Skip to content


Monmotho Nath Mukherjee and ors. Vs. Puran Chand Nahatta - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal703
AppellantMonmotho Nath Mukherjee and ors.
RespondentPuran Chand Nahatta
Cases ReferredAirey v. Stapleton
Excerpt:
- sanderson, c.j.1. this is an appeal by the plaintiffs against the decision of my learned brother mr. justice c.c. ghose which was delivered on the 12th of march, 1924. that judgment was given with respect to exceptions which were taken to a report which had been made by the official referee with respect to the title of certain premises, namely, no. 13, marsden street, calcutta, which the defendant had agreed to purchase from the plaintiffs by an agreement, dated the 28th of february, 1920.2. the official referee reported that the plaintiffs had failed to make out a good or marketable title to the premises in question.3. the plaintiffs filed exceptions to that report; and the learned judge came to the conclusion that the exceptions should be discharged and in effect he affirmed the report.....
Judgment:

Sanderson, C.J.

1. This is an appeal by the plaintiffs against the decision of my learned brother Mr. Justice C.C. Ghose which was delivered on the 12th of March, 1924. That judgment was given with respect to exceptions which were taken to a report which had been made by the Official Referee with respect to the title of certain premises, namely, No. 13, Marsden Street, Calcutta, which the defendant had agreed to purchase from the plaintiffs by an agreement, dated the 28th of February, 1920.

2. The Official Referee reported that the plaintiffs had failed to make out a good or marketable title to the premises in question.

3. The plaintiffs filed exceptions to that report; and the learned Judge came to the conclusion that the exceptions should be discharged and in effect he affirmed the report of the Official Referee and declared that the plaintiffs had failed to make a good title to the premises.

4. The facts which it is necessary for me to state for the purpose of my judgment are as follows: One Hari Mohan Sarcar, who was the owner of the property in question and other properties, executed a deed of trust, dated the 29th of April, 1853. It is not necessary for me to deal in detail with the provisions of the trust.

5. On the 19th of May, 1879, a suit was brought by Srimati Nabin Kishori Dasi, which was No. 342 of 1879, against several persons including one Radha Nath Sircar for the construction of the deed of 1853 and for the ascertainment of the rights of all parties thereunder, for the execution of the trust which might be found to be valid and for partition.

6. The result of that litigation was that a decree was passed by the Court of Appeal on the 31st of August, 1885, by which it was declared that the religious trusts created by the indenture were good and valid in law and were a first charge on the income of the trust properties so far as might be necessary for the worship of the idol and for the performing of certain religious ceremonies; and it was declared that Nabin Kishori, the widow, was entitled behalf the surplus income of the trust property other than the family dwelling-house and that the defendants Brojo Nath Sircar, Radha Nath Sircar and Gopi Nath Sircar, the sons and heirs of Gopal Chandra Sircar, were each entitled to 1/6th part of share thereof. After certain other provisions it was declared that a partition should be made of the family dwelling house into six equal parts or shares among the said parties.

7. On the 10th of March, 1887, an order was made is in the suit for the sale of such portion of the properties including that now in question: as might be necessary for the purpose of paying the costs payable under the decree and it was ordered that the trutees Upendra Nath Bose and Brojo Nath Sircar should convey to the purchaser the properties to be sold by the Registrar.

8. On the 18th of August, 1887 the final decree in the suit was made and the order for sale was confirmed. On the 13th of September, 1888 the sale was held and the father of the plaintiffs bought the premises which are now in question. A conveyance, dated the 2nd of September, 1890, was executed in pursuance of the order of the Court and it was subsequently registered.

9. On the 20th of February, 1920, as I have already stated the plaintiffs agreed to sell the property to the defendant In June 1920 this suit was instituted and on the 29th January, 1923, a consent decree was made material part of which is as follows There will be consent decree for specific performance of the agreement, dated 20th day of February, annexed to the plaint sale of the premises No. 13, Marsden Street in the town of Calcutta measuring 1 bigha and 10 cottahs less 2 cottahs 5 chittacks 8 square feet being the portion acquired by the Municipality for the consideration of Rs. 92,000 subject to the title of the plaintiffs being found to be good upon enquiry to be held by the Registrar.

