1923 JTR(SC) 46
1924 AIR(PC) 48 ; 1923 51 LawReportsInd.App. 18 ; 1924 19 LW 345 ; 1924 22 AllLJ 42 ; 1924 28 CWN 1029
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD PHILLIMORE, SIR JOHN EDGE, MR. AMEER ALI, AND SIR LAWRENCE JENKINS.
BAIJNATH SINGH - Appellant
Versus
JAMAL BROTHERS AND COMPANY, LIMITED, - Respondents
On Appeal from the Court of the Judicial Commissioner, Upper Burma.
Decided On : November 22, 1923.
Official indorsements by registering officers regarding document presentation are presumed correct. Procedural omissions by the officer, such as failing to record a party's absence, do not invalidate registration if the presentation was proper. Execution by an authorized attorney is sufficient for a valid transfer.
Act Referred :UPPER BURMA REGISTRATION REGULATION: R.5, R.4, R.7
(A) Upper Burma Registration Regulation, 1897 - Rules 4, 5 and 7 - Registration of documents - Presentation by a person claiming under the document - Official indorsement by the registering officer is presumed to be correct and cannot be contradicted by a signature for which there is no legal sanction.
(B) Registration of documents - Omission by the registering officer to record the absence or refusal of a party to appear - Mere defect in procedure which does not vitiate registration if the presentation was proper.
(C) Transfer of mortgage - Execution by an authorized attorney on behalf of partners is sufficient to vest the debt and security in the transferee.
Facts of the case:
A suit was brought to enforce a mortgage of oil well sites. The mortgage was originally taken in the name of a benamidar for a firm and subsequently transferred to a limited company. The mortgagors challenged the validity of the registration of the mortgage and the subsequent transfer, alleging defects in the presentation of the document and lack of formal proof of execution by the assignors.
Findings of Court:
The court held that the official statement of the registering officer regarding the presentation of the document is presumed correct. The failure to record the absence of one of the mortgagors was a procedural error that did not invalidate the registration. The transfer deed was found to be sufficiently executed by the attorney acting for the partners, and the registration of the transfer was in accordance with the law.
Issues: Whether the registration of a mortgage is void if the registering officer fails to record the absence of one mortgagor or if the presenter's authority is questioned despite an official indorsement; and whether a transfer deed executed by an attorney is valid.
Ratio Decidendi: The correctness of an official indorsement by a registering officer is presumed, and unauthorized signatures cannot contradict it. A procedural omission by the officer to note a party's absence does not vitiate registration made on a proper presentation. Execution by a duly authorized attorney is sufficient for the validity of a transfer.
Result: Appeal dismissed.
(B) Registration of documents - Omission by the registering officer to record the absence or refusal of a party to appear - Mere defect in procedure which does not vitiate registration if the presentation was proper.
(C) Transfer of mortgage - Execution by an authorized attorney on behalf of partners is sufficient to vest the debt and security in the transferee.
Facts of the case:
A suit was brought to enforce a mortgage of oil well sites. The mortgage was originally taken in the name of a benamidar for a firm and subsequently transferred to a limited company. The mortgagors challenged the validity of the registration of the mortgage and the subsequent transfer, alleging defects in the presentation of the document and lack of formal proof of execution by the assignors.
Findings of Court:
The court held that the official statement of the registering officer regarding the presentation of the document is presumed correct. The failure to record the absence of one of the mortgagors was a procedural error that did not invalidate the registration. The transfer deed was found to be sufficiently executed by the attorney acting for the partners, and the registration of the transfer was in accordance with the law.
Issues: Whether the registration of a mortgage is void if the registering officer fails to record the absence of one mortgagor or if the presenter's authority is questioned despite an official indorsement; and whether a transfer deed executed by an attorney is valid.
Ratio Decidendi: The correctness of an official indorsement by a registering officer is presumed, and unauthorized signatures cannot contradict it. A procedural omission by the officer to note a party's absence does not vitiate registration made on a proper presentation. Execution by a duly authorized attorney is sufficient for the validity of a transfer.
Result: Appeal dismissed.
Registration - The appellant relied on this case to argue that a power of attorney must be produced for registration by an agent, but the court found the argument baseless in the present context.
Registration - Cited by both the appellant and respondent during arguments regarding the validity of registration.
Registration - Cited by the appellant's counsel during arguments regarding registration defects.
Registration - Cited by the appellant's counsel during arguments regarding registration defects.
Registration - Cited by the respondent's counsel to argue that the indorsement of registration is presumed to be correct.
Solicitor for appellants : E. Dalgado.
Solicitors for respondents: Waterhouse & Co.
