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First Appeal No. 97 of 1940, decided on 17th January 1962.
Ss. 77 & 74‑Scope of suit under S. 77‑Limited; of same nature as enquiry before District Registrar under S. 74.
Manindra Nath Sanfui alias Manilal Sanfui v. Lalit Mohan Sadhukhan and others 55 C W N 166 ref.
S. 77‑Document admitted to have been signed by executants‑Allegations by defendant about alterations having been made in documents‑Onus of proof lies on defendants.
S. 114‑Document alleged to be in possession of plaintiff‑Plaintiff not in need of producing of document‑Defendant not taking any steps for discovery of docu ment by following procedure laid down in Civil Procedure Code (V of 1908)‑No adverse inference can be drawn against plaintiff for non production of document.
Murugesam Pillai v. Manickavasaka Pandara and others 44 I A 98; Haji Yar Ali Khan Chowdhury v. Mobarak Ali Chowdhury and others and Mobarak Ali Chowdhury and another v. Haji Yar Ali Khan Chowdhury and others P L R 4 Dac. 497 = 1955 7 D L R 6 and Kunwar Mohabir Singh v. Kunwar Rohini Ramanandhwaj Prasad Singh 37 C W N 657 (P C) ref.
Ss. 23 & 23‑Construc tion.
The operation of section 23 of the Registration Act, 1908 is dependent upon section 25 of the Act and as soon as effect is given to provisions of section 25 it will control section 23. On a fair construction of sections 23 and 25 of the Act the period of four months as provided in section 23 is to be added to the period of delay condoned in terms of section 25.
Murlidhar Shrinivas v. Motilal Ramcoomar 13 D L R 765 ref.
Applicable in cases of occupancy tenancy only.
S. 74‑Registrar not competent to make roving inquiry as regards validity or otherwise of document on score of want of consideration or on other grounds Registrar, however, to be satisfied as to genuineness of document in so far as it might be suggested that there had been material or sub stantial change in identity of same.
Rajendra Singh v. Ramaganit Singh A I R 1954 Pat. 556; Bolla Guruvayya and others v. Cherukuri Venkatarathnam A I R 1924 Nag. 810; Hardwar Singh and another v. Hari Prashad Rai A I R 1943 All. 24 and Gour Chandra Das v. Prosunno Kumar Chandra 10 C W N 768 ref.
Azizul Islam for the Deputy Registrar for Appellants.
Syed A. B. M. Hossain and D. C. Bhattacharee with A. Rab for Respondents.
This appeal which was filed sometime in 1940 arises cut of a suit under section 77 of the Registration Act (hereinafter referred to as the Act) in regard to kabala which has been marked as Exh. 1 consisting of eleven sheets of paper with four stamps purchased on the 19th Kartick 1944 B. S. corresponding to 5‑11‑37 and on 24th Kartick 1344 B. S. corresponding to 10‑11‑37. The kabala purports to convey 2.71 acres out of 3. 45 acres of land appertaining to C. S. Khatian No. 248 of mouja No. 251 Mad angani. The kabala appears to have been dated as 27th of Chaitra 1344 B. S. corresponding to 10‑4‑38. This kabala was presented before the Sub‑Registrar of Narayanganj for registration on 11‑10‑38 and, after payment of the legal penalty required under section 25 of the Act, was accepted for consideration as to whether this document could be registered in the absence of the twelve executants who failed to appear before the Sub‑Registrar and admit execution thereof. In due course the Sub‑Registrar issued notices but as the executants who were defendants in the suit failed to turn up in response to the notices, the Sub- Registrar regarded this attitude of the defendants as one of the denial of execution. The document was accordingly refused to be registered. Thereupon the plaintiffs who are the recipients of the document by an application under section 73 of the Act approached the District Registrar who upon an enquiry according to the pro visions of section 74 of the Act made an order refusing registration of the document in terms of section 76 (1) (b) of the Act. This order was passed on 21st of March 1939. Thereupon the present suit out of which this appeal has arisen was instituted.
2. According to the plaintiffs the agreement for sale as between the parties was entered into on or about 5th of Kartick, 1344 B. S. and it was agreed that C. S. Dags 236, 237, 238, 239, 240, 241 and 242 comprising a total area of 2.71 acres were to be conveyed by a regular deed of sale for a sum of Rs. 7,000. It was also the case of the plaintiffs that out of Rs. 7,000 payments were made from time to time including a sum of Rs. 51 paid as earnest money and before the date of execution in all a sum of Rs. 4,051 in cash had been paid and a further sum of Rs. 650 realised from them by the defendants as advance rent on account of a lease executed in respect of a portion of the suit land was to be set‑off. It was also pleaded that a similar sum of Rs. 500 realised by the defendants as advance rent from one Bhupendra Nath Saha who had taken lease of another portion of the suit land was also to be set‑off against the settled consideration of Rs. 7,000. The further plaint case was that on the date of execution, namely, 27th Chaitra 1344 B. S. corresponding to 10th April 1938, a cash amount of Rs. 1,799 was paid and the document was executed by the defen dants on that date on receipt of the entire consideration money in the aforesaid manner but one of the intending vendors, namely, Sudhir Chandra Dutta failed to turn up for the purpose of execu tion and the document could not be presented for registration in due course. The plaintiffs, therefore, prayed for a decree in terms of section 77 of the Act for a direction so that the document could be registered in the appropriate office according to law.
3. The defence in substance was that the document was actually signed by the twelve defendants in the expectation of payment of the entire amount of consideration then and there, that is, on 5th of Agrahayan 1344 B. S. corresponding to 21st of November 1937. But as it appeared after the signing of the document by the twelve defendants that the plaintiffs were not ready with the entire amount of consideration Sudhir Chandra Dutta who was made proforma defendant No. 13 in the suit refused to execute the document and thereupon it was agreed that necessary execution of Sudhir Chandra Dutta would be secured as soon as the plaintiffs could be ready with the balance consideration and were also ready for getting the document executed and registered within four months from the date of such execution, namely, 5th Agrahayan 1344 B. S. It was further pleaded that by 18th of Falgoon 1344 B. S. a total sum of Rs. 4,051 had been paid in cash and on 21st Falgoon 1344 B.S. a Toka Hishab was given by plaintiff No. 1 as an evidence of the fact that a total sum of Rs. 4,051 in cash had been paid by the plaintiffs by that time. The further defence of the defendants was that the actual date of execution, namely, 5th Agrahayan 1344 B. S. was not in fact inserted on that date although the document had been signed by the twelve defen dants but taking advantage of the document being in the possession of the plaintiffs the latter had altered the case materially by insert ing a false date, namely, 27 Chaitra 1344 B. S. and by making a few other alterations in the body of the document such as inserting the word "year" in between the two "current" and "Agrahayan" in the 8th sheet of the document and also by inserting "and witness" after the word "writer" and also by inserting of "witness" in the second column in the last sheet of the document as also by adding an unwarranted "explanation" at the bottom of the document. In substance the defence case was that the document having been materially altered this identical document could not be said to have been executed by the contesting defendants and as such the District Registrar rightly refused to register this document.
4. Issues were framed duly on or about 21‑6‑39. Thereafter on 5‑9‑39 a petition of compromise between the plaintiffs and defendants Nos. 5 and 6 with a separate Vakalatnama was filed and on 6‑10‑39 another compromise petition between the plaintiffs and defendant No. 11 Sailendra Dutta together with a separate Vakalatnama executed by Sailendra Dutta in favour of another Pleader Durga Kumar Dutta was filed. It also appears that there after on or about 23‑11‑39 a petition for cancellation of the compromise petition as between the plaintiffs and defendant No. I1 was filed on behalf of Sailendra Chandra Dutta. It further appears that on the same date of filing the compromise petition, that is, on 6‑10‑39 a kabala with respect to C. S. Plot No. 252 ap pertaining to the same Khatian No. 248 was executed by Sailendra Chandra Dutta in favour of the plaintiffs for a consideration of Rs. 40 only. In due course on or about 19‑12‑39 the plaintiffs also filed an objection to the prayer for cancellation of the com promise petition as filed by defendant No. 1 Sailendra Chandra Dutta.