10. I understand that the reference to the Register was transferred to the Official Referee who made the report to which I have already referred. It appears that on the 27th of march, 1886, Radha Nath Sircar who was one of the parties to the suit No. 342 of 1879 executed a mortgage of his 1/6kh 'share of the income of the said hereditaments and premises in the said Schedule 'A' save and except the said family dwelling-house and all the right, title and interest of him the said Radha Nath Sircar in the said moneys and premises,'' The mortgage was in favour of Jogendra Kumar Bose and his heirs.

11. One of the points upon which the learned Counsel for the defendant relied was that it had not been proved that the mortgage in favour of Jogendra Kumar Bose had been satisfied or paid off.

12. The learned Judge found in favour of the plaintiffs in respect of this point: and I am of opinion that the learned Judge's decision was correct). The ground of my decision is shortly this that the estate of Hari Mohan Sircar was in the course of being administered by the Court, and the mortgagee's right would be subject to any disposition which had been or might be made of the deceased man's estate in due course of administration.

13. The principle was stated by the judicial Committee of the Privy Council in Chutterput Singh v. Moharaj Bahadur (1904) 32 Cal. 198. The passage to which I desire to refer is to be found in Lord Davey's judgment at p. 16 and is as follows-'When the estate of a deceased person is under administration by the Court or out of Court, a purchaser from a residuary legatee or heir buys subject to any disposition which has bean or may be made of the deceased's estate in due course of administration. In fact the right of the residuary legatee or heir is only to share in the ultimate residua which may remain for final distribution after all the liabilities of the estate, including the expenses of administration, have been satisfied.

14. The sale in this ease was ordered by the Court for the purposes of paying the coats in the suit.

15. In my judgment the learned Judge was correct in his conclusion when he said that the mortgagee took the mortgage subject to any disposition which might be made in due course of the partition proceedings: consequently, even though the mortgagee's right may not be barred by the Act of Limitation, as to which I express no opinion, it is clear that there is no cloud upon the title by reason of the mortgage in question.

16. The next point upon which the learned Counsel relied was one with regard to the execution of the conveyance of the 2nd of September, 1890.

17. The order of the Court was that the deed should be executed by Upendra Nath Bose and Brojo Nath Sircar who were the trustees under the settlement of Hari Mohan sircar.

18. It appears from the conveyance that Upendra Nath Bose himself executed it on the 8th of September, 1890, Brojo Nath Sircar executed the deed by his constituted attorney: and there is an endorsement] in the dead to this effect, 'Signed, sealed and delivered at Calcutta this 8th day of September, 1890 by Joy Krishna Bose as the duly constituted attorney for and as the act and dead of the within named Brojonath Sircar under a power dated the 20th day of June, 1889, in the presence of Surendra Chandra Ghose, Articled Clerk to Babu Woomesh Chandra Banerjee.'

19. The learned Counsel's argument in the first plane was that there was no proof that Joy Krishna Bose was duly authorised to execute the deed on behalf of Brojo Nath Sircar, It was contended that in order to complete the title the power-of-attorney, dated the 20th of June, 1889, should have been produced,

20. It was admitted by reason of Section 90 of the Evidence Act and having regard to the data of the deed and the custody from which she dead was produced that the Court would be entitled to presume that every signature and every other part of such document which purported to be in the hand writing of any particular person was in that parson's hand-writing and in the case of a document executed or attested that it was duly executed and attested by the person by whom it purported to be executed and attested. But the learned Counsel argued that the Court ought not to presume that Joy Krishna Boss was duly authorised to execute the deed in the absence of the power-of-attorney.

21. I am unable to accept that argument. It was pointed out by the learned Counsel who appeared for the plaintiffs that the sale was directed by the Court and that Brojo Nath Sircar being one of the trustees was one of the persons who was directed by the Court to carry out the sale and execute the conveyance. In my judgment it is only reasonable to presume that Brojo Nath Sircar obeyed the orders of the Court and carried them out by authorising his attorney Joy Krishna Bose to execute the document on his behalf. In the circumstances of this case, in my judgment it is both legitimate and reasonable to presume not only that the deed was executed by the attorney of Brojo Nath Sircar by whom it purports to have been executed but also that Joy Krishna Bose was the duly authorised agent of Brojo Nath Sircar to execute the deed on his behalf. There is a further reason for making the above-mentioned presumption. On the facts of this case there can be no doubt that by a power-of-attorney, dated the 2nd of May, 1891, Brojo Nath Sircar authorised his attorney Bepin Behary Banerjee to appear before the Registrar and admit the execution of the deed by Brojo Nath Sircar and that the attorney did appear before the Registrar on the 6th of May, 1891 and duly admitted the execution by Brojo Nath Sircar. The next point has reference to the provisions of the Indian Registration Act, 1908.