Judgement
Law. Rep. 51 Ind. App. 18 ( 1923- 1924) Baijnath Singh V. Jamal Brothers and C ompany, Limited
Appeal (No. 40 of 1922) from a decree (January 10, 1921) of the Court of the Judicial Commissioner, reversing a decree (July 31, 1916) of the Additional District Judge of Yenangyaung.
The suit was brought by the respondents, Jamal Brothers & Co., Ld., against the appellants to enforce a mortgage of oil well sites dated August 16, 1904. The mortgage was to secure money advanced to the appellants by the firm of Jamal Brothers & Co., but was taken in the name of a Chetty firm. By a deed of transfer dated September 11, 1914, made by the Chetty firm, Jamal Brothers & Co., and the respondents, the limited company, the mortgage was transferred to those respondents. The deed of transfer is more particularly described in the judgment of the Judicial Committee.
The mortgage of 1904 had been presented for registration under the UPPER BURMA REGISTRATION REGULATION (II. of 1897) and the rules made under s. 8 thereof. It was indorsed with a statement signed by the registering officer that the document had been presented by "S. R. M. Venkatachellam, son of Raman Chetty." Under, or at the side of the signature of the registering officer, there were words in Tamil, which were translated as follows "Ramasawmy Chetty, clerk on behalf of S. R. M. Venkatachellam Chettyar." Below was a further statement by the registering officer, "Execution was admitted by Baijnath Singh, son of A. D. Singh Twinza of Yenangyaung."
The trial judge dismissed the suit on the ground of want of consideration and defect of pleading. Upon appeal to the Court of the Judicial Commissioner the pleadings were allowed to be amended, and after further evidence had been taken with regard to the execution of the deed of transfer, a decree was made in favour of the plaintiff company.
1923. Oct. 30; Nov. 2. De Gruyther K.C. and Parikh for the appellants. The registration of the mortgage was defective ; the signature in Tamil shows that it was presented by a person who is not proved to have been duly authorized Upper Burma Reg. II. of 1897, rr. 4, 6, 7 ; s. 32 of Act III. of 1877 ; Jambu Parshad v. Muhammad Aftab Ali Khan (( 1914) L. R. 42 I. A. 22.); Bharat Indu v. Hamid Ali Khan (( 1920) L. R. 47 I. A. 177.) ; Chhotey Lal v. Collector of Moradabad (( 1922) L. R. 49 I. A. 375.); Ma Shwe Mya v. Maung Ho Hnaung . (( 1922) L. R. 49 I. A. 395.) Further, execution of the mortgage was not admitted before the registering officer by one of the mortgagors. That is not a mere defect of procedure, but a fundamental defect. The registration of the deed of transfer was also defective, as the power of attorney is not in evidence, and there is nothing to show that it specifically authorized the presentation. Moreover, the deed cannot be read as a transfer by Jamal Brothers & Co. ; if it is so read the registration was defective, as there was no presentation by the firm.
Micklem K.C. and Dube for the respondents. The mortgage was duly registered. Under the rules proof of execution is sufficient, even if there is no indorsement. But in any case the indorsement is to be presumed to be correct, and it establishes that presentation was made by the mortgagees. The mortgage bears the admitted signature of the second mortgagor. A mere omission by the officer to record that he did not appear would be merely an error of procedure, and not fatal Mukhun Lall Panday v. Koondun Lall (( 1875) L. R. 2 I. A, 210, 215.); Bharat Indu v. Hamid Ali Khan . (L. R. 47
I. A. 177.) [They were stopped.]
Nov. 22. The judgment of their Lordships was delivered by
SIR LAWRENCE JENKINS. This is an appeal from a decree dated January 10, 1921, of the Court of the Judicial Commissioner of Upper Burma, which reversed a decree dated July 31, 1916, of the Court of the Additional District Judge of Yenangyaung.
Law. Rep. 51 Ind. App. 18 ( 1923- 1924) Baijnath Singh V. Jamal Brothers and C ompany, Limited
139
The suit is to enforce a mortgage of August 16, 1904, for Rs. 25,000 advanced by the firm of Abdul Shakoor Jamal Brothers & Co. to the defendants Baijnath Singh and Fateh Bahadur Singh. The mortgage was taken in the name of Suna Ravana Mona Vengarachellum Chetty, but as benamidar for the firm of Jamal Brothers & Co.
The present plaintiffs are Jamal Brothers & Co., Ld., who claim to be transferees from the firm of Jamal Brothers & Co. and their benamidars of the mortgage debt and the security.
