ORDER
N. Kumar, J.
1. The petitioners have sought in this writ petition quashing of the order passed by the Deputy Registrar of Mysore District, directing registration of the sale deed and also for cancelling the sale deed dated 05.10.2000, which was registered in pursuance of the directions issued by the second respondent. The facts in brief are as under:
2. The petitioner N.M. Ramachandraiah is the absolute owner of the premises called Chamundeshwari Krupa, Budda Marg, Siddartha Nagar, Mysore. After purchase of the vacant site, he put up construction consisting of ground and first floor. He is in occupation of the ground floor and has let out the first floor to a tenant. He had borrowed money from the Corporation Bank for construction of the house and as security he has created equitable mortgage in favour of the bank by depositing the title deeds. It is his specific case that the 4th respondent is unknown to him and there was no necessity for him to sell the property to the 4th respondent. The 4th respondent in collusion with his younger brother Karigowda, has created the sale deed on stamp paper worth Rs. 200-00. The said sale deed bears the signature of the petitioner on every page and the document contains four pages. It also contains the recital to the effect that on receipt of Rs. 20 lakhs, the petitioners have executed the sale deed in favour of the 4th respondent and that possession has been delivered to him on the date of the document. However, the petitioner did not get the sale deed registered. Therefore, the 4th respondent got a notice issued on 25.11.2000 calling upon the petitioner to get the sale deed registered, which was duly served on them. However, they neither sent any reply nor complied with the demand made therein. Therefore, the 4th respondent presented the said document for registration on 22.01.2001 at about 3.25 pm and paid a stamp duty of Rs. 2,30,000-00. As the petitioners did not appear before the Sub-Registrar, he issued a notice dated 28-2-2001 to the petitioners, to appear before him to admit or deny the execution of the sale deed. In reply thereto, on 12.03.2001 the petitioners denied the execution of the sale deed and refused to appear before him in pursuance to the notice. Therefore, the Sub-Registrar, refused to register the document as per Section 35 and 71 of the Registration Act for short hereinafter referred as “the Act” and Rule 171 of the Karnataka Registration Rules on 10.10.2001, for short hereinafter referred to as the “Rules”.
3. Aggrieved by the same, the 4th respondent preferred an appeal to the District Registrar under Section 73 of the Act. The Registrar issued notice to both the parties. Petitioners appeared before him and filed statement of objections and opposed very admission of the appeal. Over ruling the objections, the Registrar admitted the appeal. Aggrieved by the said order, the petitioner preferred W.P.No. 17207/02 before this Court. The writ petition was rejected by an order dated 19-3-2002 leaving open all the contentions raised by the parties to be decided by the District Registrar. Thereafter the District Registrar recorded the evidence of the first petitioner and the 4th respondent and on appreciation of the evidence on record, by order dated 31.10.2005 as per Annexure-J, held that petitioners have admitted the signatures on the sale deed and the same coupled with other material on record, proved due execution of the sale deed. He directed the Sub-Registrar to register the document. In pursuance of the said order passed, the 4th respondent presented the document before the Sub-Registrar for registration and accordingly, the Sub-Registrar has registered the document. Therefore, aggrieved by the said order, this petition is filed.
4. The learned Counsel for the petitioner Sri H.S. Chandrashekar contended that the 4th respondent has failed to prove the due execution of the sale deed. It has come into existence under suspicious circumstances. The first petitioner who is a lecturer in Maharani’s college was not at all present at the time of execution of the document. In fact, he has raised loan from the bank to put up construction thereon and all the original title deeds continue to be with the bank. The contents of the sale deed are all false. No possession is handed over, as it continues to be with the petitioner. The 4th respondent was hardly 19 years old on the date of the sale deed. As per Section 230A of the Income Tax Act, permission was not obtained and therefore the registration is illegal and contrary to law. Merely because the first petitioner admitted the signatures on the documents, the second respondent committed serious error in holding that there is due execution of the sale deed. Due execution of the sale deed means something more than proving the signature on the said document and in that regard, the 4th respondent has miserably failed to establish due execution of the sale deed.
5. Per contra, the learned Counsel for the respondents Sri Sundaresh D R, submitted that prior to the initiation of the legal proceedings, the legal notice was issued to the petitioners calling upon them to execute the sale deed which legal notice has not been replied at all. Even to this date, the first petitioner and his brother Karigowda are members of joint family and there is no partition. The case now sought to be pleaded do not find a place in the statement of objections filed before the District Registrar. The petitioners have not denied their signatures on the affidavit even to this date. When once the signature on the sale deed is admitted, in the light of the attendant circumstances, the due execution of the sale deed is established and therefore the second respondent was justified in passing the impugned order. As the sale deed has been duly registered, the writ petition is not maintainable. The petitioners can always challenge the sale deed before the competent civil Court. Therefore, he submits that when alternative and efficacious remedy is available, this writ petition is not maintainable.