22. The presentation for registration was made by Radha Nath Sircar; and no point arises in connection with the presentation for registration.

23. The point arises with regard to what happened as to the admission of execution.

24. The deed bore the following endorsement: ' Execution was also admitted this the sixth day of May, 1891 at the Calcutta Registry Office by Bepin Bihary Banerji, son of Umesh Chunder Banerji, of Calcutta, Solicitor, personally known to me as attorney for Brojo Nath Sircar under power authenticated by me on the 2nd day of May, 1891 and recorded as No. 373 for 1891.

(Sd.) Bepinbihari Banerji,

P. Ghosha, Registrar, 6-5-91.

25. Registered in Book I, Vol. 40, Pages 179 to 194, being No. 1312 for 1891.'

26. (Then there was the seal of the Registrar of Calcutta.)

P. Ghosha, Registrar, Calcutta 9-5-91.

27. The argument presented in this Court on behalf of the defendant was in effect this, that inasmuch as the deed was signed by Joy Krishna Bose on behalf of Brojo Nath Sircar, Joy Krishna Bose was the person who should have appeared before the Registrar to admit execution and as I understand, the learned Counsel's argument went to this extent that the only person who could admit execution was Joy Krishna Bose or some person duly authorised by him, or if he were dead his representative. The argument went to the length of saying that even if Brojo Nath Sircar himself had appeared before the Registrar and had admitted the execution of the deed by him through the pen of his duly constituted attorney Joy Krishna Bose, it would not have been a sufficient compliance with the provisions of the Registration Act.

28. I am not prepared to accept that argument.

29. In the first place, I am not prepared to hold that Brojo Nath Sircar was not a person executing the document within the meaning of Section 35 of the Registration Act, as was contended by the learned Counsel for the defendant.

30. In the second place, I am prepared to hold and do hold that if Brojo Nath Sircar had appeared personally before the Registrar and had admitted the execution of the deed by his duly constituted attorney Joy Krishna Bose, that would have been a sufficient compliance with the provisions of the Act.

31. If that be so, and if the appearance of Brojo Nath Sircar to admit the execution would have been sufficient it was in my judgment competent to Brojo Nath Sircar to authorise some person to appear on his behalf before the Registrar and to admit the execution, as he undoubtedly did.

32. It appears from the deed itself and from the Registrar's certificate that a power, dated the 2nd of May, 1891, duly executed by Brojo Nath Sircar in favour of Bepin Behary Banerjee was produced by Bepin Behary at the Calcutta Registry Office and was authenticated by the Registrar; and that Bepin Behari admitted execution of the deed by Brojo Nath Sircar. It was part of the duty and within the powers of the Registrar to satisfy himself as to the authenticity of the power of attorney which was produced to him.

33. The appearance was 3 or 4 days after the execution of the power, viz., on the 6th of May, 1891, and having regard to the facts of this case in my judgment the admission of the execution by Bepin Behary Banerjee was as valid and effective as if Brojo Nath Sircar himself had appeared before the Registrar on the 6th of May, and had admitted the execution of the deed. The result is therefore that in my judgment the provisions of Section 35 of the Registration Act of 1908, were com-plied with.

34. I have now dealt with all the points which were raised by the learned Counsel on behalf of the defendant with regard to the title, and I am of opinion that the title is a good title and should have been accepted by the defendant. But the learned Counsel argued that the Official Referee had reported against the title and that the learned Judge had accepted that report and that consequently we ought not to force upon the defendant a title which might be said to be a doubtful one.

