JUDGMENT
Choudhary, J.
1. These four petitions arise out of the same proceeding relating to the registration of a deed of gift, dated 26-12-1957, alleged to have been executed by Paliram Singhania in favour of three of his sons, namely, (1) Mahaliram Singhania, (2) Bishwanath Singhania, and (3) Sitaram Singhania (hereinafter to be referred to as the donees). The points under consideration in all these cases are the same. They have, therefore, been heard together with the consent of the parties, and this judgment will govern all of them,
2. The short facts are these; On 3-3-1958, Paliram Singhania executed a deed of gift in respect of a house, bearing holding No. 72, in favour of his daughters, Kishuni Devi and Shanti Devi, and this deed of gift was registered on 4-3-1958 on the admission of execution by Paliram Singhania himself. On 18-3-1958, Paliram Singhania died leaving his eldest son, Ghanshyam Das Singhania, the other three sons, namely, Mahaliram Singhania, Biswanath Singhania and Sitaram Singhania, the donees, and the two daughters, Kishuni Devi and Shanti Devi.
On 25-4-1958, the donees presented the deed of gift dated 26-12-1957 for registration before the Sub-Registrar. By that deed of gift Paliram Singhania purported to make a gift of his two houses, bearing holding Nos. 72 and 73, in favour of the donees. On that very day, the two daughters of Paliram, namely, Kishuni Devi and Shanti Devi, and his eldest son, Ghanshyam Das (hereinafter to be referred to as the objectors) filed an application before the Sub-Registrar objecting to the registration of the said deed of gift on the ground that the same had not been executed by Paliram, and that his signature on the document was a forged one. On 26-4-1958, the Sub-Registrar heard the objection, and the donees admitted the execution of the deed of gift by the donor, Paliram.
The Sub-Registrar made an endorsement of admission of execution on the back of the document, but took no further steps, as required by law, to complete the registration of that document, and he handed over a receipt in regard to the presentation of the document to the donees. It appears that the District Sub-Registrar felt that the valuation given in the deed of gift was inaccurate and the properties had been under-valued in order to defraud the Government of proper stamp duty. He, therefore, referred the matter to the District Registrar for an inquiry in regard to the valuation matter by a Deputy Magistrate; and, after endorsing the admission made by the donees of the execution of the document, observed that the document had not been admitted to registration finally as it involved the question of alleged undervaluation, and passed an order postponing registration of the document pending disposal of the inquiry by a Deputy Magistrate in regard to the valuation matter.
3. Both the parties, namely, the donees and the objectors, felt aggrieved by the above decision of the District Sub-Registrar. The donees, therefore, presented separately three applications in this Court giving rise to Miscellaneous Judicial Case Nos. 341, 746 and 747 of 1958. The objectors also presented an application to this Court giving rise to Miscellaneous Judicial Case No. 461 of 1958. In M. J. C. 341, 746 and 747, the District Sub-Registrar, the District Registrar and the State of Bihar are opposite parties Nos. 1 to 3. The objectors are opposite parties 4 to 6 in M. J. C. 341, but they are not parties in the other two cases, namely, M. J. C. 746 and 747. In M. J. C. 461, the District Sub-Registrar and the District Registrar are opposite parties 1 and 2, and the donees are opposite parties 3 to 5. Opposite Party No. 6 is the widow of Paliram Singhania.
4. Counsel for the donees has put forward an argument that the District Sub-Registrar had no jurisdiction to inquire into the correctness of the valuation given in the document and the valuation as given in the document is conclusive for the purposes of registration. It has been submitted that the order of the District Sub-Registrar postponing registration of the document till the inquiry in the valuation matter is wrong in law. The contention raised is that the District Sub-Registrar should have registered the document if the stamp duty paid was sufficient on the valuation disclosed in the document.
The argument seems to be well founded, and must be accepted as correct. There is no provision in the Indian Registration Act empowering the District Sub-Registrar to refuse registration of a document on the ground of undervaluation or to inquire into the correctness of the valuation as given in the document. Under Section 69 of the Indian Registration Act, the Inspector-General has been given power to make rules from time to time consistent with the Act, and, after the rules so made are approved by the State Government, they have to be published in the official Gazette, and, on such publication, they have effect as if enacted in the Act itself.
Under Rule 25 of the rules so made, whenever it appears to a registering officer that a document presented for registration is not duly stamped, he shall not realise the registration fee, but shall impound the document at once under Section 33 of the Indian Stamp Act, 1899. Sub-section (1) of Section 33 of the Indian Stamp Act provides that every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument chargeable, in his opinion, with duty is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. Reading Rule 25 of the rules made under Section 69 of the Indian Registration Act with Section 33 of the Indian Stamp Act, it is, no doubt, manifest that a registering officer has got the right to impound a document presented before him, if it appears to him that the same is not duly stamped.
