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Jambu Parshad Vs. Muhammad Nawab Aftab Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1915)17BOMLR413
AppellantJambu Parshad
RespondentMuhammad Nawab Aftab Ali Khan
DispositionAppeal dismissed
Excerpt:
.....sections 32, 33, 34, 85, 87-registration-validity-jurisdiction of registering officer-presentation-power of attorney-mortgage deed presented by general attorney of the mortgagee-attendance of executants at registration-defect in procedure.;a registrar or sub-registrar under the indian registration act (iii of 1877) has no jurisdiction to register a document unless he is moved to do so by a person who has executed or claims under it, or by the representative or assign of such person, or by an agent of such person, representative or assign, duly authorised by a power-of-attorney executed and authenticated in manner prescribed in section 33 of that act. executants of a deed who attend a registrar or a sub-registrar merely to admit that they have executed it cannot be treated, for the..........jurisdiction to register it, and that the omission of the registering officer to notice that the power-ofattorney under which the agent had presented the sale deed for registration had not been executed or authenticated in accordance with section 33 of act iii of 1877 could not be regarded as a defect in procedure within the meaning of section 87 of that act.10. although the facts in these consolidated appeals are not the same as were the facts in mujibunnissa v. abdul rahim their lordships consider that the principle which this board applied in that case is applicable here. that principle, in their lordships' opinion, is that a registrar or sub-registrar under act iii of 1877 has no jurisdiction to register a document unless he is moved to do so by a person who has executed or claims.....
Judgment:

John Edge, J.

1. These are consolidated appeals from two decrees, dated the 13th February 1912, of the High Court of Judicature at Allahabad, one of which affirmed a decree of the Subordinate Judge of Saharanpur of the 26th September 1910, and the other of which partly affirmed and partly reversed a decree of the same Subordinate Judge of the 26th September 1910. The suits in which the decrees were made were brought in the Court of the Subordinate Judge of Saharanpur, one on the 20th May 1909 and the other on the 16th March 1910. They were suits for sale of immovable property. The suit of 1909 was based on a mortgage-deed of the 10th August 1886 the consideration for the mortgage having been Rs. 7,000. The suit of 1910 was based on a mortgage-deed of the 2nd July 1882, the consideration for that mortgage-deed having been Rs. 59,000, and upon a mortgage-deed of the 25th October 1892. There was in each suit a claim for a money decree. The Subordinate Judge dismissed the suits on the grounds that the mortgage-deeds had not been validly registered, and consequently could not affect the immovable property which was comprised in the mortgages, and that claims for money decrees were time barred. On appeal to the High Court at Allahabad, the High Court dismissed the appeal in the suit of 1909, which was based on the mortgage of 1886, dismissed the appeal in the suit of 1910 so far as it related to the mortgage of 1882, and allowed the appeal in that suit so far as it related to the mortgage of 1892. These consolidated appeals are from the decrees of dismissal. The plaintiff in the suits is the appellant here. The respondents have been defendants in these suits, and one of them is the representative of a deceased defendant.

2. The only questions which have to be considered in these consolidated appeals are, whether the mortgage-deed dated the 2nd July 1882 and the mortgage deed dated the 10th August 1886 were validly registered under Act III of 1877. They were documents which were required by Section 17 of Act III of 1877 to be registered. If they were not validly registered they could not, by reason of Section 49 of that Act, affect any immovable property comprised in them, or be received as evidence of any transaction affecting such property. Further, if the documents of 1882 and 1886 were not validly registered instruments, no mortgage could by reason of the first paragraph of Section 59 of Act IV of 1882, be effected by them. They were in fact registered but the question is was the registration a valid registration The Subordinate Judge and the High Court found that there was no valid registration in either case.

3. In Section 32 of Act III of 1877 it is enacted that :-

Except in the cases mentioned in Section 3, 31 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,

by some person executing or chiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order,

or by the representative or assign of such person,

or by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

4. So far as is material to the decision of these appeals, it is in Section 33 of Act III of 1877 enacted :-

For the purpose of Section 32 the powers-of-attorney next hereinafter mentioned shall alone be recognised (that is to say):-

(a) If the principal at the time of executing the power-of-attorney resides in any part of British India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the registrar or sub-registrar within whose district or sub-district the principal resides.

