P L D 1961 Dacca 638 (PLP)

HAMOODUR RAHMAN, J.‑This reference to the Full F3ench arises out of an appeal from an appellate decree, and, as such, the entire appeal has been referred to this Full Bench for final decision. The respondents herein instituted the suit, out of which the second appeal itself arose for a declaration of title and for confirmation of their possession in‑ the lands in dispute. They claimed to have acquired these lands partly by purchase from one Nural Islam and partly as a result of pre‑emption proceedings against other transferees of the said Nurul Islam. It appears that the lands in dispute were originally in the exclusive possession of one Badiuzzaman who had a maliki right to the extent of a 6 annas share therein. The latter executed a deed of gift in respect of the said share in the disputed lands in favour of his son Nurul Islam, on or about the 10th of Bhadra 1346 B.S., corresponding to the 27th of August 1939. The deed could not, however, be registered during the lifetime of the said Badiuzzaman, but was presented by the donee Nurul Islam for registration on the 16th of September 1939. The said Badiuzzaman had, besides Nurul Islam, left other heirs as well, namely, two daughters and a widow. Of the daughters, the defendant No. 5 Ayetennessa was a minor and was then under the care and custody of her brother Nurul Islam. The execution of the document was admitted before the Sub‑Registrar by Nurul Islam, the widow Asmatannessa and Ayesha Khatun; the other adult daughter of Badiuzzaman. Nurul Islam purporting to act as the guardian of his minor sister Ayetannessa, also purported to admit execution on her behalf and the deed of gift was registered. On the basis of the said deed of gift, Nurul Islam entered into possession of the lands and continued to possess the same till he transferred a 1 anna and 10 gandas share therein to the plaintiff No. 1 in the benami of his three sons, the plaintiffs Nos. 2 to

4. Later Nurul Islam sold another 2 annas and 5 gandas share to one Aroosha Khatun on the 13th of Sraban, 1351 B. S. The plaintiff No. 1, however, subsequently prey‑empted the said share of Aroosha Khatun. Nurul Islam also sold the remaining 2 annas and 5 gandas share to one Anarulla in the wine year ; but this was pre empted by the plaintiff No. 5, who had, in the meantime, become a co‑sharer in the tenancy. Thus, the entire 16 annas share of Badiuzzaman came to be possessed by the plaintiffs in the suit. The defendants Nos. 1 and 2 who claimed to have purchased 1 anna 6 gandas share in the lands .of Badiuzza‑man from his daughter Ayatennessa, defendant No 5 by a kabala (Exh. A), dated the 13th Jaistha 1358 B. S., corresponding to the 27th of May 1951, contested the said suit. They maintained that the deed of gift set up by the plaintiffs was a fraudulent and forged document, that the plaintiffs had no title or possession in the suit lands and that, in any event, the alleged deed of gift did not extinguish the share of the defendant No. 5 Ayatennessa which they had acquired for valuable consideration. They also claimed that since their purchase they had been in possession of the said lands and prior to them, the defendant No. 5 was herself in possession thereof. The defendant No. 5 Ayatennessa also filed a written state ment in the suit admitting the plaintiffs' title and challenging the validity of the kabala set up by the defendants Nos. 1 and

2. She also denied the execution of the said kabala. Upon the evidence in the said suit, the trial Court and the Court of first appeal both concurrently found that the deed of gift (Exh. 1) was duly execrated by Badiuzzaman and was not a forged document, that Nurul Islam was in possession of the suit lands on the basis of the deed of gift when he transferred the same to the plaintiffs arid that the plaintiffs had, since their purchase and acquisition through pre‑emption proceedings, been in possession thereof. In the Court of first appeal a further point was raised as to the validity of the deed of gift, namely, as to whether it was vitiated by reason of the doctrine of `marz‑ul‑maut' but this was decided against the defendants Nos. 1 and 2, both the Courts, therefore, decreed the plaintiffs' suit in full. In the second appeal to this Court the main arguments advanced were that even assuming that the deed was executed by the donor and was not a forged document, it was necessary to prove all the ingredients of a valid hiba before it could be upheld ; secondly that the original hibanama not having been filed by the plaintiffs, they should not have been allowed to prove a certified copy only ; thirdly that the purported admission of the execution of the deed of gift by Nural Islam acting as the guardian of his minor sister Ayatennessa, was not a valid admission, as he was not the legal guardian under the Muhammadan Law of his minor sister, and lastly that the alleged admission of execution by Nurul Islam could not be a valid admission even as an assign of the executant under section 35 of the Registration Act. The learned Judge hearing the second appeal was of the view that the recital in the hibanama itself regarding delivery of possession was binding upon the defendants in the absence of any evidence to the contrary ; further that since this question was never raised by the defendants in any of the Courts below, even as an alternative defence, it was too late for them to raise it for the first time in second appeal, as it was not a pure question of law. The objection to the proof of the certified copy only, was also not upheld since' the objection was not raised in the trial Court and since a party cannot be allowed to complain for the first time in the Court of appeal as to the mode of proof. The learned Judge hearing the second appeal, however, was of the view that the admission of execution by Nurul Islam on behalf of his minor sister was not a valid admission in law for the purposes of the Registration Act, as