Jagat Narayan, C.J.
1. This D.B. Civil regular first appeal has been referred for decision to the Full Bench by a Division Bench as the learned Judges constituting it were of the opinion that the following observations made by a Division Bench of this Court in Jetharam v. Hazarimal, ILR (1951) 1 Raj 417 = (AIR 1952 Raj 28), was not a correct interpretation of the decision of their Lordships of the Privy Council in Mohammed Ewaz v. Brijlal, (1876) 4 Ind App 166 (PC):--
'On the other hand, the case of Mohammed Ewaz v. Brijlall, is an authority to the contrary. It was held in that case that where the document was executed by two or more persons and some of them admitted execution while others denied it, the document should be registered as to the persons admitting the execution and it would be effective against the persons on whose instance the document was registered.'
The appeal arises out of a suit for the enforcement of a mortgage by the sale of the mortgaged properties instituted by Mukan Dass, his son Rameshwar Dass and his grandson Bhanwarlal against Bhaniram, his brother Nenuram and his sons Tarachand and Jai Narayan. The case of the plaintiffs was that on Kartik Sudi 9, 'S. 2002 (corresponding to 14-11-45) the defendants who were members of a joint Hindu family with Bhaniram as Karta thereof, took a loan of Rs. 10,000/-on the security of certain immovable properties situated in the town of Banner, by a registered mortgage-deed Ex. 2. On Mah Sudi 13, Section 2002 (corresponding to 31-1-46) the defendants executed another mortgage-deed Ex. 1 for a total sum of Rs. 20,0000/ (consisting of Rs. 10,000/- on the previous mortgage and a fresh loan of Rs. 10,000/- in cash) in favour of the plaintiffs agreeing to pay interest at the rate of Re. 0-7-9 per cent, per month and cancelled the first mortgage. Some more property was included in the second mortgage-deed the details of which are given in para 3 of the plaint. This mortgage was with possession and the defendants obtained the lease back of the properties mortgaged and executed a rent-note on the same date. As they allowed the rent to fall in arrears the plaintiffs brought suit No. 32/53 on 24-2-1953 in the first instance for the recovery of the arrears of rent and for possession of the mortgaged property. The period of payment fixed under mortgage-deed Ex. 1 was 5 years.
In the written statement of suit No. 32/53 the defendants denied the execution of the mortgage-deed as well as the rent-note. As meanwhile the period of 5 years had come to an end the plaintiffs withdrew suit No. 32/53 with the permission of the court with liberty to brine a fresh suit and this is how the suit out of which the present appeal arises came to be filed on 18th February 1954. According to the plaintiffs the defendants had paid a sum of Rs. 25A only towards the principal amount of this mortgage and nothing by way of rent or interest and so they brought this suit for the recovery of Rs. 19,975/-as principal plus Rs. 2,626/- as interest, total amounting to Rs. 22,601/- and prayed for the usual mortgage decree.
2. We may mention here that the mortgage-deed was executed by only 3 out of the 4 defendants. Tarachand did not execute it Defendant No. 2 Nenuram alone filed a written statement while the other defendants allowed the suit to proceed ex parte against themselves. Bhanu Ram, defendant, gave evidence as witness for Nenuram, defendant No. 2, and Jai Narayan cross-examined some witnesses as Mukhtar of Nenuram, defendant No. 2. Nenuram completely denied the factum of the loan or the execution of the mortgage-deed in his written statement. Bhani Ram made similar denials as witness for Nenuram. Nenuram pleaded in the alternative that if the court held that the deed had been executed by him and the other two defendants it was without consideration and without legal necessity and represented losses sustained in wagering transactions and therefore the whole deed was void and inoperative in law. Pleas as to the suit being barred under Order 2 Rule 2 C. P. C. and as to limitation were also taken. Yet another plea that is important to mention was that the document was not registered according to law and was therefore not binding on defendants Nos. 2, 3 and 4. This last mentioned objection was raised on two grounds (1) that the registration of the mortgage-deed was made by Shri Ranjit Singh (as Sub-Registrar) who was the Naib Hakim of Barmer at that time, the Hakim Shri Ram Singh having taken leave on account of the death of his wife and the said Shri Ranjit Singh had not been duly authorised to perform the duties of the Sub-Registrar during the absence on leave of Shri Ram Singh, and (2) that it was the appellant Bhani Ram alone who had appeared before the Sub-Registrar to admit the execution of the document and as the other two executants of the deed namely Nenuram and Jai Narayan had not appeared to admit it before the same authority the deed was not binding on them, at all.
3. On these pleadings 12 issues were framed by the trial Court, which decided all of them in favour of the plaintiffs and decreed the suit. The Issues framed by the trial Court relating to the execution of the mortgage-deed Ex. 1 (part of issue No. 1), as to the repayment of Rs. 25/- on Migsar Badi 1, Section 2008 (issue No. 3), as to the transaction being bad on account of wager (issue No. 6), as to the suit being barred under Order 2. Rule 2 (issue No. 7), as to the mortgage-deed being without consideration (issue No. 9) and as to the suit being; barred by limitation (issue No. 11) were not pressed before the Division Bench.
4. The main issue that was pressed before the Division Bench was relating to defective registration, defective both because the officer registering the document was not competent to do so and also because two of the executants of the mortgage-deed Ex. 1 had not appeared before the Sub-Registrar to admit the execution thereof. The Division Bench was of the opinion that the objection as to the registration on the score of the incompetence of the officer registering it was without force. This case was referred to the Full Bench on account of the other objection relating to registration.
5. The present appeal was filed by all the 4 defendants namely Bhani Ram Nenuram, Tarachand and Jai Narayan. It was not disputed before us that these four defendants constituted a joint Hindu family at all material times and that Bhani Ram was the Karta of this joint family. We have already mentioned above that although the mortgage-deed purported to be on behalf of the 4 defendants only Bhani Ram, Nenuram and Jai Narayan executed it. Tarachand did not execute it. Further Bhani Ram alone who was the Karta of the joint Hindu family of the defendants appeared before the Sub-registrar and admitted the execution of the document. Nenuram and Jai Narayan do not appear to have personally admitted the execution of the document by them before the Sub-Registrar as the following endorsement on mortgage-deed Ex. 1 goes to show:--
Execution has been admitted. Four shops, four Bhandas with one Masalia mentioned in the deed have been mortgaged with possession with Shri Mukand Das Son of Khubchand, Maheshwari of Balotra Pargana Pachpadra and the consideration thereof amounting to Rs. 20.000 (Rupees twenty thousand only) has been received by the mortgagors. The possession of the shops. Bhandas etc. has been delivered. The aforesaid Bhaniram son of Pannalal, Maheshwari of 65 years, occupation Halwai, resident of Barmer is known to me, the Sub-Registrar.