6. Part VI of the Act, deals with presenting the documents for registration. If all the persons executing the document appear personally before the Registering Officer and are personally known to him or if he is otherwise satisfied that they are persons they represent themselves to be and if they all admit the execution of the document, the Registering Officer shall register the document as directed under Section 58 to 61 read with Section 35 of the Act. However, if any person by whom the document purports to be executed denies its execution, then the Registering Officer shall refuse to register the document. If the Sub-Registrar refuse to register the document except on the ground that the property to which it relates is not situated within the said District, shall make an order of refusal and record the reasons for such order in his book No. II and endorse the words “registration refused” in the document in terms of Section 71 of the Act. Thereafter on an application made by any person executing or claiming under the document, shall, without unnecessary delay give him a copy of the reasons so recorded. Thereafter the Registering Officer shall not accept for registration of a document so endorsed unless and until the document is directed to be registered under the provisions of the Act. When once the Sub-Registrar refuses to register the document and has endorsed on the said document the words “registration refused” the aggrieved person has a right to appeal to the Registrar against the orders of Sub-Registrar refusing registration on ground of denial of execution. The said application shall be filed within 30 days after making the order of refusal. Such application shall be in writing and shall be accompanied by a copy of the reasons recorded Under Section 71 of the Act and the application shall be verified by the applicant in the manner required by law for the verification of the application. Thereafter the Registrar shall as soon as and conveniently may hold an enquiry to find out whether the document has been executed and whether the requirement 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 enable the document for registration. If the Registrar refuses to register the document on the ground that the document has not been duly executed, he shall make an order of refusal and record the reasons for such order in Book No. II. On an application made by any person executing or claiming under the document shall without unnecessary delay give him a copy of the reasons so recorded. The said order is not appealable. However, the aggrieved person has a remedy by way of a suit Under Section 77 of the Act. The said suit should be filed within 30 days after making of the order of refusal and in such suit he may pray for a decree directing the document to be registered in such office as if it is duly presented for registration within 30 days after the passing of such decree.
7. If the Registrar finds that the document has been executed and that the requirements of law have been complied with, he shall order the document to be registered. The Registrar may for the purpose of any enquiry Under Section 74 has been vested with the power to summon and enforce the attendance of the witnesses and compel them to give evidence as if he were a civil court. However, if the Registrar orders the document to be registered, the Act do not provide for any remedy as provided to an aggrieved person against an order refusing registration Under Section 77 of the Act. Therefore, the questions that arise for consideration are:
(1) What is the remedy to the aggrieved person against an order of Registrar directing registration of the document?
(2) What is the effect of the finding of the Registrar that the document is duly executed?
8. The answer to these questions revolve round the scope of enquiry as contemplated Under Section 74 of the Act. In an enquiry Under Section 74 of the Act, the Registrar should enquire whether the document had been executed, and whether the requirements of the law has been complied with, so as to entitle the document to registration. The Registrar should not only be satisfied that the party in question has signed the document, but he should also come to the conclusion that the signature has been affixed by the party after understanding the contents and the terms of the document. The Registrar should summon witnesses required by the petitioner to prove execution. The enquiry under the section should be made by the Registrar himself and once after such enquiry, he is satisfied that the document not only bears the signatures of the executant, but it is also duly executed by the executant, after understanding the contents and terms of the document, he may order the document to be registered. In the said enquiry he has no power to enter into probabilities and surrounding circumstances. He is merely to find out whether the document tendered actually is in the state in which it was executed by the parties to it. The scope of enquiry contemplated under Section 74 have been explained in various judgments, in particular, the meaning of the word “executed”.
9. The Division Bench of this Court in the case of Banasettappa Laljichikkanna v. District Registrar and Anr. , held that:
Section 74 enjoins upon the District Registrar to hold an enquiry and come to the conclusion as to ‘whether a document has been executed’. In the present case all that the District Registrar has stated is that he was satisfied that the petitioner had signed the sale deed. He should have come to the conclusion that the signature had been affixed by the petitioner after understanding the contents and the tenor of the document. Execution does not mean merely signing, but signing by way of assent to the terms of the contract of alienation embodied in the document.
