Amberson Marten, Kt., C.J.
1. We think there is power under Rule 64 or otherwise for the Chief Justice to direct that a point of law be dealt with by a Full Bench, although the suit has only come before a single Judge. We do not think it necessary that on the Original Side the parties should first have a decision of the Judge of first instance and then appeal, and that then the appellate Court (which after all is only the Original Side sitting in the exercise of its appellate jurisdiction) should send the case before a Full Bench.
2. When this case came on for argument, a question arose as to whether these proceedings, having regard to our rules, could properly be brought by Originating Summons. On close investigation of our Rules, it appears doubtful, to say the least of it whether that could be done. Accordingly, by consent of the parties, these proceedings have been converted with the necessary amendments into a suit begun by a plaint in the ordinary way, and the written statement, which was already filed, has been treated as a written statement in answer to that plaint.
3. So, too, at the request of Mr. Justice Blackwell, I as Chief Justice directed in that amended suit that the same point of law be laid before the present Full Bench.
4. Next, with regard to the practice whether it is permissible to have points of law decided by a Full Bench, when the suit up to this stage has only been heard before a single Judge, I need say nothing beyond what I have already indicated as being the opinion of this Court under Rule 64, or otherwise under the inherent jurisdiction of the Court.
5. Turning to the question then submitted to this Full Bench, in our judgment it depends on the true construction of the words 'the persons executing the document' in Sections 32, 34, 35 and elsewhere in the Indian Registration Act 1908. Does that expression mean merely the persons who have actually signed and delivered the deed, or does it mean persons who execute deeds by themselves, or by means of their attorneys ?
6. Now it will be observed that the expression used is 'the persons executing,' not 'the parties executing.' Further, if the provisions of the Act be looked at, it will be seen that they are quite compatible with the actual executant being the person who is to come before the Registrar. And, indeed, any other view would introduce difficulties, because though the executant himself can admit his own execution, it is difficult for a third party, who was not present at the execution of the deed and who conceivably may not know the signature of the actual executant, to come and tell the Registrar that that is the signature of the party, and that in fact it was affixed as it purports to b. For instance, supposing a power of attorney is given to some official of a Bank by a customer, it may well be that the custom r would be unable to identify the signature of the official of the Bank. Further, his knowledge as to the actual execution would not be personal. He could only give hearsay evidence.
7. But the matter does not rest on a mere competition between two different constructions. So long ago as 1877 in Mohammed Ewaz v. Birj Lall their Lordships of the Privy Council had occasion to construe similar sections in the then Registration Act. It is clear from what is stated at p. 171 and elsewhere that their Lordships considered that it was the persons who actually executed the deed who were the parties to appear before the Registrar For instancy with reference to Section 34, their Lordships say (p. 171):-
There the persons described are the persons executing the document-not those who on the face of the dead are parties to it, or by whom it purports to have been executed, but those who have actually executed it.
8. Then referring to Section 35, they say (p. 172) :-
The 35th section is : 'If all the persons executing the document'-again not 'purporting to execute it,'-but 'if all the persons executing the document appear personally before the registering officer'' &c.;
9. Then at the end of the judgment where their Lordships refer to an index to be kept of all persons executing deeds, they say (p. 177):-
So that any one consulting the register would find a copy of this deed, and that the two sons only had executed it, and that the mother had not.
10. In that case one of the sons purported to execute the deed on behalf of the mother. But it does not appear that in so doing he was acting under any formal power of attorney.
11. It is said on behalf of the defendant that that case was only a decision that you can have a partial registration of a document, namely that in that particular case the document could be validly registered with regard to the two sons, though not as regards the mother. It is further contended that the observations of their Lordships were obiter on the point we are now considering. But that argument does not seem to me to be well founded. Their Lordships had to construe both the particular sections, and even if it could be said that their construction of the section was obiter, it would be a dictum of such importance that speaking for myself I should have been prepared to follow it as a guide, unless some very good reasons were shown to me to the contrary.
12. On the other hand, so far from there being any reason shown why we should not follow that decision, very good reasons are shown to us why we should. It represents (so we are told at the bar) the practice in the Registrar's office for the last fifty years or so. We are told that many titles depend upon the view of the Act which their Lordships of the Privy Council thus adopted. And indeed in this present case there is a first mortgage granted in favour of Mr. Dinshaw, a solicitor of this Court, the validity of which as regards a moiety of the property depends on this same power of attorney. The mortgage is for a large sum, and to my mind it is inconceivable that a solicitor of the experience of Mr. Dinshaw would ever have accepted the mortgage unless the power of attorney on which it was based had complied in his opinion with the then well recognised practice prevailing in India.