35. This Court, in my judgment, has a duty cast upon it to express its opinion whether the title is a good one or not.

36. I have already intimated that in my judgment there is no doubt that the title which the plaintiffs produced should be accepted as a good title; and with respect to the last point which the learned Counsel raised there is no ground for the suggestion that the Court is forcing upon the defendant a doubtful title. I do not refer to the numerous cases which the learned Counsel for the defendant cited to us, because although many of them are instructive for the purpose of elucidating the meaning of the various sections of the Registration Act when applied to different facts, I do not find that the point which arose for decision in this case has been raised or discussed in any of the cases cited.

37. For these reasons the appeal is allowed. The exceptions will be upheld and a declaration will be made that the title is a good one.

38. The defendant must pay the plaintiffs costs of the proceedings before the learned Judge and the Official Referee and of this appeal.

Rankin, J.

39. I agree.

40. The agreement for sale of the premises in the town of Calcutta, known as 13, Marsden Street, out of which the present suit arises was dated the 20th of February, 1920. By the terms of that agreement the purchase was subject to the approval of the vendor's title by the purchaser's attorney. After certain correspondence had taken place, a suit was instituted on the 30th of June, 1920, and certain objections to the title were put forward in the written statement as justifying the defendant's refusal to complete. At the trial, however, before Mr. Justice Page, these objections, which have no connection with any of the objections that are now taken, were thought to be of so little importance that the suit was decreed by consent in terms which, have already been referred to. A decree was made for specific performance subject to an investigation of the plaintiff's title in chambers; and, there can be no doubt that the plaintiff has to show a good title which involves at least a marketable title and not merely a good holding title.

41. Before the learned Official Referee who conducted the enquiry certain objections were taken on behalf of the defendant and of these we are now concerned only with three.

42. The first objection was sustained by the Official Referee but has been dismissed as unfounded by the learned Judge. That is the objection which arose out of the allegation that the interest conveyed to a mortgagee by one Radha Nath Sircar by the deed of the 27th of March, 1886 is still outstanding and forms a cloud upon the plaintiff's title. With reference to that, the facts appear from the documents before us which unfortunately do not include the plaint in suit No. 342 of 1879 and they are as follows: It appears that by Indenture of Trust, dated the 29th of April, 1853, one Hari Mohan Sircar transferred to certain trustees diverse messages and premises including the property now in suit, and that the trusts were as follows: ' It being the intent of these presents and of the parties thereto that all and singular the said messages thereby granted and conveyed should remain, continue and be deemed and considered a permanent endowment settlement and provision made and appointed to and for the maintenance and performance of the sebah or worship of the said Idol Sreedhorjeo and for the performance of the said several religious ceremonies therein and hereinbefore mentioned proviso that if any of the rents, issues and profits aforesaid should remain after paying and defraying all and every, the charges and expenses aforesaid then in such case the said trustees or the survivors of them or other, the trustee or trustees for the time being should apply and dispose of such surplus in and towards the maintenance and support of such of the sons of the said Hari Mohan Sircar and of their families respectively as should be living and on further trust when and if it should seem fit to the said trustee or trustees so to do, suffer and permit such son or sons of the said Hari Mohan Sircar to reside with their families respectively in such of the said houses, messages and premises thereby conveyed as to the said trustee or trustees should seem fit.' This property and other properties came to the hands of the trustees of Hari Mohan Sircar. Unfortunately after a certain number of years, by which time there had been changes of trustees, a suit was brought on the 19th of May. 1879, being suit No. 342 of 1879, for certain purposes. The plaint is not in the documents but the decree of Mr. Justice Cunningham and decree of the Court of Appeal show sufficiently what was the scope of that suit. It was a suit brought first of all to declare that certain of the religious trusts were invalid and upon that basis to obtain partition of a certain portion of the trust property amongst the heirs or representatives of the founder. It asked amongst other things for an account against one of the intermediate trustees Gopal Chunder Sir-car, deceased, and it asked for administration of his estate. It asked also for a declaration as to the rights of the parties in the surplus income of the trust and also for partition of the family dwelling house. Amongst other things which it asked for was the formulation of a scheme for carrying out the religious trusts. The only observation that it is necessary to make here is that whether or not that was a suit for administration of the remaining estate of Hari Mohan Sircar (I think myself that it was not) it was a suit for the administration of the whole of that trust fund being held at that time under the trust which Hari Mohan Sircar had made. That being be, the Court held, first, that the religious trusts were perfectly good and went on afterwards to say not only that certain provision should be made for the residence of the idol in the family dwelling-house but that provision should be made for partition thereof amongst the members of the family and to give directions as to the division into one-sixth shares of the surplus income of that trust.