10. The Division Bench of Madras High Court in the case of Sayyaparaju Surayya v. Koduri Kondamma , dealing with Sections 35(1)(a) and (b) of the Registration Act, held that:
The admission required by the section is admission of the execution of the document. It is not enough for the person, who is the ostensible executant, to admit his signature on a paper on which, it may be, the document is ultimately engrossed. The identity of the papers on which the signature occurs is not sufficient. If a man says that he signed a blank paper on the representation that it was required for presenting a petition or if a man signs a completed document on the representation that his signature or thumb impression is required as an attesting witness, that admission of the signature or thumb impression in those circumstances cannot be construed to be an admission of the execution of the document. Far from its being an admission, it is clear and unambiguous denial of the execution of the document. He must admit, in order to attract the provisions of Section 35(1), that he signed the document. The admission of execution must amount to an admission that the person admitting entered into an obligation under the instrument; in other words that he had executed the document, signed it as a sale deed, mortgage deed or a lease deed, as the case may be.
Where, therefore, the ostensible executant of a sale deed stated that she had affixed her thumb impression to a blank paper, in order to enable the plaintiff’s husband to file a petition before the Tahsildar to get the contribution to the War Fund reduced and the sale deed purported to have been executed in favour of the plaintiff.
Held that the statement was a clear denial of execution of the document and not an admission of execution.
If a person alleged to have executed a document before the Registering Officer says that the signature to the document was obtained by coercion or by fraud or that he signed his name to a blank sheet of paper which was subsequently filed in differently from what was agreed upon, does the admission of signature amount to an admission of execution? In an obiter observation the Chief Court of the Punjab said that such a statement did not amount to admission of execution. Similarly, in a number of cases decided in Calcutta there are obiter observation to the effect that under these circumstances, the person must be deemed to have executed the document and that it was the Sub Registrar’s duty to register the document. The party aggrieved could then file a suit for declaration that his signature was obtained by coercion or fraud. It is submitted that the mere proof or admission that a person’s signature appears on a document cannot by itself amount to execution of a document.
11. A Division Bench of Patna High Court in the case of Jogesh Prasad Singh and Ors. v. Ramachandar Prasad Singh and Ors. , dealing with Section 35 of the Registration Act, held that:
Execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence; where there is no document in existence there cannot be execution. Thus, where an executant clearly says that he signed on blank paper and that the document which he had authorised is not the document which he contemplated, the statement is a denial, not an admission of execution.
In a suit under Section 77, the Court is only concerned with the genuineness of the document sought to be registered, that is, whether the document is executed by the person by whom it is alleged to be executed and not its validity.
12. In Mohima Chunder Dhur v. Jugul Kishore Bhuttacharji reported in ILR Value VII Calcutta series it was held as under:
Under the special procedure provided in the Registration Act, the defendant, in whose favour a document was said to have been executed, succeeded in obtaining an order from the District Registrar for registering the same, although the plaintiff who was alleged to have executed it, appeared before the Sub-Registrar, and subsequently before the Registrar, and denied executing it, and alleged it to be a forgery. In a suit brought under the above circumstances to have the document declared void, and to have it cancelled, the Court placed the onus of proving its genuineness and its execution by the plaintiff on the defendant. Held, that the proceedings of the Registrar, when he enquired whether the document had been duly executed or not were in no sense those of a competent court, but only those of an executive officer invested with quasi-judicial functions, and that, consequently, such a suit was maintainable; and that, under the circumstances, the onus of proof was properly placed on the defendant.
13. The Division Bench of Orissa High Court in the case of Smt. Uma Devi and Ors. v. Narayan Nayak and Ors. , dealing with Section 74 of the Registration Act, held that:
No doubt, the District Registrar before directing registration of the document makes an enquiry, but the Registrar has no power to enter into a roving enquiry into the probabilities and surrounding circumstances. The Registrar is merely to find our whether the document now tendered actually is in the state in which it was executed by the parties to it. The nature of enquiry by the District Registrar under the provisions of the Registration Act cannot be said to be similar to that of a Court with regard to the genuineness of the document or with regard to the circumstances under which the said document is alleged to have been executed. That apart, the proceedings of the Registrar cannot be said to be one before a “competent Court” so that the finding of the said Registrar could be said to be operative as res judicata. Besides, Section 31 of the Specific Relief Act provides for a suit to be filed for cancellation of any such document.