S/d Ranjit Singh
S/d- Bhaniram Pannalalani
This document has been entered today, the 4th Feb. 46 at Section No. 63 of Bahi No, 1, Vol. No. 19 at pages 112-113 and has been registered after realising registration fee of Rs. 14/-., Ujarat Rs. 2/-total Rs. 16/-,
Sd/- Ranjit Singh
6. The Marwar Registration Act, 1934 which governs the case is almost identical with the Indian Registration Act. 1908. Sections 34, 35 and 36 of the Mar-war Registration Act run as follows:--
'34. (1) Subject to the provisions contained in this part and in Sections 41, 43, 45. 69, 75. 77. 88 and 89 no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for 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 executed 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) Any application for a direction under the proviso to Sub-section (1) may be lodged with a Sub-Registrar, who shall (forthwith forward it to the Registrar.
(5) Nothing in this section applies to copies of decrees or orders.
35. (1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or
(b) If in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or,
(c) If the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution,
the registering officer shall register the document as directed in Sections 58 to 61 (inclusive).
(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.
(3) (a) If any person by whom the document purports to be executed denies its execution, or
(b) If any such person appears to the registering officer to be a minor, an idiot or a lunatic, or
(c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, or
(d) If any person by whom the document purports to be executed or his representative or assign, after being duly summoned fails to appear before the registering officer on the date mentioned in the summons.
the registering officer shall refuse to register the document as to the person so denying, appearing dead or not appearing.
Provided that, where such officer is a Registrar he shall follow the procedure prescribed in Part XII.
36. If any person presenting any document for registration or claiming under any document, which is capable of being so presented desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer in his discretion may, upon receipt of the process fee payable in such cases, issue a summons requiring him to appear at the Registration Office, either in person or by duly authorized agent as in the summons may be mentioned and at a time named therein, and cause it to be served upon the person whose appearance is so required.'
7. On the strength of the observations made in Jetharam v. Hazarimal which we have referred to above, it was contended before the Division Bench that the mortgage-deed Ex. 1 is operative only against Bhaniram who appeared before the Sub-Registrar to admit it and not against the other two executants namely Nenuram and Jai Narayan who did not personally admit the execution of the deed by them before the Sub-Registrar.
8. We may state here that the wordings of Section 34 of the Marwar Act and those of the corresponding Section 34 of the Indian Act are identical. Further so far as Sections 35 and 36 of the Marwar Act are concerned there can be no difference in the interpretation of these two sections when compared to the corresponding provisions contained in Sections 35 and 36 of the Indian Act. In the Marwar Act Clause 3 (d) has been introduced in Section 35 which lays down that if any person by whom the document purports to be executed or his representative or assign, after being duly summoned, fails to appear before the registering officer on the date mentioned in the summons he shall refuse to register the document as to the person not so appearing. This clause does not appear under the Indian Act but it has been held in all reported decisions that the effect of non-appearance under that Act is also the same. We may in this connection refer to the decision of the Bombay High Court In re Shaik Abdul Aziz, (1887) ILR 11 Bom 691 at p. 696.
9. In that case the executant failed to appear before the Sub-Registrar of Bombay and admit execution though he was served with a summons as provided by Section 36. The mortgagee 'thereupon applied to the Sub-Registrar to treat the mortgagor's neglect to attend and admit execution as equivalent to a denial of execution and to 'refuse to register' the deed under Section 35 (3) in order that an application might be made to the Registrar under Section 73 for the purpose of establishing his right to have the deed registered- The Sub-Registrar thought (though erroneously) that he could not treat the mortgagor's non-appearance as a denial of execution and he did not 'refuse to register'. The mortgagee thereupon took out a rule under Section 45 of the Specific Relief Act 1877, calling on the Registrar to show cause why he should not be directed to endorse the deed with his refusal to register. It was held that the mortgagor's non-appearance despite service was equivalent to a denial of execution and the Court made an order directing the Registrar to proceed under Section 74 to make the enquiry therein directed.
10. We may here reproduce the provisions of Sections 71, 73 and 74 of the Marwar Act which are almost similar to the provisions of the corresponding sections of the Indian Act:--
'71, Reasons for Refusal to register to be recorded.--(1) Every Sub-Registrar refusing to register a document except on the ground that the property to which it relates is not situate within his district, shall make an order of refusal and record his reasons for such order in his Book No. 2 and endorse the words 'registration refused' on the document; and on application made by any person executing or claiming under the document, shall, on payment of a copying fee of annas four and without unnecessary delay, give him a copy of the reasons so recorded.
(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.
S. 73. Application to Registrar where Sub-Registrar refused to register on ground of denial of execution.--(1) When a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed or his representative, assign or authorized agent denies its execution, any person claiming under such document, or his representative assign or agent authorized as aforesaid, may within thirty days after the making of the order of refusal, exclusive of the time occupied in obtaining a copy of the order apply to the Registrar in order to establish his right to have the document registered.
(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints.
Section 74. Procedure of Registrar on such application.--In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire--
(a) whether the document has been executed;
(b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.'
11. The only other sections to which we may refer in connection with this case are Sections 52, 54, 58, 59. 60 and 61 of the Marwar Act which are practically identical to the corresponding provisions of the Indian Act. They are reproduced below:--
'Section 52, Duties of registering officers when document presented.--(1) (a) The day, hour and place of presentation, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;
(b) a receipt for such document shall be given by the registernig officer to the person presenting the same; and
(c) subject to the provisions contained in Section 62, every document admitted to registration shall, without unnecessary delay, be copied in the book appropriated therefor according to the order of its admission.
(d) any interlineation, blank, erasure or alteration which appears in the original document admitted to registration, shall be accurately and carefully noted in the copy thereof entered in the Book.
(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Registrar.
Section 54, Current Indexes and entries therein.--In every office in which any of the books hereinbefore mentioned are kept, there shall be prepared current indexes of the contents of such books, and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of the document to which it relates.
