Registration Act
Editors’ Note:
The respondent Nos. 1-4 as plaintiffs filed a Title Suit for declaration that the documents mentioned in the schedule Nos. 1-6 to the plaint are forged. They claimed that Rustom Howlader, who was their father, and the father of the defendant Nos. 1 and 6 also, died at the age of 110. From 20 years before his death he was completely unable to walk or move because of his dire sickness along with blindness and was completely bed ridden. He lived with the defendants in a mess till his death and taking such advantage of his illness those impugned documents were obtained. On the other hand defendants claimed that Rustom Howlader was never sick or bed ridden or blind and was always healthy and performed his own work by himself before his death. The trial Court decreed the suit mainly on the finding that Rustom Howlader was sick from 1980 till his death and he had no normal sense or consciousness. The High Court Division assessing the evidence on record found that the plaintiff had failed to prove that Rustom Howlader was completely sick and bed ridden. It also found that plaintiffs had failed to discharge their onus under sections 101 and 103 of the Evidence Act to prove that the signatures given by Rustom Howlader in all the documents are false. Finally, the Court found that the suit was barred by limitation and consequently set aside the judgment and decree of the trial Court.
Rule 46, 48 of the Registration Rules, 1973 and section 69 of the Registration Act, 1908: Law is settled that identifier or witness of a document is not supposed to know the contents of the document but the identifier according to the Registration Rules is held to be the best competent person in whose presence the executant goes with the execution process before the registering officer. (Para 18)
Sections 101 and 103 of the Evidence Act: According to the provisions laid down in sections 101 and 103 of the Evidence Act, the entire onus was upon the plaintiffs to prove that the signatures given by Rustom Howlader in all the documents are false because it is their specific case that Rustom Howlader never appeared in public due to his serious ailment and indisposition and blindness and even he was to be taken to the toilet by somebody else and remained bed ridden from 1980 until his death. Plaintiffs had to take resort to expert opinion in order to discharge their initial onus under section 101 of the Evidence Act to prove that those impugned documents were executed not by Rustom Howlader but by an imposter with a scheme to grab the property and Rustom Howlader was completely unable to perform his own affairs due to his serious illness. Law says when the initial onus is discharged by the plaintiff the onus then shifts upon the defendants to show the contrary. (Para 19)
Section 3 of the Transfer of Property Act and Section 68 of the Evidence Act: The law on attesting witness is guided by section 3 of the Transfer of Property Act and Section 68 of the Evidence Act. The scribe will not be an attesting witness unless he intends to sign the deed as such. In other words a scribe can play the dual role of a scribe and an attesting witness. (Para 20)
Section 114(g) of the Evidence Act: Order 3 Rule 2 of the Code of Civil Procedure read with section 85 of the Evidence Act; Section 120 of the Evidence Act: Husband instead of wife or wife instead of husband shall be competent witness: Learned Advocate for the respondent strongly argued that defendant No. 1 Sirajul himself did not come before the court to depose in support of his case and adverse presumption can be drawn under section 114(g) of the Evidence Act for his non examination in the case despite being an important witness. A Power of Attorney given by defendant No. 1 to D.W. 1 through notary public bearing registration No. 135 of 2003 dated 28.06.2003 is kept in the record and under Order 3 Rule 2 of the Code of Civil Procedure read with section 85 of the Evidence Act this power of attorney bears weight. Now question arises whether D.W. 1 being wife of defendant No. 1 holds the same status of defendant No. 1 while deposing in the suit. Question of adverse presumption shall not arise if DW 1 holds the same position. Section 120 of the Evidence Act provides that husband instead of wife or wife instead of husband shall be competent witness. So according to the facts and circumstances of the instant case section 120 shall prevail over section 114(g) of the Evidence Act and the question on adverse presumption as argued does not arise. (Para 21)
Section 114(e) of the Evidence Act: It has been asserted in paragraph Nos. 14(ka)(6) of the written statement that Rustom Howlader filed Title Suit No. 126 of 1996 against Thana Education Officer, Madaripur and filed application for temporary injunction not to remove the Char Ghunshi Government Primary School. The temporary injunction was rejected against which Rustom Howlader filed Miscellaneous Appeal No. 41 of 1996 in the Court of District Judge, Madaripur. The appeal failed. Then he preferred Civil Revision No. 3104 of 1998 before this Court. The Rule issuing order dated 09.08.1998 is exhibit-Ja and after his death his substituted heirs extended the order of status quo till disposal of the rule on 21.08.2000 which is exhibit-Ja(1). Those are public documents and under section 114(e) of the Evidence Act carry presumptive value of its contents and it is to be presumed that Rustom Howlader sworn affidavit in exhibit-Ja until and unless the contrary is proved by reliable evidence and thus it appears that he was never that sick as has been alleged by the plaintiffs. (Para 23)
