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Wilaiti Begam Vs. Fazal HusaIn Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.961
AppellantWilaiti Begam
RespondentFazal HusaIn Khan
Excerpt:
registration act (iii of 1877), section 32 - presentation of document for registration--presentation by father of executant in presence of executant. - - the plaintiff distinctly states that it was he himself who lent the money, that be was in government service, and that he wa3 a cousin of the husband of the defendant. 5. this translation is not good......the court below held that the plaintiff was not benamidar for the defendant's father, wajihullah khan, and that the bond was duly registered. it gave the plaintiff a decree for rs. 5,000, principal and interest, plus costs.2. we will take the plea of irregular registration first. there is no doubt on the evidence that the bond was presented and registered at the same time, and that the executant, wilaiti begam, was also present in a doli. the stamp for the bond was also purchased on the same day that presentation and registration took place. according to the certificate, the father of the defendant was the person who presented the bond for registration. section 32 of the registration act provides as follows:except in the cases mentioned in section 31 and section 89, every.....
Judgment:

1. This appeal arises oat of a suit on foot of a bond. The bond is dated the 20th of September 1897. It was executed by the defendant in favour of the plaintiff. The amount of principal was Rs. 500. The rate of interest was 2 per cent, per mensem, compound interest, at half yearly rests. Admittedly, Rs. 150 had been paid before the suit was instituted. The plaintiff sought to recover Rs. 6,500, principal and interest. In the Court below, the plaintiff, of his own accord, reduced the claim by Rs. 1,500. The defence was that the bond was really executed in favour of the defendant's father, that Fazal Husain Khan was merely benamidar for the defendant's father, that the defendant had paid her father the amount due on the bond, that after his death, the plaintiff got possession of the bond, and brought the present suit. There is a farther plea that the bond was not duly registered. The Court below held that the plaintiff was not benamidar for the defendant's father, Wajihullah Khan, and that the bond was duly registered. It gave the plaintiff a decree for Rs. 5,000, principal and interest, plus costs.

2. We will take the plea of irregular registration first. There is no doubt on the evidence that the bond was presented and registered at the same time, and that the executant, Wilaiti Begam, was also present in a doli. The stamp for the bond was also purchased on the same day that presentation and registration took place. According to the certificate, the father of the defendant was the person who presented the bond for registration. Section 32 of the Registration Act provides as follows:

Except in the cases mentioned in Section 31 and Section 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 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 representive 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.

3. It must be admitted that the defendant's father was not duly authorized by power-of-attorney within the meaning of the section, and if we are bound to hold that the presentation was in fact made by the father, the presentation would be irregular, and, therefore, under the authorities, void. No definition is given in the Act of the expression presented, and the question is whether we are entitled to hold that when the lady went herself to the Registration Office, was present, in a doli when the document was handed to the Registrar by her own father, and that she there and then admitted execution and receipt of the money, she in fact presented the document within the meaning of the section. In our opinion, the action of the lady amounted to presentation within the meaning of the section, and we accordingly hold that the learned Judge was right on this point.

4. The next question is whether or not the plaintiff was merely benamidar for the defendant's father, and whether the bond was paid off. The witnesses are about evenly balanced. The defendant says that she borrowed the money from her father, and that the principal was paid off, that there never was any intention by her father to charge interest, and that the bond remained with her father with whom she was living until the plaintiff gained possession of it. Ataullah Khan supports her evidence. So does Ghafoor Muhammad Khan and Gopal Sahai to some extent. The plaintiff distinctly states that it was he himself who lent the money, that be was in Government service, and that he wa3 a cousin of the husband of the defendant. He is supported by Sakhawat-ullah Khan, Hidayat-ullah and Jagannalh. Two of these arc attesting witnesses to the document, and the third is a man who identified the Musammat at the time of registration. There can be no doubt that the onus lies upon the defendant. Prima facie the true owner of the bond is the person in whose favour it was made. The defendant's own account is rather in favour of the plaintiff when carefully examined. She says, in giving an account of how the money came to be borrowed, as follows:

Since I became a widow, Haji Wajih-ullah Khan spent his own money. When I spoke to Haji Ji about the amount of the decree, he said that he had already spent a considerable sum. I then went to Nawab Ata ullah Khan, Ghafoor Muhammad Khan, Ghaus Muhammad Khan and Hamid-ullah Khan. Nawab Ata ullah Khan said that he would get money advanced to me. Fazal Husain Khan was the elder cousin of my husband. He used to fake all proceedings on my behalf. This was why the bond was executed in his favour. Upon the oath of Haji Wajih-ullah Khan--this is the same bond which was execated in his favour.

5. This translation is not good. We had the original read. The mfariing is that her father had been spending a lot of money on her, prior to the borrowing of Rs. 500, that he had refused to spend any money, and that the defendant then went to Nawab Ata-ullah Khan, Ghafoor Muhammad Khan, Ghaus Muhammad Khan and Hidayat-ullah Khan, evidently to negotiate a loan for her, that Nawab Ataullah Khan promised to negotiate a loan, and that the loan was thereupon negotiated. Now, if her father was ready and willing to advance money on being duly secured, it was quite unnecessary for her to go and seek the assistance of the persons she mentions. If she wanted to persuade her father to lend her money, it would also be unnecessary for her to consult outsiders. Ata-ullah Khan says nothing about this consultation in his evidence. We feel that we would not be justified under the circumstances in overruling the decision of the Court below upon this question of fact, particularly as the Court below has had the advantage of seeing the witnesses who were examined before it.

6. As to the plea of payment, it follows that if we cannot accept the story of the defendant that the money was advanced by her father, we cannot accept her story about payment.

7. The interest is very high, particularly having regard to the fact that the defendant is a Musammat. But the plaintiff, to this credit be it said, voluntarily waived his claim to the extent of Rs. 1,500 in the Court below, and has further waived a sum of Rs. 1,000 in this Court. Therefore, we modify the decree of the Court below by giving the plaintiff a decree for Rs. 4,000, instead of Rs. 5,000, principal and interest. We also modify it in that we allow the plaintiff simple interest at the rate of 5 per cent, per annum pending the suit and also simple interest at the same rate until realization. The plaintiff will have his costs in all Courts.

8. We extend the time for payment to six months from this date.


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