1. This appeal has arisen out of a suit for sale on a mortgage.
2. The mortgage was executed on the 11th of January 1909 in favour of Sheikh Shahab-ud-din, the husband of the plaintiff, since deceased.
3. This mortgage was executed by one Muhammad Aizaz Ali Khan, the second defendant in the case. He purported to execute this deed as the general attorney of his wife Musammat Mahfuz-un-nissa who was imp leaded as the first defendant.
4. The sum borrowed under the mortgage was Rs. 3,000. There was a personal covenant to pay and a further covenant that, in the event of failure to pay the mortgaged property might be brought to sale. The property, it may be remarked, was the property of Musammat Mahfuz-un-nissa.
5. The two defendants Mahfuz-un-nissa and Muhammad Aizaz Ali Khan set up separate defences. The lady took the line of defence that she was no party to the mortgage-deed. She did not deny that her husband had executed the mortgage in question, although we find a statement to this effect in the judgment of the learned Subordinate Judge, a statement which, on our reading of the pleadings, appears to be erroneous.
6. The lady really sought to protect herself against the claim of the plaintiff by saying that her husband, defendant No. 2, had no authority to execute the mortgage-deed which was being sued upon. She stated that the power-of-attorney which was held by her husband had not been explained to her and was, therefore, not binding upon her.
7. The husband, defendant No. 2, did not deny the execution of the mortgage. He put forward a variety of pleas in order to show that the suit was not maintainable.
8. The learned Judge of the Court below dismissed the claim. He was of opinion, in the first place, that the plaintiff had failed to give due proof of the execution of the mortgage-deed in suit.
9. In the next place, he held that the plaintiff had failed to prove that the power-of-attorney, under colour of which the mortgage-deed had been executed, was a document binding on the lady. The Subordinate Judge states that there was no satisfactory proof for the purpose of showing that the document had been duly explained to the lady and that she was in a position to fully appreciate the legal consequences of her act when she executed the document.
10. The plaintiff in the Court below also claimed to be entitled to a personal decree on the strength of a certain acknowledgment contained in the letter which was written by the second defendant on the 6th of April 1914. The learned Subordinate Judge, however, was of opinion that this acknowledgment could not affect either of the defendants and, consequently, he refused to order any personal decree.
11. The plaintiff now comes up in appeal and a variety of grounds are put forward upon which the judgment of the Court below is challenged. Before we proceed to discuss the question which arises for determination here, it is important to notice that since the appeal has been filed the first defendant Mussammat Mahfuz-un-nissa has died, her heirs have now been made parties to the record and one of these heirs is her own husband, the second defendant, Muhammad Aizaz Ali Khan, who, under the Muhammadan Law, has become entitled as one of his wife's heirs to, a one-fourth share of the mortgaged property. That fact will have to be borne in mind later on when we come to announce our decision regarding the liability of Aizaz Ali Khan.
12. We begin with the finding of the Court' below that execution of the document was not duly proved. Here> we have to record our disagreement with the view taken by the learned Judge of the Court below. It was never contended that Musammat Mahfuz-un-nissa herself had executed this deed of mortgage. The case for the plaintiff was that the deed was executed by her husband who was her duly constituted attorney. The husband never denied the execution of the deed and, in the circumstances, it seems to us that execution was duly proved and the plaintiff discharged all the onus which lay upon her in this respect. We refer, in this connection, to Section 70 of the Indian Evidence Act. We pass on, therefore, to what is really the important question in the case, namely, whether the mortgage sued upon could be deemed to be binding upon the first defendant, Mahfuz-un-nissa.
13. It can only be so if we are satisfied that at the time the document was executed her husband had full authority to act on her behalf. This takes us back to' the power-of-attorney from which that authority is said to be derived and that dooument is a document dated the 12th November 1898.
14. It is a fact that the original power-of-attorney was not produced in the Court below. Obviously, it was in the possession either of Mahfuz-un-nissa or of her husband. Notices were issued to them to produce it but it was not produced.
