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Abdus Samad Vs. Majitan Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1183 of 1954
Judge
Reported inAIR1961Cal540,65CWN696
ActsRegistration Act, 1908 - Sections 32 and 33(1)
AppellantAbdus Samad
RespondentMajitan Bibi and anr.
Appellant AdvocateSachindra Chandra Das Gupta and ;Ranjit Ghose, Advs.
Respondent AdvocateManindranath Ghose, Adv.
DispositionAppeal dismissed
Cases ReferredJudicial Committee (Puran Chand v. Monmotha Nath
Excerpt:
- .....be compulsory or optional, shall be presented at the proper registration office-- (a) by some person executing or claiming under the same***** (b) by the representative or assign of such person, or (c) by the agent of such person, representative or assign duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. section 33 of the registration act, dealing with powers-of-attorney recognisable for the purposes of section 32, provides as follows, in sub-section (1) clause (c): (1) for the purposes of section 32, the followingpowers of attorney shall alone be recognised : (a)*** (b) *** (c) if the principal at the time aforesaid does not reside in india, a power-of-attorney executed before and authenticated by a notary public, or any court,.....
Judgment:

Banerjee, J.

1. This appeal is directed against an appellate decree affirming the decree passed by a learnedMunsiff.

2. The property in dispute belonged to two persons, Majitan Bibi, defendant No. 1, who was said to have two annas share and Noor Mahammed, a resident of Mandalay, in Burma, who was said to have fourteen annas share.

3. In the year 1940, Noor Mahammed executed a power-of-attorney (Exhibit 3) in favour of one Abdul Hamid, authorising the latter to sell and dispose of the former's properties, to sign deeds of transfer on his behalf and to present such document for registration.

4. On the strength of the said power-of attorney Abdul Hamid executed three deeds of sale, namely, a conveyance executed in August, 1941 (Ext. 1), by which he sold lands described inlot No. 1 of the schedule to the plaint to the plaintiff, a conveyance executed in May, 1942 (Ext. 1a), by which he sold plot No. 405 out of the plots described in Lot No. II of the schedule to the plaint to the plaintiff and a conveyance executed in September, 1941, (Ext. 1b), by which he sold the remaining three plots of lot No. II of the schedule to the platat to one Aklima. Bibi.

5. Thereafter, in the year 1945. Aklimasold her share in the plots purchased by her, as aforesaid, to one Jafar Ali. The plaintiff thereupon exercised his rights under Section 26F of the Bengal Tenancy Act and had the share that Aklima had sold to Jafar Ali, pre-empted by him.

6. Having thus purported to have obtained the entire alleged fourteen annas interest of Noor Mahammed in the disputed properties, the plaintiffs instituted a suit for partition against his co-sharer Majitan Bibi.

7. The suit was contested by Majitan Bibi, defendant No. 1, who raised a four-fold defence. She disputed the power-of-attorney on a twofold ground, (a) there was no power-of-attorney executed by Noor Mahammed and (b) alternatively there was no valid authority granted by Noor Mahammed to Abdul Hamid to present the transfer deeds, signed on his behalf, for registration. The defendant No. 1 further, contended that the suit was barred by limitation under Article 142 of the Limitation Act. It was also contended that Noor Mohammed's share in the disputed properties was not fourteen annas but far less. It was lastly contended that the suit was bad for non-joinder of parties inasmuch as one Shahebjan, who had an interest in the properties, had been left out.

8. On the objection as to non-joinder of parties taken by the defendant No. 1, the plaintiff caused Shahebjan to be added as defendantNo. 2 in the suit.

9. The trial court dismissed the suit. The decree passed by the trial court was affirmed in Appeal. Hence this second appeal, at the instance of the plaintiff.

10. The lower appellate court negatived the contention of the plaintiff that Noor Mahammed had fourteen annas share in the disputed properties. According to the court of appeal below Majitan Bibi had 1 anna 6 gandas 2 karas 2 krantis share, Shahebjan had 2 annas share and Noor Mahammed had 11 annas 13 gandas 1 kura and 1 kranti share. The lower appellate court further found that by joinder of Shahebjan, as defendant No. 2, the defect as to non-joinder of parties had been rectified, Also the lower appellate court overruled the defendant's contention that the suit was barred under Article 142 of the Indian Limitation Act.

11. But although of the aforesaid opinion, the lower appellate court held that the power-of-attorney (Ext. 3), on the strength of which Abdul. Hamid had presented the conveyances, Exts 1, 1a and 1b, for registration was hit by the provisions of Section 33(1)(c) of the Indian Registration Act, not having had been executed and authenticated in the manner provided therein, and as such the presentation for registration was invalid, the documents were void, no title passed to the plaintiff under the said documents and as such he could not maintain a suit for partition. The propriety of the last finding, made by the lower appellate court, is being disputed before us in this Second Appeal.

12. Section 32 of the Registration Act, in so far as it is material is as follows :

'Except in the cases mentioned in Sections 31, 88 and 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

*****

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

(c) by the agent of such person, representative or assign duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

Section 33 of the Registration Act, dealing with powers-of-attorney recognisable for the purposes of Section 32, provides as follows, in Sub-section (1) Clause (c):

(1) for the purposes of Section 32, the followingpowers of attorney shall alone be recognised :

(a)***

(b) ***

(c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice Consul or representative of the Central Government.

13. In the instant case, it is an admitted fact that the power of attorney (Ext. 3) was not executed in the manner provided in Section 33(1)(c) by Noor Mohammed, who was residing outside India, at the material time. If, therefore, the presentation for registration of the documents Ext. 1, 1(a) and 1(b) had been made by Abdul Hamid, in his capacity as agent of Noor Mahammed authorised by a power of attorney, the power could not be recognised by the Registrar in view of the provisions of Section 33(1)(c). If that was the case, the registration of such documents was invalid because regard being had to the imperative nature of Sections 32 and 33, the registering officer had no jurisdiction to register a document unless he was moved to do so by one of the persons described in Section 32.

14. Mr. Sachindra Chandra Das Gupta, learned Advocate for the plaintiff appellant, tried to avoid this difficulty by contending that Abdul Hamid had himself executed the document, under the authority of the power-of-attorney and had presented the document for registration as the executant under the provisions of Clause (a) to Section 32(1) and as such the presentation for registration was not hit by Section 32(1)(c) read with Section 33(1)(c) of the Registration Act.

15. The question that arises for our consideration, therefore, is what is the meaning of thewords 'by some person executing' the document, as used in Section 32 of the Registration Act and more particularly whether the words include a person signing a deed of sale as an agent of thevendor.

16. Mr. Das Gupta strongly relied on a Bombay Full Bench decision reported in Sitaram Laxmanrao v. Dharma Sukhram, AIR 1927 Bom 487 : ILR 51 Bom 971, in which it was held that the expression 'the person executing', meant the person actually executing and did not include the principal who caused execution by an agent.

17. The view of the Bombay High Court was not adopted by this Court, as will appear from the following extract from a Division Bench decision of this court reported in Satis Chandra v. Harendra Kumar : AIR1936Cal442 :

'It further appears that the son presented the document for registration before the Registering Officer and admitted the execution of the document and on that admission the document was registered, The question is whether the presentation of this document for registration by the son was valid presentation. By Section 32 of Act III of 1877 a person executing a document or the agent of any such person is entitled to present the document for registration. The words 'persons executing the document' are capable of two constructions. They may mean 'persons' actually signing the document by their own hands or persons executing the document by the hand of another duly authorised to sign on their behalf. In the case of Mahommed Ewaz v. Brij Lall, 4 Ind App 166 : ILR 1 All 166 (PC), Sir Montague E. Smith, while construing the provisions of Section 34 of the Registration Act of 1871 made the following observations:

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.'

There has been a divergence of judicial opinion in the courts in India as to the precise effect of this passage. In some cases although these observations have been taken as obiter, nevertheless they have been taken to imply that the words 'persons executing the document' in the Act mean 'persons who actually execute the document by their own hands,' and do not include the principal who only executes by means of an agent. In the case of Monmotho Nath Mookerji v. Puran Chand : AIR1925Cal703 , decided by this court, it was however observed that the above observations of the Judicial Committee must be confined to the facts of that particular case and that the only question in that case was whether a partial registration of a document was valid. In this case, it was held that the ordinary meaning of 'executing a document' is signing a document as a consenting party thereto and that in case of bakalam signature the person whose name is put with his authority in evidence of his assent to a document is executant within the meaning of Section 35. When this case went up in appeal to their Lordships of the Judicial Committee (Puran Chand v. Monmotha Nath 55 Ind App 81 : 32 Cal WN 629 : (AIR 1928 PC 38) ), Lord Sumner in affirming the judgment of this Court observed as follows :

'The appellant contends that in these words executing means and means only actually signing : Their Lordships cannot accept this. A document is executed, when those who take benefits and obligations under it have put or have caused to be put their names to it. Personal signature is not required and another person duly authorised, may by writing the name of the party executing, bring about his valid execution and put him under the obligations involved. Hence the words 'person executing' in the Act cannot be read merely as 'person signing'. They mean something more, namely the person who by a valid execution enters into obligation under the instrument.'

The decision of the Full Bench of the Bombay High Court in the case of ILR 51 Bom 971 : (AIR 1927 Bom 487), was given belore the decision of the Judicial Committee in Puran Chand's case, 55 Ind App 81 : 32 Cal WN 629 : (AIR 1928 PC 38). Under these circumstances, we are of opinion that the son who signed the name of the lessor on the lease is not the person executing the document.'

18. The decision covers the point raised in this appeal in all fours and being a Division Bench decision is binding on us. According to the above decision, Abdul Hamid was not the person, who had executed the documents. He presented the documents for registration as an agent of Noor Mahammad, under a power of attorney. That power not having had been executed and authenticated as provided for in Section 33(1)(c) of the Registration Act was not recognizable for the purposes of Section 32. The presentation of the documents for registration was, therefore, made by a person, who could not do so under the law. The registration of the documents was, therefore, invalid and consequently the documents of title relied on by the plaintiff were of no effect.

19. We, therefore, hold that there is no substance in the point raised by Mr. Das Gupta. The appeal is accordingly dismissed. We, however, make no order as to costs.

Amaresh Roy, J.

20. I agree.


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