5. The parties went into trial and by a judgment and decree dated 4th of March 1940, the learned Subordinate Judge found in favour of the defence holding that there was material alteration in the deed as alleged by the defendants and that the deed had been executed on 5th Agrahayan 1344 B.S. and not on 27th Chaitra 1344 B. S. and that as such the District Registrar was perfectly right in refusing registration thereof. It is apparent that if the deed appears to have been executed on 5th Agrahayan, 1344 B. S. and presented for registration on 11‑10‑38 ordinarily even after taking advantage of section 25 of the Act the deed would appear to have been presented beyond eight months and as such a ques tion of limitation might arise but for reasons to be discussed herein below it has to be considered as to whether this could be said to have been presented for registration within time. So far as the decree was concerned the learned Subordinate Judge took the view that as the document appeared to have been executed actually on 5th Agrahayan 1344 B. S. the Solenamah as filed between the plaintiffs and defendants Nos. 5 and 6 as also by defendant No. 11 could not materially change the position in law. In that view of the matter the entire suit was dismissed.
6. Ever since the appeal was filed as stated above, it appears there have been many deaths amongst the parties and the hearing of the matter was accordingly delayed from time to time. The appeal which was originally filed in the Calcutta High Court was almost ready there but the Partition of the country intervening this appeal was transferred to this Court. It is now understood that the appeal is otherwise ready and the learned Advocates appearing in the case also submit that there is no defect of parties in this appeal at the present moment.
7. On behalf of the plaintiff‑appellants Mr. Syed A. B. M. Hussain contends that the learned Subordinate Judge erred in his finding that the date of execution was not 27th Chaitra 1344 B. S. but 5th Agrahayan 1344 B. S. He has also contended that there was no material alteration as found by the trial Court. He has further contended that there was no failure to pay the entire consideration and whatever defence has been set up in this connec tion was nothing but a false plea. Last of all he has contended alternatively that even if it were assumed for the sake of argument that deed had actually been executed on 5th Agrahayan 1344 B. S. corresponding to 21st November 1937 yet in that case the deed could not be said to have been presented for registration beyond time in view of the fact that an Ordinance being Bengal Tenancy Ordinance No. 1 of 1938 had been promulgated on or about 3rd June 1938, with retrospective effect from 31st of May 1938, and this Ordinance having actually expired on or about 8th September 1938, and the lands in question being occupancy raiyati lands, the period during which the Ordinance was in force was liable to be deducted and on that calculation the plaintiffs were entitled to get an order from the District Registrar in favour of the registra tion of the document.
8. Mr. D. C. Bhattacharjee appearing on behalf of the con testing defendant‑respondents joined issue on all the points raised on behalf of the appellants.
9. The only point for determination in this appeal is as to whether the District Registrar rightly refused registration of the document in terms of section 76 (1) (b) of the Act and, if not, whether the plaintiffs can get a decree in terms of section 77 of the Act.
10. On a reference to the relevant order of the District Registrar which has been marked as Exh. 1 it appears that the learned District Registrar in his enquiry took the view mainly relying upon two documents marked Exhs. B and E in the present suit that the execution actually took place on 5th Agrahayan 1344 B.S. and further that there had been interpolations as alleged with the motive of fraudulently altering the date of the execu tion and putting in a false date. It is not disputed that the scope of enquiry in the present suit instituted under section 77 of the Registration Act is more or less the same as before the District Registrar under section 74 of the said Act. This is more or less settled and the learned Advocates a4o do not dispute the soundness of this proposition. In the case of Manindra Nath Sanfui alias Manilal Sanfui v. Lalit Mohan Sadhukhan and others (55 C W N 166) it has been held that the scope of suit tinder section 77 of the Act is a very limited one and is of the same nature as an enquiry before the registering authority. We do not think that this proposition of law can be said to be in any way wrong or unsound. It is also more or less settled that in a dispute like this if the document in question appears to have been signed by the relevant executants then the initial onus that might lay upon the plaintiff should be deemed to have been shifted on to the defendants as soon as the latter admit that they had signed the document. It will be then for them to prove that the alterations as alleged including the date of execution were not in existence at the time when the document according to them was actually signed. Keeping in view this legal position it has to be seen whether the defendants have been able to discharge their onus of proof in so far they have to prove that the date of execution which according to the plaintiffs was 27th Chaitra 1344 B. S. was not the actual date of execution and that the alleged alterations in regard to the interpolations indicated above were actually not in existence on 5th Agrahayan 1344 B. S. when admittedly according to the defence the document had been signed and a substantial part of he consideration money had been paid.
11. Evidence has been adduced by the parties and they have relied upon documentary as also on oral evidence. On the defence side Exh. B, a Toka Hishab or memorandum of account and Exh. C, series which show entries in certain account books as also Exh. D, an installment bond executed on 23‑11‑37 by the defendants in favour of a third party, their creditor, and Exh. E dated 24‑11‑37, a special power‑of‑attorney said to have been executed by Sailendra in favour of his elder brother Mohini Mohan Dutta, and Exh. F series which are Rokar accounts (corresponding to Exh. C series) and Exh. G series showing attendance register of one Mohendra Chandra defendant No. 2 in the case as also the deposition of certain witnesses on the side of the plaintiffs before the District Registrar marked Exh. H series have been relied upon. On the plaintiffs side the deed in dispute marked Exh. 1 and the certified copy of the kabala said to have been executed by Sailendra in favour of the plaintiffs marked Exh. 1(A) and registered kabala executed by Sudhir Chandra Dutta in favour of one Sadek Ali Bepari Exh. 1 (B) executed on 30th June 1939, and a few other documents have been put in. It also appears that the same witnesses who gave evidence before the District Registrar have been examined before the trial Court. The documents relied upon by the defendants would indicate certain circumstances which might be very relevant for consideration of the question of pro bability as to whether the deed could be said to have been executed on 5th of Agrahayan 1344 B.S. as alleged by the defence or on 27th Chaitra 1344 B. S. as alleged by the plaintiffs. The oral evidence however, seems to be the direct evidence as given by the parties in this case. It appears that six witnesses have been examined on behalf of the plaintiffs and five on the side of the defence. Of the six witnesses examined on behalf of the plaintiffs P. W. 1 Alam Chand Bepari is plaintiff No. 1; P. W. 2 Dwijendra Chandra Danda is the scribe of the disputed document; P. W. 3 Durga Kumar Mitra is a Pleader v ho had filed the sulenamah between the plaintiffs and defendant No. 11 Sailendra; P. W. 4 Monoranjan Chakraborti is a Pleader's clerk who had something to do with the sulenamah; P W 5 Jobed Ali Bepari and P. W. 6 Abdul Majid Munshi appear to be attesting witnesses in the document in question. On behalf defence D.W. 1 Behari Lal Roy is a non‑practising Pleader attesting witness; D.W. 2 Adhar Chandra Saha is also another attesting witness in the disputed document; D. W. 3 Dwarka Nath Gun is a formal witness; D. W. 4 Mohini Mohan Dutta is defendant No. 8 and D.W. 5 Mohini Mohan Das seems to be a teacher of a School where defendant No. 2 Mahendra Chandra is said to be working as a teacher. Guru Charan Roy or any other defendant has not been examined. Of the five defence witnesses Behari Lal Roy admits that they had transaction with the defendants firm and the defendants owned money to them. According to this witness the debt payable by the defendants to them at the time when he was deposing, was Rs. 2,500 and accord ing to him their transactions with the defendants continued for 15/20 years. D. W. 2 Adhar Chandra is cousin brother of Guru Charan defendant No. 1, and D. W. 5 Mohini Mohan Das is also a relation of Guru Charan and Mahendra, defendants Nos. 1 and 2 respectively. It also appears that Guru Charan was the Secretary of the School to which D. W. 5 Mohini Mohan Das and Mahendra were probably attached. It is thus quite clear that it is very difficult to expect any independent or disinterested evidence from D. W. 1, D. W. 2 and D. W. 5. D. W. 4 Mohini Mohan Dutta being himself a defendant and having taken up the burden of contest throughout on his shoulder can also hardly be said to be an independent or disinterested witness. D. W. 3 Dwarka Nath is more or less a formal witness who had deposed in connection with Exh. C and Exh. D and has no personal knowledge as to the transaction in question. On the side of the plaintiffs P. W. 1 Alam Chand being one of the plaintiffs is not an independent and disinterested witness. P. W. 5 Jobed Ali, though an attesting witness, is said from the side of the defence to be not present at the time of the actual execution of the document and it is also said that he being a brother of one Sadek Ali in whose favour the kabala Exh. 1 (B) has been executed by Sudhir Chandra is not dependable. P. W. 6 Abdul Majid Munshi appears to be a serving officer under the plaintiffs. It is very difficult to take all these witnesses, namely, P. W. 1, P. W. 5 and P. W. 6 as thoroughly independent or disinterested witnesses. Of the other witnesses, namely, P. W. 2 Dwijendra and P. W. 3 Durga Kumar and P. W. 4 Monoranjan it does not appear that any serious challenge as to their veracity and integrity has been made. On the other hand, according to D. W. 1 Behari Lal Dwijen Chandra Danda who was known to him for nearly ten years as a deed writer had the repu tation that he was an honest. P. W. 3 Durga Kumar is a Pleader and he has proved the filing of Solenamah as between the plaintiffs and defendant No. 11 Sailendra. P. W. 4 Monoranjan has cor roborated the fact that the Solenamah was prepared and filed on behalf of Sailendra. Although it appears that almost all the defence witnesses are not independent or disinterested yet their evidence for what it is worth has to be considered as there is no other direct evidence even in support of the defence contention in this case.
