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Kirta Kishen Vs. Harnam Chand - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in17Ind.Cas.465
AppellantKirta Kishen
RespondentHarnam Chand
Excerpt:
registration act (xvi of 1908), section 32 - presentation for registration--executant present before sub-registrar when document handed over for registration by servant--presentation, whether valid. - .....was presented for registration, the donor of the power-of-attorney had died. consequently, the person presenting the document for registration had no authority from any one to present the document, nor was there any other person present who could have legally 'presented' the document for registration. we think that the remarks of their lordships in this case must be read and understood in connection with the facts of the case which were before them.3. afther full consideration, we see no reason to depart from the view which we expressed in the case of nathumal v. abdul wahid khan 34 a. 355 : 9 a.l.j. 362 : 14 ind. cas. 812.4. we accordingly allow the appeal, set aside the decrees of both the courts below and remand the case to the court of first instance through the lower appellate.....
Judgment:

1. The only question which has been argued in this appeal is whether or not the mortgage sued upon was duly presented and registered in accordance with the provisions of the Indian Registration Act. The document was in fact registered. It has an endorsement that it was presented for registration in the office of the Sub-Registrar. Below this is the name of a person which is variously read as Santha, Nanha, Natha or Sehna. He is described as the servant of the mortgagee. The mortgagor, in answer to the interrogatories served upon him, admits that he was present when the document was being registered and when it was handed over to the Sub-Registrar. He cannot remember apparently who actually handed over the document but he says that some person, whose name probably was Santha, handed over the document. It is clear, however, from the admitted facts in the case that at the time of registration, the mortgagor was present assenting to the registration of the document with full knowledge of what was being done in the office of the Sub-Registrar. The real question for consideration is, whether or not these circumstances amount to a 'presentation' within the meaning of Section 32 of the Indian Registration Act. Both the Courts below have dismissed the plaintiff's suit on the preliminary point that the mortgage was not duly 'presented' for registration There has been some conflict of authority on this question and the point was very fully argued recently before a Full Bench of the Court, but unfortunately no decision was pronounced by the Court on the question now before us, the case turning on another point. In the case of Nathumal v. Abdul Wahid Khan 34 A. 355 : 9 A.L.J. 362 : 14 Ind. Cas. 812 a case, in which the facts were very similar to those of the present case, it was decided that where a person who was authorised to 'present' a document for registration was present assenting to the registration, the mere fact that his was not the hand to give the document to the Sub-Registrar did not prevent the document being regarded as duly 'presented' within the meaning of section. No doubt, a somewhat contrary view was taken in the case of Jambu Prasad v. Aftab Ali Khan 34 A. 331 : 9 A.L. 420 : 15 Ind. Cas. 881. We think, under the circumstances, we are entitled to consider the question on its merits without feeling bound by authority, particularly as we have had so recently the benefit of the very full argument advanced in the Full Bench case to which we have referred.

2. The Privy Council decision in the case of Mujib-un-nissa v. Abdur Rahim 23 A. 233 : 28 I.A. 15 (P.C.) : 11 M.L.J. 58 : 5 C.W.N. 193 : 3 Bom. L.L. 154 has, in our opinion, no application to the circumstances of the present case. In that case, the person who presented the document had been the attorney of a deceased person who wished to execute and register a deed of wakf. Before the document was presented for registration, the donor of the power-of-attorney had died. Consequently, the person presenting the document for registration had no authority from any one to present the document, nor was there any other person present who could have legally 'presented' the document for registration. We think that the remarks of their Lordships in this case must be read and understood in connection with the facts of the case which were before them.

3. Afther full consideration, we see no reason to depart from the view which we expressed in the case of Nathumal v. Abdul Wahid Khan 34 A. 355 : 9 A.L.J. 362 : 14 Ind. Cas. 812.

4. We accordingly allow the appeal, set aside the decrees of both the Courts below and remand the case to the Court of first instance through the lower Appellate Court, with directions to re-admit the case upon its original number in the file, and proceed to hear and determine the same according to law. Costs here and heretofore will be costs in the cause. Costs in this Court will include fees on the higher scale.


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