The admission of Rustom Howlader that he executed those documents cannot be avoided when plaintiffs could not establish a definite and clear case on Rustom Howlader’s sickness. The execution is admitted and plaintiff had no knowledge on execution or passing of consideration being third party to the document. Plaintiffs cannot question about the consideration because it was between parties to the document. The transferee is to prove the payment of consideration when the transferor challenges the same. In the instant case, if the plaintiffs could prove by cogent and credible evidence that Rustom Howlader was seriously ill and blind from 1980 till his death, in that case the onus would lie upon the defendant to prove the payment of consideration. (Para 24)
Article 120 of the Limitation Act, 1908: According to paragraph No. 7 of the plaint, cause of action arose on 14.07.2002 after having knowledge from the sub-registry office. But on perusal of the records it appears that the certified copies of exhibit-2 and 2(ka) were obtained on 17.07.1995. The certified copies of exhibit-2(Ga) and exhibit-2(Gha) were obtained after filing of the suit on 05.07.2003 and 03.07.2003 respectively. Thus it can be held that the cause of action of the suit is definitely false and the suit is barred by law of limitation. The beneficiaries of exhibit-2(Gha) dated 19.12.1982 being defendant Nos. 4-5 are the sons of plaintiff No. 3 Sahaton and the husband of plaintiff No. 2 Rahaton was the identifier to exhibit-Gha dated 15.09.1994. So it raises serious doubt on the story of cause of action and as such it is held that the suit is barred by limitation under Article 120 of the Limitation Act. (Para 27) [17 SCOB [2023] HCD 199]
Registration Act, 1908
Section 17
Section 17- A deed of dissolution of partnership is not required to be registered- A deed of dissolution of partnership is not required to be registered under section 17 of the Registration Act because the share of a partner in a partnership is essentially moveable property notwithstanding that a part of the partnership property may be immovable. ..... Dine Ara & others =VS= Bangladesh Rubber Industries & others, [1 LM (AD) 91]
Section 17- Invalid documents- Every document mentioned in Section 17 of Registration Act has to be presented for registration in the office of a Sub-Registrar within whose sub-district, the whole or some portion (before amendment) of the property to which such document relates is situated. Where a document is registered by including a property which is non- existent merely on conferring jurisdiction on the Sub- Registrar where it is registered, such a document is invalid. Nazera Bibi (Most.) Mazid, [4 LM (AD) 285] VS Abdul
Section 17-Dissolution of partnership is not required to be registered We find that a deed of dissolution of partnership is not required to be registered under section 17 of the Registration Act because the share of a partner in a partnership is essentially moveable property notwithstanding that a part of the partnership property may be immovable. Bangladesh Rubber Industries =VS= Dine Ara Begum, [5 LM (AD) 200]
Section 17
We have heard Mr. Syed Haider Ali, the learned Advocate appearing for the petitioner and Mr. Nurul Islam Bhuiyan, the learned Advocate-On-Record ap- pearing for the respondent, perused the impugned judgment and order passed by the High Court Division and all other connected papers on record. It appears that the High Court Division on consideration of the materials on record and having gone through the judgment and decree of the courts below observed that both the courts below found that the owners of the property of the suit land having decided to sell to sell the same to the defendant-respondent and his wife at Tk. 12,000/- and handed over the vacant possession of the property to them. But the owner of the property the predeces- sors of the plaintiff-petitioner handed over the possession of the suit property to the defendant-respondent but the deed of sale could not be executed and registered rather they executed a deed of agreement for sale admitting the receipt of entire considerations of money of Tk. 12,000/- and handed over the pos- session of the property. Arzoo Miah vs. Abdur Rahim (Md. Muzammel Hossain J) (Civil) 10 ADC 77
Section 17A
Section 17A- In a contract for sale of immovable property, a time, to be effective from the date of registration, shall be mentioned for execution and registration of the instrument of sale and if no time is mentioned, six months shall be deemed to be the time.