12. Coming now to the question of the alleged material alterations in the document, on a reference to the evidence of P. W. 2 Dwijendra it appears that the deed was read over by him and Sudhir was not present and so he did not sign. According to him the deed was attested and he wrote the term "and witness" after the executants signed. His further evidence in cross‑examina tion is that after writing the part of the Kaiat the executants signed under it and after signatures under Kaifiat the attesting witnesses signed. He has also said that he read the deed; Guru Charan and Mohini also read the deed and that by finishing the writing he put the date in the deed. In his cross‑examination he also says that after comparing the deed with the draft he put the word "year" in the 8th sheet. Guru Charan held the draft when he read the deed. It was suggested to him that he wrote the deed in his residence (house) and he repudiated such suggestion. D. W. 1 Behari Lal, on the other hand, says that when he attested the deed it had no date. According to him he attested in Agrahayan 1344 B. S. and Rs. 3,350 was paid on that date. He admits that D. W. 2 Adhar also attested in his presence but denies that P. W. 2 Dwijendra was present when the execution and the attestation took place. In his cross‑examination he says that after reading when he found no date he enquired of the scribe but he was told that the scribe was not present. He raised an objec tion that without date the deed could not be executed although he did not insist on the presence of the scribe at that time. D. W. 2 Adhar, who is a cousin brother of Guru Charan and acts in the Gaddi of the defendants and pays rent to them, says that he depended on Behari Babu D. W. 1 entirely. According to him no Kaifiat existed in the deed when he attested and no date existed at that time. But curiously enough he has deposed that Behari Babu after reading the deed said nothing. According to D. W. 2 Adhar Behari Babu read the deed and Guru Charan and Mohini and others read the deed though he himself did not read the deed. It thus appears that there is some contradiction even between D. Ws. 1 and 2. According to D. W. 1 he did not distinctly remember whe ther the Kaifiat was in the deed or not when he attested. On the point as to whether the Kaifiat was in the deed or not at the time of attestation by D. Ws. 1 and 2 the evidence of D. W. 1 being not helpful as he did not distinctly remember, we have to examine the comparative evidence of P. W. 2 and D. W. 2 alone. As already observed P. W. 2 Dwijendra being an independent and disinterested witness who has the reputation of an honest man and D. W. 2 Adhar being interested and not independent we consider it safe to accept the evidence of Dwijendra Danda in this behalf. It is very difficult, in our opinion, in this state of contradictory nature of evidence as between D. Ws. 1 and 2 to rely upon the evidence of D. W. 4 Mohini Dutta who himself is a defendant and is surely interested to support his case in whatever manner possible. We, therefore, hold that the Kaifiat was there and the de fendants signed underneath the same and we also hold that at least Guru Charan and Mohini read the document and understood the contents thereof while signing underneath the Kaifiat.
13. In regard to the other alterations as alleged, that is, interpolation of the words "year" in the 8th sheet and "witness" and "and witness" in the 11th sheet no evidence has been given on the side of the defendants except by D. W. 4 Mohini Mohan Dutta. . D. W. 1 or D. W. 2 throw no light on the same. In this respect, as already quoted, P. W. 2 Dwijendra has proved that he wrote the term "and witness" after the executants signed and that he put the word "year" in the 8th sheet after comparing the deed with the draft which was being held by Guru Charan. As against that the evidence of D. W. 4 does not appear to us to be very convincing. In regard to the question as to whether the term "Ishadi" was there just above the second column of the signatures of the witnesses, it appears from the evidence of P. W. 2 Dwijendra that after signatures under the Kaifiat the witnesses attested and in further cross‑examination he says that he knew Jobed Ali only on the date of execution and so was the case of Abdul Majid Munshi. Thus it seems quite clear that his evidence is to the effect that Jobed Ali and Abdul Majid signed as attesting witnesses and it is difficult to suppose that these two persons signed as attesting witnesses in any capacity other than that of Ishadi or witness. Although Mohini Mohan Datta defendant No. 8 who has examined himself as D. W. 4 denied existence of the words "year", "witness" and "and witness" and "explanation" it is difficult for us to accept his evidence in view of the definite and categorical evidence of Dwijendra Danda even in his cross‑examination that the words "explanation, year, witness" and "witness" were there in the deed. In regard to the Kaiat it may incidentally be observed here that there is a reference to the scribe by using the expression "with writer" which signifies that the scribe was also intended to figure as one of the witnesses. The places where these alleged alterations are said to have been made, have been shown to us and we do not think that anything has been, done in an extraordinary or abnormal course or order of things. In our view the defendants have failed to prove that these things, namely, the words "explanation", "year", "witness" and "and wit ness" were not in the body of the document at the time when the signatures of these twelve vendors had been put upon the relevant sheets thereof for the purpose of execution. It is also curious to find that all these twelve persons signed at twelve places including the space below the Kaifiat. Unless there was something in the nature of a Kaifiat what was the need for putting additional signatures in the space below the column of Kaifiat. We do not feel convinced that although there was no occasion for putting any Kaifiat in the last sheet of the document as alleged by the defendants yet all these twelve persons who are educated intelligent men having business experience put their signatures merely for nothing. We accordingly hold, as already indicated, that so far the alterations in regard to the alleged interpolation of the term "year" in the 8th sheet and of the words "explanation", "witness" and "and witness" in the 11th sheet are concerned the defendants as already found, have failed to discharge their cause of proof and as such it must be held that they were in the body of the document at the time of the execution.
14. Mr. Bhattacharjee appearing on behalf of the contesting respondents has conceded, and in our opinion very rightly, that even if these alteratipns were actually made, as alleged that fact by itself would not be enough to justify the District Registrar to refuse registration unless it could be held that besides such altera tions the date of execution had also been altered. It is, therefore, necessary for us to examine the question as to whether in fact the date had actually been altered as alleged and whether the defence has succeeded in proving the same.