15. In order, therefore, to prove that such a document had been executed it became necessary to call the Sub Registrar in while Office the power-of-attorney had been registered. It was not possible for the plaintiff to produce a certified copy of the power-of-attorney for, according to the evidence of the Sub-Registrar and according to the rules on the subject, no stranger is entitled ta obtain from the Registration Department a certified copy of a document of this nature.
16. The Sub-Registrar of Moradabad was called and brought with him the Registration Volume in which this power-of-attorney had been copied.
17. It may be noted that the Sub-Registrar who gave evidence was not the same Sub-Registrar who had registered the deed in the year 1898.
18. There can be no doubt from the entry in the register which was produced before the learned Subordinate Judge that, a power-of-attorney was executed on the 12th of November 1898 by Musammat Mahfuz-un-nissa in favour of her husband.
19. The contents of this power-of-attorney were read out in Court by the Sub-Registrar who quoted from the entries in this register. It appears that, amongst other things, the power-of-attorney gave the husband authority to borrow money for household and Court expenses, to pledge or hypothecate his wife's property in any way or to mortgage, sell the whole or any part of his wife's property, or to make a gift of his wife's property or a waqf, or to make an exchange of it.
20. It is thus obvious that the power-of-attorney which the lady executed in her husband's favour was couched in very wide language and gave him practically unlimited powers of disposal over his wife's estate.
21. This being so, it becomes necessary to consider whether the requirements of the law with respect to deeds of this kind executed by parda nashin ladies have been met in this case. It has been laid down as the law by a string of rulings that, where a person relies on a document of this nature and is making a claim against a parda nashin woman, based upon a document of this kind, it is incumbent upon him to give satisfactory evidence that the document has been explained and understood by the lady. We may refer to the following cases in this connection :
22. Sudisht Lal v. Musammat Sheobarat Koer 7 C. 245 : 8 I.A. 39 : 4 Sat. P.C.J. 222 : 5 Ind. Jur. 270 : 8 Ind. Dao. (N.S.) 707 (P.C.), Shambati Koen v. J ago Bibi 29 C. 749 : 29 I.A. 127 : 6 C.W.N. 682 : 4 Bom. L.B. 444 : 1 Bar. P.G.J. 804 (P.C.) and Sajjad Husain v. Wazir Ali Khan 16 Ind. Cas. 197 : 34 A. 455 : 16 C.W.N. 889 : 23 M.L.J. 210 : 10 A.L. 3. 864 : 16 C.L.J. 618 : 14 Bom. L.B. 1055; L.M.L.T. 861; (1912) M.W.N. 976 : 15 O.C. 271 : 39 I.A. 156 (P.C.).
23. The doctrine is well understood. The only difficulty which arises is as to its application to particular cases. No uniform standard of evidence which will satisfy the Court can be laid down, and each case must be decided on its own facts.
24. Turning to the evidence in this case, all we have is what was read out in Court by the , Sub-Registrar from the volume of the register which he produced before the Subordinate Judge.
25. This register contains copies of the endorsements which were made upon the power-of-attorney at the time of its registration. We refer to the following endorsements which contain the only evidence regarding the question as to whether the document was duly explained to the lady and understood by her.
26. We begin with the following:
To day I went in person to the executant's of this general power-of-attorney at 5 p.m. and satisfied myself that Musammat Mahfuz-un-nissa executed this power-of- attorney of her own free will and accord. The above-named executant affixed her signature to the power-of-attorney in my presence and she was identified by Rhsan Ali Khan and Muhammad Sarfaraz Ali Khan.
27. This endorsement, therefore, can be relied upon for the purpose of showing that, as a matter of fact, the lady executed a document in the presence of the Registering Officer and that he was satisfied that this execution had been made of her own free-will and accord.
28. A further endorsement in the following language is also proved to have been recorded on the power-of-attorney :
Musammat Mahfuz-un-nissa.. after hearing all the contents of the document admitted it in a loud voice from behind the door at her dwelling house.
