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Ratilal Nathubhai and anr. Vs. Rasiklal Maganlal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 318 of 1948
Judge
Reported inAIR1950Bom326; (1950)52BOMLR338
ActsRegistration Act, 1908 - Sections 32, 33(1), 34 and 34(1)
AppellantRatilal Nathubhai and anr.
RespondentRasiklal Maganlal and ors.
Appellant AdvocateC.K. Shah, Adv.
Respondent AdvocateR.J. Thakor and ;B.G. Rao, Advs.
DispositionAppeal dismissed
Excerpt:
.....decision in sitaram laxmanrao v. dharmasukhram tansukhram is not overruled by the decision of the privy council in puran chand nahatta v. monmotho nath mukherjee (1927) l.r. 55 i.a. 81, s.c. 30 bom. l.r. 783 - - 487 ,is no longer good law in view of the decision of the privy council in puran chand v. it is true, as observed by sir amberson marten himself, that that particular observation of the privy council was obiter, but sir amberson marten adds that it is a dictum of such importance that speaking for himself he should have been prepared to follow it as a guide, unless some very good reasons were shown to him to the contrary. the contention put forward was that although the power of attorney given to the second agent was a perfectly valid power, he could not be considered an agent..........tansukhram 51 bom. 971: a.i.r 1927 bom. 487 , is no longer good law in view of the decision of the privy council in puran chand v. monmotho nath 55 i. a. 81: a. i. r 1928 p. c. 38.2. a few facts may be stated in order to understand the point of law that has been debated at the bar. the plaintiffs are vendees of a certain property and the property was sold to them by one vinodrai and sumantrai who executed a power of attorney on 20th march 1946, in favour of one indulal, and it was in pursuance of this power of attorney that indulal executed the sale in favour of the plaintiffs. the defendants, who were the tenants of the vendors, challenged the plaintiffs' title to the property in the suit which the plaintiffs filed for ejectment of the defendants and for possession of the property.3......
Judgment:

Chagla, C.J.

1. The question of law that arises in this second appeal is whether a Full Bench decision of this Court in Sitaram Laxmanrao v. Dharmasukhram Tansukhram 51 Bom. 971: A.I.R 1927 Bom. 487 , is no longer good law in view of the decision of the Privy Council in Puran Chand v. Monmotho Nath 55 I. A. 81: A. I. R 1928 P. C. 38.

2. A few facts may be stated in order to understand the point of law that has been debated at the bar. The plaintiffs are vendees of a certain property and the property was sold to them by one Vinodrai and Sumantrai who executed a power of attorney on 20th March 1946, in favour of one Indulal, and it was in pursuance of this power of attorney that Indulal executed the sale in favour of the plaintiffs. The defendants, who were the tenants of the vendors, challenged the plaintiffs' title to the property in the suit which the plaintiffs filed for ejectment of the defendants and for possession of the property.

3. The contention of Mr. Shah on behalf of the appellants is that the conveyance has not been properly registered and there is no title in the plaintiffs because there is no proper admission of execution under Section 34, Registration Act. Section 34 contemplates admission of execution either by persons executing a document or their representatives, assigns or agents authorised as aforesaid. In this case Indulal cannot fall in the category of authorised agents because it has been found as a fact by both the lower Courts that the power of attorney executed in his favour by the vendors was not authenticated by the Registrar or the Sub-Registrar as required by Section 33(1)(a), Registration Act. Therefore, the registration would only be proper provided Indulal can be considered to be a person executing the document within the meaning of Section 34(1). Now, the two rival contentions are that the person executing a document as required by Section 84(1) is a person who incurs obligations by executing the document. It is not the person who merely puts his signature to the document and acts as the attorney of the party who incurs obligations under the document. The other contention is that the person executing the document is the person who puts his signature to the document, whether he is the person who incurs obligations or not. The mere signature to the document is Sufficient to make the person putting that signature the executant of the document If the matter was res integra we would certainly have attached considerable importance to the argument advanced by Mr. Shah that taking a logical view of the section a distinction is made between the person executing the document and his agent, and therefore in the first category we could only have persons who are the real parties to the document and who incur obligations under the document, and in the latter category would fall persons who without incurring any obligations merely execute the document as the constituted attorneys of the party to the document. But the matter is not res integra and is decided by a Full Bench of this Court.

4. The question first came to be considered by a Division Bench in Balkrishna Raoji v. Parasharam Mahadeo : AIR1926Bom479 . The Division Bench consisting of Sir Norman Macleod C. J. and Crump J., took the view that the expression 'person executing the document' used in Section 33, Registration Act is the principal who is a party to the document and that expression cannot apply to an agent who merely puts his signature to the document. This decision came to be considered subsequently by a Full Bench in the case to which I have already referred, viz., Sitaram v. Dharmasukhram 51 Bom. 971: A.I.R 1927 Bom. 487 , and in that case Sir Amber-son Marten C. J, Kemp and Blackwell JJ., took the view that the decision of the Division Bench was erroneous and that the expression 'person executing the document' used in Section 83 meant the person who actually signed the document. Two reasons influenced Sir Amberson Marten and his two learned colleagues to take that view. The first was the observations of the Privy Conncil in Mohammed Ewaz v. Brij Lall 4 I. A. 166: 1 ALL. 465 . their Lordships dealing with Section 34 observed :

'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.'