5. The mortgage-deed of the and July 1882 was presented for registration on the nth July 1882 at Saharanpur at the proper registration office on behalf of Lala Mitter Sen, the mortgagee, by one Natthu Mall, who held a power-of-attorney, of the 19th June 1882, from Lala Mitter Sen, which, however, did not empower Natthu Mall to present documents for registration. Lala Mitter Sen lived at Saharanpur, and the power-of-attorney had been duly authenticated by the then Sub-Registrar of Saharanpur on the 19th June 1882, but apparently it had not been executed before the Registrar or the Sub-Registrar. The Sub-Registrar's note to the copy of the power-of attorney in the Register merely states that Lala Mitter Sen was known to him, and admitted the execution and completion of the document. It has not been proved that Natthu Mall held any other power-of-attorney from Lala Mitter Sen. The mortgagors admitted before the Sub-Registrar of Saharanpur, on the nth July 1882, the execution and completion of the mortgage deed, and received in his presence the mortgage money, Rs. 59,000, and thereupon the Sub-Registrar registered the mortgage-deed.

6. The mortgage-deed of the 10th August 1886 was presented for registration on the 9th September 1886 at Saharanpur, at the proper registration office, on behalf of Lala Mitter Sen, the mortgagee, by one Ilahi Bakhsh, who held a power-of-attorney of the 17th February 1885 from Lala Mitter Sen, which however, did not empower Ilahi Bakhsh to present documents for registration. This power-of-attorney had not been authenticated by the Registrar or the Sub-Registrar of Saharanpur, and it does not appear that it had been executed by Lala Mitter Sen before either of those officials. It has not been proved that Ilahi Bakhsh held any other power-of-attorney from Lala Mitter Sen. The mortgagors admitted before the Sub-Registrar of Saharanpur, on the 9th September 1886, the execution and completion of the mortgage-deed of the 10th August 1886, and acknowledged the receipt by them of the mortgage money, Rs. 7,000, and thereupon the Sub-Registrar registered the mortgage-deed.

7. It was contended on behalf of the appellant here that it might be presumed the mortgage-deeds had been presented for registration by the mortgagors who had executed the deeds, and who attended before the Sub-Registrar. It is, however, obvious that the mortgagors had attended at the office of the Sub-Registrar to admit that they had executed the deeds and not to present them for registration, and that they did not present them for registration. The mortgagors attended to enable the Sub-Registrar to comply with Sections 34 and 35 of Act III of 1877 by satisfying himself that they had executed the deeds. In the one case the deed was presented for registration by Natthu Mall, an agent of the mortgagee, and in the other case the deed was presented for registration by Ilahi Bakhsh, another agent of the mortgagee, and in neither case did the agent hold such a power-of-attorney as was necessary to enable a valid registration to be made.

8. It was decided, and as their Lordships considered correctly, by Sir John Stanley C.J. and Sir George Knox J. in 1906 in Ishri Prasad v. Baijnath I.L.R. (1906) 28 All. 707 that the terms of Sections 32 and 33 of Act III of 1877 are imperative, and that a presentation of a document for registration by an agent, in that case the agent of a vendee of immovable property who has not been duly authorised in accordance with those sections, does not give to the registering officer the indispensable foundation of his authority to register the document. As those learned Judges said:-

His (the Sub-Registrar's) jurisdiction only comes into force if and when a document is presented to him in accordance with law.

9. These learned Judges also rightly decided in the same case that the fact that the Sub-Registrar had summoned before him the executant of the deed, who was the vendor, and had obtained his consent to the registration of the deed, did not give the Sub-Registrar jurisdiction to register it, and that the omission of the Registering Officer to notice that the power-ofattorney under which the agent had presented the sale deed for registration had not been executed or authenticated in accordance with Section 33 of Act III of 1877 could not be regarded as a defect in procedure within the meaning of Section 87 of that Act.

10. Although the facts in these consolidated appeals are not the same as were the facts in Mujibunnissa v. Abdul Rahim their Lordships consider that the principle which this Board applied in that case is applicable here. That principle, in their Lordships' opinion, is that a Registrar or Sub-Registrar under Act III of 1877 has no jurisdiction to register a document unless he is moved to do so by a person who has executed or claims under it, or by the representative or assign of such person, or by an agent of such person, representative or assign, duly authorised by a power-of-attorney executed and authenticated in manner prescribed in Section 33 of that Act. It is obvious that executants of a deed who attend a Registrar or Sub-Registrar merely to admit that they have executed it cannot be treated, for the purposes of Section 32 of Act III of 1877, as presenting the deed for registration. They no doubt would be assenting to the registration, but that would not be sufficient to give the Registrar jurisdiction.

11. One object of Sections 32, 33, 34 and 35 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under the Act.

12. It is the duty of Courts in India not to allow the imperative provisions of the Act to be defeated when, as in this case, it is proved that an agent who presented a document for registration had not been duly authorised in the manner prescribed by the Act to present it.

13. These appeals fail, and their Lordships will humbly advise His Majesty that the appeals should be dismissed. The appellant must pay the costs of these appeals.


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