14. The Division Bench of Assam and Nagaland High Court in the case of Bhutkani Nath and Ors. v. Kamaleswari Nath and Anr. reported in AIR 1972 ASSAM AND NAGALAND 15, dealing with the presumption under Section 60(2) of the Registration Act and also Section 35 of the Act, held that, it is very well settled that when execution of a document is being challenged the certificate of registration alone will not be sufficient proof of the due execution of the document. Registration does not dispense with the necessity of proof of execution when the same is denied. Execution of document is not mere signing of it. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put his signature in a document after knowing fully its contents.
15. Therefore, the law is well settled. Execution of a document does not mean merely signing, but signing by way of assent to the terms of the contract embodied in the document. Execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put the signature after knowing the contents of document fully. To be executed, a document must be in existence; where there is no document in existence there cannot be execution. Mere proof or admission that a person’s signature appears on a document cannot by itself amount to execution of a document. Registration does not dispense with the necessity of proof of execution when the same is denied. Thus, execution of document is not mere signing of it.
16. In the instant case also the executants have admitted the signature on the sale deed. However, without a plea in the statement of objections, in evidence, it is stated that they have affixed the signature on blank stamp papers, as a security for repayment of the amount due by them to the younger brother of the first petitioner. Even if it amounts to denial of execution of the document, it is necessary to find out whether the District Registrar was justified in holding that the sale deed is duly executed by the petitioners from the material on record.
17. The sale deed is produced before court. Admittedly, it bears the signatures of both the plaintiffs on all the pages. The first plaintiff is the owner of the schedule property involved in this dispute and the second petitioner is his wife. The first petitioner is working as a lecturer in a college. His evidence discloses that after acquiring the vacant site he borrowed money from the Corporation Bank for construction of the house. He created a mortgage by depositing title deeds of the said property in favour of the bank. He has completed the construction, he is in occupation of the ground floor, whereas, he has let out first floor portion to the tenant. Admittedly, he was served with a legal notice dated 25.11.2000. In the said legal notice it is categorically mentioned that he has executed the sale deed dated 5.10.2000 after receiving the sale consideration of Rs. 20 lakhs and that he is going back on his promise to get the same registered. He did not choose to send any reply nor any acceptable explanation is given in the proceedings for keeping quiet. If really as contended by the petitioner the fourth respondent is a total stranger, he has not paid any money to him, he has not entered into any agreement of sale to sell the property, when such a notice is received by an educated person like the petitioner where it is specifically averred that the petitioners have signed the sale deed but not registered the document after receiving Rs. 20 lakhs, the normal human conduct would have been to send a reply denying those allegations. It is in this context the conduct of the first petitioner in not sending any reply and in not denying the contents of the sale deed at the earliest point of time would assume importance. When the Sub-Registrar issued a notice to him bringing to his notice, that a document which is duly signed by him is presented before him for registration, he did not choose to appear before the Sub-Registrar and contest the claim. On the contrary, he sent a reply denying the execution. He did not say that his signature was obtained to blank paper. When the sale deed which was refused to be registered by the Sub-Registrar was presented before the District Registrar along with an application requesting the District Registrar to direct the Sub-Registrar to register the document, the first petitioner did appear and file his statement of objections. In the statement of objections filed he did not mention, that he signed blank stamp papers in favour of his younger brother Karigowda and that the same is mis-used by Karigowda in collusion with the fourth respondent. The said case is put forth for the first time in evidence, which was not substantiated by placing any acceptable evidence. It is unbelievable how an elder brother would affix his signature to a blank stamp paper and give it to younger brother, when the relationship is good and they are living in the same family. It is in this background the District Registrar on consideration of the material on record coupled with the admission of the petitioners that the sale deed bears the signature, has come to the conclusion, that he is satisfied that the sale deed is duly executed and therefore he directed the Sub-Registrar to register the document.
18. The proceedings before the Registrar is of quasi-judicial nature. Though execution does not mean signing of a document, but nonetheless if fraud, mis-representation, undue influence and mistake are pleaded by the executant of a document, to contend that his signature is obtained to the document in question, the Registering Authority has no jurisdiction to go into these questions. All that he is expected to find out is whether the executant has duly executed the document and not mere signing of the document. All the aforesaid questions have to be gone into by a competent Civil Court. Therefore the finding recorded by the Registering Authority that the fourth respondent has proved due execution of the sale deed by the petitioners is based on legal evidence produced in a quasi-judicial proceeding and having regard to the limited scope of enquiry under Section 74 of the Registration Act, the said finding is unassailable. This Court in its jurisdiction under Article 226 of the Constitution should not embark upon re-appreciation of the evidence on record as if it is a court of appeal and try to find out whether the Appellate Authority was justified in recording its finding that due execution of the sale deed is established. Notwithstanding the said finding regarding due execution by the Registrar, and the said finding is not interfered by this Court in this writ petition, it is always open to the person who is aggrieved by the said finding to challenge the aforesaid sale deed under Section 31 of the Specific Relief Act, in a competent civil court. The Civil Court shall go into the issue regarding due execution independently, on the basis of the evidence adduced before it, without in any way being influenced by the finding of the Registrar and the observations of this Court on that aspect in this order.
