1. We are hearing this case in second appeal, and two points have been argued before us. The first is as to the effect of the conveyance by Krishnaji to the plaintiff of 23rd September 1915. (Exhibit 71). Counsel for the defendants Nos. 2 to 4, who are the appellants, contends that on the true construction of the document, merely one-third of Ramachandra's one-quarter share passed, and not the whole of that one-quarter share. We have carefully considered this document, and we are of opinion that the decision in the Court below as to the effect of this document is correct, namely, that the entirety of that one-quarter passed to the plaintiff.
2. Originally, undoubtedly, Ramachandra had conveyed this quarter to Kashinath in 1883 by Exhibit 66. Kashinath had conveyed it by Exhibit 83 to Krishnaji in 1896. But by a document of 1904 (Exhibit 72) one Govind as survivor of himself and Gopal had purported to convey a two-thirds share in this quarter to the plaintiff on the hypothesis that Krishnaji acquired this quarter share for the benefit of himself and his joint brothers, Govind and Gopal. Turning next to Exhibit 71 under which the plaintiff also claims, this document refers to the conveyance by Govind (Exhibit 72,) and in the view I take it really confirms it. The effect of Exhibit 71 is, in my opinion, that there is an absolute conveyance of one-third of one-fourth, and a confirmation and conveyance of the remaining two-thirds which had previously been conveyed by Exhibit 72 by Govind to the plaintiff. I am quite satisfied that the intention of the parties was that the entirety of the quarter should vest in the plaintiff. That, in my opinion, is the effect of this document, and accordingly this point will be decided in favour of the respondent.
3. Then, the next point is this that the defendants contend that the conveyance of 1896 by Kashinath to Krishanaji (Exhibit 83) was not duly registered in accordance with the requirements of the Registration Act., From the endorsement it appears that this document was presented at the office of the Sub-Registrar on the 3rd September 1896, and it is signed as 'Krishnaji Ramchandra on his behalf Ramchandra Vithal.' In other words, Ramchandra, the father of Krishnaji, presented the document for registration. Now, no doubt, the Indian Law is very strict, and rightly so, having regard to the danger of forgery, in seeing that the requirements of the Indian Registration Act are strictly complied with and nothing in what I am going to say is intended in any way to depart from the well-established authorities on these points. Counsel for the appellants, conceded, and I think rightly so, that if the document had been signed by Ramchandra as agent for his son Krishnaji, then the Act would prima facie have been complied with and it would then be for the defendants to establish if they could, that the requirements of the Act were not in fact complied with. But, in my opinion, there is no substance in that point. Whether a man signs expressly as agent or whether he is expressed to sign on some other person's behalf that, in my opinion, makes no substantial difference. In each case he signs prima facie as agent. Accordingly, in the view I take, prima facie the document complied with the requirements of the Indian Registration Act, and, therefore, it was rightly admitted in evidence. It appears that in fact no objection whatever was taken to this document until after the evidence was closed and indeed until after Counsel's arguments were finished. The result was that no evidence was led by the defendants to negative the prima facie conclusion as to the validity of registration. Under these circumstances, I agree with the learned Judges in the Courts below that this document was duly registered and that it was rightly relied on in the lower Courts. This disposes of the two points raised by the defendants in Second Appeal No. 704 of 1920.
4. Then there is a cross-appeal, Letters Patent Appeal No. 13 of 1921. This raised two small points. The one is for mesae profits for the plaintiff for three years before suit and for three years after suit. The other is tint the defendants were wrongly allowed to go into the matter of certain improvements which they effected during the suit and to have inquiries made for that purpose. Prima facie, it sounds plausible that if a person is kept out of possession he should be allowed mesne profits for some time before suit, or, at any rate, from the institution of the suit. But the facts here are peculiar. The defendants were admittedly rightfully in possession of three-fourths of the house in their own right. The house was also, on the evidence before us, in a very dilapidated condition. On the facts then of this case, it seems to me extremely difficult to establish, within the meaning of Order XX, Rule 12, and Section 2, Sub-section 12, of the Civil Procedure Code, that the defendants actually received any profits of the remaining one-quarter, or might, with ordinary diligence, have received such profits. There was no1 evidence that they actually received any, and of the facts stated I cannot disagree with the view taken in the Court below that there was no proof that they would, with ordinary 'diligence, have received such profits. Nor can I see that the position after suit was any different to what it was, before. We are not concerned with the' future because we are told by Counsel that the house was acquired by the Municipality last year for Rs. 8,000. Under these circumstances, I think that the appeal as to mesne profits fails.
5. Similarly, defendants have not, I think, been damnified as regards the repairs. That will be a matter to be gone into on the inquiry in the suit as directed by the Trial Judge. If the defendants can show by proper evidence that they ought fairly to be compensated for certain improvements which they can prove, they have effected to the property, then they can be allowed those expenses in working out the partition although they have not yet proved them in this case. If, on the other hand, the inquiry results in favour of the plaintiff, he will not have to contribute to these alleged improvements, and so will not be prejudiced.
6. In the result, therefore, I am of opinion that the lower Courts have arrived at the correct result and both the appeals will be dismissed with costs.
7. It is suggested that we ought to interfere with the order for costs in the Courts below, and in particular in the Court of first instance. It is a hardship, it is said, on the plaintiff that he should be ordered to bear his own costs. But I cannot see that the learned Judge proceeded on any wrong principle. He gave his reasons for ordering each side to bear its own costs. Whether I personally should have arrived at the same decision is really immaterial. The discretion was his. I see nothing unreasonable in his exercise of that discretion, and in my judgment we ought not to interfere with it. The result is that the orders as to costs in the (Courts below will stand.
8. I agree. I only desire to add one word on the point of registration. The deed of sale (Exhibit 83) was presented for registration by Ramchandra on behalf of Krishnaji and the endorsement of presentation was signed by Ramchandra under Section 52 of the Indian Registration Act. The objection raised by the defendants is that Ramchandra had no authority to present the deed on behalf of his son because he did not hold a power-of-attorney recognizable under Section 32 of the Act. But this want of authority does not appear on the Sub-Registrar's endorsements. So far as they go, the deed had been properly registered. If, as a matter of fact, Ramchandra had not authority to present the deed for registration, that was a fact which ought to have been established by evidence in the lower Court. The appellant cannot in second appeal take a point of law which involves the taking of additional evidence. See Gavdappa v. Girimallappa(I).