43. Before Radha Nath Sircar in 1886 executed his mortgage the decree of the Court of Appeal had directed various costs to be borne out of the trust fund and it had remitted for further direction the question as to how these costs should be provided for in certain particulars. Radha Nath Sircar, so far as the trust property was concerned, never had more than a claim to a share in the surplus income and ha had that claim entirely because Hari Mohan Sircar had to that extent made him a beneficiary. When, therefore, he granted the mortgage of the 27th of March, 1886 he was purporting to mortgage something that came to him as a beneficiary of that trust and he had no other right in this property save as such beneficiary. Thereupon it appeared very shortly afterwards that the litigation to establish the trust had been so costly that it could not be paid for, the cost of all parties being billeted upon the fund, without selling some of the items of the trust property. That was done under an order of the Court. A conveyance was directed to be settled by the Registrar and the property was sold free from the trust which Hari Mohan Sircar had impressed upon it by his deed in his lifetime. In these circumstances it seems to me plain to demonstration that this mortgage of Radha Nath Sircar is no encumbrance whatsoever upon the property which the present plaintiffs are now purporting to sell.

44. It is true that in another case between the plaintiffs and somebody else this matter came before Mr. Justice Chaudhuri. It appears that there, as here the contract which the plaintiffs had made, was to show a title to the approval of the purchaser's solicitor. The purchaser's solicitor made a requisition as to this mortgage and he got a rather feeble or evasive answer. In fact, the plaintiffs' solicitor knew nothing about the mortgage and could not give any information. Thereupon the purchaser's solicitor refused to approve the title, and upon the matter coming before Mr. Justice Chaudhuri, Mr. Justice Chaudhuri said: 'There is the mortgage, there is the requisition; the solicitor has said he does not approve the title because of this, ha is quite within his rights.' That has no hearing whatsoever upon the position now before this Court.

45. The question of the purchaser's attorney's approval has gone out of this case by the order of Mr. Justice Page. We have the facts before us and on those facts it if, I think, plain that the matter of this mortgage has nothing whatsoever to do with the title.

46. The next question which has been raised by way of objection to the title is also a matter that was in no way referred to in the written statement or in previous negotiations, and that is, that the conveyance by the trustees and other parties to the suit of 1879 to the plaintiff's father Shoshee Bhushan Mukerjee in 1890 is bad for want of registration. It has been registered in fact, but it is said that the registration is a nullity and the document cannot be admitted in evidence. The basis of that contention is that if one looks to the Registration Act one finds the word 'executant.' The contention is that in the case of a bakalam signature, as it is called, such as we have here, executant means the agent whose actual pen signs the name of the party and does not mean the party for and on behalf of whom the name is put. It is said that although, as has happened in the present case, an admission was made by an agent of the party himself the whole process was ultra vires because the executant is the only person who can admit or deny, i.e., person whose pen actually wrote.

47. This contention has to my mind nothing to support it in the Act and it encounters serious objections upon the face of the Act itself. I doubt whether it would have been seriously entertained had it not been that in the course of diverse cases in connection with the Registration Act, observations have been made which may be considered as intending what the defendant's Counsel urges upon this appeal.

48. I take the Act first: In my opinion, the Act deals with parties and executants of documents on an ordinary common sense footing without contemplating or making particular provision for the case of a man whose name by his authority is written by Some one else. The ordinary meaning of the word 'executant' is fairly clear. It was said by the learned Official Referee that it meant signing. In my opinion the present question cannot be solved by stressing any such attempted definition. The ordinary meaning of executing a document is signing a document as a consenting party thereto.