17A. Registration of contract for sale etc:
(1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, a contract for sale of any immovable property shall be in writing, executed by the parties thereto and registered.
(2) A contract for sale referred-to in sub- section (1) shall be presented for registration within thirty days from the date of execution of the contract and the provisions regarding registration of instruments shall apply.
21A. Unregistered contract for sale not specifically enforceable-Notwithstanding any thing to the contrary contained in this Act or any other law for the time being in force, no contract for sale of any immovable property can be specifically enforced unless-(a) the contract is in writing and registered under the Registration Act-1908, whether or not the transferee has taken possession of the property or any part thereof, and (b) the balance amount of the consideration of the contract is deposited in the court at the time of filing the suit for specific performance of contract." ......Comprehensive Holdings Ltd. =VS= MH Khan Monju, [3 LM (AD) 198]
Sections 22 and 55 (3)- Appellate Court being the last Court of fact, comes to any finding based on the evidence on record, the power of the revisional Court to interference with such finding is limited- Appellate Division held that when the lower appellate Court, being the last Court of fact, comes to any finding based on the evidence on record, the power of the revisional Court to interfere with such finding is limited to cases where the finding of the appellate Court is perverse, or based on wrong appreciation of the evidence...... Haji Nayeb Ali =VS= Amir Hossain & others, [1 LM (AD) 423]
The Registration Act 1973
Section 28
The court to compare and scrutinize the disputed signatures with the admitted signatures under provision of section 73 of the Evidence Act but the appellate Court has fallen in an error in holding that such comparison of the disputed signatures by the court along with the admitted signatures is not always save. It was the duty of the defendant to get the same proved otherwise by obtaining an opinion of the hand writing expert. Anu Miah vs Gauranga Chandra Sharma (Sved J. R. Mudassir Husain. J) (Civil) IADC 462
Section 28(2), 30(2)
The claim of the respondents for mutation of their names has no legal basis and respondents are at first required to establish their right title and interest over the property in question in a competent court of law before praying for direction for mutation of their names and writ court is not the proper forum for deciding such question of title and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute. Rupali Bank Ltd. & Govt. etc. vs Shawkat Ara Salauddin (Md. Tafazzul Islam J) (Civil) 2AD I
Section 28(2), 30(2)
The respondents. without title, was not entitled to pray for a writ of mandamus for directing the Ministry of Works to mutate their names in the records. Rupali Bank Ltd. & Bangladesh vs Shawkat Ara Salauddin (Md. Tafazzul islam J)(Civil) IADC 337
Section 28, 87
Seeking declarations that the Deed of Heba-bil-Ewaz allegedly executed by his father Hedayetullah Biswas gifting the suit land to the defendant Beraful Nessa, his second wife and the prede- cessor of the appellants in both the ap- peals, being concocted and forged is not binding upon him. Md. Raisuddin Biswas vs. Md. Mazed Ali (Md. Tafazzul Islam J) (Civil) 8 ADC 8 ADC 1
Section 38
Section 38(2)
The trial court's finding that the disputed Kabala was not a genuine one had not been reversed by any of the courts below and therefore the consideration which of the two documents the heba- bil-ewaj in favour of the plaintiffs or the Kabala in favour of the defendants was earlier in point of time is out of place. Vickchand Miah vs Khurshida Khatun (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 349
Section 47
Section 47
The suit was filed seeking declaration that the judgment and order dated June 29. 1987 passed in Miscellaneous Case (pre-emption) No. 6 of 1984 of the Court of Assistant Judge, Nangalkot was fraudulent and as such liable to be set aside. Serajul Hoque Majumder vs. Bachchu Mia Mojumder (Md. Ruhul Amin J)(Civil) 4ADC 967
