Henry Griffin and Chamier, JJ.
1. This appeal arises out of a suit for sale on two mortgages; the first executed on the 2nd July, 1882, by Muhammad Ilias Khan, now deceased, the father of defendant 1 and the husband of defendant 2, and by one Syed Muhammad Khan, now deceased, who is represented by defendant 1 and the second executed on the 25th October, 1892, by defendant 1 and Syed Muhammad Khan, now represented by defendant 1. Defendant 3 has been joined as a puisne mortgagee. The suit was defended on various grounds, among others on the ground that the documents on which the suit was based had not been validly registered according to law. The learned Subordinate Judge framed the following issue:--Whether or not the documents in suit had been presented for registration by persons authorized to do so; and whether or not they had been validly registered; and whether or not they affected the property sought to be sold; and whether the claim for money was time-barred. The court below has found that the registration of both documents was invalid, and on this ground alone, has dismissed the suit. The plaintiff appeals.
2. The material portions of the registration endorsements on the two documents are as follows:
On the mortgage deed of the 2nd July, 1882.
Present :--Narain Singh, Sub-Registrar of Saharanpur.
This document was presented in the office of the Sub-Registrar of tahsil Saharanpur, on Tuesday, the 11th July, 1882, at 3 p.m.
Dated the 11th July, 1882.
(Sd.) Nathu Mal, general attorney of Lala Mittar Sen.
Signature of the Sub-Registrar.
Nawab Syed Muhammad Khan, aged 50 years, and Muhammad Ilias Khan, aged 35 years, son of Muhammad Sardar Khan, sect Afghan, Bahraich, occupation zamindars, rais and residents of Kasba Saharanpur, identified by Rao Muhammad Ali Khan, Rajput, 35 years, occupation zamindari, rais and resident of mauza Sakranda, tahsil Roorkee, and Syed Tawangar Ali, son of Syed Kabir Ali, aged 50 years, mukhtar of the court, resident of Kasba Saharanpur, who are known to me personally, admitted the execution and completion of this document and received at this time in my presence the sum of Rs. 59,000 in cash, as per detail given in this document.
Dated the 11th July, 1882.
Signature of Sub-Registrar
(Sd.) Syed Muhammad Khan, in autograph.
(Sd.) Muhammad Ilias Khan, in autograph--Witnesses.
(Sd.) Muhammad Ali Khan.
(Sd.) Tawangar Ali Khan, Mukhtar of the Court.
On the mortgage-deed of the 25th October, 1892:
Present:--Munshi Anand Singh, Sub-Registrar, Maula Bakhsh (karinda) (agent), presented this document in the office of the Sub-Registrar of tahsil Saharanpur, to-day (Wednesday), the 26th October, 1892, at 1 p. m.
Signature of the Sub-Registrar.
(Sd.) Maula Bakhsh, karinda, in autograph.
Nawab Syed Muhammad Khan, son of Sardar Khan, aged 65 years, and Aftab Ali Khan, son of Muhammad Ilias Khan, aged 24 years, by occupation zamindars, residents of Saharanpur, sect Pathan, residents of mohalla Nawabganj, admitted the execution and completion of this document. I am satisfied at to (the identity of) these executants. The document be made over to Nathu Mal 'karinda'(agent).
Dated the 26th October, 1892.
Signature of the Sub-Registrar.
(Sd.) Syed Muhammad Khan, in autograph.
(Sd.) Muhammad Aftab Ali Khan, in autograph.
Section 32 of the Registration Act No. III of 1877, the Act then in force, is as follows:
32. Except in the cases mentioned in Sections 31 and 89, every document to be registered under this Act whether such registration be compulsory or optional, shall he presented at the proper registration office, by some person executing or claiming 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 authorized by power of attorney executed and authenticated in the manner hereinafter mentioned. The material portions of Section 33 are as follows:
33. For the purposes of Section 32, the powers of attorney next hereinafter mentioned shall alone he recognized, (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.
* * * * * * * *Any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it, to have been executed before and authenticated by the person or court hereinbefore mentioned on that behalf.
3. In both the documents in suit, Lala Mittar Sen (now represented by plaintiff), in whose favour they were executed, is described as a resident of Saharanpur. It is not alleged that at the time of execution of these documents, Lala Mittar Sen resided elsewhere than at Saharanpur. The validity of the registration of the documents was impugned by the defendant No. 1 on the ground that they were presented for registration by persons not qualified under the Registration Act to make such presentation. The registration endorsements show that in the case of the mortgage-deed of 1882, it was presented by one Nathu Mal, described as the general attorney of Lala Mittar Sen, and in the case of the mortgage of 1892, that it was presented by one Maula Bakhsh, described as karinda (agent).
4. There is on the record no power of attorney in favour of either Nathu Mal or Maula Bakhsh such as is required by Section 33(a).
5. In appeal it is contended on behalf of the appellants that every presumption should be made in favour of the validity of the registration proceedings, and that it should be presumed that the Sub-Registrar had in each instance satisfied himself that the document was presented for registration by a person duly authorized under the law. Reliance is placed on the observations of their Lordships of the Privy Council in Mohammed Ewaz v. Birj Lall (1877) L.R. 4 I.A. 166:
Undoubtedly, it would be a most inconvenient rule if it were to be laid down generally that all courts upon the production of a deed which has the Registrar's endorsement of the registration, should be called on to inquire before receiving it in evidence, whether the Registrar had properly performed his duty. Their Lordships think that this rule ought not to be thus broadly laid down... if the registration could at any time, at whatever distance of time, be opened, parties would never know what to rely on, or when they would be safe.