Section 58. Particulars to be endorsed on documents admitted to registration.--(1) On every document admitted to registration, other than a copy of decree or order, or a copy sent to registering officer under Section 89, there shall be endorsed from time to time the following particulars; namely :--
(a) The signature and addition of every person admitting the execution of the document, and if such execution has been admitted by the representative, assign or agent of any person the signature and addition of such representative, assign or agent.
(b) The signature and addition of every person examined in reference to such document under any of the provisions of this Act; and
(c) Any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission for receipt of consideration, in whole or in part, made in his presence an reference to such execution.
(2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time, endorse a note of such refusal.
Section 59. Endorsements to be dated and signed by registering officer.--The registering officer shall affix the date and his signature to all endorsements made under Sections 52 and 58, relating to the same document and made in his presence on the same day.
Section 60. Certification of Registration.--(1) After such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officers shall endorse thereon a certificate containing the word 'registered' together with the number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned.
Section 61. Endorsements and certificates to be copied and document returned.--(1) The endorsements and certificate referred to and mentioned in Sections 59 and 60, shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in Section 21, shall be filed in Book No. 1.
(2) The registration of the document shall thereupon be deemed complete and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in this behalf on the receipt mentioned in Section 52.'
12. A perusal of the provisions of the Registration Act goes to show that every document required to be registered is to be presented within the time prescribed under Sections 23 to 27 which occur in Part IV headed 'Of the time of presentation'. Further the document is to be presented to the registering officer of the place specified in Part V, headed 'Of the place of registration'.
13. The next important provision Is contained in Section 32 which runs as follows:--
'Section 32. Persons to present documents for registration.-- 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--
(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 or assign duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.'
14. Section 33 then prescribes the powers of attorney which alone shall be recognised for the purposes of Section 32. It runs as follows:--
'Section 33. Powers-of-attorney recognisable for purposes of Section 32.--(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognized:--
(a) If the principal at the time of executing the power-of-attorney resides in any part of Marwar in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose jurisdiction the principal resides;
(b) If any principal is a Tazimi, a power of attorney executed on plain paper duly signed and sealed by him in 'favour of his agent.
(c) If the principal at the time aforesaid does not reside in Marwar, a power-of-attorney executed before and authenticated by a Notary Public, or any Court. Judge, Magistrate. British Consul or Vice-Consul or representative of his Majesty or of the Government of India;
Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing any such power-of-attorney as is mentioned in clause (a) of this section, namely:--
(i) Persons who by reason, of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) Persons who are in jail under civil or criminal process; and
(iii) Persons exempt by law or order of Darbar from personal appearance in Court;
(iv) Ladies who by custom of the land live in Pardah and
(v) recognized religious or spiritual heads.
(2) In the case of every such person the Registrar or Sub-Registrar as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar may either himself go to the house of the person purporting to be the principal, or to the Jail in which he is confined and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.'
15. 'We may mention here that Sections 32 and 33 of the Marwar Act are identical to the corresponding sections of the Indian Act.
16. It will be seen that Section 23 provides for a period of 4 months for presenting a document for registration. Section 25 provides for a further period of 4 months in cases of urgent necessity or unavoidable accident on payment of fine. Section 34 provides that no document shall be registered unless the persons executing the document appear before the registering officer within the time allowed for presentation by Sections 23 and 25. But the proviso to Section 34 (1) allows a further period of 4 months, with the result that while the maximum period for presenting a document is 8 months, that for the appearance of parties before the registering officer is 12 months.
17. If a document is presented within the time allowed under the Act by a person authorised to do so under Section 32 read with Section 33 it is the duty of the registering officer to admit it to registration and proceed as prescribed under Section 52 onwards. Under Section 52 (1) (a) the registering officer is required to endorse on the document at the time of presentation the day, hour and place of registration and obtain the signature of every person presenting it for registration.
18. Under Section 52 (1) (c) he is required to copy the document in the appropriate book prescribed under Sec. 51 without unnecessary delay. Under Section 54 as soon as the registering officer has copied the document in the appropriate book he is required to make an entry about it in the current index of the contents of such book.
19. Section 58 (1) (a) lays down that the registering officer shall obtain the signature of every person admitting execution of the document, and if such execution has been admitted by the representative, assign or agent of any person, the signature of such representative. assign or agent as soon as such admission is made. Section 59 lays down that the registering officer shall affix the date and his signature to all endorsements made under Section 52 (1) (a) about presentation of the document for registration and under Section 58 (1) (a) about the admission to execute by each executant on the day on which such presentation or such admission is made.
20. It is only after the provisions of Sections 34, 35. 58 and 59 have been complied with that the registering officer is empowered to endorse thereon a certificate containing the word 'registered' together with the number and page of the book in which the document has been copied. This is what Section 60 (1) lays down and it is only after such certificate is endorsed on the document that it is to be treated as registered. Section 60 f2) lays down that such certificate shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered In the manner provided by the Act and that facts mentioned in the endorsement referred to in Section 59 have occurred as therein mentioned.
21. It will thus be seen that according to the provisions of the Act the registering officer should not register a document till all the executants have appeared before him either personally, through representative, assign or agent or have failed to appear after due service under Section 36.
22. If the sole executant appears before the registering officer and admits execution of the document he should register it. If there are more executants than one and one or some of the executants appear and admit execution he should take appropriate decision for registration or partial registration but only (a) when all the executants have either appeared before him personally, through representative, assign or agent or have failed to appear after due service under Section 36- After all of them have so appeared or failed to appear the registering officer is required to refuse to register the document as to persons mentioned in sub-section (3) of Section 35 of the Marwar Act namely as to persons denying execution, appearing to the registering officer to be minors. Idiots or lunatics, who have died and whose representative or assign denies execution or who have failed to appear despite due service.
23. Where there are several persons executing a document at different times such document may be presented for registration and re-registration within 4 months from the date of each execution as provided under Section 24. But where more than one person execute a document at the same time Section 24 has no application. It is Section 34 (2) which becomes applicable in that case. The different executants may appear before the Sub-Registrar simultaneously or at different times or may be summoned so to appear as provided under Section 36. It is only after all of them have so appeared or have been served and have failed to appear that the Act contemplates the registration of the document by the registering officer. The Act does not authorise the registering officer to register a document as to a particular executant on his appearance to admit the execution where the other executants have either not appeared or been served under Section 36. If they appear personally, through representative, assign or agent they will either admit execution or deny it. If they fail to appear despite due service of summons under Section 36 denial will be presumed. But so long as a summons is not served on an executant and he merely fails to appear voluntary refusal of execution on his part cannot be presumed.