Section 47- There is no doubt that a document which requires registration so long it is not registered is not valid yet once it is registered it takes effect from the date of its execution. The object of this section 47 is to decide which of two or more registered instruments in respect of the same property is to have effect. A sale which is not complete until the registration of the document is complete, cannot be said to have been completed earlier because by virtue of section 47 of the Registration Act the instrument by which it is effected, after it has been registered, commences to operate from the date of its execution. ...Alimuzzaman (Reza) (Md.) =VS= Masudar Rahman(Md.) @ Babul, [8 LM (AD) 164]
Section 60
Section 60
The co-sharer of the holding land of which sought to be pre-empted and as such the prayer for pre-emption. Fatema Khatun ors. vs Abdul Quddus (Md. Ruhul Amin J)(Civil 3ADC 263
Section 60
Provides that sale would be complete even if the consideration money is not paid or is part paid or part promised. In the case of non-payment of full consid- eration money or part consideration, the vendor may sue the vendee for recovery of the consideration money. Satish Chandra Mondal vs Ayjuddin Gazi ors. Amin J(Civil) (M. M. Ruhul Amin 3ADC 370
Section 60
That the pre-emptor is a co-sharer by pur- chase and the pre-emptees are stranger purchasers and the pre-emption case was well within time and the case was not bad for defect of party. Shamsul Hoque vs Mosamniat Arnina Khatun & ors. (MM. Ruhul Amin J)(Civil) IADC 552
The Registration Act
Section 60
The High Court Division made the Rule absolute on the finding that "right of pre-emption can not be defeated by a person who was not a co-sharer on the date of the transfer but subsequently alleged to have become a co-sharer......." Fatema Khatun Being dead her heirs vs. Abdul Quddus (Md. Ruhul Amin J) (Civil) 4ADC 721
Having felt aggrieved by the order of the Additional Commissioner Rajshahi, the plaintiffs filed Other Class Suit No. 109 of 1982 in the Court of Munsif, 2nd Court, Pabna for a declaration that the judgment and order of the Additional Commissioner is illegal, void and not binding upon them. Md. Abdul Jalil vs. Mosammat Shefali Begum and others (M.A. Aziz J) (Civil) 4ADC 732
Genuineness of the title deed- The alleged title deed of the plaintiffs shows that the same has been prepared subsequently on some old stamp papers by using new ink and we are satisfied that this deed was not executed and registered in the year 1945. Now it appears to us that since there was no existence of any title deed during trial, the appellants failed to produce the same before the trial Court although it bears a mark of exhibit filed in Title Suit No.37 of 1993. Already we have found that the said Title Suit No.37 of 1993 was decreed ex-parte. Thus, the High Court Division being the last Court of fact doubted the genuineness of the said title deed of 1945. Halima Khatun(Mrs.) -VS- Ministry of Health, [5 LM (AD) 292]
A registered document carries presumption of correctness of the endorsement- The lower Courts as well as the High Court Division rightly observed that the heirs of Syed Ahmed have not challenged the deed in question. Moreover, when defendant No. 1 claims that the executant of the deed was insane at the time of the execution and registration of the deed, then the burden squarely upon him to prove such contention. We find that the defendant did not take any step to prove that when the deed was executed and registered, Syed Ahmed suffered from mental illness. Sultan Ahmed -VS-Md. Shajahan, [3 LM (AD) 463]
Registered sale deed are not binding on the plaintiff It transpires that the High Court Division upheld the concurrent findings of the Courts below. Clearly when the deeds under challenge contain in the recital that the earlier deed No.4995 dated 23.11.1988 was executed and registered only for the purpose of resolving the dispute through the intervention of defendant No.1, who was the Chairman of the Union Parishad that deed was not a sale deed. Hence, the deeds executed by the Chairman are equally not deeds of sale but simply return of the property. When he failed, he returned the land. the Courts below rightly held that the deeds in question were not deeds of sale and no money changed hands. Accordingly, the deeds were not binding on the plaintiffs. .....Ashek Ahmed =VS= Samsunnahar, [3 LM (AD) 18]