he was neither the legal guardian of the minor nor an assign of the executant and, as such, the registration should not be treated as a valid registration. But finding himself confronted with a contrary decision of an earlier Division Bench of this Court in the case of Maniruddin Mallick v. Sheikh Abbas and others (P L R 9 Dacca 1131 : P L D 1960 Dacca 217) directed that the case be placed before the Chief Justice for hearing by a larger Bench. The appeal was referred to a Division Bench, of which the same learned Judge was the senior member. Hence the reference to this Full Bench. Unfortunately, the points on which the referring Division Bench differs from the decision of the former Division Bench reported in P L R 9 Dacca 1131, have not been specifically stated ; but as far as it can be gathered from the referring judgment, it appears that the referring Division Bench is unable to agree with the view taken by the former Division Bench in the above‑mentioned case both on the question as to whether the word "assign" in section 35 (1) (c) of the Registration Act includes an assignee of the property under the document sought to be registered as also on‑ the question as to whether if a deed presented for registration is admitted by a person who is not competent in law to make such an admission, that is a mere procedural defect curable under section 87 of the Registration Act. The referring Bench also seems to be of the view that the intention of the Registration Act is 'that if a deceased executant of a document has left More than one legal representative, then only one or some, of the representatives alone are not competent to admit execution for the purposes of registration for‑themselves as well as on behalf of the other representatives left by the deceased executant. Since the entire appeal has been referred to us for final decision, we have heard the learned Advocates appearing for the respective parties, at length on all points arising in the appeal. But in view of the concurrent findings of facts in the Courts below as to the genuineness and the due execution of the deed of gift itself, as also of the fact of Possession of the lands in dispute by the plaintiffs and their transferor Nuru Islam, we are of the opinion that the only questions which fall to be decided now relate to the validity of the admission of execution of the said deed of gift (Exh. 1). We are also of the view that it is too late to raise the question of the validity of the hiba itself on the ground of ;want of sufficient proof of the ingredients of a valid hiba under the Muhammadan Law, namely, offer and acceptance and delivery of possession c thereof, as this question was not raised in either the trial Court of the Court of first appeal. The appellants cannot also be now allowed to raise at this stage any objection as to the mode of proof of the certified copy of the deed of gift. The questions, therefore, that have to be decided now are : (1) as to whether the word "Assign " in section 35 (1) (c) of the Registration Act includes a person claiming under the document sought to be registered ; (2) whether admission of execution by only some of the heirs' or legal representatives of a deceased executant is sufficient admission' of execution for the purposes of section 35 of the Registration Act and (3) as to whether an admission of execution by a ‑person claiming under the document sought to be registered or by some only of the representatives of the deceased executant, gives rise merely to a defect in the procedure which should not be deemed to have invalidated the registration of the document itself under section 87 of the Registration Act. The portions of section 35 of the Registration Act material for our present purposes read as follows :‑ Section 35 (1) (a) : "If all the persons executing the docu ment appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) *********************************** (c) 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." In the case of Maniruddin Mallick v. Sheikh Abbas and others, as already stated, a Division Bench of this Court took the view, relying on an earlier decision of the Calcutta High Court in the case of Akhoy Chandra Majhi v. Manmatha Nath Chatterjee, (20 C W N 1345) as also on the Dictionary meaning of the word "assign," that it includes a donee for the purposes of admission of execution within the mean ing of section 35 (1) (c) of the Registration Act. In both these cases the document was registered after the death of the donor upon the admission of execution of the deed by the donee who happened to be the husband of the donor. In the case of Akhoy Chandra Majhi decided by the Calcutta High Court a Division Bench of the Calcutta High Court observed :‑ " 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, artless the transferee was anthorised to appear and admit the execution, the deed could not be registered." . Certain observations of Chakravarti, J. however, in the case of Purnananda Narayan and others v. Maleka Bibi and others (51 C W N 675) which have found favour with the Division Bench making the present reference, appear to have raised a doubt for the first time as to the correctness of the above view. Chakravarti, J. seemed to have found it difficult to appreciate as to `how in proceedings relating to registration, which were proceedings required to effectuate the deed, he (the assign under the deed) could be treated as having already become an assign." Chakravarti, J. also seemed to be of the view that "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, according to him could "properly come only from the executant himself or some one claiming under him otherwise than under the document to be registered." But it appears that Chakravarti, J. did not go to the extent of dissenting from the previous decision in Akhoy Chandra Majhi's case, for as he himself observed, he was not "prepared to make this case an occasion for a difference of opinion." The doubt, however, cast on the correctness of the law laid down in Akhoy Chandra Majhi's case appears to have found favour with the Bench making the present reference, even though there is no decision of the Calcutta High Court as yet expressly dissenting from the said case. In a subsequent case of Dukari bala Dasi v. Gadadhar Paul and others (60 C W N 216), the above observations of Chakravarti, J fell to be considered by another Division Bench of the Calcutta High Court, but again it was not felt necessary by the latter Division Bench to express "a definite conclusion on the question" as the actual decision in the case of Purnananda Narayan and others v. Maleka Bibi and others, rested on other grounds. It has, therefore, fallen to us to express a definite opinion now on this question. The word "assign" has not, of course, been defined in the Registration Act, although the word "representative" has been defined as including the guardian of a minor and the committee or other legal curator of a lunatic or idiot. It has nevertheless been used in various sections of the Act. Thus, in section 32 of the said Act it is provided by clause (a) thereof that a person executing or claiming under a document or a decree or order or under clause (6) the representative or assign of such person, may also present a document for registration. In this section since a person claiming under a document and an assign have both been separately referred to, it appears to us that the Legislature had in mind two different categories of persons, namely, a person claiming under a document and a person who is an assign de hors the document sought to be registered. If this be so, then it appears to us that the Legislature was of the view that a person claiming under a document does not become an assign until the document is registered and his assignment perfected. If the two categories of persons were intended to be one and the same, then there would have been no justification for making such a distinction in section 32 and making an express provision enabling a person merely claiming under a document to present the document for registration. This interpretation also appears to us to be in consonance with the policy of the Registration Act, namely, "to make it difficult for persons to commit frauds by means of registration under the Act", as was pointed out by Sir John Edge in the opinion of the Judicial Committee expressed in the case of Jambu Prashad v. Muhammad 4ftab Ali Khan and another (42 I A 22). If this be the policy of the legislation under consideration, then it is but reasonable to expect that the legislature was conscious of the distinction between these two respective categories of persons and maintained that distinction throughout that Act and did not lose sight of the object which it intended to give effect to. It seems to us, therefore, that the word "assign" in the Registration Act has been used in the strict legal sense, namely, in the sense of a person in whom the transfer has been validly and fully vested. Under the Transfer of Property Act, a gift of immovable property can only be made by a deed of transfer duly registered and hence certainly in the case of a gift or the transfer of property which can only be validly effected by a registered deed, an assign cannot include a person claiming under the document as the assignment in his favour is not perfected until the document is registered. Again, the word "assign" or "assignee" when used in a statute should be taken to have been intended to refer to such a complete assignee as has all the ceremonies and incidents requisite by the law to such character not taking away any form or circumstance which the law requires, If the registration of a document is a condition which the law requires for the perfection of an assignment, then until that registration has been effected, the person claiming under the document cannot be deemed to have become an "assignee" or "assign" under that document. In our view, therefore, the word "assign" in section 35 of the Registration Act has been used in the same sense and does not and should not include a person claiming under the document sought to be registered. To this extent, therefore, we hold that the view taken in the case reported in P L D 1960 Dacca 217 was not correct an overrule the same. As regards the next question, namely, as to whether a "representative" in clause (c) of subsection (1) of section 35 of the Registration Act means any one of the representatives of the deceased executant or all his representatives, we rind no great difficulty in answering this question. It is significant that in clause (a) of the very same section the law insists that each one of the executants, where there is more than one executant, must admit the execution of the document. It can, therefore, be safely assumed that the Legislature intended that admission should be by and on behalf of each one of the executants. If that be so, then it is difficult to appreciate why, if the executant be dead, it is sufficient for any one of his legal representatives to admit execution on his behalf. It seems to us that the singular number used in clause (c) also includes the plural and, therefore, where there are more representatives than one, all the representatives must join in the admission before it can be duly registered under the said Act. Coming now to the last question, namely, as to whether a non‑compliance with the provisions of section 35 of the Registration Act can be treated as a mere procedural error not affecting the jurisdiction of the Registrar to register a document. The referring Bench seems to have taken the view that the admission of execution of a deed like its presentation is essential for giving jurisdiction to the Registrar to register that document and, therefore, it cannot be treated as a mere procedural defect under section 87 of the Registration Act. It further seems to have been of the view that the opinion of the Judicial Committee expressed by Sir Barnes Peacock in the case of Sah Mukhun Lall Panday v. Sah Koondun Lall and another (2 I A210) to the effect that "the Legislature intended that such errors or defects should be classed under the general words "defect in procedure" in section 88 (present section 87) of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer, on whom they would naturally place reliance", had been overruled by subsequent decisions of the Privy Council in the cases of Mujibannessa and others v. Abdul Rahim and Abdul Aziz (28 I A 15), Jambu Parshad v. Muhammad Aftab Ali Khan and another (42 I A 22), Bharat Indu and others v. Hamid Ali Khan and others (47 I A 177), Ala Shwe Mya v. Maung Ho Hnaung (49 I A 395), and Ma Pwa May and another v. S. R. M. M. A. Chettyar Firm (56 I A 379). On a review of these decisions, however, it appears to us that the decisions reported in 28 I A 15 and 42 I A 22 were cases of presentation of the document by the wrong person and thus, the observations of Lord Robertson in 28 1 A 15 with regard to the earliar decisions in 2 I A 210 and 4 I A 166 (Muhammad Ewaz and another v. Bij Lall and another) to the effect that "neither case gives any .countenance to the view that the absence of any party legally entitled to present a deed for registration is a defect in procedure falling under section 87", do not appear to support the view that Lord Robertson was overruling the said earlier decision, for in the very next sentence he observed : "In both those cases the Registrar was throughout moved by a person having title, and was exercising his jurisdiction. The difference is, in their Lordships' judgment, vital." In the subsequent case of Ma Pwa May and another v. S. R. M. M. A. Chettyar Firm, expressing the opinion of the Board Lord Atkin pointed out that "In seeking to apply this section (section 87) it is important to distinguish between defects in the procedure of the Registrar and lack of jurisdiction. Where the Registrar has no jurisdic tion to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction, or where the presentation is out of time, the section is inoperative : See Mujibannessa and others v. Abdul Rahim and Abdul Aziz. On the other hand, if the Registrar having jurisdiction has made a mistake in the exercise of it, the section takes effect," and proceeded as follows :- "The prohibition against registration is included in section 35, amongst similar prohibitions as to admitting in evidence and authenticating, which can only be regarded as procedure. The duty of the registering officer is to scrutinize the stamp and pass an opinion on its adequacy, as he purports to do in this very document. It would be remarkable that, if he made a mistake of possibly a few annas on the amount of stamp required, and admitted a document to registration, it would be treated as having no effect years afterwards. Their Lordships are fortified in this view by former decisions of this Board. In Sah Mukhun Lall Panday v. Sah Koondun Lall and another, the Registrar has registered a deed of sale in the absence of the vendors contrary to the provisions of section 36 of the Act. The Board held that, having once been presented for regis tration, it was still in time for regular registration, though the first registration may have been invalid. There appears to have been an admission by the parties that the first registration was not valid. But the Board indicated an opinion that the first registration was validated by the provisions of section 88 of the Act (now section 87) ;" and then went on to quote with approval the observations of Sir Barnes Peacock in 2 I A

210. Again it appears that even later in the case of Satindra Nath Choudhury v. Jatindra Nath Choudhury and another (62 I A 265), Sir Shadi Lal in expressing the opinion of the Judicial Committee again quoted with approval the same observation of Sir Barnes Peacock in 2 I A

210. Thus, a review of these decisions, discloses that the Judicial Committee of the Privy Council has not really departed from the principle laid down in the case of Sah Mukhun Lall Panday v. Sah Koondun Lal and another. There appears to us to be no justification for mixing up presentation of a document with the admission of execution of a document already presented for registration. In our opinion, once a document has been presented for registration by a competent person, the Registrar is clothed with jurisdiction to deal with the matter and any mistake that he may make whilst in the process of registering the same, as for example, allowing a person who is not an assign to admit execu tion or one of several legal representatives to admit execution, that is not a mistake affecting his jurisdiction but merely a procedural error or a mistake in the procedure. A similar view also appears to have been taken by other High Courts in India in the case of Arunachala Mudali v. Venkatachala Pillai and others (A I R 1934 Mad. 425), Munni Lal and another v. Ghulam Hussain‑Nur Ahmad and others (I L R 16 Lah. 1019), Rafat‑un‑Nissa Begum v. Husaini Begum and Sami‑ud‑Din Ahmad Khan and others (I L R 47 All. 294) and Dattatraya Keshav Naik v. Gangabai Narayan Naik and others (A I R 1926 Bom. 137). We are, therefore, unable to agree with the view of the referring Bench that an admission of execution by a wrong person affects the jurisdiction of the Court and renders the registration null and void. In our view, this is a mere defect in procedure, as pointed out by the Privy Council, and if this defect is a bona fide one, it does not, by reason of the provisions of section 87 of the Registration Act, invalidate the registration itself. This appeal is, therefore, disposed of on this ground, namely, that the defect if any, in the registration of the document was cured by section 87 of the Registration Act. The result, therefore, is that this appeal is dismissed with costs throughout. HASAN, J.‑I agree. SATTAR, J.‑I agree. A. H. Appeal dismissed.