49. A man may sign a document as a witness; no one would call him a person executing a document. To treat the fact of signature as a physical fact, apart from the circumstance that the signature is intended as an expression of assent to the document, is, in my judgment, to go out of one's way to be wrong, when dealing with an Act that makes no particular provision for the exact case W8 are now dealing with. If one looks at the provisions of the Registration Act, important for the purpose, one finds this: As regards presentation, any one interested can have a document presented. When you come to the state after presentation you find that there is to be an enquiry before the Registering Officer. No document shall be registered before a Sub-Registrar unless the persons executing such document or their representatives, assign or agents appear before the Registering Officer within a certain time. The Registering Officer shall thereupon enquire whether or not such document was executed by the persons by whom it purports to have bean executed, satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document and so on. If all the persons executing the document appear before the Registering Officer or if he be satisfied that they are the parsons they represent themselves to be, and if they all admit the execution of the document then the document is to be registered. On the other hand, if any person by whom a document purports to be executed denies its execution or if any such person appears to be a minor, an idiot or a lunatic, the Registering Officer shall refuse to register the document as to the person so denying, appearing or dead. In my judgment, applying the language of the Statute to the particular type of case before us, the correct view is that the man whose name has been put to the document as evidencing big assent thereto, is the executant for the purpose of the section I have quoted from. That seems to me to follow vary plainly from Section 35. As I have pointed oat in the course of the argument, it is quite possible for a minor to be an agent, but it is not possible under the Indian law for a minor to make a valid contract and it seams to ma that a person by whom a document purports to be executed cannot mean an agent, who may or may not be a miner. Moreover, ' to refuse to register a document ' ' as to the person so denying, appearing or dead,' to my mind, points in the same direction. To register a document as to a mere agent is an idle conception; it must be with reference to a parson who has intended to be a party to the document and not merely to an agent. Whether or not there is in this Act scope for saying that either the agent or the principal will satisfy Section 35, of one thing I am clear and that is that in case of a bakalam signature such as we have here, a person whose name is put with his authority in evidence of his assent to a document is ' executant ' within the meaning of Section 35.

50. I consider that the matter becomes even plainer if you look to the later stages of the Act and if you consider what will happen supposing that a Sub-Registrar refuses to register and that an enquiry has to be made by the Registrar himself, or the matter comes exactly on the same footing in a suit before the Court. If one carefully considers the rulings under the later sections of the Act one will find, it is true, that there are difficulties as to where the line is to be drawn as to the scope of the Registration Act enquiry. But i6 seems to me impossible to suppose that admission or denial in the Act means anything except admission or denial on behalf of the party who is the principal to the document.

51. With reference to the case of Muhamed Ewaz v. Brijlal (1877) 1 All. 465 certain words were very much pressed before us and I notice that they appear in the judgment of the learned Judge. The words are: ' 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.' The learned Judge has applied these words in the way in which we have bean invited to apply them, namely, to the case of a signature per pro curationem; and as meaning that not the man whose name is put on the dead as a consenting party, but the man who holds the pen is the person upon whose appearance, whose admission, whose denial the Registration Act lays so much stress. The learned Counsel for appellants has pointed out to us, and I entirely agree with him, that those words in the Judgment quoted, taken in their context turn out to have a different meaning altogether. A, B and C in that case were parties to the document on the face of the deed. The deed purported to contain the signature of all of them. For the purposes of the case it was proved that two had executed it. There was no proof that the third had executed it and there was no contention that it could be made available against her. The question was whether the document was void against every body or whether it could be regarded as duly registered as against A and B, and the distinctions their Lordships were making in the passage cited had nothing to do with the particular circumstance that 0 in that case had had her name put to the document by the hand of either A or B. The point was, can you or can you not read certain words in Section 35, so that the section can be treated distributively? For that reason their Lordships were making the observation.

52. Again a case has been referred to [Bissendoyal v. F. Schlaepfer (1874) 22 W.R. 68], but the whole basis of the decision of Sir Richard Couch would seem to be utterly inapplicable to such a case as the present. A certain person was in partnership with another. He signed the name of the firm; and Sir Richard Couch proceeded upon this to say that the signature of his partner's name was not to be taken as bakalam signature of his partner, that the partner executing it was the only party to the agreement, that ha disclosed on the face of the agreement that he was the agent of the partnership which consisted of himself and the other. That being so, there can be no doubt that the only executant was the person who had signed.

