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Sakinabai W/O. Hatimbhai Vs. Sakinabai W/O. Ibrahimbhai Bohra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal Nos. 3 and 4 of 1958
Judge
Reported inAIR1963MP286
ActsRegistration Act, 1908 - Sections 2(10), 25, 32, 34 and 35; Transfer of Property Act, 1882 - Sections 3
AppellantSakinabai W/O. Hatimbhai
RespondentSakinabai W/O. Ibrahimbhai Bohra and anr.
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateG.M. Chaphekar, Adv.
DispositionAppeals allowed
Cases ReferredRam Gopal v. Mohan Lal
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - as regards execution it held that the mortgage-deed dated 7-4-1952 had not been duly.....newaskar, j. 1. these two appeals nos. 4 and 3 of 1958 arise out of two several suits filed by plaintiff sakinabai w/o hatimbhai against sakinabai and her husband ibrahim for the enforcement of two different mortgages first dated 7-4-1952 and, the second dated 23-12-1952. amount sought to be recovered under the first mortgage was rs. 6408-1-0 and that under the second was rs. 8680/-. plaintiff sought to recover these amounts by the sale of mortgaged property.2. plaintiff alleged that the mortgage-deeds in question had been executed by the husband of the defendant sakinabai in his capacity as her am mukhtyar. he also had got them registered. controversy is as to the validity of registration at his instance. 'under the first deed dated 7-4-1952 rs. 5500/- were borrowed at annas 12 per cent.....
Judgment:

Newaskar, J.

1. These two appeals Nos. 4 and 3 of 1958 arise out of two several suits filed by plaintiff Sakinabai W/o Hatimbhai against Sakinabai and her husband Ibrahim for the enforcement of two different mortgages first dated 7-4-1952 and, the second dated 23-12-1952. Amount sought to be recovered under the first mortgage was Rs. 6408-1-0 and that under the second was Rs. 8680/-. Plaintiff sought to recover these amounts by the sale of mortgaged property.

2. Plaintiff alleged that the mortgage-deeds in question had been executed by the husband of the defendant Sakinabai in his capacity as her Am Mukhtyar. He also had got them registered. Controversy is as to the validity of registration at his instance. 'Under the first deed dated 7-4-1952 Rs. 5500/- were borrowed at Annas 12 per cent per month as interest and under the second Rs. 7000/- were borrowed at Rupee one per cent per month. Both the deeds, according to the plaintiff, had been attested by two attesting witnesses.

3. Principal defence set up by the defendant No. 1 Sakinabai was that her husband Ibrahimbhai had not been conferred any authority to effect registration of the deeds in question. She also disclaimed any knowledge about their execution on her behalf. Defendant No. 2 Ibrahimbhai denied the execution of the two deeds and in the alternative contended with reference to the first suit No. 356 of 1955 on the basis of the earlier mortgage that he had executed a document on receiving Rs. 4500/- only and not Rs. 5500/-, Rs. 1000/- having been deducted beforehand for interest, and with reference to Civil Suit No. 13 of 1956 on the basis of. the second mortgage that he had executed another deed for the same consideration as is alleged with regard to that mortgage namely Rs. 7000/-. He alleged payment of Rs. 840/- towards interest in respect of the latter claim admitted by him.

4. Issues were framed in the first suit bearing on the questions of husband's authority to mortgage the property belonging to defendant No. 1 Sakinabai, his having executed-the deed of mortgage in pursuance of such authority deduction of Rs. 1000/- for interest before hand and legal validity of registration. In the second suit, besides the first two issues, an issue regarding payment of Rs. 840/- towards interest was framed. No issue regarding invalidity of registration was framed in the second, suit although defendant No. 2 had at any rate raised that contention.

5. The trial Court held that defendant No. 2 Ibrahimbhai had no authority to execute the deed on behalf of his wife. It further held that consideration was paid by the plaintiff in full and the story of deduction of Rs. 10007- before hand for interest as set up by defendant No. 2 was incorrect. As regards execution it held that the mortgage-deed dated 7-4-1952 had not been duly attested within the definition of that term as defined in the Transfer of Property Act and consequently the execution was bad in law for the purpose of its being treated as a mortgage. On the questionof validity of registration it held that in the absence or specific authority to Jorahimbhai to present the deed for registration the same was bad in law. On these findings the suit was decreed for Rs. 5500/- as principal and Rs. 907-8-0 as interest at 6 per cent per annum personally against Ibrahimbhai alone and the suit as on the basis of the mortgage was dismissed both against Sakinabai and Ibrammbhai in the second suit it found against defendant No. 2 as regards alleged payment of Rs. 840/- by him. In other respect the findings were similar to those in the first suit, this suit too was decreed for Rs. 7000/- as principal and Rs. 1260/- as interest personally against Ibrahimbhai and was dismissed as on a mortgage against both of them.

6. The plaintiff has preferred appeals against both these decisions and these are appeals Nos. 4 and 3 of 1953 respectively.

7. Principal points raised in these two appeals are two namely regarding validity of attestation and validity of registration.

8. The learned counsel for the appellant did not assail the finding of the trial Court regarding execution of the two mortgage-deeds by Ibrahimbhai as the agent of Sakinabai under a power of attorney executed by her in his favour. But even if he had we should have no difficulty in holding that the two mortgage-deeds were in fact executed by Ibrahimbai in his capacity as Mukhtyar Am of his wife Sakinabai. For in the first place there is the evidence of witness Mohammad Hussain who had attested the Mukhtyarnama that the TVIukhtyarnama had been executed in favour of Ibrahimbhai by Sakinabai and he had attested it in the presenca of Sub-Registrar who was specially called for authenticating it at the house of Ibrahimbhai. He no doubt tried to help the appellant by suggesting that she was in the inner apartment end that Ibrahimbhai had gone in and got the deed signed by her. But the Sub-Registrar's endorsement clearly indicates that the lady had admitted her having executed the Mukhtyarnama and the two attesting witnesses including Mohammad Hussain having identified and attested the same. Besides this neither Ibrahimbhai nor Sakinabai have stepped into the witness-box to say to the contrary. The execution of power of attorney by Sakinabai in favour of her husband Ibrahimbhai therefore has rightly been held proved. This document confers power upon Ibrahimbhai to effect mortgage of the property belonging to Sakinabai and further to get it registered. The latter expression clearly implies power to present the document for registration and to admit execution of the same on behalf of Sakinabai. As regards the execution of the mortgage-deeds although Sakinabai denied execution of the deeds by her husband on her behalf, Ibrahimbhai in his written statement in Civil Suit No. 356 of 1955 has admitted its execution but has contended that its registration was illegal. Whereas in Civil Suit No. 13 of 1956 he has admitted the execution of one document for the same consideration in plaintiff's favour but he denies that it was that mortgage-deed. He here again denied its valid attestation. Attesting witnesses Kadarbhai and Hasanali in Civil Suit No. 356 of 1955 prove their having attested the deed and both Ibrahimbhai and Hasanalibhai having signed the deed In his presence and he having signed the same. Asagarali attesting witness in Civil Suit No. 137 1956 says:

vke eq[kR;kj bczkgheus fxjohukek okn izn'kZu1 ij esjs xokgks ds nLr[kr gSA

There is clearly an omission, the context suggests that he meant to say fy[kk Having regard to these statements in view of the absence of Sakinhbai Ibrahimbhai from witness box the signing of the mortgage-deed can be held to have been proved. But it was urged that the mortgage-deeds were not legally 'attested' as the term is defined in the Transfer of Property Act. In the first place confection regarding invalidity of attestation was not specifically raised. Nor was there any issue between the parties. The point seems to have been pressed at the time of argument before the trial Court who accepted the contention that it was not duly attested relying upon the decisions of the Privy Council in AIR 1939 PC 117, Surendra Bahadur v. Behari Singh, (S) AIR 1955 SC 346, Girja Datt v. Gangotri Datt and AiR 1931 Oudh 146, Mt. Chandrani Kuar v. Lala Sheo Nath. But in this connection we may refer to the decision of the Division Bench of this Court in AIR 1950 Nag 83, Kunwarlal Amritlal v. Rekhlal Koduram, where Bose C. J. and Mangal-murti, J., held:

'When attestation is not specifically challenged and when a witness is not cross-examined regarding the details of the attestation it is sufficient for him to say that it was attested by the other witness and himself. That is enough to prove the attestation. The law will then assume that when the witness swears that it was attested the witness means by that 'attested according to the forms required by law', if the other side wants to challenge the statement', it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along these lines. As that was not clone here the plaintiffs were entitled to assume that the mode of attestation was not being attacked and therefore that it was enough for their witness merely formally to prove attestation. Sarkar in his law of Evidence (Edn. 7. p. 651) quotes Brahmadat Tewari v. Chandan Bibi, 20 Cal WN 192 : (AIR 1916 Cal 374): where it is said that when a will has been proved to have been duly executed in the presence of witnesses the presumption is that the requirements of the law of attestation were satisfied. Later he refers to a Privy Council ruling in Kundan Lal v. Mt. Musha-rrafi Begum, 63 Ind App 326 : (AIR 1936 PC 207) in support of the view that :

'Where execution was admitted but it was never suggested at the trial Court that the attesting witnesses had not signed in the presence of the executant, such a contention cannot be reasonably raised before the appellate Court.' Of course execution was not admitted in the written, statement but it was proved and, as we have said, the fact of execution, meaning thereby the signing of the document by the mortgagor, has not been challenged before us. The only point argued is that it was not duly attested. In the circumstances set out above and on the evidence of P.W. 1, particularly as he says that the mortgagor was present when both he and the other attesting witness attested the deed, we agree with the lower Court and hold that the document was validly attested.'

These observations fully apply in this case even if we assume that the evidence as to due attestation is some what defective although it seems clear to us that the evidence of Kadarbhai in Civil Suit No. 356/1955 proves evsn due attestation.

9. This takes us to the second and more strenuously argued contention regarding invalidity- of registration. Before we proceed to consider this question it will be necessary to state the actual facts established in the case having material bearing on the controversy.

10. In each of these cases the mortgage-deed was executed by Ibrahimbhai purporting to execute the same on behalf of his wife Sakinabai mentioning the property mortgaged as belonging to her. The document was presented for registration by him and he admitted its execution on behalf of his wife Sakinabai under a Mukhtyarnama held by him.

11. Question for consideration is whether Ibrahimbhai can be considered to be the person executing the document for the purpose of presenting it for registration within the meaning of Section 32 of the Registration Act and whether he is also the person executing for the purpose of appearing under Section 34 and admitting the execution thereof under Section 35 of the Registration Act.

12. On the terms of Mukhtyarnama Am proved in the case I should find no difficulty in holding that defendant No. 2 Ibrahimbhai had sufficient authority not only to execute a mortgage-deed but also to get it registered which means to present it for registration and to admit its execution even if the word 'person executing' in Sections 32 and 34 are confined to mean the person who incur obligation under the deed and not the person whose hand actually signs the same, under an authority from that person. The Mukhtyarnama is executed before the Sub-Registrar Ujjain where Sakinabai resides and has been authenticated by him.

13. But even if we hold that the power to have the mortgage-deed registered does not mean specific power to present it for registration and power to admit its execution still in my opinion since Ibrahimbhai was the person who had signed the deeds in his capacity as the agent of his wife Sakinabai, under a power of attorney granted by her for the purpose can well be taken to be the person executing the document for the purposes of Sections 32 and 34 of the Registration Act. Section 32 of the Registration Act is as follows :

'Except in the cases mentioned in Sections 31, 38 and 39, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office.

(a) 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

(b) by the representative or assign of such person, or

(c) by the agent of such person, representative orassign duly authorized by power-of-attorney executed andauthenticated in manner hereinafter mentioned.'

14. The question raised with reference to this Section is what is meant by 'person executing' in Clause (a). Is it the person who actually signs the document may be as agent duly authorised, or is it the person who incurs legal obligation thereunder with reference to the property in question or both ?

15. On behalf of the appellant it is contended thatsince separate Sub-clause (c) is provided in this Section for the category of agent of the person executing, the personexecuting should therefore only be confined to the principaland not the agent. This contention will be examined later.

Section 34 of 'the Registration Act then lays down :

'(1) Subject to the provisions contained in this partand in Sections 41, 43, 45, 69, 75, 77, 88 and, 89, nodocument shall be registered under this Act, unless the per-sons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the fegistering officer within the time allowed or presentation under Sections 23, 24, 25 and 26 :

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under Section 25, the document may be registered. (2) Appearances under Sub-section (1) may be simultaneous or at different times.

(3) The registering officer shall thereupon-

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have exscuted the document; and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

(4) ............

(5) .........'

16. These Sections are in Part VI which deals with the subject of 'presenting documents for registration'. Section 32 mentions who can be persons entitled to present documents for registration. They are placed in three different categories.

(a) Those who have executed the documents or claim under the documents which are executed.

(b) Those who, are representatives and assigns of the aforesaid persons.

(c) Those, who are agents of the persons executing or claiming or of their representatives or assigns where such agents are duly authorized by power-of-attorney being required to be executed and authenticated in the manner laid down in Section 33.

17. The term representative as used in Section 32 has the meaning indicated in the definition of that term in Section 2(10) which is an inclusive definition and is not exhaustive. It will consequently mean persons who are entitled to represent the person executing or cfaiming. Different situations can be conceived. The person to execute may be either a minor or an idiot or a lunatic, it may be joint Hindu family. In the case of a minor or an idiot his guardian would be a representative. In the case of lunatic, a committee or curator of such a lunatic will be his representative. In the case of joint Hindu family the Manager or Karta of the family. It could also be a person who is entitled to represent the interest of another either by the act cf the party concerned contractual in nature or by the operation of law. Clause 'c' deals with a third category namely the agents but the agents referred there are not agents in general but agents specially authorized to present the documents for registration.

18. Their Lordships of the Privy Council in Chottey Lal v. Collector of Moradabad 49 Ind App 375 : (AIR 192Z PC 279) observed with reference to power of attorney referred to in Sub-clause (c) of Section 32 of the Registration Act as follows :

'Such power of attorney must not be general in itaform, but must confer the special authority to present onbehalf of the principal, and even though the Sub-Registraraccepts the presentation under a general power of attorney,it is open to any Interested party to show that the powerof attorney was in fact imperfect. Shee Jambu Prasad v.Mahammad Aftab Ali Khan, 42 Ind App 22 : (AIR 1914 PC16).'

19. Thus Sub-clause (c) deals with category of personswho are different from persons executing, or claiming ortheir representatives or assigns and who are specificallyauthorized in accordance with the manner laid down in Sec-tion 32 to present the documents for registration. Theydo not cover persons who are agents in general though not specifically authorized to present, such as agents empowered to execute documents on behalf of and in the name of theirprincipals.

20. Section 34 provides for appearance of persons referred to Section 32 before the registering officer within the time limited by law, such appearances being either simultaneous or at different time and for an inquiry by the said officer as to the fact of execution and the identity of persons executing or as to the right of any person to act as representative, assign or agent.

21. If a person executes a document on the ground that he is duly authorized to do so by the party whose interest he represents he can either be the person executing in the phrase 'person executing' is taken to mean, as their Lordships of the Privy Council in 4 Ind App 166, Mohammed Ewaz v. Birj Lall, say 'the person who actually executed it, or he can be the person who is the representative of the person who on the face of the deed is a party to the deed.

22. As to the former meaning as being applicable to the authorized agents there has been some difference of opinion which will be examined hereafter on the basis of authorities, An important case bearing on this point is Muhmmed Ewai's case, 4 Ind App 166.

23. In that case (4 Ind App 166) the facts were as follows. A sale-deed purporting to be executed by the three heirs of a deceased Mohomedan owning a property in dispute was presented for registration. Actual execution of the deed was by two sons one of whom executed the same on behalf of himself as well as his mother Musammat Mobaruk Jan. The vendors were called the next day. The two sons appear-ed. They admitted their execution but denied that of their mother. The registering officer in spite of their unwillingness to complete the document, because of their having sold the same property to a third party Byjnath, registered the same. Validity of such registration was in question. The trial Court upheld the registration but as there was no proof of the mother having authorized the son who executed the document also in her name, dismissed the suit against her, It decreed it against the two sons. On appeal the High Court held the registration to be invalid. On further aopeal to the Privy Council the trial Court's decision was restored. Their Lordships say with reference to Section 34 (new Section 35) :

'There the persons described are the persons executing the document--not those who on the face of the deed are parties to it, or by whom it purports to have been executed, but those who have actually executed it.'

24. In a subsequent decision of their Lordships in 28 Ind App 15(22), Mujibunnissa v. Abdul Rahim, the question regarding validity of presentation of a deed by a person who held a general power-of-attorney conferred upon him by the executant who was dead at the time of such presentation came in for consideration. Under that deed the deceased proprietor had created a wakf of his property. This wakf was challenged by his daughter and in that connection the validity of the deed came to be considered. Their Lordships while considering the scope of Section 32 of the Registration Act in that context observed at pages 22-23 of the report:

'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. It is for those persons to consider whether they will or will not give to the deed the efficacy conferred by registration. The registrar could not be held toexercise the jurisdiction conferred on him, if, hearing of the execution of a deed, he got possession of it and registered it; and the same objection applies to his proceeding at the instigation of a third party, who might be a busybody.'

25. In a later decision of their Lordships of the Privy Council reported in 55 Ind App 81 : (AIR 1928 PC 38), Puran Chand v. Monmotho Nath, the question considered was whether a document executed by an agent under a general power-of-attorney authorising such execution can be acknowledged for registration by another agent acting under a power-of-attorney given for the purpose. In that context their Lordships while upholding the registration as being valid observed with reference to the term 'person executing' as used in Section 35, observed :

'By Section 35, Registration Act, registration is directed when certain persons have appeared, have been duly identt-fied, and have admitted the execution of the document propounded, and the necessary persons are 'the persons executing the document'. The appellant contends that in these words executing means and means only 'actually signing'. Their Lordships cannot accept this. A document is exscuted, when those who take benefits and obligations under it have put or have caused to be put their names to it. Personal signature is not required, and another person, duly authorized, may by writing the name of the party executing, bring about his valid execution, and but him under the obligations involved.

Hence the words 'person executing' in the Act cannot be read merely as 'person signing. They mean something more, namely the person, who by a valid execution enters into obligation under the instrument. When the appearance referred to is for the purpose of admitting the execution already accomplished, there is nothing to prevent the executing person appearing either in person or by any authorized and competent authority in order to make a valid admission.'

26. It was argued with reference to these decision that there is apparent inconsistency in the observations of the Privy Council in 4 Ind App 166 (171) (supra) and those in the two later decisions reported in 28 ind App 15 (22) (supra) and 55 Ind App 81 (84): (AIR 1928 PC 38 at p. 39) (supra) quoted above in that whereas in the former decision 'persons executing' is taken to mean

'not those who on the face of the deed are, parties toit or by whom it purports to have been executed but those who actually executed it',

in the later two decisions the phrase is held to mean those who have a direct relation to the deed or in other words it means not merely persons signing but something more namely the persons who by a valid execution enter into obli-gation under the deed.

27. In my opinion there is no inconsistency in these observations if they are understood in their proper context.

28. In Mohammed Ewaz's case, 4 Ind App 166 (supra) validity of registration was considered with reference to Section 34 (Section 35 new) of the Registration Act in view of the non-appearance of the mother by whom the document purported to have been executed for admitting its registra-,tion. The point there- considered was whether the registration was invalid even as against the two sons who had admittedly executed it on their own behalf and had ap-peared before the Sub-Registrar to admit the execution. It was in that context that their Lordships interpreted the phrase 'person executing' as being inclusive of the persons actually executing the deed. They in my opinion, could not be taken to mean that where the person actually executeing the document be an agent the principal authorizing him could not appear to admit the agent's execution on nis behalf. Whatever doubt there might have been due to omission to use the phrase 'not only' instead of 'not' and 'but also' instead of 'but' is removed by the later observations in 55 Ind App 81: (AIR 1928 PC 38) (supra), where their Lordships held even the appearance of a different agent specially authorised to admit execution than one who executed it to be valid for the purpose of Section 35. Appearance, of the principal will no doubt be equally valid on that view. The observations in Mujibunnissa's case, 28 Ind App 15 (22), quoted above came to be made while considering the question whether the defect of presentation of the deed by a person who was the agent holding a power-ot-attorney from the deceased executant was a defect of procedure. Their Lordships mean that the power of the Sub-registrar to register the deed could not have been invoked in that case by the agent of the deceased executant and that too after his death. Defect in such a case is not one of procedure but is of substance. Jurisdiction of the Registering Authority could only have been invoked by the executant himself while he was alive or by his representatives or assigns after his death. The point considered in Purart Chand's case, 55 Ind App 81 (84): (AIR 1928 PC 38 at p. 39) was with reference to the circumstance that the person who was actually a party to the deed in the sense of nis having incurred legal obligation under it, could or could not authorize presentation of the deed to a person different from the one whom be had authorized to execute it. Their Lordships had to consider the scope of the phrase 'person executing' for the purpose of Section 35 and they held it to be sufficiently wide to include the person who was the actual party to the deed.

29. Thus there is really no inconsistency in the observations if read in their context, it is well-settled by authori-ties that observations in a case have to be understood having regard to the context in which they were made. aSLord Halsbury L. C., has observed in Quinn v. Leathern,1901 AC 495

'Every judgment must be read as applicable to the particular facts proved ..... .since generality of expressions which may be found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which expressions are to be found.'

30. In AIR 1924 All 148, Aisha Bibi v. Chhajju Mal, it is held that once a document has been executed by an agent under a power-of-attorney duly authorizing him to do so, he is, so far as registration office is concerned the act tual executant of the document and is entitled to present it for registration under Section 32(a) . This decision is of course based on the observations of the Privy council in Mohammed Ewaz's case 4 Ind App 166.

31. In AIR 1920 Cal 316, Gopeswar v. Hem Chandra, Mookerjee, Acting C. J. end Fletcher and Richardson, JJ., had to consider the contention regarding invalidity of registration under the following circumstances. The mortgage-bond there was presented for registration by the husband Moni Mohan Roy who had executed it on behalf of himself as well as his wife who had authorized him to do so under a power-of-attorney. The power of attorney however was not produced before the Registering Authority. It was held that inasmuch as he was the sole executant of the document he could properly present it for registration. Registration under the circumstances was not invalid.

32. In AIR 1925 Cal 703, Monmotho Math v. PuranChand, Sanderson, C. J., and RanKin, J., had to consider the validity of registration of deed which was executed by one person under a power-of-attorney from the principal and was presented for registration under a different but specific authoity from the same principal by another person. It was held that the registration in such a case is good. It was contended before their Lordships on the basis of Muhamed Ewaz's case, 4 Ind App 166 that the person executing' for the purpose of Section 35 is meant the person who actually signed the deed and not the prinicpal and consequently presentation under a power-of-attorney from the principal was invalid. It was observed by Rankin, J., that it was erroneous to suppose that the Registration Act lays stress upon the appearance and admission of the person who held the pen for executing the document. According to him the point in Muhamed Ewaz's case, 4 Ind App 166 was whether you can or cannot read certain words in Section 35 so that the section can be treated distributively and it was in that context that the observations in Muhamed Ewaz's case, 4 Ind App 166 relied upon before them, were made. The decision of the Privy Council in 55 Ind App-81 = (AIR 1928 PC 38) (supra) is with reference to this very case. The Privy Council has affirmed this decision.

33. In AIR 1927 Bom 487 (FB), Sitaram v. Dharma-sukhram, held that a person executing a document on behalf of himself and another under a power-of-attorney from the latter, which power does not comply with Section 33 or the Indian Registration Act is competent to appear before the Registrar to admit the execution of that document. The earlier decision in ILR 50 Bom 628: (AIR 1926 Bom 4/9), Balkrishna Raoji v. Parashram Mahadeo, was overruled in that case. This decision was approved and relied upon by the Lahore High Court in AIR 1939 Lah 127, Mul Raj v. Rahim Bakhsh.

34. In a Single Bench decision of the Andhra Pradesh High Court reported in AIR 1958 Andh Pra 107, D. Sardar Singh v. Pissumal H. Bankers, it was held that where a person holding a power-of-attorney executes a sale-deed he cannot present it for registration unless he holds a power-or-attorney satisfying the requirements of Section 33. tHIS decision, it will be observed, runs counter to the Full Bench decision of the Bombay High Court as well as that of the Calcutta High Court referred to above. Recent decision or the Punjab High Court in AIR 1960 punj 226, Ram Gopal v. Mohan Lal, follows the Full Bench decision of the Bombay High Court (AIR 1927 Bom 487 (FB)).

35. Mr. Chaphekar for the respondent laid stress upon the observations of Chagla C. J., in AIR 1950 Bom 326, Rati-lal v. Rasiktal, which indicated that the decision of their Lordships of the Privy Council in 55 Ind App 81: (AIR 1928 PC 38), contained observations which were inconsistent witn those in Mohammed Ewaz's case, 4 Ind App 166.

36. As already discussed there is, In my opinion, no inconsistency if we understand the observations of the Privy Council in the context in which they were made particularly when the decision of 4 Ind App 166 (supra) was neither referred to nor disapproved in 55 Ind App 81: (AIR 1928 PC 38) which would certainly have been done in case their Lordships wanted to modify their view.

37. The result of the authorities thus discussed is that presentation of and admission of execution of the mortgage-deed in suit by the husband who had executed the same under a power-of-attorney from the wife is valid as being by the person, who had executed it, may be as an agent and also because it is by a representative of the person who was party to the deed. It is also valid because thepower-of-attorney granted by the wife to the husband not only authorised execution of a deed of mortgage but also to get it registered which meant 'to do everything that is necessary' to get it registered including presentation or the 'deed for registration and appearance for admission as to its execution for the purpose of Section 35. Both the mort-gage-deeds in the two suits are therefore validiy registered.

38. As we have held that the mortgage-deeds referable to both the suits are not invalid either on the ground or improper attestation or of illegal registration dismissal or the suit as against Sakinabai was improper. The suits ought to have been decreed as against her and a preliminary decree for sale of the mortgaged property should have oeen passed. ,We would therefore allow both the appeals.

39. In Civil First Appeal No. 4 of 1958 we direct that a preliminary mortgage-decree for sale be passed against defendant Sakinabai W/o Ibrahimbnai for Rs. 6407-8-0 inclusive of interest upto the date of the suit. This amounttogether with future interest on Rs. 5500/- from the dateof the suit i.e. 3-11-1955 till three months hence i.e. upto 7-2-63 at 6% per annum shall be paid on or before 7-2-63failing which it will be competent for the plaintiff to apply tor a final decree, for sale. The appellant will be entitled to costs throughout as against defendant Sakinabai w/oIbrahimbhai. Preliminary decree in the usual form may be drawn up in light of what is said above.

40. Similarly in Civil First Appeal No. 3 of 1958 we direct that a preliminary mortgage-decree for sale be passed against defendant Sakinabai w/o Ibrahimbhai for Rs. 8260/-inclusive of interest upto the date of the suit. This amount together with future interest at 6% per annum on Rs. 7000/-from the date of the suit i.e. 11-1-1956 till three months hence i.e. up to 7-2-63 shall be paid on or before 7-2-63 failing which it will be competent for the plaintiff-appellant to apply for a final decree for sale. The appellant will be entitled to costs as against defendant Sakinabai w/o Ibrahimbhai throughout. Preliminary decree in usual form may be drawn up in light of what is said above.

Krishnan, J.

41. I agree.


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