As regards the second point, it is not correct that there is a finding that Rs. 32,000 was not paid in cash. The learned Subordinate Judge considered that a finding on this point was not material in a suit under Section 77. It was merely in passing that be remarked that he was not prepared to believe this story. He has, however, given no reason for this opinion. The fact is that the parties do not appear to have regarded the establishment of the payment in question as essential in this case, and, although several witnesses were examined on behalf of the plaintiffs who would in the ordinary course have seen the alleged payment, only two of them spoke of it in examination-in-cbief, namely-Sheonandan Singh and Chetman Pande. The real point for consideration was the genuineness of the sale-deed, its validity and the passing of consideration were immaterial. In these circumstances, no weight can attach to the opinion expressed by the learned Subordinate Judge and certainly it cannot be made the basis of an argument that it is extremely unlikely that without receiving this money the defendants first party would execute the document in question and allow it to pass into the hands of the plaintiffs.
Patna High Court
Jogesh Prasad Singh And Ors. vs Ramchandar Prasad Singh And Ors. on 23 March, 1950
Equivalent citations: AIR 1950 Pat 370
Bench: Reuben, Jamuar
1. This is an appeal by the defendants first party against a decision of the Subordinate Judge of Gay a decreeing a suit andec Section 77, Registration Act.
2. The suit was brought for the compulsory registration of a sale-deed purporting to have been executed on 5th August 1943 by the defendants first party in favour of the plaintiffs transferring to them certain milkiat property in village Shamsarnagar, pargana Arwal, thana Daddnagar for a consideration of Re. 64,000. The document recites that out of this amount Rs. 32,000 was received in cash and the balance was left with the purchasers for the redemption of encumbrances on the suit property. The document is said to have been executed at Gaya, but, as the defendants had some business at Jebanabad, and as there was a rush of work in the registration office at Gaya on the day when the document was executed, arrangements were made between the parties that the document would be registered at Aurangabad. within the jurisdiction of which sub-registry office the property lay. When the plaintiffs however, went to Aurangabad for the purpose, the executants did not turn up and the document could not be registered. Then, in proceedings for compulsory registration the defendants first party denied execution alleging that the endorsements of execution appearing on the document were made by them en blank sheets. of paper foe the execution of a sale-deed in favour of some other persons, and that the deed of sale under consideration was fraudulently engrossed upon these papers. Registration being refuged, the present suit was filed with the result aforesaid.
3. The defence is the defence that was taken before the Registrar. It is stated that through one Jaydeo Singh the defendants first party negotiated for the sale of the property to the defendants second party, and that Jaydeo Singh, having obtained the signed blank papers from the defendants first party, fraudulently got the deed in favour of the plaintiffs engrossed thereupon. According to the defendants, at the time when the sale-deed in question is said to have been executed at Gaya, Jogesh Prasad Singh, defendant 1, was actually ill at Patna and was being treated as an out-patient at the Patna General Hospital.
4. The learned Subordinate Judge has diselived the defence version of the facts and has accepted the sale-deed in suit as duly executed.
5. The first point which arises in the case is the effect of the defence set up by the appellants. Our attention has bean drawn to the decision in David Yule v. Bam Khslawan, 6 C. W. N. 329, where an admission of an endorsement of execution on blank sheets of paper on which the dead was said to have been subsequently engrossed was taken to be an admission of execution sufficient for the purposes of registration. On behalf of the appellants, we have on the other hand, been referred to Ram Lakhan Singh v. Jog Singh, 12 P. L. T. 233; (A. I. R. (18) 1931 Pat. 219) as to the meaning of the term "execution" of a document. It is unnecessary to discuss the plaint at length as it is covered by the decision of a Division Bench of this Court iu Ebadut Ali v. Muhammad Fareed, A. I. R. (3) 1916 pat. 206 : (35 I. C. 56) which is directly in point. Their Lord-ships observed:
"In our view, 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 mast be in existence; where there is no document in existence, there cannot be execution ..... Where an executant olewly says that he signed on blank paper and that the document which he had authorised is not the document which he comtemplted, the statement is a denial not an admission, of execution".
Their Lordships distinguished the case of David Yule (ante) which was clearly a case where their Lordships' observation as to the sufficiency of material for the registration of the document was merely obiter.
6. The next point is the scpoe of a suit under Section 77. It is now well settled that in such a suit the Court is concerned with the genuineness of the deed and not its validity : Kanhaya Lal v. Sardar Singh, 29 ALL. 284 ; (4 A. L. J. 171); Balambal Amal v. Arunaohala Chetti, 18 Mad, 255 and Raj Lakhi Ghose v. Debsndra Chandra, 24 Cal. 663: (1 0, W. N. 444). In the words of Fazl Ali, C. J.