24. It Is unnecessary to decide in the present case whether it is not open to the registering officer to presume such refusal where an executant fails to appear voluntarily before him to admit or deny execution and the time for such appearance as prescribed under the Act has expired. We leave this question open in the present case.
25. So far as the facts of D. B. Civil Regular First Appeal No. 30/1957 are concerned the mortgage-deed in suit was executed on 31-1-46. On 1-2-46 Bhani Ram appeared before the Sub-Registrar. Barmer, and admitted the execution of the deed. An endorsement about it was made by the Sub-Registrar and the signatures of Bhani Ram were obtained. On 4-2-46 the mortgage-deed was registered by the endorsement of a certificate of registration on it as prescribed under Section 60 (1). Nenuram and Jai Narayan who had also executed the deed did not appear before the Sub-Registrar either personally or through agent. The time for their appearance had not expired by 4-2-46 when the registration certificate was appended to the document.
26. From what we have said above, it is clear that the registering officer registered the document prematurely. He contravened some of the provisions of the Act to which we have referred to above. It Is not disputed 'that the registering officer acted in good faith. The question which arises in this case is whether the error committed by the registering officer is an error of procedure covered by Section 87 of the Registration Act or there has been a violation of a mandatory provision of the Act which renders the registration of the deed either wholly invalid or invalid as to persons not appearing before the registering officer,
27. A similar question has arisen in D. B. Civil Regular First Appeal No. 109/58 and we have heard the learned counsel for the parties in both these appeals. We have carefully considered the arguments and the decisions cited before us at the Bar and we are firmly of the opinion that the error committed by the registering officer in these two cases is an error of procedure which is curable under Section 87 of the Act, which runs as follows:--
'Section 87. Nothing so done invalidated by defect in appointment or procedure.---Nothing done in sood faith pursuant to this Act or any Act hereby repealed, by any Registering Officer, shall be deemed invalid merely by reason of any defect In his appointment or procedure.'
28. We may say at once that there Is no reported case of the Privy Council or the Supreme Court in which the facts were exactly similar to the facts either of the present two cases. Some obiter observations were made by, their Lordships of the Privy Council in' Sah Mukhun Lall v. Sah Koondun Lall. (1875) 2 Ind App 210 (PC), on which their decision in Mohammed Ewaz v. Brijlall, was based. From the principles deducible from that decision our above finding finds support. In the case of Mohammed Ewaz a suit was brought by the appellants before the Privy Council namely the sons and heirs of Shere Muhammad, the vendee under a deed of sale which on the face of it purported to have been made by three persons, Mubarak Jan, and her two sons Hyat Muhammad and Salamatulla, The respondents were purchasers under a subsequent deed of sale who impeached the sale-deed in favour of Shere Muhammad on the ground that it could not be read in evidence because it was not properly registered. The deed had been in point of fact registered. The trial Court (Subordinate Judge Bareilly) and the appellate Court (District Judge Bareilly) found that the mother had not executed the deed, but that the two sons had done so. They accordingly gave a decree to the plaintiff for the completion of the sale-deed to the extent of the rights of Hyat Muhammad and Salamatulla and dismissed the suit as regards the right of Mst. Mubarak Jan.
29. From the above judgment there was an appeal to the High Court which came to the conclusion that the registration of the sale-deed in favour of Shere Muhammad was null because the requisites of the Registration Act had not been complied with.
30. The deed was brought to the Registrar on 15th January. The vendors did not attend and it became necessary to summon them. The two sons appeared on the following day and admitted their own execution but denied that of their mother. The deed purported to have been executed by the two sons, each in his own handwriting and by the mother Mst. Mubarak Jan, by the hand of Hyat Muhammad. The sons admitted their own signatures and execution, but stated that their mother had not assented to the sale. The Sub-Registrar made the following endorsement.
31. The first endorsement was made on the 15th January, the day on which the deed was presented for registration and was to the effect that the deed was presented by the agent of the vendee, who also applied for compulsory attendance of the vendors. The two sons having attended on the following day and made the admissions and statement above referred to, the Sub-Registrar made this endorsement: 'Hyat Muhammad and Salamatulla......two of the three vendors named in this sale-deed, were identified,' and so on, stating the identity and their written depositions were taken down on separate papers, according to the application of the manager of the vendee for the compulsory attendance of the vendors. The said vendors admitted before me, in their written deposition, that they had executed the sale-deed now in the office, including therein the name of their mother, and completed it by having it duly signed and witnessed, but that they had this sale-deed drawn up without consulting their mother, and she was not a consenting party to it; that they had not received any money from this vendee, and they, having received a larger amount? of consideration from Baijnath etc., executed a sale-deed in their favour,, and had it registered and they had no mind to have this sale-deed registered.' The last statement that they had no mind to have the deed registered was treated as a refusal on their part but the Registrar registered the deed as its execution was admitted by Hyat Muhammad and Salamatulla.
32. The High Court held that the execution of the deed not having been admitted by the mother and her authority (for its execution having been denied it was improperly registered and could not be received in evidence as against the sons. The decision was based on Section 35 of the Registration Act of 1871. This section runs as follows:--
'If all the persons executing the document appear personally before the registering officer and are personally known to Mm or if he be otherwise satisfied that they are the persons they represent themselves to be, and If they all admit 'the execution of the document, or, In the case of any person appearing by a representative, assign, or agent, if such representative, assign, or agent admits the execution, or if the person executing the document is dead and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Sections 58 to 61 inclusive.... ..... ..... ..... ..... ..... If all or any of the persons by whom the document purports to be executed deny its execution, or if any such person appears to be a minor, an idiot, or a lunatic, or if any person by whom the document purports to be executed is dead and his representative or assign denies its execution, the registering officer shall refuse to register the document.'
33. Their Lordships observed as follows :--
'Those words, taken literally, undoubtedly seem to require the registering officer to refuse to register a deed which purports to be executed by several persons if any one of those persons deny the execution. Such a construction, however, would cause great difficulty and injustice, which it cannot be supposed the Legislature contemplated, and would be inconsistent with the language and tenor of the rest of the Act; their Lordships, therefore, think the words should be read distributively, and be construed to mean that the registering officer shall refuse to register the document quoad the persons who deny the execution of the deed, and quoad any persons who appear to be minors, idiots, or lunatics. There appears to be no reason for extending the clause further than this, so as to destroy the operations of the deed as regards those who admit the execution, and who are under no disability, which would be the practical effect of a refusal to register at all. The proviso in the 23rd section, to which allusion has already been made shows that the Legislature contemplated a partial registration of a deed, that is, partial as to the persons executing it. Now it would be extremely difficult to five effect to this enactment in the 35th clause in its literal meaning, and at the same time to give effect to the proviso in the 23rd clause. To do so would certainly create an anomaly. Supposing three vendors live in different places, and are called upon at different tunes to execute the deed of sale, in that case there undoubtedly may be three several registrations. Supposing No. 1 and No. 2 attend the Registrar and admit the execution of the deed and it is registered but No. 3 afterwards comes and denies the execution of the deed, what is to be the consequence? Is the previous registration of the two to be rendered invalid? If so, effect could not be given to the proviso. And if that registration is not to be invalid, what difference in principle can there be between the case where three vendors appear at different times to admit or deny the execution, and where they appear at the same time to admit or deny the same fact? That which is required of them is precisely the same in both cases, and the admission and denial ought in reason to have the same effect in both.
Their Lordships cannot but think' that considerable light is thrown upon the intention of the Legislature by the provision that there may be under the circumstances mentioned a registration and re-registration of the same document.
Again, the registering officer is to refuse to register, not only in the case of persons who deny the execution of the deed, but in the case of persons who appear--that is, who appear to him'--to be minors, or idiots, or lunatics. Suppose a deed executed by three persons, two of whom were under no disability and who admit their execution, but the third had become a lunatic, it would follow, if the construction contended for the respondents were to prevail, that that deed could not be registered against the persons who admitted their execution, and who were under no disability. The consequences of such a construction would be so injurious that it cannot be supposed that the Legislature intended to produce them. The consequences of non-registration are pointed out in the 49th section, and are of the most stringent description: 'No document required by Section 17 to be registered shall affect any immoveable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered in accordance with the provisions of this Act.' The effect,, therefore, in the case which has just been supposed, would be that the deed could not be given in evidence against those who had executed it, and who were under no disability, because some other person interested in the property, and made a party to it, had become lunatic (it may be after the execution), or appeared to the Registrar to be lunatic. No injustice is done by admitting a deed to registration, because the effect is no more than to satisfy an onerous condition before the deed can be given in evidence: and when in evidence, it subject to every objection that can be made to it precisely as if no registration had taken place: whereas when registration is refused, the effect may be to deprive the party altogether of perfectly good rights which he might, have under the deed but for the Registration Act
The Act gives little discretion to the Sub-Registrar. He is bound either to register or not to register when he is satisfied by the admission or denial of the parties that the deed has been executed and no discretion is given to him to inquire further into the matter. He can only obtain from the parties or their agents the admission or the denial. But provision is made for an appeal from his refusal to register to the District Court, and that Court is empowered to go into evidence, and if the District Judge is satisfied that the deed was executed by the parties, he is then to order the registration. The power of that Court, however, does not and could not arise in this case, because in point of fact the Sub-Registrar did register the deed.
Their Lordships do not think it necessary to refer specifically to the other sections in the Act. They have referred to those which furnish in their view, a context to explain and cut down the generality of the words used in the 35th section.
This point will of course dispose of the appeal. But there is another part of the judgment of the High Court which their Lordships think requires consideration. The High Court say : 'It has been held by this Court more than once that unless a deed be registered in accordance with the substantial provisions of the law, it must be regarded as unregistered though It may in fact have been improperly admitted to registration.' Their Lordships think this is too broadly stated, if the High Court is to be understood to mean that in all cases where a registered deed is produced, it is open to the party objecting to the deed to contend (that there was an improper registration--that the terms of the Registration Act in some substantial respects have not been complied with. Undoubtedly it would be a most inconvenient rule if it were to be laid down generally that all Courts, upon the production of a deed which has the Registrar's endorsement of due registration, should be called on to inquire, before receiving it in evidence, whether the Registrar bad properly performed his duty. Their Lordships think that this rule ought not to be thus broadly laid down- The registration is mainly required for the purpose of giving notoriety to the deed, and it is required under the penalty that the deed shall not be given in evidence unless it be registered. If it be registered, the party who has presented it for registration is then under the Act in a position which prima facie at least entitles him to give the deed in evidence. If the registration could at any time, at whatever distance of time, be opened, parties would never know what to rely upon, or when they would be safe. If the Registrar refuses to register, there is at once a remedy by an appeal; but if he has registered, there is nothing more to be done. Supposing, indeed, the registration be obtained by fraud, then the act of registration, like all other acts which have been so arrived at might be set aside by a proper proceeding. The 60th section is: 'After such of the provisions of Ss. 34, 35. 58 and 59 as apply to any documents presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word 'registered', together with the number and page of the book in which the document has been copied. Such certificate shall be signed, sealed, and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned.' The certificate is that which gives the document the character of a registered instrument, and the Act expressly says that that certificate shall be sufficient to allow of its admissibility in evidence. Then by the 85th clause it is enacted that 'Nothing done in good faith pursuant to this Act, or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure.' No doubt, in this case, the fact of the non-admission of the mother's execution appears upon the endorsement made on the deed itself, and did not require to be proved aliunde; but the observations in the judgment go beyond the particular case.
This point does not come before their Lordships for the first time. It was a good deal considered in the case to which Mr. Cowie has referred. Sah Mukhun Lall Panday v. Sah Koondun Lall, and although it was not there necessary to decide the point,--indeed the point did not arise, and the appeal was decided upon another ground--yet the considerations to which their Lordships have just adverted were discussed in the judgment in this way :-- 'Now considering that the registration of all conveyances of immoveable property of the value of Rs. 100 or upwards is by the Act rendered compulsory, and that proper legal advice is not generally accessible to persons taking conveyances of land of small value, it is scarcely reasonable to suppose that it was the intention of the Legislature that every registration of a deed should be null and void by reason of a non-compliance with the provisions of Section 19, 21 or 36, or other similar provisions.' It may be observed that Section 36 in the former Act is the equivalent of Section 35 in the present Act. 'It is rather to be inferred that the Legislature intended that such errors or defects should be classed under the general words 'defect in procedure' in Section 88 of the Act,' -- which is the same as Section 85 in the present Act--'so 'that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer on whom they would naturally place reliance. If the registering officer refuses to register, the mistake may be rectified upon appeal under Section 83, or upon petition under Section 84, as the case may be; but if he registers where he ought not to register, innocent persons may be misled, and may not discover until it is too late to rectify it, the error by which, if the registration is in consequence of it to be treated as a nullity, they may be deprived of their just rights.'
It is to be observed, with regard to the inconvenience which it is suggested may arise from a deed being registered when some only of the parties to it have executed it, that provision is made for disclosing the parties who have really executed the deed. A copy of the deed is to be made in a boob and there are to be indexes, and it is directed that 'Index No. 1 shall contain the names and additions of all persons executing, and of all persons claiming under, every document copied into or memorandum filed in book No. 1 or book No. 3.' So that any one consulting the register would find a copy of this deed, and that the two sons only had executed it, and that the mother had not.'
We have given full facts of the case of Mohammed Ewaz, and also quoted the judgment of their Lordships of the Privy Council in extenso in order to demonstrate the error into which the learned Judges fell in Jetharam v. Hazarimal, when they observed that the case of Mohammed Ewaz was an authority for the proposition that where a document was executed by two or more persons and some of them admitted execution before the registering officer while others denied it, it would be effective only against the persons on whose instance the document was registered.
34. No such proposition is deducible from that case as there the document was in fact executed by two persons only both of whom admitted execution before the registering authority. These two persons were the two brothers Hyat Muhammad and Salamatulla. Their mother Mst. Mubarak Jan never executed the deed in fact. The deed purported to have been executed by Mst. Mubarak Jan also inasmuch as Hyat Muhammad wrote down her name in his own hand on the deed. Before the registering authority Hyat Muhammad stated that Mst. Mubarak Jan had not assented to the sale and he had written her name on the deed without her authority. There was no evidence to the contrary. On the finding of fact that the deed was executed only by Hyat Muhammad and Salamatulla and not by Mst. Mubarak Jan their Lordships of the Privy Council held that the deed was effective against the two persons who executed it, but was ineffective against their mother who did not execute it.
35. The case of (1876) 4 Ind App 166 (PC), is an authority for the proposition that the provision contained in the then Registration Act that 'if all or any of the persons by whom the document purports to be executed deny its execution, or if any such person appears to be a minor, an idiot, or a lunatic, or if any person by whom the document purports to be executed is dead and his representative or assign denies its execution, the registering officer shall refuse to register the document' should be read distributively and should be construed as not mandatory but only directory.
36. The then Registration Act did not contain provision corresponding to that contained in clause (3) of Section 35 that if any person by whom the document purports to be executed denies its execution or appears to the registering officer to be a minor, an idiot or a lunatic or has since died and his representative or agent denies its execution the registering officer shall refuse to register the document as to the person so denying or appearing dead. This provision was introduced in the Act by amendment as a result of the decision in the case of Mohammed Ewaz.
37. The reasoning given in the case of Mohammed Ewaz is equally applicable to the present case where the registering officer registered the document on 4-2-46 on the admission of Bhani Ram alone and before Nenuram and Jai Narayan had appeared before him and either admitted execution or denied it or were summoned under Section 36 and had failed to appear so that their denial could be presumed.
38. If the registering officer refuses to register a document because an executant has denied its execution then an appeal lies against his order under Section 73 and the person claiming under the document can get it registered by the Registrar upon proof of execution as provided under Section, 73.
39. If any of the executants admits execution before the registering authority and he registers the document erroneously before all the executants have appeared before him or have failed to appear after being duly summoned no Injustice is done as the consequence Is only to admit the document into evidence by the removal of the bar under Sec. 49 of the Act as pointed out by their Lord ships of the Privy Council in the above case. At the trial the person claiming under the document has to prove due execution of it by every executant whom he seeks to bind and at that time every objection can be taken with regard to execution which could be taken even if no registration had taken place. The certificate of registration under Section 60 is only prima facie proof of registration, and is no evidence of due execution.
40. The learned counsel for the appellants in one of the appeals and for the respondents in the other appeal relied on the following observations of their Lordships of the Privy Council in a subsequent decision namely Jambu Prasad v. Muhammad Nawab Aftab Ali Khan, AIR 1914 PC 16 :--
'Although the facts in 'these consolidated appeals are not the same as were the facts in Mujib-un-nissa v. Abdul Ra-him (28 IA 15 (PC)), their Lordships consider that the principle which this Board applied in that case is applicable here. That principle, in their Lordships' opinion, is that a Registrar or Sub Registrar under Act III of 1877 has no jurisdiction to register a document unless he is moved to do so by a person who has executed or claims under it, or by the representative or assign, duly authorized by a power of attorney executed and authenticated in manner prescribed in Section 33 of that Act. It is obvious that executants of a deed who attend before a Registrar or Sub-Registrar merely to admit that they have executed it cannot be treated, for the purpose of Section 32 of Act III of 1877, as presenting the deed for registration. They, no doubt, would be assenting to the registration, but that would not be sufficient to give the Registrar jurisdiction-One object of Sections 32, 33, 34 and 35 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under the Act.
It is the duty of the Courts in India not to allow the imperative provisions of the Act to be defeated when, as in this case, it is proved that an agent who presented a document for registration had not been duly authorized in the manner prescribed by the Act to present it.'
The contention on behalf of these learned counsel on the strength of the above observations is that the provisions contained in Sections 34 and 35 are also mandatory. No such inference can be drawn from the above observations. Their Lordships held that the provisions of Sections 32 and 33 only were imperative and thev made a general observation that it was the duty of the Courts in India not to allow the imperative provisions of the Act to be defeated- Their Lordships did not specify what were the other imperative provisions of the Act.
41. We may however refer to the observations made by the Privy Council in Ma Pwa May v. Chettiar Firm. AIR 1929 PC 279, to the following effect:--
'In seeking to apply this section It Is Important to distinguish between defects in the procedure of the registrar and lack of jurisdiction. Where the registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction, or where the presentation is out of time, the section is inoperative: see Mujib-un-nissa v. Abdul Rahim, ((1900)28 Ind App 15) (PC). On the other hand, if the registrar having Jurisdiction has made a mistake in the exercise of it, the section takes effect. Their Lordships have no doubt that the mistake is an error in procedure. The prohibition against registration is included in Section 35, amongst similar prohibitions as to admitting in evidence and authenticating, which can only be regarded as procedure. The duty of the registering officer is to scrutinise the stamp and pass an opinion on its adequacy, as he purports to do in this very document. It would be remarkable that, if he made a mistake of possibly a few annas on the amount of stamp required, and admitted a document to registration, it would be treated as having no effect years afterwards. Their Lordships are fortified in this view by former decisions of this Board. In (1875) 2 Ind App 210 (PC), the registrar had registered a deed of sale in the absence of the vendors contrary to the provisions of Section 36, of the Act. The Board held that, having once been presented for registration, it was still in time for regular registration, though the first registration may have been invalid. There appears to have been an admission by the parties that the first registration was not valid. But the Board indicated an opinion that the first registration was validated by the provisions of Section 88 of the Act (now Section 87).
...... ...... ...... ...... ...... ...... .... The opinion there expressed was adopted by the Board in (1876) 4 Ind App 166 (PC), where two of the persons executing the deed admitted execution by themselves, but denied execution by the third party. The principle has been applied to registration of an insufficiently stamped deed by the High Court of Calcutta in Biswa Nath Bhattacharya v. Gobinda Chandra Das, (51 Ind Cas 88) --(AIR 1919 Cat 235), a decision of which their Lordships approve.'
42. From the above observations it is quite clear that the registering officer in the present case had jurisdiction to register the mortgage-deed but made a mistake in the exercise of it and this mistake is curable under Section 87 of the Act.
43. We may mention here that as a result of the decision in Jambu Prasad v. Nawab Aftab Ali Khan, the Registration Act was amended by the addition of Section 23A which provides for re-registration of a document which was registered after it had been presented by a person not authorised to do so under Section 32. This shows the anxiety of the Legislature to see that innocent and Ignorant persons should not be deprived of their rights through any error or in advertence of a registering officer on whom they would naturally place reliance.
44. In view of what has been said above we hold that the correct proposition deducible from the above decision of the Privy Council is that if a document purporting to have been executed by A., B and C has been registered by the Registering Officer on A alone appearing before him and admitting execution then it is to be regarded as validly registered and is admissible in evidence against B and C also despite their failure to admit execution before him and if the plaintiff proves at the trial that B and C also executed the deed it will be effective against them also.
45. A number of decided cases of High Courts in India were cited before us and in most of them the same view was taken.
46. So far as the other objection relating to the registration of the suit document is concerned it has been fully dealt with by the learned District Judge under issue No. 12 and we agree with his finding. It is not disputed that Hakims had been appointed Sub-Registrars. Ram Singh, Hakim, had proceeded on leave for 14 days with effect from 24-1-46 and had authorised his Naib Hakim, Shri Ranjit Sirrah in writing to carry on his work during his absence under Section 12 of the Marwar Registration Act,, 1934, which runs as follows:--
'Section 12. Absence of Sub-Registrar.--When any Sub-Registrar is on leave or absent from his headquarters, any person appointed by him in writing shall perform during such leave or absence, all the duties of a Sub-Registrar.'
47. The registration of the suit document by Shri Ranjit Singh on 1-2-46 under the power delegated to him under Section 12 was perfectly valid.
48. As a result of the above findings we hold that the suit document was validly registered on the admission of execution by Bhani Ram before the registering authority and it was admissible in evidence against all the defendants even though Nenuram and Jai Narayan who executed it did not appear before the registering authority to admit its execution. We have already mentioned above that the due execution of the document by Bhani Ram, Nenuram and Jai Narayan was not disputed before us. The findings of the trial Court in favour of the plaintiffs as to the repayment of Rs. 25/- on Migsar Badi 1, S. 2008 (issue No. 3), as to the transaction being bad on account of wager ((issue No. 6), as to the suit being barred under Order 2, Rule 2 (issue No. 7), as to the mortgage-deed being without consideration, (issue No. 9) and as to the suit being barred by limitation (issue No. 11) were not challenged before us.
49. The only other finding besides the validity of the registration which was challenged before us was that the suit transaction was supported by legal necessity. We have already mentioned above that the appellants did not challenge before us that Bhani Ram. Nenuram, Jai' Narayan and Tarachand constituted a joint Hindu family at all relevant times of which Bhani Ram was the Karta.
50. No separate issue was framed by the trial Court on the question of legal necessity, but this question was specifically raised by Nenuram in his written statement and was treated as being covered by issues Nos. 1 and 4.
51. When the mortgage-deed was executed there were 4 coparceners out of whom 3 namely Bhani Ram, Nenuram and Jai Naravan executed the mortgage-deed. It is settled law that an alienating coparcener cannot impeach his own alienation. This is based on the principle that a grantor cannot derogate from his grant. In this connection we may refer to the decision of a Division Bench of the Allahabad High Court in Bharat Singh v. Jeobodh, Lal, AIR 1934 All 891, In Inder Nath Modi v. Hand Ram, ILR (1955) 5 Raj 955 -- (AIR 1957 Raj 231), a Division Bench of our Court also recognised this principle by laying down that a mortgage by the Karta of a joint Hindu family can be challenged on the ground that it was either not made for legal necessity or in lieu of antecedent debts only by other than the alienating coparceners and that the executants of the mortgage-deed could not challenge the alienation on such grounds. Nenuram was therefore not entitled to challenge alienation on the ground of want of legal necessity as he was himself an executant of the mortgage-deed.
52. But the plaintiffs are bound to prove as against Tarachand that the mortgage was made either for legal necessity or for paying off antecedent debts of his father in order to make his share in the joint family property liable for the payment of the mortgage debt. The trial Court erred in thinking that because Tarachand had not chosen to appear and contest the suit it was not necessary for the plaintiffs to prove the existence of legal necessity or of antecedent debts to make his share in the joint family property liable for the payment of the mortgage debt. By the mere non-appearance of Tarachand at the trial to contest the suit his consent to the alienation could not be presumed.
53. It is accordingly necessary to examine the evidence of legal necessity or the existence of antecedent debts in the present case,
54. It has been proved that the defendants first took a loan of Rs. 10,000 on the security of certain immovable properties by a registered mortgage-deed Ex. 2 dated 14-11-45, It was recited in this mortgage-deed that the amount had been taken in cash for business purposes. Mukan Dass, plaintiff, however stated in his statement in Court that a sum of Rs. 5,000/- was adjusted towards a previous mortgage and a sum' of Rs. 5,000A was given in cash for the betrothal and marriage of Jai Naravan. In cross-examination he admitted that Jai Naravan was neither betrothed nor married, but that money was taken for preparing ornaments. Now ornaments could only have been got prepared after betrothal of Jai Narayan had taken place. So the statement made by Bhani Ram in Court is quite different from the recital made in the mortgage-deed Ex. 2. We are therefore of the opinion that so far as this sum of Rs. 10,000/- which was borrowed under the earlier mortgage-deed is concerned legal necessity for the same has not been satisfactorily established. The second mortgage Ex. 1, which is in suit in the present case, was executed on 31-1-46, for Rs. 20,000/-. Out of this a sum of Rs. 10,000/- was utilised in paying off the earlier mortgage Ex. 2. So far as this amount is concerned this was an antecedent debt which was to be paid. It was held by their Lordships of the Supreme Court in Faqir Chand v. Harnam Kaur, AIR 1967 SC 727, that a mortgage debt can also be an antecedent debt. On behalf of the appellants it was conceded before us that they had failed to prove that any part of the debt taken on either mortgage was of an immoral character.
55. So far as the part of the consideration of the suit mortgage amounting to Rs. 10,000/- is concerned it was utilised to pay an antecedent debt. Bhani Ram, Nenuram and Jai Narayan are bound by mortgage-deed Ex. 1 as they were executants of it. Tarachand is bound 'to pay this consideration of Rs. 10,000/-as he had a pious obligation to pay the antecedent debt of his father Bhani Ram.
56. A sum of Rs. 10,000/- was taken as a fresh cash loan at the time of the execution of the second mortgage-deed. According to the recital in Ex. 1 it was taken for business purposes. The evidence on record goes to show that the main ancestral business of the joint family was the business of Halwais. Mukan Dass, plaintiff, stated with regard to this fresh loan--
'The cash money of Rs. 10,000/- was paid by me to Bhani Ram, Jai Naravan and Nenuram jointly. All the aforesaid three persons had told me that since the sugar had been controlled and since there was no scope for the confectionary shop, they would start another business and, therefore, a loan might be advanced to them. I accordingly advanced the loan.'
57. Mukan Dass did not say that he made any enquiry as to the nature of the new business which the joint family wanted to start. A family carrying on trade in a particular commodity may legitimately extend it to another commodity and whether such extension would amount to a new business or not depends upon the nature and type of the extended business and not on the particular commodities it deals with. But the manager of a joint family cannot impose on the family the risk of a new business without the consent of all the coparceners. In this view of the matter, we hold that the plaintiffs have failed to prove the legal necessity so far as the fresh loan of Rs. 10,000/- is concerned. This loan was advanced at the time of the mortgage and cannot therefore be treated as an antecedent debt.
58. We accordingly uphold the mortgage as binding on the joint family property to the extent of the consideration of Rs. 10,000/- which alone is supported by an antecedent debt. We may state here that Nenuram has since died without leaving any heir and the family now consists of Jai Naravan and the legal representatives of Bhani Ram and Tarachand.
59. The mortgage-deed in suit was executed on 31-1-46. The consideration of Rs. 10,000/- was antecedent debt and a sum of Rs. 10,000/- was advanced in cash on the day of the mortgage. A period of 5 years was given for making payment. The cause of action for instituting a suit to recover the loan arose on 31-1-51. The cause of action for bringing the mortgage suit also arose on the same date. A signed part payment of Rs. 25/- was made on 14-11-51 by Bhani Ram, the Karta of the joint family. The signature of Bhani Ram on the entry about the part payment on the back of mortgage debt has been proved by the evidence of Dhingar Mal, witness for the plaintiffs. This part payment extends limitation. According to well recognised rules for appropriation it is proper to appropriate this part payment towards the payment of the unsecured part of the loan. We accordingly hold that the plaintiffs are entitled to a mortgage decree for Rs. 30,000/- principal and a simple money decree for Rupees 9,975/- principal. Even without the part payment the suit for recovery of Rupees 9,975/- was also within limitation when it was instituted on 18-2-54 under Article 116 of the old Limitation Act which runs as follows:--
Timefrom which period ' begins to run.
110. Forcompensation for the breach of acontract in writing registered.
When theperiod of limitation would begin torun against a suit brought on a similar contract not registered.
60. It was contended that the period of 6 years can only apply against Jai Narayan and the legal representatives of Bhani Ram and not against the legal representative of Tarachand as Tarachand did not execute the registered deed. This contention is untenable. Tarachand is liable on the deed not because he executed it. but because he had a pious obligation to pay off his father's debts which were not tainted with immorality.
61. We accordingly pass a simple money decree against Jai Narayan and against the legal representatives of Bhani Ram and Tarachand for Rs. 9,975/- principal together with interest on Rs. 10.000 from 31-1-46 to 13-11-51 at Rs. 0-7-9 per cent, per month simple and from 14-11-5-1 to the date of the decree of this Court at the same rate on Rs. 9,975/- principal. We also decree future interest at the same rate on Rs. 9,975/- till the date of realisation at Re. 0-7-9 per cent, per month simple and a sum of Rs. 900/- as costs of the trial Court. This simple money decree will be executable against the legal representatives of Bhani Ram and Tarachand to the extent of assets received by them from Bhani Ram and Tarachand respectively.
62. In addition to the above decree we pass a preliminary decree under Order 34, Rule 4. Civil P. C. in favour of the plaintiffs against Jai Narayan and the legal representatives of Bhani Ram and Tarachand in the following terms:--
(i) that the amount due to the plaintiffs under the mortgage-deed Ex. 1 calculated upto the date of the decree of this Court is as follows:--
Interest on the said principalupto the date of the suit..
Interest on the said principalfrom the date of suit namely 18-2-54 upto the date of preliminary decree of this Court namely I8-11-70 at the rate of Re. 0-7-9 per cent permonth simple..
Proportionate costs of thetrial Court of the part of the mortgage suit decreed..
(ii) that the defendants will pay into the Court on or before 18th May 1971 the said sum of Rs. 21,948/-:
(iii) that on such payment together with the further interest on Rs. 10,000/-accruing due upto the date of payment at Re. 0-7-9 per cent, per month simple the plaintiffs shall bring into Court all documents in their possession or power relating to the mortgaged properties and all such documents shall be delivered to the defendants;
(iv) that in default of payment as aforesaid the plaintiffs may apply to the Court for a final decree for the sale of the mortgaged properties. The preliminary decree will be drawn up in accordance with Form 5A given in Appendix D of the First Schedule in the Code of Civil Procedure 1908. But it shall follow the judgment of this Court.
63. The appeal is allowed in part as indicated above and the decree of the trial Court is modified. Having regard to the modification of the decree and the circumstances of the case, we leave the parties to bear their own costs of the appeal.