The question, however, is, whether a registering officer can challenge the valuation given m a document in order to find out whether the document is duly stamped or not. In my opinion, the provisions referred to above do not indicate the existence of any such power in the registering officer so as to test the correctness of the valuation given m the document. The two provisions read together, in my opinion, only mean, as has rightly been contended by counsel for the donees, that the registering officer has to see whether the document is duly stamped on the valuation as given in the document, and not on any other valuation which, according to that officer, may be the correct valuation.
This view is borne out by a Bench decision of this Court in Sitaram Kamalia v. State of Bihar, 1959 Pat LR 306: (AIR 1960 Pat 210). In that case, certain persons executed a trust deed with regard to certain properties with the object to pay off the debt of their ancestor and to spend the income of the properties for the maintenance of relations and for other charitable purposes mentioned in the document.
According to the recital in the document, the value of the properties was Rs. 95,551/-. When it was presented for registration before the Joint Sub-Registrar of Patna, he impounded it under Section 3-3 of the Indian Stamp Act, and forwarded it in original to the Collector of Patna, who valued the properties at Rs. 2,05,613/15/6, and held that a deficit stamp duty was payable on the document to the extent of Rs. 1,128/7/-, and a penalty of Rs. 5,642/3/- was also levied. It was held by this Court that the Collector had no power to embark upon an inquiry with regard to the market value of the properties and require the payment of further stamp duty in accordance with his findings as to valuation.
5. True it is that the above interpretation of the law on the subject may cause a loss to the Government revenue by wilful undervaluation of the document presented for registration with intent to defraud the Government of the stamp duty, but it cannot be helped. The Registration Act is absolutely silent on the point, and there is a lacuna in the Act in that respect. The business of the Court, however, is not to fill up the lacuna, and it is for the legislature to amend the law on the subject entitling tile Sub-Registrar or the District Registrar to launch an inquiry with regard to the true valuation of a document presented for registration. Section 64 of the Indian Stamp Act, however, makes some provision in that regard. It lays down that any person who, with intent to defraud the Government –(a) executes any instrument in which all the facts and circumstances required by Section 27 to be set forth in such instrument are not fully and truly set forth; (b) being employed or concerned in or about the preparation of any instrument, neglects or omits fully and truly to set forth therein all such facts and circumstances; or (c) does any other act calculated to deprive the Government of any duty or penalty under this Act, shall be punishable with fine which may extend to five thousand rupees. The Collector may, therefore, if he finds that the document in question is undervalued, proceed under Section 64 of the Indian Stamp Act; but, for the purpose of effecting registration of the document, neither the Sub-Registrar nor the Collector has any jurisdiction to embark upon an inquiry with regard to the correct valuation of the document presented for registration.
6. Counsel for the objectors has practically joined hands with the donees on this point, though before the registering officer the objectors had raised the question of valuation. Counsel did not press the objection with regard to valuation before us, and submitted that the registering officer had no jurisdiction to postpone the passing of final order either registering the document or refusing to register the same.
Learned Government Pleader, appearing for the Sub-Registrar and the District Registrar, has also conceded that the Act did not make any provision for an inquiry in regard to valuation of a document for the purpose of registration, and he submitted that in doing that the Sub-Registrar did, as stated above, he only sought an advice from his superior officer. Taking all these things into consideration, my concluded opinion is that, for the purpose of registration, the registering officer has to take the valuation given in the document as correct.
7. Counsel for the donees has next contended that, on the admission made by the donees with regard to the execution of the deed of gift by Paliram Singhania, the Sub-Registrar, before whom the document was presented for registration, had no option but to register the same and in the giving the certificate of registration and taking further steps, as required by law, to complete the registration, he has committed an error of law. In support of this contention, he has placed reliance on Section 35(1)(c) of the Indian Registration Act, which provides 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.
It is contended that the donees were assigns within the meaning of the above section, and they were, therefore, competent to admit the execution of the document by the donor, and the Sub-Registrar was bound to register the document on such admission. There can be no doubt that the donees are the assigns within the meaning of the above section, as was pointed out in a Bench decision of the Calcutta High Court in Akshoy Chandra v. Manmatha Nath, AIR 1917 Cal 269(1) wherein it was held that a donee under a gift deed is an assign of the executant within the meaning of Section 35 of the Registration Act.
