December, 1949, they were dispossessed by the defendants.

3. Defendant No. 1 contested the suit and his defence was that this deed of hiba‑bil‑iwaj by Chhoto Bibi is a fraudulent document created after her death; that, after the death of Chhoto Bibi, one of her heirs Sabura Bibi sold her interest to Matiur Rahman and, on the 21st of February, 1945, defendant No. 1 purchased from her interest and since then he has been in possession, and that the plaintiff's story of possession is unture.

4. The trial Court decreed the suit and the two appeals against this decision were all dismissed with the result that this Letters Patent Appeal has been preferred before us.

5. The short point that has been urged by the learned Advocate for the appellant, Mr. Nurul Huda, is that the learned Judge who heard the Second Appeal erred in law in not holding that the deed of hiba‑bil‑iwaj executed by Chhoto Bibi is not a valid document inasmuch as it was not registered in accordance with law nor its execution was validly proved. In support of his argument, the learned Advocate refers to clause (c) of sub section (1) of section 35 of the Registration Act. Clause (c) runs as follows: "If the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the documents as directed in sections 58 to 61, inclusive." And further the learned Advocate has relied on the same cases on which he relied at the time of hearing of the Second Appeal. They are the cases of Dukaribala Dasi v. Gadadhar Paul and others (60 C W N 216), Abdul Aziz Khan v. Mst. Kaniz Fatima and another (A I R 1933 All. 302) and Purnananda Narayan and others v. Maleka Bibi and others (51 C W N 675). Relying on the following passage in the case of Abdul Aziz Khan v. Mst. Kaniz Fatima and another, it is claimed that the Sub -Registrar cannot register a document purported to be executed by a person who is dead unless all the legal representatives of the deceased person admit execution before him. The passage runs thus: "These three persons constituted the legal representatives of Abdul Jalil. Section 35 (1) (c), Registration Act, states that if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive. Now it is not stated in the section that if one of several representatives appears and admits execution that the Sub‑Registrar should register the document. It is provided in section 35 (3) (c) that if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document. We consider that these two sections together mean that the Sub‑Registrar should have before him the admission of all the legal representatives of a deceased person before he should proceed to register a document."

6. Mr. Huda has also referred to the following passage in the case of Purnananda Narayan and others v. Maleka Bibi and others, judgment of Blank and Chakravarti, JJ. (as his Lordship Chakravarti, J., then was) :‑

"As regards admission of execution, speaking for myself, I doubt whether it could be right to hold that Bhakoo was‑ the assign of Ajijunnessa within the meaning of section 35 of the Registration Act although the decision in Akshaya Chandra Ma/hi v. Manmatha Nath Chatterjee 20 C W N 1345 supports the view. Bhakoo would be the assign on the completion of the gift which would take place only on the registration of the document, but it is difficult to see how in proceedings relating to registration, which were proceedings required to effectuate the deed, he could be treated as having already become an assign. Again, the object of registration is to make a document binding on the executant, and the object of obtaining an admission of execution is to obtain some assurance that the document was, in fact, executed. Such an admission, in my view, can properly come only from the executant himself or some one claiming under him otherwise than under the docu ment to be registered. It seems somewhat illogical to hold that a person claiming a benefit under an instrument whom registra tion enables to hold the executant to its terms should be able to procure that advantage by himself making an admission of execution. An assign can undoubtedly be the personal representative of the assignor in relation to third parties, but that he should be a personal representative with reference to the act of assignment itself seems to me prima facie to be impossible". We have considered these cases and the observations of their Lordships in these two cases and, with great respect, we prefer to go by the wording of the relevant portion of section 35 of the Registration Act. It will be noticed that in the three clauses, namely, (a), (b) and (c) of subsection (1) of section 35 of the Registration Act, the following are provided : First, provision is made for cases where all the persons executing the document and known to the Registrar personally appear before the registering officer or the Registrar is otherwise satisfied that they are the persons who have executed the document and they all admit the execution of the document. This is clause (a). It next provides for a case where a party who executes the document does not appear before the registering officer but sends his representative, assign or agent who admits the execution of the document. This is clause (b). Thirdly, it provides for a case where the person who executed the document is dead but, even after his death, either his representative or his assign appears before the registering officer and admits the execution. This is clause (c). And the concluding portion of subsection (1) of section 35 requires that in all these three cases the registering officer shall register the document.

7. From what I have already stated, it will appear that clauses (a) and (b) of subsection (1) of section 35 of the Registra tion Act provide for cases where the persons who have executed the document are alive, and clause (c) provides for a case where such persons are dead. If it were the intention of the Legislature that in a case where the person executing the document is dead all his heirs and legal representatives should appear before the registering officer and admit the execution of the document, the wordings, in our opinion, would have been different. It is very significant that the words "representative, assign or agent" are mentioned in clause (b) of section 35 of the Registration Act while the word "agent" is omitted in clause (c) and clause (c) of section 35 of the Registration Act clearly provides that even where the person executing the document is dead‑and obviously he cannot have any agent‑either his representative or his assign may appear before the registering officer and admit execution. Further, we find from the Oxford Dictionary that the word "assign" may mean even a donee, for, if it is used as a verb, it means "to transfer or formally make over to another" or "to allot (a place) to a person ; to appoint or set it apart for a purpose" and, if used as a noun, it means "one to whom a property or right is legally transferred", as in the present case. We are fortified in this view by the decision of their Lordships Fletcher and Teunon, JJ. in the case of Akshaya Chandra Majhi and others v. Manmatha Nath Chatterjee where Fletcher, J., observed as follows, and we may mention here that, although Chakravarti, J., made the observations quoted above in the case of Purnananda, and referred to the case of Akshaya Chandra, his Lordship did not disagree with the view taken in Akshaya Chaddra's case: "Under the provisions of the Transfer of Property Act, a gift of an immovable property can only be made by a deed of transfer duly registered. The lady died a few hours after execu ting the deed of gift. The document was, however, registered within the four months required by the Indian Registration Act and the only question is "was the plaintiff an assign of the deceased lady within the meaning of the third clause of section 35 of the Indian Registration Act, which authorises the registration of a document where the executant is dead and his representative or assign appears before the Registering Officer and admits the execution ?" The plaintiff was vested with the interest that the deceased lady had in the property comprised in the deed of gift ; and, ordinarily, he would be an assign of the lady. No reason has been shown why the word "assign" should not be given its ordinary signification ; and it is quite possible that the Legislature inserted the word "assign" in the third clause of section 35 to provide for the case where the representative would not appear and, unless the transferee was authorised to appear and admit the execution, the deed could not be registered," So, we do not see why the donee in this case as assign could note present the document after the death of the donor, as section 35 of the Registration Act does not prohibit it but, on the other hand, expressly provides for such a case.

8. The next point argued by the learned Advocate for the appellant is the last ground in the Memorandum that as the plaintiffs had an usufructuary mortgage for a period of four years, they are not entitled to get a declaration of their khai khalashi right which is a precarious one. We find that this point was not argued before the learned Judge who heard the Second Appeal. In any view of the case, we fail to appreciate this point, for, if it is held that the deed of hiba‑bil‑iwaj by Chhoto Bibi was duly registered inasmuch as the plaintiff claims (sic) title as founded on this point is of no substance.

9. The last point urged by the learned Advocate is the second point that was taken in the Second Appeal‑that in view of the kabala taken by the mortgagors of the plaintiffs from Matiur Rahman, it should have been held that they admitted the title of Matiur Rahman. This, as stated by, the learned Judge of this Court, has no substance either, for that the transaction covered by the deed of hiba‑bil‑iwaj executed by Chhoto Bibi was executed on the 28th of January, 1944, and this was much earlier than the date of Exh. A (2) on which the appellant relies. It is more than clear that Matiur Rahman had no title to convey after the hiba‑bil‑iwaj was executed by Chhoto Bibi.

10. The result, therefore, is that‑this appeal is dismissed with costs. CHAKRABORTI, J. .I agree with my lord the Chief Justice. K. B. A. Appeal dismissed.