6. We have been further referred to two unreported decisions of this Court in F.A. No. 244 of 1910, decided on the 10th January, 1912, Since reported: I.L.R., 34 All., 253 (257) and in F.A. No. 389 of 1909 Since reported: 9 A.L.J., 148. The facts of neither ease bear any resemblance to those of the case before us. In F.A. No. 244 of 1910 the court said:
In our opinion the production of the bond with the certificate of due registration endorsed thereon raised a strong presumption in favour of the due registration of the bond, and that in the absence of clear proof that the requirements of law were not complied with, the court was bound to admit the document in evidence. Section 114 of the Evidence Act coupled with Section 60 of the Registration Act seems to us to be abundant justification for this proposition.
7. Conceding the existence of the presumption contended for by the learned advocate for the appellant, we have to consider the evidence by which the respondent sought to rebut that presumption. They called the Sub-Registrar of Saharanpur to produce the register of powers of attorneys for the Saharanpur division from 1878 to 1886. The Sub-Registrar appeared as a witness. His evidence printed at page 1 of the respondent's book shows that he produced in Court Register No. IV of 1882. That register contained a general power of attorney registered on the 19th of July, 1882 (13 days before the execution of the mortgage-deed of 1882) executed by Lala Mittar Sen in favour of Nathu Mal. The power of attorney did not authorize Nathu Mal to register documents on behalf of Lala Mittar Sen nor was it authenticated in the manner prescribed by Section 33 of the Registration Act.
8. The evidence of this witness was recorded on the 30th August, 1910. The suit was not decided until the 26th September, 1910. The plaintiff, therefore, had ample time in which to have a thorough search made in the records of the registration office. No other power of attorney except that deposed to by the Sub-Registrar has come to light. It is contended on behalf of the appellant that the respondents have not exhausted every possibility, but we must hold nevertheless that the respondents have established by evidence the existence of a very strong probability that Nathu Mal held no such power of attorney as would authorize him to present documents for registration, and that in respect of the deed of 1882, the respondents have succeeded in rebutting the presumption in favour of the validity of registration proceedings.
9. With regard to the deed of the 25th October, 1892, the matter stands on a different footing. The registration endorsement shows that the document was presented for registration by one Maula Bakhsh described as a karinda (agent). In paper No. 213 a petition filed in the court below on behalf of the respondent No. 1, it was stated that Maula Bakhsh was not a general attorney. He appears to have been employed as a karinda (agent) by the executants of the bond. No power of attorney in his favour is on the record, nor is there any evidence that any such power of attorney exists. There is no proof of any search having been made for powers of attorney between 1886 and 1892. In the case of the mortgage-deed of the 25th October, 1892, therefore, we must give effect to the presumption in favour of the validity of the registration proceedings.
10. It was further contended on behalf of the appellants that the substance of the proceedings before the Sub-Registrar should be looked to, and that it was immaterial by whose hands the document reached that of the Sub-Registrar provided there were persons present before that official who were qualified under the law to have the document of 1882 registered. It is pointed out that the registration endorsement on that document shows that the executants were present before the Sub-Registrar and admitted the execution of the document. We were also referred to the evidence of one Gobind Rai, a witness called by the plaintiff. He was an attesting witness to the document. He says that he was present at the registration and that the executants asked Nathu Mal to present the documents before the Sub-Registrar. The learned Subordinate Judge did not believe his evidence. He was produced on the 21st September, 1910, (by which time the plaintiff had realized that Nathu Mal was not duly authorized to present the document for registration), no doubt, with the object of showing that Nathu Mal had handed the document to the Sub-Registrar at the request of the executants. We think it impossible for him to remember such a trifling incident after a lapse of 28 years, and we do not accept his evidence. As to the other branch of the argument for the appellant that the executants who were present at the registration office should be regarded as the persons presenting the document for registration, there is the initial obstacle in the way of the appellant that the registration endorsement shows that it was presented by Nathu Mal. It has not been proved in this case that the executants were actually present when the document was presented for registration. Their presence in the office of the Sub-Registrar at that particular moment of time cannot be inferred from the registration endorsement. The only inference that can be drawn from that endorsement is that the executants attended the Sub-Registrar's office on the same day as the document was presented. The argument on behalf of the appellant is in effect that it does not really matter by whom the document was presented for registration provided the executants appeared before the Sub-Registrar and admitted execution. The provisions of Sections 32 and 33 of the Registration Act No. III of 1877, are not open to this lax interpretation. In Mujib-un-nissa v. Abdur Rahim (1900) I.L.R. 23 All. 233 their Lordships of the Privy Council observed:
When the terms of Section 32 are considered with due regard to the nature of registration of deeds, it is clear that the power and jurisdiction of the Registrar only come into play when he is invoked by some person having a direct relation to the deed.
11. In this case we have found that the mortgage-deed of 1882 was presented by Nathu Mal, a person who had no authority to present the document for registration. In view of the observations of their Lordships of the Privy Council, set out above, we are unable to hold that this initial defect, if it can be said to be merely a defect, can be held to be cured by the subsequent admission of execution by the executants. Nor can we hold that the provisions of Section 87 of the Act can be invoked in aid of the validation of registration proceedings done in violation of the express provisions of Sections 82 and 33 of the Registration Act.
12. We, therefore, dismiss the appeal in so far as the suit on the mortgage-deed of the 2nd July, 1882, is concerned. We allow the appeal in so far as the suit on the mortgage-deed of the 25th October, 1892, is concerned. The respondents will receive their proportionate costs in both courts in so far as they have been successful. The costs of the appeal in so far as the suit on the second mortgage is concerned will be costs in the cause. We remand the case for decision on the merits in respect of the mortgage-deed of the 25th October, 1892.