13. But the matter does not rest there. We have been referred to a Full Bench decision in Allahabad, viz., Kesho Deo v. Hari Das I.L.R. (1899) 21 All. 281 F.B. and two other decisions in Calcutta, viz., Bissendoyal v. Schlaepfer (1874) 22 W.R. 68 and Gopeswar Pyne v. Hem Chandra Bose (1920) 31 C.L.J. 447. The learned Judges in both these Courts took the view that the expression 'the persons executing' means the persons actually executing, and does not include a principal who only executes by means of an agent. They base their view partly on this that the principle of the Act is, as I have already indicated, to get before the Registrar the person who has actually executed the document. The difficulty that has recently been created arises from the decision of Sir Norman Macleod and Mr. Justice Crump in Balkrishna Raoji v. Parashram Mahadeo I.L.R. (1926) 50 Bom. 628 28 Bom. L.R. 949. But with great deference to those learned Judges, it seems to me that the judgment of Sir Norman Macleod is based on the assumption that the expression 'the parties executing' means the principal, viz., the donor of a power of attorney and not the person who actually executes the document. That assumption really begs the whole question that has been argued before us to-day; and accordingly we are without the benefit of the Division Court's view on that particular question.
14. So, too, it would appear that the decisions to which I have referred, including in particular the decision of the Privy Council in Mohammed Ewaz v. Birj Lall, were never brought to the attention of the Bench. If that had been done, it is inconceivable that the Court would have dissented from the views expressed by the Board, without even referring to them, whether or no the decision in Mohammed Ewaz v. Birj Lall was obiter.
15. The only case there referred to was that of Jambu Parshad v. Muhammad Aftab Ali Khan 17 Bom. L.R. 413, another decision of the Privy Council. There, much turned on the fact that the document was never presented in the first instance by the proper person. The mortgagor had executed the document, but it had been presented by an agent who was not duly authorized within the meaning of Sections 32(c) and 33. Consequently, although the mortgagor afterwards appeared before the Registrar and admitted execution, their Lordships held that the whole process of registration was void db initio because the presentation had not been effected by the proper parties.
16. But that is not the case we have got here. If it be held here that 'the person executing' is the donee of the power of attorney, no difficulty arises. Similarly, as the person 'claiming under the document' may also present it, it follows that the mortgagee in the present case would be able to present the document under Section 32. Sir Thomas Strangman urged that difficulties might arise supposing the mortgagor does not execute the document and his agent does so but refuses to register. One answer is that in a normal case it would be the mortgagee who presents the document and he could do it under Section 32 as a person claiming under it. Another practical answer is that supposing the mortgagor wanted the transaction to be finally completed by registration and any difficulty was caused by his agent it would be quite easy for him to execute a further document by way of further assurance supposing the various other remedies failed.
17. It must be borne in mind that there are other provisions in the Act by which a person refusing to admit execution can be brought before the Registrar. The latter can then under Sections 73 and 74 proceed to determine whether the document has been executed (see Atmaram v. Vaman (1924) 27 Bom. L.R. 290 So in practice it would be comparatively simple to get round any difficulty caused by an agent who refused to carry out his duty or on the other hand who had died. Difficulties of course may be put whichever construction you adopt. One put to us by Mr. Maneksha for the mortgagor, who argued this case with much ability, was this. He said, supposing you get a case where the Commissioner or the Prothonotary had executed a document in a specific performance action on behalf of a defaulting vendor, are you then to say that the defaulting vendor must be the person to come and admit execution, or is it to be the person who actually executes, viz., the Prothonotary or the Commissioner as the case may be Obviously, if you take the other view, and the person claiming does not actually present the document, there might be a great difficulty in getting an absconding defendant to make any presentation of the document in question.
18. Then by the industry of Sir Thomas' learned junior we were referred to the Powers-of-Attorney Act, 1882, an Act which, I think we all agree, is seldom referred to in this Court. It may between execution and the legal effect of such execution, because the Act says (Section 2): 'every assurance, instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.' Consequently, the section contemplates that the actual execution is by the donee of the power and not by the donor, although the consequences are to bind the donor. It does not appear in the present case that the power-of-attorney has been deposited in the High Court under Section 4, but that is a matter of no consequence in the present case. The power-of-attorney purports to have been executed before a notary public, and consequently under Section 85 of the Indian Evidence Act, a presumption arises that it was so executed and authenticated.
19. After carefully considering then all the arguments that have been presented to us, we are of opinion that the question submitted to us ought to be answered in the affirmative and that consequently the decision in Balkrishna Raoji v. Parashram Mahadeo I.L.R. (1926) 50 Bom. 628 28 Bom. L.R. 949 should be treated as overruled.
20. I entertain some doubt as to whether this point can really be referred to a Full Bench under High Court Rule 64, but I am not prepared to disagree with the Chief Justice and my brother Blackwell on that point. It is more convenient that the point should come up before this Bench than that it should be disposed of by my brother Blackwell with an appeal to two Judges which might necessitate a further reference to the Full Bench.
21. With reference to the question for our decision, it seems to me that Section 32 of the Indian Registration Act provides that any person executing a document can present it for registration. Section 34 of the Act provides that all the executants must be present and admit execution unless a power-of-attorney as provided for by Section 33 is produced. The purport of these sections seems to me to be that the signature of the person who signed the document can be identified by that person when he comes to admit execution. Obviously, if the document were signed by the donee of a power, then it would be very difficult for the donor to admit the signature of the donee before the Registrar under Section 34, and vice versa.
22. Under these circumstances I am of opinion that the person who is intended by the words 'executing the document' is the person who actually executes it.
23. Such also was the statement in the Privy Council ruling to which we have been referred. I do not propose to go into all the cases which have been cited before us. They have already been discussed by my Lord the Chief Justice. I am, however, somewhat impressed by the argument that was addressed to us on the principle of stare decisis. It is true that perhaps there is no sufficient evidence before us as to the rule that has hitherto been adopted in construing Sections 32 and 34. But we have at any rate this fact that there are no decisions which go the other way until we come to the decision in Balkrishna v. Parashram : (1926)28BOMLR949 . We are informed by learned counsel that the practice that has been adopted has been to construe 'the person executing the document' under this section as the person who actually affixes his signature to the document. I agree that it would be disastrous, unless it were absolutely necessary, to upset titles which have been passed on this view of the section. That is another reason why I am reluctant to interfere with the view hitherto adopted and to support the view taken in Balkrishna v. Parashram.
24. I would, therefore, answer the question for our opinion in the affirmative, provided the power-of-attorney is a good power-of-attorney to execute the document, which in this case I understand it is admitted it is.
25. The question before us depends upon the proper construction to be placed upon the words 'the persons executing the document' in Sections 34 and 35 of the Indian Registration Act, 1908. Primes facie those words are capable of two constructions. They may mean persons actually executing the document by their own hands, or they may mean persons executing the document by the hand of another person duly authorized to execute the document on their behalf.
26. I feel myself in construing those words bound by a decision of the Privy Council to hold that they mean persons who actually executed the document by their own hands I refer to the case which has been already cited by the learned Chief Justice, viz. Mohammed Ewaz v. Birj Lall their Lordships of the Privy Council said in reference to the 34th section of the Registration Act of 1871, which was the corresponding section then in force, 'There the persons described are the persons executing the document-not those who on the face of the deed are parties to it, or by whom it purports to have been executed, but those who have actually executed it.' By the latter words 'those who have actually executed it' I understand their Lordships to mean 'those who have physically executed the document by their own hands.' It was submitted by Sir Thomas Strangman that those words were merely obiter, and that the decision which the Privy Council gave in that case was a decision to the effect that partial registration of a document was possible. Even assuming that the words in question were not essential to the decision actually arrived at, they are in fact an expression of opinion by their Lordships after a very careful consideration of Section 34, and the other relevant sections Speaking for myself, I consider that the words were used in circumstances which make it incumbent upon me to follow that interpretation when construing the corresponding section of the present Act.
27. With great respect to the learned Judges who delivered the judgment in Balkrishna v. Parashram : (1926)28BOMLR949 , I think that having regard to the interpretation placed upon the words 'persons executing the document' in the Privy Council judgment to which I have referred, the judgment in Balkrishna v. Parashram has proceeded upon a misapprehension as to the meaning to be attributed to those words. Sir Norman Macleod, who delivered the judgment, at p. 952, after setting out in full Section 34 which contains the words 'the persons executing such document' continued : 'Therefore defendant No. 2 was bound to appear before the Registrar.' Defendant No. 2 had not himself executed the document by his own hand. The only person who had executed it by his own hand was defendant No. 1, who executed it on his own behalf and on behalf of defendant No. 2 by virtue of a power-of-attorney. With respect, therefore, to the learned Judges who decided that case, I am of opinion that defendant No. 2 was not only not bound to appear, but not even entitled to appear, inasmuch as he had not by his hand physically executed the document.
28. The decision to which I have just referred was given apparently without the assistance of the Privy Council decision to which I have referred, or of any of the other authorities of other High Courts in India to which the learned Chief Justice has referred. I do not propose further to refer to the latter decisions except to say that in my opinion they were rightly decided.
29. I, therefore, agree that the question submitted to us should be answered as proposed by the learned Chief Justice.
30. The Full Bench answers the question in the affirmative and consequently the decision in Balkrishna v. Parashram should be treated as overruled.