The suit was dismissed in the first Court but was decreed on appeal. From the appellate Courts decree the present appeal is preferred.
Though numerous pleas in defence were urged in the early stages of the suit, which has been needlessly and lamentably prolonged, the only pleas that now survive are by way of objection to the execution and registration of the mortgage and the transfer.
The mortgage purports to be signed by both the mortgagors, and its execution is admitted by them. But then it is contended that there has been no valid registration of the document. The law applicable is at that date to be found in Reg. II. of 1897, and the rules made in exercise of the powers conferred by it. By the fourth rule " every document to be registered under the rules must be presented by some person executing or claiming under the same .... or by the agent of such person .... duly authorized by power of attorney."
It is urged that the mortgage was presented for registration by an agent, and to comply with the terms of the rule it was incumbent on the plaintiffs to produce a duly authenticated power of attorney authorizing the agents presentation. In support of this contention reliance was placed on the decision of this Board in Jambu Parshad v. Muhammad Aftab Ali Khan . (L. R. 42 I. A. 22.)
But the whole structure of this argument has no real foundation. It rests on the supposition that the writing at the foot of the document purporting to be the Tamil signature of Ramasawmy Chetty shows that it was he who presented the document and that he was only an agent. This theory owes its origin to the belated and unfortunate discovery of one of the defendants legal advisers, and is directly opposed to the official statement signed by the registering officer that the document was presented for registration by the mortgagee.
There is no provision in the Regulation or the rules that requires the signature of the person presenting the document for registration. But under r. 7 registration shall be effected by the registering officer writing on it an indorsement in the terms of that appearing at the foot of the document. The correctness of this official indorsement is to be pre sumed, and the Tamil signature, for which there was no legal sanction, cannot operate to contradict it. The presentation, therefore, was by a person claiming under the document.
It is next objected that execution of the mortgage was not admitted before the registering officer by Fateh Bahadur Singh. It, however, admittedly bears his signature, and it is a fair presumption in the circumstances that the officer acted under r. 5 when he registered the document. It is true that where any party to a document) is unable or refuses to appear the rule requires a note of the circumstances to be made, and that has not been done. But the omission is one for which the person presenting the document cannot be held responsible it is at most a defect in procedure which did not vitiate the registration, made, as it was, on a proper presentation.
Law. Rep. 51 Ind. App. 18 ( 1923- 1924) Baijnath Singh V. Jamal Brothers and C ompany, Limited
140
Then the transfer of the mortgage to the limited company, the plaintiffs, is assailed. It is dated September 11, 1914, and the parties to it are S. R. M. Soobramaniyan Chetty, S. R. M. Mayappa Chetty, S. R. M. Chinnayu Chetty alias Ramasawmy Chetty, and S. R. M. Arunachellam, described as carrying on business in partnership under the style of S. R. M. of the first part, Jamal Brothers & Co. of the second part, and Jamal Brothers & Co., Ld., the present plaintiffs, of the third part.
The Chetty partners, by the direction of the Jamal Brothers, assigned, and Jamal Brothers confirmed, the mortgage debt of Rs. 25,000 with interest and also the mortgaged property to the plaintiff company, and the deed, if executed and duly registered, would unquestionably vest the debt and the security in the plaintiff company.
It is contended, however, that there is no formal proof of execution by the Chettys. It is true that the evidence of M. A. S. Jamal, as recorded on July 11, 1915, does not speak specifically to execution by them. But later affidavits were sworn by M. A. S. Jamal and his advocate Mr. Ormiston to the effect that the witness had deposed to execution by the attorney of the Chetty firm. A petition was accordingly presented praying that the witness might be examined further on the point of the execution by the assignors of the deed of assignment. Interrogatories directed to this point were prepared under an order of the Court, and though no answers are on the record, it is apparent from what is said by the Judicial Commissioner that on further examination under the order of the Court the formal defect was remedied.
It is next urged that though Mayappa was expressed to be a party, he did not execute. But in the attestation clause it is stated that the parties (other than the plaintiff company) had set their hands, and the document is expressed to be signed by all four of the Chetty partners. The signature was in fact by their attorney, and in the circumstances their Lordships are satisfied that the attorney acted for all four partners. This view gains support from the indorsement of presentation, from which it is apparent that the signatory held a power of attorney authorizing him to act for the four partners. The transfer was also signed by the Jamal Brothers, and execution by them was admitted by their duly authorized attorney. The result then is that the transfer has been sufficiently executed, and its registration has been effected in accordance with the law that then applied.
The appeal therefore fails and should be dismissed, and their Lordships will humbly advise His Majesty accordingly.
The appellants must pay the costs of the appeal.