19. The apprehension of the petitioners is that, in a suit filed under Section 31 of the Specific Relief Act challenging the sale deed on the ground that it is not duly executed by them, the finding recorded by the Registering Authority that it is duly executed, would operate as resjudicata and therefore this Court should interfere and set aside the said finding.
20. For application of Section 11 of the CPC the first and foremost requirement is that the court which has recorded the earlier finding and the court which is dealing with subsequent proceedings both must be competent to try such dispute. The Registrar is not a Civil Court. He is a quasi-judicial authority. The proceedings of the Registrar cannot be said to be one before a “competent Court”. They are the proceedings of an Executive Officer invested with quasi-judicial functions for the limited purpose of the Registration Act. The proceedings before this quasi-judicial authority do not part take the character of trial. The very fact that the said authority has to be conferred power of a Civil Court to summon witnesses and documents shows that it is not a Civil Court. It is a Civil Court only to the extent that the powers of the Civil Court is vested in them. The proceedings of the Registrar to adjudicate whether the document had been duly executed or not were in no sense those of a competent Civil Court. Registrar has no power to enter into a roving enquiry into the probabilities and surrounding circumstances. He is merely to find our whether the document now tendered actually is in the state in which it was executed by the parties to it. The nature of enquiry by him under the provisions of the Registration Act cannot be said to be similar to that of a Court with regard to the genuineness of the document or with regard to the circumstances under which the said document is alleged to have been executed. The entire object of an enquiry is to come to the conclusion as to whether a document has been duly executed. Once it is proved that the executant has signed the document which is produced before him for registration and before executing the said document he was aware of the contents and understanding the contents he has affixed his signature, then if the Registrar records a finding that it is duly executed, the said finding would satisfy the requirement of law and the same cannot be found fault with. The only question which the said authority is competent to go into is the due execution of the document and nothing else. In other words, the said authority cannot go into the question whether the execution of the document is vitiated by fraud, undue influence, mistake, misrepresentation or any other ground which invalidates the said sale deed. It is only the competent Civil Court which can go into all those questions. Therefore, any finding recorded by the District Registrar in a proceeding under Section 74 of the Registration Act would not operate as res judicata when the validity and execution of the very same document is challenged in a competent Civil Court.
21. Therefore, when the petitioner has an alternative and efficacious remedy by way of a Civil suit to challenge the sale deed this Court should restrain itself from exercising its jurisdiction under Article 226 of the Constitution.
22. Therefore, if and when the Civil Court is called upon to decide the validity of the said sale deed in a proper suit filed, if the petitioners contend though it bears his signature, the signature was affixed to blank paper it amounts to denial of execution and it is for the fourth respondent to establish by acceptable evidence the due execution of the said document.
23. In the instant case, admittedly the petitioners are residing in the ground floor portion of the property and first floor portion is in the occupation of a tenant. Though the sale deed is held to be executed by the District Registrar and subsequently it is registered and that there is a recital in the document that possession is delivered the petitioners have not delivered possession to the fourth respondent because they did not appear before the Sub-Registrar, register the document and deliver possession. Therefore possession continues with the petitioner. If the fourth defendant wants possession of the schedule property, he has to approach a competent Civil Court for the recovery of possession on the basis of title. In such suit, if title of fourth defendant is denied, it is for the fourth defendant to establish in such proceedings that the sale deed under which he claims title is duly executed by the plaintiffs. It is only on proof of due execution of the document he could get possession of the schedule property from the petitioners. On the contrary, if the petitioners were to file a suit under Section 31 of the Specific Relief Act for cancellation of the document and if the fourth defendant were to contend that the sale deed is duly executed it is not liable to be cancelled, even then the burden of proving that the sale deed is duly executed is on the fourth respondent. Therefore, it is for competent Civil Court to go into the question of due execution of the document, validity of the document and confirmation of title under the document to the fourth defendant. In that view of the matter I do not find any substance in this writ petition.
Accordingly, the writ petition is dismissed.