If, therefore, there was nothing further in the Act preventing the Sub-Registrar from registering the document, he was bound to register the same on the admission by the donees of the execution of the document by the donor. Rut counsel for the objectors has drawn our attention to the provision of Sub-section (3)(c) of the above Section 35, which lays down 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 as to the person so denying, appearing or dead.
It is contended on behalf of the objectors that the above section means that, if any of the representatives or assigns deny the execution of the document, the registering officer is bound to refuse to register the document. The argument is well founded, and is strengthened by Rule 42 of the rules made under Section 69 of the Registration Act. This rule, which, as already stated, has got the force of law, provides that, where some of the representatives of a deceased executant deny execution while others admit it, registration of the document shall be altogether refused subject to the provisions of Section 73 of the Registration Act.
In my opinion, therefore, on the denial of the objectors of the execution of the document by the donor, the registering officer had no option but to pass final order refusing to register the document and, in not doing so, he committed an error of law. The order of the registering officer postponing the passing of final order on the document pending the inquiry into the valuation matter is, therefore, obviously wrong in law, and has to be set aside.
8. A point was taken on behalf of the donees that the objectors did not appear before the registering officer to deny the execution of the document, but simply filed an application through a lawyer denying such execution. It is submitted that the procedure adopted by the objectors in denying the execution of the document by filing an application and without appearing before the registering officer is unknown to law, and, therefore, there was no valid denial of the execution of the document.
There appears to be much substance in this argument. Except where the personal attendance of a particular person is exempt under the law, or the admission or denial or execution has to be made by a person holding special power of attorney in that regard, the document has to be presented by the executant or his representative or assign in person for the purpose of registration; and similarly the executant of the document or his representative or assign has to appear in person for denying the execution of the document.
If, therefore, any person entitled under the law to deny the execution of a document has to deny the same he has to appear in person before the registering officer and deny the execution of the document, Unless, as in the case of admission of execution, he is exempt from personal appearance or he has given special power-of-attorney to some one to appear for him before the registering officer for denying the execution. If there is such special power-of-attorney given to any person by the person entitled to deny the execution of the document, the execution may be denied by that person holding the power of attorney; but, in the absence of such a power-of-attorney, the person entitled to deny the execution of the document has under the law to appear in person before the registering officer and deny the same.
True it is that there is no specific provision in the Indian Registration Act in that regard so far as the denial of execution is concerned. There are, however, specific provisions in the Act for admission of execution, and, in my opinion, the provisions for admission of execution of the document can on all fours be applied in regard to the denial of execution of the document also. Section 32 of the Registration Act provides that, except in certain cases with which we are not concerned in the present case, every document to he registered under the Act shall be presented at the proper registration office (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such person, or (c) by the agent o£ such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner mentioned in the Act.
Sub-section (1) of Section 34 of the Act lays down that, subject to certain provisions contained in the Act, no document shall be registered under the Act, unless the persons executing such doment, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation of documents under the provisions of the Act. Section 35 then provides for registering the document on the admission of execution by persons authorized to admit the same, and for refusal of registration of the same if such persons deny the execution of the document.
From the above provisions, it is manifest that in order to admit execution of a document, one has to appear in person before the registering officer or through his authorized agent holding power-of-attorney authorizing him to admit the execution. Consequently, a person entitled to deny the execution of a document also has to appear before the registering officer in person or through such authorized agent holding power-of-attorney in that regard in order to deny the execution of the document. The objectors, therefore, should have appeared before the registering officer either in person or through their authorized agent holding power-of-attorney to deny the execution of the document on their behalf.
9. It appears that there was some confusion and misapprehension amongst the parties before the registering officer in respect of the requirement of the objectors to attend in person or through their authorized agent holding power-of-attorney to deny the execution of the document. Even the donees did not object to the mode and manner in which the objectors denied the execution by filing an application through a lawyer. In the ends of justice, I think the proper course to be adopted will be to allow the objectors to appear in person or through their authorized agent holding power-of-attorney before the registering officer for denying the execution of the deed of gift in question. On such denial, the registering officer will have no option but to refuse registration of the document, as required by Section 35 (3) (c) of the Indian Registration Act read with rule 42 of the rules made under Section 69 of the Registration Act.
10. For the reasons given above, in exercise of the powers conferred on the High Court under Article 227 of the Constitution, I set aside the order of the District Sub-Registrar directing an inquiry to be made in regard to valuation and postponing the passing of final order with regard to the registration of the deed of gift and send back the case to him for taking steps in the matter of registration or refusal thereof in the light of the indications given above, after giving opportunity to the objectors to have their say in regard to the execution of the deed of gift. The applications are, accordingly, allowed. In the circumstances of the case, however, there will be no order 8s to costs,
Ramaswami, C.J.
11. I agree.