15. We have looked into the document itself which has been marked as Exh.1 in this case. We have failed for ourselves to find any discrepancy in connection with the insertion of the date outwardly. As it appears the expression "Ends 27th Chaitra, 1344 (B. S.) English 10‑4‑38" seems to have been put in the normal course of writing. We could not discover anything extraordinary or abnormal in the same. The learned Advocate has, however, contended that there are certain cir cumstances as may be evidenced by the documents relied upon which would clearly suggest that it was highly probable that the date had actually been altered in the sense that the spacement for insertion of the date was left open and blank on 5th 4grahayan 1344 B. S. but it was subsequently filled up without the concur rence of the defendants at the sweet will of the plaintiffs. No reason has, however, been assigned as to why if at all any wrong or false date was intended by the plaintiffs to use for the purpose of registration they should not have inserted a convenient date between 21st Falgoon 1344 B. S. and‑ 5th Chaitra 1344 B. S. the last date of the four months available under section 23 of the Act. It appears that 5th Agrahayan 1344 B. S. as also 27th Chaitra 1344 B. S. was a Sunday. If the plaintiffs were intelligent enough to take the advantage of a Sunday on the 27th of Chaitra 1344 B. S. and if they had meant any foul play they could surely utilize any Sunday between the aforesaid period just to meet the theory as alleged on behalf of the defence that Mahendra defendant No. 2 being attached to a school far away from Narayanganj could not be expected to come except on a holiday or on a Sunday. Be that as it may, the learned Advocate for the respondents has contended that Exh. B and Exh. E apart from Exh.C series and Exh. F series, would show that in fact this document was executed on 5th Agrahayan 1344 B. S. Exh. C (7) shows that Rs. 51 was credited as Amanat (deposit) in the name of Alam Chand Bepari on 10th Kartick 1343 B. S. (Mahajani year). Exh. C (1) similarly shows another sum of Rs. 600 being credited as Amanat on 11th Kartick 1343 B. S. (Mahajani year). Exh. C (3) also shows another amount of Rs. 3,350 as being credited as Amanat through Alam Chand Bepari on 5th Agrahayan 1344B.S. (Mahajani year) and Exh. C (10) shows a further amount of Rs. 50 being credited as deposit through Alam Chand Bepari on 18th Falgoon 1344 B. S. (Mahajani year). Exh. B, a Toka or a Chit given by Alam Chand Bepari to Guru Charan and others dated 21st Falgoon 1344 B. S. corresponding to 5th March, 1938, shows that a total sum of Rs. 4,051 had been received by the defendants from the plaintiffs out of the price of Rs. 7,000 on different dates. It is also stated therein that whatever balance money might be found due on accounting would be paid on the date of registration. Relying upon this document the learned Advocate for the respon dents has contended that at least a sum of Rs. 4,051 had been paid by that date and unless the document was already with the plain tiffs there was no reason for giving this Toka. He has also stressed upon the fact that all these amounts as entered in the Jama kharach account books Exh. C series would show that pay ments bad been made as against the consideration from time to time and that it was highly probable that on 5th Agrahayan 1344 B. S. when a substantial part of the consideration, namely, Rs. 3,350 had been paid the execution took place particularly in view of the fact that Exh. E would support a theory like that. He has also referred to Exh. D just to show that on receipt of Rs. 3,350 the dues in respect of Money Suit No. 21 of 1937 in the Court of the Second Subordinate Judge, Dacca, in which a claim of Rs. 5,000 had been made against the defendants, had been settled on payment of Rs. 2,500 on the following day, that is, 26th Agrahayan 1344 B. S. and an installment bond had been executed in favour of the creditors on 23rd November 1937 with respect to the settled balance of Rs. 1,000 left due.
16. The learned Advocate for the appellants, however, con tends that none of the entries as per Exh. C series indicates actual appropriation of the amount as consideration or part of con sideration received on account of the kabala in dispute. According to him all these entries would indicate that various amounts were paid from time to time just for the purpose of deposit (Amanat) with the defendants without any authority of appropriation of the same. He has also contended that Exh. B proves at the most that a sum of Rs. 4,051 had been paid by that date. It does not prove in the absence of any clear and express language that a sale deed or a kabala, rather a document, was already in existence with the signatures of the vendors‑defendants on the same. He has also contended that Exh. D the installment bond of Rs. 1,000 along with Exh. C (9) dated 22nd November 1937 would only show that a sum of Rs. 2,500 had been paid to the creditors of the defendants and further that an installment bond had been executed with respect to the balance sum of Rs. 1,000. This according to him was a private dealing between the defendants and their creditor, and the plaintiffs bad no knowledge as to the precise circumstance; under which the debt of the defendants had been settled.
17. It may be noticed in this connection that there is no evidence to support or connect the link as between Exh. D and Exh. C (3) in the sense that it was with the knowledge of the plaintiffs that out of the sum of Rs. 3,350 deposited with the defendants on 21‑11‑37 a sum of Rs. 2,500 was being appropriated by them and disbursed for the purpose of satisfying their debt to their creditors. Apart from that there is no evidence to explain that all these entries showing deposit or Amanat were actually made as evidence of payment of consideration or parts of con sideration of the kabala in dispute or that the defendants were given the authority to appropriate all these sums, so deposited, for their personal use. The account themselves as maintained, do nor throw any light in that behalf. There is no oral evidence giver by any competent officer of the defendants to explain deposit of deposit as recorded in Exh. C series. In our view, it is difficult without any evidence to lick these entries with the actual payment of consideration as contended on behalf of the respondents. Normally it is expected that there should be some reference to the nature of the transaction in connection with which an entry is said to have been made in the account books maintained in course of regular business so that the account books would speak for themselves without the necessity of any aid of oral evidence. It, however, appears in the present case that far from throwing any light the account papers, particularly the entries as per Exh. C series, failed to prove that these deposits were not to be treated as mere deposits pending final adjustment or appropriation on a future date. They indicate that they were left as deposits with the defendants. The learned Advocate for the respondents does not contend that there was a system in the office of the defendants to the effect that all entries concerning payments were to be made as deposits pure and simple. Even if such a contention were advanced there was no evidence on record to support the same. We are therefore of the opinion that these entries as per Exh. C series were there not as evidence of actual payment or parts of consideration from time to time but as evidence for the purpose of adjusting the accounts and dealings between the parties at a future date. In this view of the matter, it is difficult to agree with the learned Advocate that Exh. C series would in any way con vincingly prove that the transaction had been reduced into writing signed by the twelve vendors on 5th Agrahayan 1344 B. S. as alleged. It is very likely, on the other hand, as contended by the learned Advocate for the appellants, that in order to get an amic able settlement with their creditors who had filed Money Suit No. 21 of 1937 as noted in the installment bond Exh. D they were in need of a substantial amount and in pursuance of some possible request an amount of Rs. 3,350 was advanced to be treated as deposit pending future adjustment. It is difficult to appreciate that although according to the defence the document had been executed on 5th Agrahayan 1344 B. S. giving a right to the plain tiffs to have it registered in due course the defendants would be treating all these amounts as mere deposits and not without any authority of appropriating the same as parts of the consideration received on account of the kabala which had already been executed Even if it is assumed, as alleged by the defence, that after the breaking up of the Baithak on the 5th Agrahayan 1344 B. S. in view of the objection raised by Sudhir and of his failure to execute the document the parties mutually agreed that on failure of the plaintiffs to pay the entire consideration money within four months the whole amount paid so far was to be treated as for feited, we do not understand why even in that case these entries could be made as deposits and not as payments against the consideration of the kabala. There is no reference to the kabala or its consideration anywhere in the account papers. It is also difficult to hold in the absence of express words that Exh. B actually implies the existence of the kabala on 21st Falgoon 1344 B. S.