Nothing could be clearer or more categoric than this opinion. It is true, as observed by Sir Amberson Marten himself, that that particular observation of the Privy Council was obiter, but Sir Amberson Marten adds that it is a dictum of such importance that speaking for himself he should have been prepared to follow it as a guide, unless some very good reasons were shown to him to the contrary. The second reason which influenced the bench to come to that conclusion was the fact that the view of the Privy Council had been followed at the Registrar's office for the last 50 years or so and that if a different view was taken many titles would be unsettled. If that consideration weighed with Sir Amberson Marten and his colleagues, it should weigh with greater force with us, because the Full Bench decision was given in 1927 and we are now in 1949 and the view of the law as enunciated in Sitaram v. Dharmasukhram 51 I. A. 971: A.I.R 1927 Bom. 487 , has always been accepted all over the Province as the correct view. If a contrary view wag taken, the danger of disturbing and unsettling titles would be much greater than was at the time when the Full Bench considered this matter.

5. Now let use see whether the decision of the Privy Council in Puran Chand v. Monmotho Nath 55 I. A. 81: A. I. R 1928 P.C. 38, compels us to take the view that notwithstanding serious practical difficulties we must hold that the view taken by the Full Bench is no longer the correct view. It is important to note what the facts were which led the Privy Council to make certain observations as to the correct interpretation of Section 33, Registration Act. The conveyance was signed not by the principal but by his agent and the acknowledgment under Section 34 was made neither by the principal nor by his agent who had executed the conveyance, but by another agent who was appointed by the principal for the purpose of admitting execution. The contention put forward was that although the power of attorney given to the second agent was a perfectly valid power, he could not be considered an agent within the second part of Section 34 because he was not appointed by the person executing the conveyance but was appointed by the principal himself. Therefore, the contention went to this length that the actual party to the document who incurred obligations could not either himself admit execution if he had not signed the conveyance, nor could he appoint an agent for the purpose of admitting execution. Only the person who actually signed the document could admit execution, and if he was not in a position to do so, he alone could appoint an agent for the purpose of admitting execution. The Privy Council rejected this contention, observing that it was important to emphasise what the actual position was. They held that the second agent was perfectly competent to admit execution under Section 34 as he had a proper power-of-attorney from the first agent who had executed the conveyance. The observations on which reliance is placed appear at p. 84 of the judgment. Their Lordships say : 'Hence the words 'person executing' in the Act cannot be read merely as 'person signing'.' If the matter had stood thus, there would be no difficulty in reconciling this judgment with that of the earlier Privy Council judgment in Mohammad Ewaz v. Birj Lall 4 I. A. 166 : 1 ALL. 465 . But their Lordships go on to say: 'They mean something more, namely the person who by a valid execution enters into obligation under the instrument.' Therefore, their Lordships do suggest that the words 'person executing' used in the Act must refer only to a person who enters into obligations under the instrument and not a person who merely signs the document. Then their Lordships go on to say (p. 84):

'When the appearance referred to it is for the purpose of admitting the execution already accomplished, there is nothing to prevent the executing person appearing either in person or by any authorised and competent attorney in order to make a valid admission.'

This is really the decision of their Lordships on the contention put forward before them. We do not ignore the fact that the passage we have referred to does lend considerable support to Mr. Shah's contention that the view taken by their Lordships as to the correct meaning of the expression 'person executing the document' is different from the view taken by the Full Bench. But the difficulty in Mr. Shah's way is that there is an equally emphatic interpretation of Section 34 to the contrary by the Privy Council itself in Mohammad Ewaz v. Birj Lall 4 I. A. 166 : 1 ALL. 465 . Therefore, the utmost that could be said in favour of Mr. Shah is that we have two conflicting views as to the interpretation of Section 34 arrived at by the same August Tribunal, and unfortunately in Puran Chand v. Monmotho Nath 55 I. A. 81 : A. I. R. (15) 1928 the Privy Council has not considered their own earlier decision in Mohammad Ewaz v. Birj Lall, 4 I. A. 166 : 1 ALL. 465 .

6. In view of this state of the law, we see no reason why we should take the view that the Full Beach decision of this Court is overruled, especially as it could only be suggested that it was overruled by implication by the Privy Council in Puran Chand v. Monmotho Nath 55 I. A. 81: A.I.R 1928 P. C. 38. If Mohammad Ewaz v. Birj Lall 4 I. A. 166 : 1 ALL. 465 was not there which has taken a different view, we might have had seriously to consider whether we should not accept Mr. Shah's view as given expression to in Puran Chand v. Monmotho Nath 55 I. A. 81 : A.I.R 1928 P. C. 38. As I said earlier, in view of the different observations of the Privy Council in Mohammad Ewaz v. Birj Lall 4 I. A. 166 : 1 ALL. 465 fortunately, we are not driven to that conclusion.

7. The result is that we must hold that the law laid down in Sitaram v. Dharmasukhram 51 Bom. 971 : A. I. R 1927 Bom. 487 is still good law. We therefore confirm the decree of the lower appellate Court and dismiss the appeal. No order as to costs of the appeal.


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