29. We observe here that the translation of this passage in the paper-book is not quite correct.
30. This is the whole of the evidence upon which we are asked to find that the document was read to the lady and explained to her so that she was thoroughly aware of the consequences which would follow in law from her act of execution.
31. It has been argued before us that the declaration made by the Sub-Registrar and embodied in the endorsement on the deed is sufficient proof that the document was read and explained to the lady.
32. It is to be noted, however, that while the language used by the Registering Officer would indicate that the document had been read out, to the lady there is nothing expressly indicating that he explained the document to the lady; in other words, that he explained to the lady what the results of her actions would be. We have been referred to the Registration Rules which were issued in the year 1896 and which were, therefore, in force at the time this document was registered. Under Rule 185 Registering Officers were directed, in the case of documents executed by parda nashin ladies, to obtain the admission of execution from the executant's own lips. The rule further lays down the necessity for having the lady properly identified, and a further direction is given that the terms of the document should be explained to the executants and if, while admitting execution, she objects to any' of the terms, a note of such objection should be made.
33. We are asked to presume that the Sub-Registrar must have carried out the rule to which we have just referred and that, consequently, we ought to hold that the document was duly explained to the lady so as to be thoroughly understood by her.
34. The case is no doubt a somewhat difficult one and it has been rendered more difficult by reason of both the lady and her husband keeping out of the witness-box. This is a circumstance which has to be weighed. But, making allowance for everything, we have in the end to decide whether there is before us that satisfactory evidence of explanation and understanding which the law requires.
35. All we can say is that, after giving the case our most careful consideration, we are not satisfied that the plaintiff has discharged the duty which the law cast upon her, and so, as regards this part of the case, we cannot disagree with the finding of the Court below.
36. There remains only one other question and that is with respect to the liability of the husband.
37. We have already referred to the fact that the husband admitted the execution of this document although his statement was that that the property which was being mortgaged was not his property. That was a true statement 61 course at the time it was made. But we have it now that a one-fourth share in the mortgaged property has come to the husband by inheritance and we have, therefore, to deal with the question of his liability as things now stand.
38. Mr. Iqbal Ahmad has, in this connection, relied upon the provisions of Section 43 of the Transfer of Property Act and we think that plea is well taken. It is at the option of the plaintiff under this section to seek a remedy against the property which has come into the possession of Aizaz Ali Khan, and, therefore, if there is a debt owing from Aizaz Ali Khan in respect of the mortgage-deed in suit that debt may be enforced against this one-fourth share which has now become the property.
39. As regards the question of the indebtedness of Aizaz Ali Khan we think there can be no reasonable doubt. It is proved beyond all question that the money which was borrowed under the mortgage was delivered into his hands. Furthermore, in a letter which is on the record (Ex. 2, printed at p. 29 of the record) Aizaz Ali Khan, on the 6th of April 1914, admitted that he took this money to meet his own expenses, and he, further, in paragraph 4 of that letter, made a statement clearly indicating that at that date, the debt was still subsisting. This being so, and the acknowledgment having been within six years of the date of the mortgage and also within six years of the date of the suit, we think Aizaz Ali Khan is clearly bound and that, as against him, a decree can be passed by which the debt incurred under the document in suit can be enforced against a one-fourth share of the mortgaged property now belonging to Aizaz Ali Khan since the time of his wife's death.
40. We, therefore, give a decree for fix full amount of the mortgage against Aizaz Ali Khan and we also give a decree for sale directing the sale of the one-fourth share of the mortgaged property which he has inherited from his wife. The usual decree for sale will be prepared. The plaintiff will be entitled to recover costs from Aizaz Ali Khan both in this Court and in the Court below. The costs in this Court will include fees on the higher scale.
41. As regards the respondents Nos. 1 to 6, the suit against them fails and is dismissed with costs in both Courts including in this Court fees on the higher scale.