18. The learned Advocate for the respondents has next con tended that Exh. E, a special power of attorney executed on 24th November 1937 corresponding to 8th Agrahayan, 1344 B.S. wherein a recital has been made to the effect that the principal Sailendra Chandra along with others had absolutely sold on 5th Agrahayan 1344 B. S. for the price of Rs. 7,000 the properties in dispute would clearly show that this kabala Exh. 1 must have been executed on the date as stated in Exh. E. In regard to this document much controversy has been raised on behalf of both sides but it is not disputed that it is a unilateral document executed by Sailendra in favour of his elder brother Mohini defendant No. 8 in the present case. The author of the document Sailendra who has been responsible along with his other co‑sharers for the context ever since the stage of the enquiry before the District Registrar till the institution of the present suit has not come forward to give any oral testimony in support either of this document or of other documents for which he has been responsible. He seems to have been with the defendants while the contest was being carried on before the District Registrar. He seems to have been also with them while the written statement was filed in the present suit. He, however, appears to have filed a Solenamah on 6‑10‑39 i in which he has definitely stated that he had read the Solenamah himself and had understood the imports thereof and that he presented it before the Pleader for filing the same. P. W. 3 Durga; Kumar confirms this. It also appears that on the same date he executed another kabala with respect to the remaining lands apper taining to the same khatian No. 248 in favour of the plaintiffs. After doing all these on or about 23‑I1‑39 he has filed a petition asking for cancellation of the Solenamah and against this cancella tion petition the plaintiffs also filed an objection on 19‑12‑39. In view of this kind of conduct on the part of defendant No. 11 it is very difficult to make out what actually inspired this gentleman to execute a document like Exh. E. It is not disputed that this document was brought into existence without the knowledge of the plaintiffs. It is only D. W. 4 Mohini Mohan Dutta, who is other than the defendant No. 8, that has proved this document. This document purports to confer upon Mohini a limited right of presenting the kabala under reference before the Sub‑Registrar for registration and admit the execution of Sailendra before him also for the purpose of registration and that it confers no other right upon him. It is only for this limited purpose that Mohini could be regarded as a representative but as he has no capacity to represent Sailendra on the authority of this document in other affairs it is doubtful as to whether he can at all take advantage of the recitals made therein as an admission of Sailendra in the evidence of any oral evidence given by the latter. In our view, it was Sailendra who was competent to explain the circumstances under which this document was brought into existence. In the sense of his evidence this way or that way it is difficult to hold that any statement made therein would have a binding effect on the plaintiffs who had no knowledge of the preparation or of execution of this document or of the circumstances under which it was brought into existence. The evidentiary value of this document does not appear to us to be of a high order and in our view this document or any statement made therein cannot be taken or regarded as conclusive for the purpose of showing that the possible date of execution of the kabala in dispute was 5th Agrahayan 1344 B. S. as alleged. The learned Advocate has contended that no concrete suggestion in course of cross‑examina tion of D. W. 4 was made to the effect that Exh. E was not a genuine document or that the recital made therein to the effect that the properties had been sold on 5th Agrahayan 1344 B. S. was not genuine. To this the learned Advocate for the appellants replies by pointing out that the self‑same witness, namely, D.W 4 Mohini Mohan Dutta in his cross‑examination admitted that the power of attorney was not written in reference to any kabala, Reference leas also been made to Exh.2 a written objection of the respondents before the District Registration Appeal Case No. 161 of 1938. in paragraph 9 of the objection it was stated that it was also agreed between the parties that if the petitioners would fail to pay up the balance that would make up Rs. 7,000 in four months from the 5th Agrahayan, 1344 B.S. and gel the kabala executed by the opposite‑parties and Sudhir the petitioners would forgo the amount that might be paid by them and would have no right to get a kabala from the opposite‑parties and Sudhir and get the same registered Stress has been laid upon the expression "to get the kabala executed by the of opposite‑parties and Sudhir Chandra" suggesting that there was an implied admission at this stage on the part of the defendants that the consensus of agreement between the parties by 5th Agrahayan 1344 B.S. was that the kabala was to be executed by the opposite‑parties, namely, the defendants and Sudhir Chandra. It has been submitted on behalf of the appellants in that connection that such a statement could be possible only on the hypothesis that the document was yet to be executed by the opposite‑parties and that it had never been executed on the 5th Agrahayan 1344 B. S. The learned Subordinate Judge while dealing with this part of the case made an observation that upon a proper construction of paragraphs 8 and 9 of Exh. 2 it would appear that the substance of the contention on the part of the defen dants before the District Registrar was that the kabala was made to be executed only by Sudhir and not by other respondents. What ever might be tile construction of the language employed in both the paragraphs or whatever might be the contention in this behalf raised and pressed on the side of the defence it is difficult to hold by reference to Exh. E and upon the testimony of D. W. 4 alone that a recital to the effect that the properties had been sold on 511 Agrahayan 1344 B. S. could also mean that the kabala in dispute was before Sailendra at the time when he executed this special power of attorney in the condition as alleged by the defendants or at the time when this document Exh. E was presented before the registration office for the purpose of authentication. In our view, therefore, neither Exh. E nor Lxh. B nor Exh. C series clearly prove that the document Exh. 1 was brought into existence and signed by the 12 defendants at 12 different places on 5th Agrahayan 1344 B. S. or that reference was made to such a document in the special power of attorney Exh. E. It was the duty of the defendants to give clear and convincing evidence in this behalf. They have failed to do so.
19. The learned Advocate for the respondents has next contended that there were other circumstances which would also show that it was highly probable that the document had beer, executed and signed on 5th Agrarhayan 1344 B.S. as alleged. According to the defence the Baithak or the sitting for the purpose of execution was held on 5th Agrahayan 1344 B. S. in the gaddi of Guru Charan and others. According to the plaintiffs the Baithak was of course held in the gaddi but rot on 5th Agrahayan 1344 B. S. The defence case further was that Sudhir was present in that Baithak but the parties fell out and the transaction could not be completed in its entirety because Sudhir refused to sign for want of entire consideration money as alleged by the defence; whereas according to the plaintiffs the transaction could not be completed in its entirety because Sudhir was absent and could not be available for the purpose of execution although the entire consideration money had been paid. A point had been raised on this issue on the side of the plaintiffs that Sudhir was not present; whereas on the side of the defence that Sudhir was present. This Sudhir, proforma defendant No. 13, admittedly did not sign the document. He has, however, since the institution of the suit executed a kabala Exh. 1(B) in favour of one Sadek Ali on or about 30‑6‑39. Sudhir has not come forward to give his testimony on oath. So far D. W. 1 Behari Lal is concerned he does not know Sudhir but he means to say that one of the executafts said that as the whole money was not paid one of the vendors did not sign the deed. Who was this executant who had reported to him like this has not been disclosed; but the purport of his evidence on this point seems to be that one of the vendors did not sign the deed. Probably he meant by the vendors' as the proposed and the intending vendors. Whatever might be the nature of his evidence on this point D. W. 2 Adhar says that Sudhir was present but did not sign as the whole money was not paid. In this con nection it will be relevant to see the conduct of this Adhar Chandra Saba. In his deposition before the District Registrar which has been marked as Exh. 5(A) it appears that he stated that he did not know where the deed was drawn up, that is to say, he did not know where the draft was made. Then he said that it was written in the gaddi of Guru Charn Babu. By this he certainly meant that the document was written in the gaddi of Guru Charan because it is nobody's case that the draft was written in the gaddi of Guru Charan. The learned Subordinate Judge in his judgment at page 94 of the paper‑book (Part I) thinks that the record of the statement was somewhat mistaken and the word "not" was omitted from there. There is no evidence or suggestion to this witness anywhere from the side of the defence as to whether in fact he wanted to mean that he never said like this before the District Registrar. In the absence of any evidence in that way it seems too late in the day to think that the record of the statement of which certified copy Exh. 5(A) has been put in was in any way wrong. Apart from that the previous sentence as referred to above shows that Adhar was giving evidence before the District Registrar in regard to the draft and then he was given evidence in regard to the draft and then he was giving evidence in regard to the document being written in the gaddi of Guru Charan. He seems to contradict his own previous evidence by saying that he did not say in his previous deposition that the deed was written at the gaddi of Guru Charan. In our view, he has discredited himself in this respect and it is very difficult to accept the evidence of Adhar Chandra Saba for the purpose of holding that the deed was not written in the gaddi of Guru Charan or that Sudhir was not present as stated by him. The observation of the learned Subordinate Judge that the record of the statement before the District Registrar so far this witness is concerned was mistaken, seems to us to be without any basis. It appears from the foot note of Exh. 5(A) that