(1) These two appeals (Regular First Appeal No. 18 (P) of 1952 and First Appeal from Order No. 13(P) of 1952) have been referred by Ram Gopal plaintiff in the following circumstances. Somewhere in 1914 and 1915 (the Bikrami date being 4-3-1972) Karam Chand son of Ganga Ram mortgaged the property in suit without possession in favour of Nand Lal for a sum of Rs. 3,500/-; one of the terms of the mortgage being that in case of non-payment of interest in any one month the mortgagee would be entitled to take possession of the property and to rent it out to anyone he liked.
It was attested by Kishan Chand real younger brother of Karam Chand and the document was duly registered at Kapurthala, Karam Chand died sometime in 1919, whereafter Nand Lal mortgagee instituted a suit for possession of the mortgaged property against Kishan Chand. This suit was decreed by means of a compromise under which NandLal obtained possession and the amount due under the mortgage was determined to be Rs. 6,136/-. On 27-10-2001 Bk. (corresponding to 8th February, 1945) Smt. Surat Piari, daughter of Karam Chand and wife of Dalip Singh, told to the present plaintiff-appellant the mortgaged property for a sum of Rs. 13,000/-.
This sale deed purports to be executed by Dalip Singh husband of Smt. Suran Piari as her mukhtar-i-am. In this deed a specific reference was made to a General Power of Attorney executed by his wife in his favour on 2nd of January 1945 authorising him inter alia to sell the property in question. After this sale the plaintiff instituted the present suit for redemption of the mortgage effected by Karam Chand. It appears that sometime in 1948 (Bikrami date being 12-8-2005) Kishan Chand also instituted a suit for redemption which was continued by his widow, Smt. Harbans Kaur, on Kishan Chand's death.
Ram Gopal present plaintiff applied in Kishan Chand's suit for being made a party but this prayer was rejected. It seems that thereafter Smt. Harbans Kaur was duly impleaded in the present suit. It may also be mentioned that the General Power of Attorney dated 2nd of January 1945 executed by Smt. Surat Piari in favour of her husband Dalip Singh for the purposes of filing suits on her behalf and also empowering the attorney to sell, mortgage, gift or alienate her property referred to in the sale deed in favour of Ram Gopal plaintiff-appellant was registered in the office of the Sub-Registrar, Nakodar, on the same day i.e. 2nd of January 1945. The suit was contested and the pleadings of the parties gave rise to no less than the following 12 issues:--
1. Was the property in dispute mortgaged by Karam Chand on 4-3-1972 with Nand Lal, the grandfather of the defendants Mohan Lal, Tikan Lal and Durga Dass for Rs. 3,500/- ?
2. Has the property in dispute been sold by Mst. Surat Piari, the daughter of Karam Chand, in favour of the plaintiff on 27-10-2001 after Karam Chand's death ?
3. Were the two real brothers Karam Chand and Kishan Chand deceased not members of a joint Hindu family and the property in dispute was not their joint Hindu family property but was rather the sole property of Karam Chand.
4. Was Kishan Chand, the brother of Karam Chand and the husband of Mst. Harbans Kaur defendant, in exclusive possession of the property in dispute since the death of Karam Chand and so Mst. Surat Piari had no right to sell the property in favour of the plaintiff ?
5. Could the property in dispute not be sold otherwise also by Mst. Surat Piari, the daughter of Karam Chand, in favour of the plaintiff on Karam Chand's death.
6. Was Dalip Singh who executed the sale deed in favour of the plaintiff a duly appointed Mukhtar of Mst. Surat Piari and so the sale deed in question was validly executed by him ?
7. Is the verification of the plaint defective and so it needs an amendment ?
8. Is the present suit time-barred ?
9. If issues Nos. 1 to 8 are decided in favour of the plaintiff, did the defendants Mohan Lal, Tikan Lal and Durga Dass spend any amount by way of repairs etc. on the mortgaged property and what was the amount and are they entitled to recover it ?
10. Did L. Nand Lal, the grandfather of the defendants Mohan Lal, Tikan Lal and Durga Dass institute a suit against Kishan Chand as stated in the written statement and obtain a decree on the basis of compromise for S. 6,727/5/3 with a stipulation that till the payment of the said amount the property mortgaged which is in dispute now would remain in the possession of L. N and Lal and the latter would be entitled to effect repair etc. of the same and to charge that amount with interest ?
11. In case issue No. 10 is proved, is the present plaintiff Ram Gopal bound by the decree mentioned in issue No. 10 and if not bound then what is the effect of that decree on the present suit ?
12. Is the plaintiff entitled to the amount of Rs. 1,000/- or any lesser amount claimed by him in the suit ?
(2) The learned Subordinate Judge dismissed the suit on the basis of the following findings:-
1. The property in suit was mortgaged by Karam Chand in favour of Nand Lal for Rs. 3,500/-.
2. The sale deed was executed by Dalip Singh on behalf of Smt. Surat Piari in favour of the plaintiff-appellant after the death of Karam Chand.
3. The sale deed could not be validly executed by Dalip Singh on behalf of his wife because its authentication was not in accordance with sections 32 and 33 of the Indian Registration Act.
4. Smt. Surat Piari could be entitled to sell the property of Karam Chand if she was in possession thereof as heir or if the property vested in her after father's death; on the present record there is no evidence that Smt. Surat Piari ever came into possession of the property in suit or of any other property belonging to the estate of Karam Chand. The Court concluded that in these circumstances Smt. Surat Piari had no right to pass the title of the property in suit.
5. There was no partition in the family of Karam Chand and Kishan Chand, sons of Ganga Ram, the property in question having admittedly descended from Ganga Ram. The Court also noticed that Karam Chand and Kishan Chand had a third brother Hukam Chand who left two daughter Karam Devi and Kishan Devi has issues. Neither Smt. Surat Piari nor the daughters of Hukam Chand nor even the daughters of Karam Devi ever came into possession of the property in suit.
The Court in the circumstances came to be conclusion that Kishan Chand got his property by survivorship and that Smt. Surat Piari never got its possession. Smt. Surat Piari was found to be a minor of about 4 years when Karam Chand died, but on attaining majority also she i.e. Smt. Surat Piari did not care to get possession of the property.
6. Kishan Chand, if he did not get the property by survivorship, was a trespasser and his adverse possession began in Samvat 1986, and
7. Nand Lal had secured a decree on the basis of compromise for a sum of Rs. 6,727/5/3 with a stipulation that in case of delay in payment of the said amount, the property would remain in the possession of Nand Lal.
On these findings, as already observed, the plaintiff's suit was dismissed. An appeal was preferred in the Court of the District Judge because the jurisdictional value was originally fixed at Rs. 3,500/-. The learned District Judge by his order dated 28th March 1952 directed the memorandum of appeal to be returned to the plaintiff for presentation to the proper Court because, in his opinion, the true jurisdictional value being above Rs. 5,000/- the appeal did not lie in his Court. This appeal was they re-presented in the High Court at Patiala and registered as Regular First Appeal No. 18-P of 1952.
While admitting the appeal Chopra J. stated in the admitting note that the question of limitation would be decided at the hearing. The order of the learned District Judge returning the memorandum of appeal to be presented to the proper Court has been assailed in First Appeal from Order No. 13-P of 1952. Both these appeals have come up before us for disposal.
(3) Mr. Atma Ram, the learned counsel for the appellant, however, stated at the Bar that if the regular first appeal (No. 18-P of 1952) is heard on the merits and the respondents do not object to the extension of limitation then he would not press First Appeal from Order No. 13-P of 1952. The respondents have expressly stated that they do not want to raise any objection on the score of limitation with respect to the regular first appeal and, in my opinion, rightly, with the result that First Appeal from Order No. 13-P of 1952 has not been pressed and is, therefore dismissed without any costs.
(4) In so far as the Regular First Appeal No. 18-P of 1952 is concerned Mr. Atma Ram, learned counsel for the appellant, has, to begin with, contended that the sale of property on behalf of Smt. Surat Piari in favour of the plaintiff was valid and its execution and presentation by Dalip Singh could not be considered to be invalid. He has submitted that the Court below was wrong in holding that the authentication was not in compliance with the provisions of Ss. 32 and 33 of the Registration Act because, according to the counsel, Smt. Surat Piari was a resident of District Jullundur as recited in the Power of Attorney and therefore the authentication was by an officer having full jurisdiction.
He has also contended that the admission by Smt. Surat Piari before the Sub-Registrar that she had executed the power of attorney itself amounted to execution and therefore the provisions of S. 33 of the Registration Act were fully complied with. In this connection some Privy Council decisions have been cited at the Bar, e.g., Bharat Indian Penal Code v. Hakim Mohammad, AIR 1921 PC 93; Jambu Prasad v. Mohammad Nawab Aftab Ali Khan, 42 In App 22: (AIR 1914 PC 16); and Mujibunissa v. Abdul Rahim, 28 Ind App 15 (PC) and reliance has also been placed by Mr. Atma Ram on Sultan Ahmad v. Gauhar Begam, AIR 1940 All 108, Firm M. R. M. v. Ma E Nyo, AIR 1937 Rang 293; Mohammad Chiragh v. Fatta, AIR 1934 Lah 452(2) and Balkrishna Raoji v. Parashram Mahadeo, AIR 1926 Bom 479.
In my view, however, on the facts of the present case this question does not at all arise for consideration. The sale deed has actually been executed by Dalip Singh himself as mukhtar-i-am of Smt. Surat Piari and not by Smt. Surat Piari herself, with the result that this sale deed was in actual fact presented to the Sub-Registrar by the executant himself and by an agent of the executant duly authorised by a power of attorney to present the document as contemplated by S. 32 of the Registration Act.
This vital aspect of the matter seems to have been completely lost sight of by the Court below. Section 32 of the Registration Act requires the document sought to be registered, to be presented, inter alia by 'some person executing' it; this expression, in my view, means the person actually and in fact executing the document and it does not refer to the principal who may be considered to be executing the document by means of an agent. The basic principle underlying these provisions of the Registration Act is to get before the Sub-registrar the actual executant who in fact executes the document in question.
I am supported in my view by Mohammed Evaz v. Birj Lal ILR 1 All 465(PC) and by Sitaram Laxmanrao v. Dharmasukharam Tansukhram, ILR 51 Bom 971: (AIR 1927 Bom 487)(FB), which followed the Privy Council decision and overruled AIR 1926 Bom 479. In this view of the matter, in my opinion, Ss. 32 and 33 would hardly have any applicability to the facts of the present case and the Court below appears to be wrong in holding registration of the Power of Attorney in question to be without jurisdiction. There was no question of presenting the sale deed for registration by Dalip Singh in the capacity of an agent duly authorised by the said Power of Attorney.
(5) Mr. Atma Ram next argued that the property in dispute was the separate property of Karam Chand and therefore it was his daughter Smt. Surat Piari in whom the ownership of the equity of redemption vested and she was fully authorised to deal with it as she liked. In support of his contention he has placed reliance on a recital in the deed of mortgage where Karam Chand stated that the property in question was owned by him without having share with anybody else. The counsel submits that this deed having been attested by Kishan Chand, the latter should be fixed with the knowledge of the contents of the mortgage deed and should be deemed to have consented to or at least acquiesced in this assertion.
In this connection it may again be emphasised that it is common ground that the property came from Ganga Ram father of Karam Chand, Kishan Chand and a third brother Hukam Chand whose descendants or issues are also in existence. It is also common ground that Nand Lal immediately after Karam Chand's death instituted a suit against Kishan Chand as representing the estate and secured a decree of possession in pursuance of which possession was actually delivered to Nand Lal mortgagee. Mr. Atma Ram contends that there had in fact been effected a partition between the brothers.
The counsel has, however, not been able to refer to any evidence on the record showing any reasonably precise period of time when the alleged partition was or should be deemed or considered to have been effected. Oral evidence has not been relied upon by the counsel and indeed he did not even consider it worthwhile to make any reference to it at the Bar. It is also common ground that Karam Chand sometime in 1916 created a further encumbrance by way of a mortgage after the first mortgage. Strictly speaking, the plaintiff tried merely to make out a case of estoppel on the part o Kishan Chand on account of his having attested the mortgage deed.
In my view, this attempt is futile and the argument wholly untenable. It is well settled that mere attestation of a deed does not by itself impute to the attesting witness any knowledge of its contents. Kishan Chand's relationship with Karam Chand cannot by itself necessarily have the effect of fixing the former with the knowledge of the contents of the deed; far less of every sentence contained in it. In any case there is hardly any substantial ground for founding the plea of estoppel merely on the basis of a solitary sentence of dubious or in exact import; such a loose expression might well be construed to mean that no one other than the co-parcerners had any share in the property.
It is also relevant in this connection to observe that the case based on estoppel was not the subject-matter of any issue and even in the memorandum of appeal it is not urged that Kishan Chand was estopped from denying the co-parcenary nature of property. To sustain, on second appeal, an argument based on estoppel which is a complex legal notion involving representation, acting on it and change of position as a consequence, there should, from the very nature of things, have been a proper trial of a distinct and specific pleading on the point. The conduct of Kishan Chand immediately after the death of Karam Chand as also the conduct of Nand Lal mortgagee who must obviously be interested in claiming his relief from the true and rightful owner clearly show that by executing the mortgage deed it was never intended by the parties thereto to treat the property to be the separate and exclusive property of Karam Chand alone. Mr. Atma Ram then contended that Kishan Chand should have challenged the validity of the mortgage when Nand Lal claimed a decree for possession against him. It has been difficult for me to appreciate the relevancy of this argument. Such a mortgage could only be challenged if it had been effected without a necessary purpose and if it could, on that score, be considered to be not binding on the co-parcenary property. If the mortgage was otherwise binding, having been justifiably effected by the manager or the karta (admittedly Karam Chand was the elder of the two brothers), I cannot see how failure on the part of Kishan Chand to raise a dishonest, or, to put it mildly, an incorrect, plea can possibly be construed to mean that the property was the separate property of Karam Chand. It is well established that, generally speaking, the normal state of every Hindu family is joint and in the absence of proof of division such is the legal presumption; in other words, given a joint Hindu family the presumption is, unless the contrary is proved, that it continues joint. Such a presumption is stronger in the case of real brothers. The property in question is the instant case having admittedly come to Karam Chand it can safely and legitimately be presumed that this was co-parcenary property and was presumably dealt with by Karam Chand as the manager or the karta. Had there actually been a partition it would not have been difficult to prove allotment of some property to Kishan Chand as well as to Hukum Chand, the third brother. In fact the complete uncertainty and ignorance of even the approximate time of alleged partition suggests that this plea has been raised on wholly speculative and imaginative grounds. It is true that there is no presumption that the joint family possessed any joint property, but once, as noticed above, the property is conceded to have come down from the father of Karam Chand and Kishan Chand, the inference is irresistible that until and unless a partition is proved these two brothers continue to hold the property as co-parceners. In this view of the matter it must be held that the appeal is without merit and should therefore be dismissed.
(6) For the foregoing reasons this appeal fails and hereby dismissed, but in the peculiar circumstances of this case the parties are left to bear their own costs in this Court.
Bishan Narain, J.
(7) I agree.
(8) Appeal dismissed.