"the Court is only concerned with the ganuineaess of the document sought to be registered, that is, whether the document is exeuuted by the person by whom it is alleged to be executed and not its validity" Jhaman v. Amrit, 21 Pal. 325;(A. I. R. (33) 1946 Pat. 62.) We have, therefore to see whether the document before us is a document which was executed by the defendants first party as alleged.
7. The finding on the facts is challenged on three grounds firstly that the onus of proof was on the plaintiffs but the case was decided by the learned Subordinate Judge mainly on a consideration of the defence evidence, secondly that the subordinate Judge did not give sufficient weight to the inconsistency of his main finding with his finding on the question of the passing of consideration, namely, that Rs. 32,000 was not paid in cash as allaged, and thirdly that there are various improbabilities in the plaintiffs' version.
8. As regards the first point, I would refer to the observation of their Lordahipa in Ramlakhan Singh v. Gog Singh, (12 P. L. T. 233; A. I. R. (18) 1931 pat. 219) ante which was cited on behalf of the appellants themselves. It is true that in a case of this sort the initial onus is on the person who alleges that the document was executed by the persons whose names appear thereon as the executants. But where these persons admit their endorsements and allege that they made those endorsements on blank paper the onus is very easily shifted. It is not correct to say that the Subordinate Judge decided the case merely on a consideration of the defence evidence. Naturally, he concentrated on an examination of that evidence to see if there was any truth in it. He found it unbelievable and the effect of his finding was to make it easier for him to accept the plaintiff's case. In accepting the evidence of the plaintiffs, he placed particular reliance on Sarju Sing and Sitaram Singh, pleaders and the pleader's clerk Lachhandeo Singh, who was the scribe of the document in question.
9. As regards the second point, it is not correct that there is a finding that Rs. 32,000 was not paid in cash. The learned Subordinate Judge considered that a finding on this point was not material in a suit under Section 77. It was merely in passing that be remarked that he was not prepared to believe this story. He has, however, given no reason for this opinion. The fact is that the parties do not appear to have regarded the establishment of the payment in question as essential in this case, and, although several witnesses were examined on behalf of the plain. tiffs who would in the ordinary course have seen the alleged payment, only two of them spoke of it in examination-in-cbief, namely-Sheonandan Singh and Chetman Pande. The real point for consideration was the genuineness of the sale-deed, its validity and the passing of consideration were immaterial. In these circumstances, no weight can attach to the opinion expressed by the learned Subordinate Judge and certainly it cannot be made the basis of an argument that it is extremely unlikely that without receiving this money the defendants first party would execute the document in question and allow it to pass into the hands of the plaintiffs.
10. The most important evidence on behalf of the plaintiffs is the document itself. It is written on as many as fourteen separate sheets of paper. The first three pages bear the endorsements respectively of the three alleged executants, each of which endorsements says :
" . . .. executed the sale-deed and received the sum of Rs. 61,000 and read the contents of the sale deed and understood the same, by my own pen, 5 8-43."
On the remaining eleven pages we have the signature of Jogash Prasad Singb, who is the father of the other two alleged executants. In appearance, there is nothing whatever to suggest that these endorsements and the other signatures were not made on the document in due course, and the genuineness of the endorsaments and of signatures--in the sense I mean that they are written by the persons by whom they purport to have been written--is not denied, but we are asked to believe that at the request of Jaydeo Singh these endorsements and signature were made on blank sheets of paper. This is a story which on the face of it is difficult to believe. [His Lordship then discussed the evidence both for the plaintiff and the defendants and proceeded as follows:]
11. On a review of all the evidence, I am not able to see any reason for thinking that the learned Subordinate Judge was wrong in his conclusion that the sale-deed in question was legally and validly executed by the defendants first party as alleged.
12. It has been urged before us that, even so, the execution must be taken to be incomplete because on the terms of the document the payment of Rs. 32,000 in cash was a condition precedent. Our attention has not been drawn to any provision in the document which makes it a condition precedent to the execution. Whether the money was paid or not was immaterial so-far as the due execution of the document was concerned. Whether the document so executed is legally operative or not, and, whether the consideration for it has bean paid or not, are matters which are open to contest in a regularly constituted proceeding under the provisos to Section 92, Evidence Act.
13. For the reasons given by me above, I consider that this appeal has no merits and must be dismissed with costs.
Jamuar, J.
14. I agree.
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