the deposition as recorded before the District Registrar was explained to Adhar and he admitted it to be correct. Similarly he has also contradicted in regard to the signatures put at the bottom of the deed below the kaifiat. In his earlier deposition he said that the signature at the bottom of the deed after the kaifiat was made at the Baithak on that date whereas in his deposition before the learned Subordinate Judge he means to say that before kaifiat was written the defendants signed. In the absence of any explanation as to how the deposition before the District Registrar could be said to be wrong, it is difficult to accept this part of the evidence or D. W. 2 Adhar. We do not, therefore, find it possible to hold that on the question of Sudhir's presence in or absence from the Baithak the evidence or D. Ws. I and 2 can be accepted as correct of convincing in the face of the direct and straight evidence of P. W. 2 Dwijendra Chandra Danda according to whom Sudhir was not in the Baithak and the deed was written in the gaddi of Guru Charan. No explanation has been given nor any suggestion made as to why Dwijendra P. W. 2 should feel specially inclined to support the plaintiffs unless it was for upholding the cause of truth. P. W. 2 Dwijendra has denied the suggestion' that as full payment was not made Sudhir did not sign. This part of his evidence in examination‑in‑chief does not appear to have been seriously challenged in cross‑examination. Apart from that the evidence of P. W. 5 Jobed Ali who knew Sudhir for 6/7 years clearly supports the plaintiffs allegation that Sudhir did not sign due to his absence. In his cross‑examina tion also he confirms his evidence in examination‑in‑chief and says that he did not see Sudhir in the Bahhak of the deed. P. W. 6 Abdul Majid Munshi has also supported P. W. 2 and P. W. 5 and has said that Sudhir did not sign as he was absent. Whatever evidence has been given on this point either by P. W. 1 or D. W. 4 need not be considered with much importance as they are interested but in view of the contradictory nature of the evidence of D. W. I and D. W. 2 both of whom seem to be unreliable for reasons already indicated above and in view of the preponderance of the evidence on the side of the plaintiffs as given by P. W. 2, P. W. 5 and P. W. 6 it is difficult to hold that Sudhir was present and that he refused to sign for want of full consideration money being available as alleged.
20. The learned Advocate for the respondents has also drawn our attention to a possible circumstance by reference to Exh. G series. i.e., the attendance registers of the School where Mahendra, one of the defendants was serving as a teacher, and has submitted that 5th Agrahayan 1344 B. S. was a Sunday and it would not be possible for him to come there from the School and attend the Baithak on 27th Chaitra 1344 B. S. But apart from the fact that the Head Master of the School concerned has not been examined or that D. W. 5 Mohini Mohan Das is related to both Guru Charan and Mahendra or that Guru Charan being Secretary of the School had considerable influence over the affairs of the School, it appears on a reference to Exh. G series as also other documents that it was not impossible for Mahendra to attend the Baithak on a Sunday if he was so minded. It is quite likely that in order to settle the claim in Money Suit No. 21 of 1937 as indicated in Exh. D. he was interested to come to Narayanganj and possibly he came there on 5th Agrahayan 1344 B. S. It is equally possible that he also came on 27th Chaitra 1344 B. S. which again was a Sunday. So reference to Exh. G series does not preclude the possibility of Mahendra's coming over to Narayanganj and attending the Baithak for the purpose of execution of the kabala as alleged by the plaintiffs. We do not, therefore, think that these circumstances can in any way help in building a theory or probability of a high order just for the purpose of holding that the document could not be executed on any date other than 5th Agrahayan, 1344 B. S.
21. It is pertinent in this connection to consider another aspect which appears to us to be relevant. There is no clear evidence on the side of the defendants to prove that although Sudhir did not execute the document on 5th Agrahayan 1344 B. S. for want of full payment of the consideration and although according to D. W. 1 Behari Lal he raised objections on certain grounds and although according to D. W. 2 and D. W. 4. Sudhir refused to sign more or less by way of protest yet the document containing the signature of 12 persons at 12 places was made over to the plaintiffs on 5th Agrahayan 1344 B. S. It is difficult for us to conceive of a situation where payment of the entire consideration money has not been paid although the document has been executed the deed in question would be allowed to be taken by or left with the vendees giving them a chance to have it registered to the extent of the shares of the signing vendors without further reference. P. W. 1 in his evidence says: --‑
"After execution, Gurucharn gave this deed to me after execution."
In cross‑examination he says‑
"After completion of the execution and attestation, the deed was with Gurucharn who made it over to me in the presence of the witnesses and scribe."
P. W. 2 Dwijendra Chandra Danda says that after execution Gurucharn made over the deed to the plaintiffs. He does not appear to have been cross‑examined on this point. As against this nature of evidence on the side of the plaintiffs defendant No. 8 while giving evidence as D. W. 4 says: --‑
"We did not want the deed to be kept with us when full money was not paid and Sudhir did not sign."
In our opinion, this kind of conduct on the part of the defendants seems to somewhat irregular and unnatural. In normal course of affairs when the deed was being signed it would be in the posses sion of the vendors. This witness D. W. 4 simply says that they did not want the deed to be kept with them. Indirectly it gives rise to an impression that the plaintiffs' side, namely, the vendees, wanted the deed to be retained by them and there was no protest or objection from the side of the vendors. As already observed it passes our comprehension as to how the document could be parted with by the vendor and taken by the vendees although some part of the consideration, according to the defence, was still to be paid and there was some objection in regard to the completion of the document by way of execution or otherwise in view of the protesting attitude of Sudhir. It was for the defendants to explain the circumstances under which the docu ment, if executed on the 5th Agrahayan 1344 B. S. passed into the hands of the plaintiffs and in our view they have failed to discharge their onus of proof in this behalf as well.
22. The learned Advocate for the respondents has next co8tended that it was the duty of the plaintiffs to produce the original draft before the Court just for the sake of showing as to whether the alterations as alleged, apart from the date, could be checked up and verified by reference to the same. He has relied upon a decision in this connection in the case of Murugesam Pillai v. Manickapasaka Pandara and others (44 1 A 98). It may be mentioned in this connection that the plaintiffs' attitude in regard to this document is that it was not necessary for the purpose of proving their case. If, on the other hand, the defendants wanted to derive any advantage out of it, it was for them to ask the plaintiffs to produce it. There seems to be no evidence on record to show that the parties knew that the draft in question was actually with the plaintiffs. It is only in the course of cross‑examination of the plaintiff Alain Chand Bepari who examined himself as P. W. 1 that it was elicited that the draft might be at his house. There is no clear evidence that the draft actually was in his house. But it is quite likely that the draft might be with him and he was not sure about the same. If his attention was drawn by means of a notice or by taking steps in the form of discovery of documents or other wise as provided in the Civil Procedure Code certainly he would be in a position to check up and to categorically admit or deny the existence of this document. There is nothing on record to show that the defendants ever called for this draft from the custody of the plaintiffs or that the defendants wanted the plaintiffs to make a discovery of the document in their possession. In that situation if the plaintiffs did not require for the purpose of their own case production of this draft, we do not think that the plaintiffs were under an obligation to produce it uncalled for, particularly when there is no certainty as to whether P. W. I actually knew about the document being with him. Be that as it may, the decision relied upon by the learned Advocate seems to have been considered in a decision of this Court in the cases of Haji Yar Ali Khan Chowdhury v. Mubarak Ali Chowdhury and others and Mubarak Ali Chowdhury and another v. Haji Yar Ali Khan Chowdhury and others (P L R 4 Dac. 497) and after consideration of all the relevant case law on this point and some observations of the Privy Council as made in the case of Kanwar Mahabir Singh v. Kanwar Rohini Ramanandhwaj Prasad Singh (37 C W N 657 (P C)) it seems to have been laid down that the presumption or an adverse inference need not be drawn in a case where the document in question is not required by the plaintiff for the purpose of his case and there is no evidence that the procedure indicated in the Code of Civil Procedure for discovery of documents and for the other steps has not been followed. In our view, the learned Subordinate Judge was not quite right, in the absence of clear evidence as to the procedure being followed as laid down in the Code of Civil Procedure, in thinking that this document was withheld by the plaintiffs or that an adverse inference could be drawn against them in the sense that if this draft were produced it would speak against the plaintiffs case. Whatever might be the nature of this draft it is not suggested that the date of execution of the principal document or the kabala would appear from the same. It is likely that on other points of alteration as alleged some light might be thrown. It has already been observed that the learned Advocate has not disputed that apart from the date and other alterations, even if they appeared to be true as alleged, would not be enough to justify the Registrar to refuse registration. As such it is difficult to think that even if the draft were produced it would go against the plaintiff's case in so far the question of date of execution was in issue. It may be said without hesitation that the respondents upon whom the onus lay heavily did not attempt to prove that the draft could be produced. We are, therefore, of the opinion that the defendants cannot derive any advantage for non‑production of tie draft.
23. It has been contended on behalf of the respondents that the motive for inserting a wrong or false date of execution was to get rid of the contention or dispute around the question as to whether a sum of Rs. 500 realised from Bhupendra Saba as advance rent could be set off against the consideration payable on account of the transaction. It has also been suggested that in addition to this sum of Rs. 500 the plaintiffs wanted also to avoid payment of the balance sum of Rs. 1,799. This leads us to the consideration of the question as to whether the plaintiffs story that after full payment of the entire consideration Sudhir failed to execute the document due to his absence or for want of full payment the document, an incomplete one, was left in that condition after the signatures of the twelve vendors. Although the question as to whether consideration has been paid in full or not is not relevant in an enquiry under section 74 or 77 of the Act and the learned Subordinate Judge has not also thought it necessary to go into that question yet as this question has been indirectly raised we think it necessary to examine as to whether one of the circumstances as alleged by the plaintiffs was that full payment of the consideration was made in the manner as set up in the plaint. It is not disputed that by 21st Falgoon 1344 B. S. a sum of Rs. 4,051 had been paid. The toka Exh. B supports that view. The question, however, is as to whether the balance sum of Rs. 2,949 could be said to have been paid or adjusted as claimed by the plaintiffs. Out of this a sum of Rs. 500 is said to have been set off out of the advance rent realised from Bhupendra Nath Saba by the defendants.
24. D. W. 4 in his evidence practically denies any contract of set‑off so far the advance rent that might have been paid by Bhupendra is concerned. P. W. 1 Alam Chand directly says nothing in his examination‑in‑chief but in his cross‑examination it has been elicited that there was no other witness about the proposed setting off of Rs. 500 of Bhupendra from the considera tion money. D. W. 1 Behari Lal speaks only of payment of Rs. 3,30. According to him on his enquiry he was told by the executants that only that much money had been paid. He gives no evidence as to other amounts being paid. D. W. 2 Adhar Chandra, however, speaks of earlier payments of Rs. 51 and Rs. 600 which admittedly were paid before 5th Agrahayan 1344 B. S. It, however, appears on a reference to the evidence of D. W. 2 as given in cross‑examination that there was a discus sion about payments and balances and a Toka Hishab was written for that. In answer to certain questions put by the Court P. W. 2 Dwijendra also says that by accounting it was found that nearly Rs. 1,800 was not paid and that money was paid in the Majlfsh. The parties asked him not to alter the draft statements though some moneys were paid before. The accounting took place on reference to some Toka papers. It is nobody's case that excepting Exh. B there was any other Toka account. So reference to this Toka Hishab as made in the evidence of P. W. 2 and D. W. 2 cannot be explained except by reference to the Toka Exh. B which admittedly is dated 21st Falgoon 1344 B. S. This would also suggest that accounting by reference to Toka could not be possible at any time prior to 21st Falgoon 1344 B. S. This would also suggest that the ascertainment, demand and failure of payment of the balance consideration leading to a consequent difference of opinion between the parties on 5th Agrahayan 1344 B. S. could not be possible as the Toka paper was then not in existence. Be that as it may, the evidence of P. W. 2 Dwijendra is clear that nearly Rs. 1,000 was found to be the balance still unpaid. Coupled with this evidence if we consider the evidence of P. W. 6 Abdul Majid who as an officer serving under the plaintiffs in their mill for 4/5 years could be supposed to have some knowledge or information about these matters, says in his cross‑examination that it was said that Rs. 1,799 was due and that was demanded. Oral account was taken and the balance was demanded. His further evidence is that Rs. 5,200 had been paid and Rs. 1,799 was demanded. Nothing cogent has been pointed out as to why this part of the evidence of P. W. 2 and P. W. 6 should be discarded. Although there seems to be no clear and direct evidence as to whether there was any agreement specifically in regard to the question of set‑off of Rs. 500 realised from Bhupendra as advance rent yet the sum‑total of the evidence of these two persons indicates that after accounting the balance due was found to be an amount in the neighbour hood of Rs. 1,800 and that amount had been paid in cash in the Baithak. The probability, therefore, is that the entire consideration money, namely, Rs. 7,000 bad been taken as paid. It is, therefore, not necessary for us to go into the question as to whether in view of the fact that any advance rent or premium, if at all, had been realised at the time of the creation of the lease in 1930 it would be reasonable to suppose that an agreement for setting off of such an amount realised 7/8 years back could be within the terms of the contract. The fact, however, appears to be that, the parties accepted the position on the date of execution of the kabala that a total sum of Rs. 7,000 being the consideration of the kabala had been paid.
25. In view of the above findings it seems clear that the probability of the date of execution is more towards 27th Chaitra 1344 B. S. corresponding to 10th April 1938 than towards 5th Agrahayan 1344 B. S. corresponding to gist November 1937 and in our view the story of alterations either in regard to the date or otherwise cannot be said to have been proved by the defence according to law. We, therefore, hold that the document in question Exh. 1 was read over, understood and signed or executed by the defendants, namely, the vendors in the condition as it was presented before the registration office for the purpose of regis tration. We also find that this document was executed by these vendors on 27th Chaitra 1344 B. S. corresponding to 10th April 1938 and not on 5th Agrahayan 1344 B. S.
26. The learned Advocate for the appellants has raised an alternative contention in this connection. According to him, even assuming that the document had actually been executed on 5th Agrahayan 1344 B. S. yet the plaintiffs were entitled to get the benefit of the Bengal Tenancy Ordinance No. I of 1938 which remained in force during the period commencing from 31st of May 1938 till 8th of September 1938 both days inclusive. This would be about 101 days on calculation. According to him, as on payment of penalty required under section 25 of the Act he was entitled to condonation delay he would get in all a period of eight months as also a further period of 101 days by virtue of this Ordinance. The learned Advocate for the contesting respondents has, however, contended that section 25 of the Act speaks of condonation of delay in certain cases and that is not the prescribed period to which the period in force so far this Ordinance was concerned could be added. On a reference to section 23 of the Act, it, however, appears that subject to the provision contained in section 25 of the Act the time for presenting the documents for the purpose of registration before registration office has to be calculated. Section 23 of the Act clearly provides for four months. If there has been any delay which is condoned in terms of section 25 of the Act we do not see any reason as to why the period so condoned should not be added to the period of four months as provided in section 23 of the Act. The operation of section 23 of the Act is dependent upon section 25 and as soon as effect is given to the provision of section 25 it will control section 23. In our view on a fair construction of sections 23 and D 25 of the Act the period of four months as provided in section 23 of the Act is to be added to the period of delay condoned in terms of section 25 of the Act. As such both the periods should be calculated and added together and along with the period during which the said Ordinance was in force, namely, 101 days should also be available to the plaintiffs. All these three periods are to be added together and then it is to be seen whether the period commencing from the date of execution of the document in question up to the date of presentation before the registration office exceeds the total period indicated above. In the present case it is not disputed that if four months as provided in section 23 of the Act and a further period of four months as provided in section 25 of the Act as also the period in force in the relevant Ordinance, are taken together, the document would surely be within time as it was presented on 10‑11‑38. The method of calculation came up for consideration before the Full Bench of this Court in Reference No. 2 of 1960 in appeal from Appellate
Decree No. 1145 of 1958. The method as indicated in the case of Murlidhar Shrinivas v. Motilal Ramcoomar by Shri Beaumont C. J. was followed by this Court in that Full Bench case ((1961) 13 D L R 765). That was in connection with the interpretation of section 12 of the Limitation Act. It was observed in the said Full Bench case as follows: ----
We may point out that in computing the period of limitation one should take, as observed by Beaumont, C. J., in A. I. R 1937 Bom. 162, the date of the delivery of the judgment as the starting point and the date of the presentation of the appeal as the final point and then add to the period fixed by the relevant Article of the Limitation Act the allowances to which the appellant is entitled under the relevant section. This is how in actual practice the period of limitation may be computed."
Although there are certain special provisions in the Registration Act for which it may be regarded as a special Act yet there is no reason as to why the principle underlying the decision (Murlidhar Shrinivas v. Motilal Ramcoomar) as followed in the Full Bench case referred to above should not be kept in view while computing the period of limitation for the purpose of getting the advantage of section 23 read with section 25 of the Act as also of the provision of the Bengal Tenancy Ordinance No. I of 1938. We are, therefore, of the opinion that if the period of limitation is computed in that way the document can be said to have been presented for registration within time even if it 'is assumed that it was executed, as alleged by defendants, on 5th of Agrahayan 1344 B. S.
27. The learned Advocate for the respondents has in that connection also contended that the settlement record‑of‑rights which has been admitted into evidence and marked as Exh. 1(H C) in this Court requires some more explanations before it can be held that the suit lands or the kabala lands had the status of occupancy raiyati right. It is not disputed by either side that the relevant Bengal Tenancy Ordinance No. I of 1938 would apply only in case of instruments governed by section 26‑C of the Bengal E Tenancy Act which means that unless it is one of occupancy raiyati right the provisions of the Ordinance cannot be attracted. The learned Advocate for the respondents has also contended that it might be in view of the fact that the proposed transaction was in relation to some manufacturing purpose that the lands in question at the relevant time were governed by the provisions of Transfer of Property Act although it might be that Bengal Non Agricultural Tenancy Act' was nowhere in the field about that time. He, therefore, prayed for a remand of the case for further investigation as to what might be the status of the lands in question. This case has been protracting for a long time covering a period of more than twenty years and we do not think it proper or necessary to refer back to the trial Court for further investigation and for taking further evidence at this stage. The C. S. Record‑of‑Rights which has been marked as Exh. 1(H. C.) in this Court seems to have been prepared under the provisions of the Bengal Tenancy Act and the status has been recorded as one of "permanent occupants". Even if the purpose of tenancy was a relevant factor for determining the actual status yet in our view unless it could be shown that the lands have been held for a reasonable length of time according to law for the purposes of tenancy as alleged it cannot be said that the status as recorded in the relevant khatian has been lost or transferred into some other kind. It might be true that the parties intended to set up a rice mill or to carry on other manufacturing business but in the absence of the kabala itself it can hardly be suggested that the parties ever used this land for such manufacturing purpose on the strength of such transaction. We do not, therefore, think it possible to hold in view of the record‑of‑rights that the original status of permanent occupants or occupancy raiyati right has been lost by lapse of time in the present case. We are, therefore, of the opinion that the provisions of Bengal Tenancy Ordinance No. I of 1938 can be applied to this case. It has not been disputed that it is by reference to this kind of entries that the Schedule in the kabala or in the plaint was prepared. For all these reasons we are inclined to think that the period during which the said Ordinance No. I of 1938 was in force can be rightly added to the period available under section 23 read with section 25 of the Act.
28. It has been argued that it was within the competence of the District Registrar to examine as to whether there was execution of the document according to law apart from the question as to the date thereof. In this connection the learned Advocate has submitted that the principle as laid down in 55 C W N 166 referred to above, seems to be narrow whereas the principle as laid down in the case of Jogesh Prasad Singh and others v. Ramchandhar Prasad Singh and others and Rajendra Singh v. Ramganit Singh (A I R 1954 Pat. 556) appears to be more reasonable. We do not think it necessary to make a detailed examination of the principles laid down by the learned Judges in these cases but it is not unreasonable to think that the identity of the document in question if challenged becomes a pertinent matter for enquiry before the District Registrar. In the case of Bolla Guruvayya and others v. Cherukuri venkatarathnam (A I R 1924 Nag. 810=88 I C 483) virtually the identity of the document was changed by chemical processes and other methods as well. If the genuineness of the document is challenged and it is suggested that there was no execution in the sense that there was no writing in the manner as evidenced by the document presented for registration, certainly in our view it will be for the District Registrar to be satisfied as to whether there was at all a writing in existence before the execution and further as to whether such a writing was read and understood F before the signing of the document. But apart from that if any circumstances which might be more appropriately referred to as raising a question of the validity or the legal effect of the docu ment we should think that such a matter would not come within the province of enquiry of the District Registrar conducted under section 74 of the Act. The learned Advocate has relied upon decisions in the case of Hardwar Singh and another v. Hari Prashad Rai (A I R 1943 All, 24) and Gour Chandra Das v. Prosunna Kumar Chandra (10 C W N 768).
Both these cases, however, did not arise out of a proceeding either under section 74 or under section 77 of the Act. In those cases the plaintiffs wanted to saddle the defendants with a liability on the strength of certain documents and by reason of the fact of alteration of the date or addition of party it was held that the plaintiffs were not entitled to get a decree because the documents in question had substantially no legal effect. In our opinion these two cases cannot support tae view that the District Registrar was quite competent to make a roving enquiry as to the various allegations that might be raised in regard to the validity or other wise of the document either on the score of want of consideration or on other grounds. It is for the District. Registrar, however, to be satisfied as to the genuineness of the document in so far it might be suggested that there has been material or substantial change in the identity of the same.
29. In the present case we should think that the District Registrar ought to have accepted the document for registration as presented. The defence suggested that there were fraudulent alterations and the District Registrar as also the learned Subordi nate Judge seem to have thought in the same line; but apart from the alterations as referred to above there was no evidence of fraud, if any committed. In our view, as already indicated, the defence has failed to prove that there was any material alteration either in regard to the date or otherwise or that there was any fraud on the part of the plaintiffs. The learned Subordi nate Judge seems to have failed to consider the points at issue in all their bearings by reference to the evidence on the record. There is no material upon which it can be said that the plaintiffs were responsible for such a long delay or that they might be waiting for a possible legislation providing for exemption from payment of landlords fees.
30. In view of the above findings we are of the opinion that the plaintiffs were entitled to get a decree in terms of section 77 of the Act and that the District Registrar was not justified in refusing registration under section 76(1)(6) of the Act. There is no valid reason also as to why the two Solenamahs filed on 5‑9‑39 and 6‑10‑39 should not be treated as lawful agreements between the respective parties and as to why in the absence of any evidence to the contrary they should not be given effect to so far these defendants were concerned even if it were held that the document had been executed on 5th 4grahayan 1344 B. S.
31. The result, therefore, is that this appeal is allowed with costs; the judgment and decree as passed by the learned Subordi nate Judge are set aside. The suit is decreed with costs in terms of section 77 of the Act and it is directed that the document be registered in the appropriate registration office if duly presented for registration by the plaintiffs and or their representatives‑in -interest.
Let the document Exh.1 be returned to the learned Advocate for the appellants immediately.
K. B. A.
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