53. Certain other oases have given rise to a certain amount of contention on the same lines. Those cases are somewhat special, because they are eases where a guardian has purported to bind his ward or his ward's property. The case of Kesho Deo v. Hari Das (1899) 21 All. 281 is a perfectly simple case where on no construction of the signature was the ward a party to the instrument. It was an instrument executed by a guardian, stating in the document that he intended not merely to affect his own property but also to affect the property of which he was a trustee. There an observation was made simply to this effect that when an admission of execution is made by a man who executes a document as a trustee it is not necessary that his cestui que trust should also execute the document.

54. An exactly similar case is the older case of In the matter of Ram Chunder Biswas (1871) 61 W.R. 180. The basis of the decision was that the document there did not purport to be executed by the minor, that no person was required to appear before the Registrar as his representative, that the deed purported to have been executed by three persons all of whom appeared before the Registrar. 'A man may execute a deed and state in it that he is selling his portion of the property as well as the portion of another individual to whom he stands in a fiduciary relation, but only sign his name.' The Registrar has no business to enquire what actually passes by that document or whether the interest of a third person is or is not affected by it.

55. A very similar case is found in Bap Lakhi Ghose v. Debendra Chander Majumdar (1897) 24 Cal. 668, where a guardian purported on behalf of the ward's estate to sell certain property contrary to the terms of the order which the District Judge had made. An attempt was made to set up this defect as a reason why the instrument should not be registered and the Court held that this had nothing to do with the question. The guardian as guardian was the only executant whether it affected a third party or not.

56. There is an interesting case [Kanhaya Lal v. Sardar Singh (1907) 29 All. 284] which arose where certain people had had their names-put to document by a mukhtear. The mukhtearnama was produced and proved. But the principals objected to the act of the mukhtear and said that the mukhtearnama had never been explained to them; the Court held that if there was a mukhtearnama and if the mukhtear had purported to execute the deed in terms thereof that was all that was necessary to justify registration.

57. None of these cases about guardian and ward has any bearing upon the question of bakalam signature.

58. The whole point about infancy is that an infant has no capacity to contract. He may or may not be well able to sign his name. A guardian desiring to make a, contract, which will bind the ward or ward's estate, will indeed go out of his way to be wrong in form if he signs the ward's name and treats himself as a mere pen. For these reasons, it appears to me that the contention which has been so ably and carefully advanced before us by Sir Benode Mitter is not sustainable. In my judgment the attack upon the title which has been made in the present case if allowed for a moment, would upset registered titles throughout, the whole of India. It seems to me that the endevour to read the dicta which have been cited to us into the Registration Act for the purpose of showing that an admission or denial is a matter which has nothing to do with the party really effected, cannot be sustained.

59. The only other question in the present case is whether this title is defective by reason of the fact that the authority of Joy Krishna Bose to sign the document on behalf of Brojo Nath has been insufficiently proved. In my judgment it is amply proved. The attorney of Brojo Nath who appeared before the Registrar to admit the execution of Brojo Nath Sircar to the document was authorised by a power, dated the 2nd May, 1891. He appeared before the Registrar to carry out his duty on the 6th May, 1891. The actual execution by Joy Krishna Bose was on the 8th September, 1890 and the power raider which he acted was of the 20th June, 1890. The position is as follows: We know from the document that Brojo Nath was one of two persons ordered as trustees to convey certain trust property by a conveyance to be settled by the Registrar. We know that he had no option in the matter and that the beneficiaries were ordered to join in the conveyance. We find after the deed had been executed he gave on the 2nd of May to Bepin Behary Banerjee a power, which he exercised on the 6th of May to admit this very execution. That power is available, the plaintiff Promotho Nath offered to get a certified copy if it was wanted, No objection has been taken to it. The plaintiffs are the sons of the man who took under that conveyance. That they are in possession now nobody disputes. They have shown their possession, it is true only for the last 3 or 4 years, but there is no suggestion anywhere that Brojo Nath claimed on his own behalf or on behalf of the trust some interest as left to him in spite of the conveyance of September 1890. The purchase money was paid into Court. In this country the legal estate follows the beneficial interest and it is not necessary that an authority to sign should be in writing. Such cases as Re Airey: Airey v. Stapleton (1897) 1 Ch. 165 are not in point. That any one claiming as a beneficiary of Hari Mohan Sircar's trust could now put forward any claim upon this property is a baseless apprehension.

60. I think that a good title has been shown and that this appeal succeeds.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //