ORDER
Sachchidananda Jha, J.
1. The petitioner seeks direction to the Collector-cum-District Registrar (within the meaning of the Indian Registration Act, 1908, in short ‘the Act’), Begusarai or, alternatively, to the Sub-Registrar, Begusarai to register sale deed dated 30-3-88 executed by respondent No. 4 Ram Chandra Rai in his favour. He also seeks quashing of the order of the Collector, Begusarai dated 24-10-96 in Misc. Case No. 27 of 1995 recalling his previous order dated 28-7-95 by which he had directed the Sub-Registrar to register the sale deed.
2. The relevant facts as set out in the writ petition are these. Respondent No. 4 executed a sale deed with respect of 13 kathas, 19 dhurs of land situated at Village Mohanpur within Bakhri Police Station of Begusarai District in favour of the petilioner on 30-3-88. On 30-3-88 the petitioner along with respondent No. 4 went to the Registration Office at Begusarai and presented the sale deed before the Sub-Registrar for registration. However, respondent No. 4 did not appear to admit the execution of the document nor deposited the cost of registration. The petitioner deposited the registration cost of 13-5-88 and filed an application before the Sub-Registrar to compel the appearance of respondent No. 4. The Sub-Registrar issued summons to respondent No. 4 asking him to appear on 15-7-88 to either admit or deny the execution of the document. According to the petitioner, respondent No. 4 received the summons on 10-7-88 but refused to acknowledge the receipt. The Sub-Registrar by his order dated 22-7-88 held that non-appearance of the executant amounted to denial of execution
of the document and, therefore, in view of the provisions of Section 35 of the Act, the document could not be registered. The Sub-Registrar thus refused to register the sale deed on the ground of denial of execution.
3. The petitioner preferred appeal before the District Registrar-cum-Collector, Begusarai against the said order of the Sub-Registrar dated 22-7-88 purportedly under Section 72 of the Act which was registered as Registration Appeal No. 34 of 1988. The Collector vide his order dated 28-7-95 had observed that the signature of respondent No. 4 on the document and the Vakalatnama did not tally. As, however, the respondent had failed to personally appear, he closed the proceeding observing, curiously, that the respondent failed to prove his signature. The sale deed was returned to the Sub-Registrar. According to the petitioner, the return of the document to the Sub-Registrar amounted to direction to register the document under Section 72 (2) of the Act. The Sub-Registrar, however, did not take the required steps. Instead, while responding to letter of the Collector dated 7-9-95, he pointed out that the order dated 28-7-95 did not direct the document in question to be registered, and in the absence of any specific order to that effect, it was not permissible under the law to register the same. The petitioner filed an application before the Collector to clarify his previous order dated 28-7-95 and issue suitable direction to the Sub-Registrar. Instead of giving any direction of the kind, the Collector by the impugned order dated 24-10-96 recalled the said order dated 28-7-95. The petitioner, in the circumstances, has come to this Court seeking the aforementioned reliefs.
4. Shri Pushkar Narayan Shahi, learned counsel for the petitioner contended that the Sub-Registrar was in error in holding that the non-appearance of the executant amounts to denial of execution. In support of his contention he placed reliance on Jivanram Bageria alias Agarwala v. Smt. Kasturi Devi Katesaria, 1981 BLJ 432. The aforesaid submission was made to buttress the argument that the appeal (Registration Appeal No. 34 of 1988) before the Collector was maintainable.
5. It may be stated here that Sec. 72 of the Act provides for appeal to the Registrar from orders of Sub-Registrar refusing registration on the
ground other than denial of execution. In other words, where the Sub-Registrar refuses to register the document on the ground of denial of execution, appeal is not maintainable under Section 72. There is no other provision in the Act under which appeal against order of the Sub-Registrar refusing the registration of the document can be filed before the Collector.
6. The point for consideration is whether the order of the Sub-Registrar dated 22-7-88 refusing to register the document on the ground of deemed denial of execution was correct or not. It is obvious that if the refusal was on the ground of denial of execution, the appeal before the Collector was not maintainable; the remedy of the petitioner was to file application for compulsory registration under Section 73 of the Act, and in that event no direction can be issued to register the document pursuant to the order of the Collector dated 28-7-95.
7. It would be proper at this stage to briefly notice the provisions of the Act so far as relevant for the purpose of this case, as hereunder. Part VI of the Act deals with the presentation of documents for registration. Sections 32 and 33 describe the persons who are competent to present the document. Section 34 provides for appearance of the executants or their representative, assigns, etc, Section 35 lays down the procedure to be adopted by the Registration Officer when such executant, representative etc., on appearance, either admits or denies the execution of the document. Section 35 so far as relevant may be quoted as hereunder –
“35. Procedure on admission and denial of execution respectively.– (l)(a) If all the persons executing the document appear personally before the registering officer and arc 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) if in the case of any person appearing by a representative, assign or agent, such representative, assign, or agent, admits the execution, or
(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.
(2) (Omitted)
(3) (a) If any person by whom the document purports to be executed denies its execution, or
(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assigns denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead.
(Proviso omitted)
It would also be appropriate to quote the provisions of Sections 71, 72, 73, 74. 75. 76 and 77 of the Act as hereunder :–
“71. Reason for refusal to register to be
recorded.-
(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words “registration refused” on the document: and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.
(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.
72. Appeal to Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution.– (1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order,
(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar
shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58,59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.
73. Application to Registrar where Sub-Registrar refused to register on ground of denial of execution.-
(1) When a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative assign or agent authorised as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered.
(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application’ shall be verified by the applicant in manner required by law for the verification of plaints.
74. Procedure of Registrar on such application –
In such case, and also where such denial as aforesaid is made before Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire –
(a) whether the document has been executed;
(b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.
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 thirty 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-the 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 dots shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908 (5 of 1908).
76. Order of refusal by Registrar.– (1) Every Registrar refusing –
(a) to register a document except on the ground that the property to which it relates is not situate within the district or that the document ought to be registered in the office of a Sub-Registrar, or
(b) to direct the registration of a document under Section 72 or Section 75
shall make an order of refusal and record the reasons for such order in his Book No. 2 and, on application made by any person executing or claiming under the document, shall, without un-necessary delay, give him a copy of the reasons so recorded.
(2) No appeal lies from any order by a Registrar under this section or Section 72.
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 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 received in evidence in such suit.”
8. It would appear that refusal to register a document has been put in two categories — (a) on the ground of denial of execution and (b) on any other ground such as the situation of the subject-matter of the document lying outside the jurisdiction of the registering officer. From combined reading of the provisions noted above it would further appear that the Act contemplates enquiry in cases of refusal on the ground of denial of execution as to “whether the documents has been executed”. This is expressly said so in Section 74. No such enquiry is envisaged under Section 72.
9. The execution of a document is a sine qua non of every conveyance-whether of transfer or otherwise, such as deed of power of attorney. Execution does not merely mean putting one’s signature or affixing thumb impression on the document. It is a conscious act in which the mind and the hand of the person go together. He knows what is doing and with full awareness of its effects and implications he puts his signature or thumb impression. Reference may be made to Ningawwa v. Byrappa, AIR 1968 SC 956 and Dularia Devi v. Janardan Singh, AIR 1990 SC 1173. Where the execution is the result of any coercion, fraud, mistake, misrepresentation etc. it cannot be said to be due execution in the eye of law.
10. Where the executant either admits or denies the execution on appearance under Sec-tion 35, there is no problem. The question is where he does not appear despite summons under Section 36 of the Act, whether non-appearance would amount to denial of execution. This Court in Jivanram Bageria alias Agrawala v. Smt. Kasturi Devi Katesaria (1981 BLJ 432) (supra) upon which the reliance has been placed on behalf of the petitioner, had observed,
“Unless a person, who on the face of the document is an executant thereof, makes statement that he has not executed the document, it cannot be said that he has denied the execution. The expression ‘the denial of execution’ requires a positive assertion to that effect and cannot be inferred by the mere fact that the executant does not appear in the Registry Office”
Their Lordships referred to a decision of the Allahabad High Court in Sriram Gopal v. Surendra Kumar, AIR 1970 Allahabad 221. It would be useful to quote the following observations from
the judgment in that case :–
“Non-appearance of the executant may amount to denial of execution within Section 72 if he wilfully refuses or neglects to appear and admit execution in obedience to a summons for that purpose. It is a question of fact to be determined whether the executant wilfully refused or neglected to appear and admit execution even though he had received summons. It does not follow from his mere non-appearance that he wilfully refuses or neglects to attend and admit execution.”
11. The question as to whether [he non-appearance of the executant is wilful or not is a question of fact. It is of great importance that a finding in that regard is recorded by the Registering Officer, for this would determine whether the person aggrieved is required to file application under Section 73 for compulsory registration or take recourse to other remedy including the remedy of appeal before the District Registrar under Section 72 of the Act. While Sections 73/74 contemplate enquiry as to whether the document has been ‘executed’, no such enquiry is contemplated under Section 72. If an appeal under Section 72 is casually entertained and direction is issued by the Dy. Collector for registering the document without holding enquiry as to whether the document has been duly executed or not, it may lead to unjust consequence. It would also militate against the spirit of the Act. Chances of collusive service of notice to executant cannot be ruled out on wrong assumptions the appeal may be entertained under Section 72 and direction may be issued for registering the document without holding enquiry regarding due execution of the document. It is not just a chance, according to me, that the provisions of Section 72 appear in the Act has been enacted is indicative of the legislative intent and I am inclined to think that Section 72 contemplates appeal against order of the Sub-Registrar passed under Section 71 of the Act alone. In these premises, I am inclined to hold that ordinarily where the Registering Officer is satisfied that despite proper service on the executant he has wilfully failed to appear to either admit or deny the execution, the aggrieved party should be relegated to the remedy available to him under Section 73 of the Act treating the case to be one of denial of execution.,
12. Having said so I should have referred this
case to a larger Bench because some of the observations made hereinabove may be at a tan-gem with the statement of law in the case of Jivanram Bageria v. Smt. Kasturi Devi Katesaria (1981 BLJ 432) (supra). However, in view of the fact that the person aggrieved is required to file suit in either of the two situations, whether the registration is refused on the ground other than denial of execution, giving rise to appeal under Section 72, or on the ground of denial of execution, giving rise to application for compulsory regisiration, the petitioners have got adequate remedy under the Act. Even assuming that the appeal preferred by the petitioners under Section 72 of the Act was maintainable in the present case, Section 77 of the Act lays down in clear terms that 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, assigns or agent may within the stipulated period institute a suit in Civil Court for a decree directing the document to be registered. It may be noted that the case of Jivanram Bageria v. Smt. Kasturi Devi (supra) had come to this Court in second appeal from a suit under Section 77 of the Act.
13. In these premises I would dismiss this writ petition leaving the petitioner to seek his remedy in civil suit in accordance with law.