Judgement

Consolidated Appeals from two judgments and decrees of the High Court (February 13, 1912), one of which confirmed and the other partly confirmed a decree of the Subordinate Judge of Saharanpur (September 26, 1910).

The question for determination in the appeals was whether two mortgages, dated respectively July 2, 1832, and August 10, 1886, had been duly registered under the Registration Act (III. of 1877).

The mortgage dated July 2, 1882, was executed by Nawab Saiyid Muhammad Khan and Muhammad Ilyas Khan in favour of Lala Mitter Sen.

The mortgage dated August 10, 1886, was executed by the said Nawab Saiyid Muhammad Khan, Muhammad Khurshed Ali Khan, and the first respondent also in favour of Lala Mitter Sen.

There was a third mortgage dated October 25, 1892, which was not the subject of the present appeal.

The appellant instituted two suits against the respondent, the first to enforce the mortgage of 1886, and the second to enforce the mortgages of 1882 and 1892.

The first respondent, by an amendment of his written statement, pleaded that the mortgages sued on were not presented for registration by a competent person, and that the sub-registrar had no jurisdiction to register them.

The provisions of the Registration Act, 1877, with regard to the presentation of a document for registration under the Act are contained in ss. 32 and 33, which, so far as material, are set out in the judgment of their Lordships.

The indorsement of the registering officer upon the deed of July 2, 1882, was as follows —

" This document was presented in the office of the sub-registrar at tahsil Saharanpur on Tuesday, July 11, 1882, at 3 p.m. " (sd.) Natthu Mal, general attorney of Lala Mitter Sen. " (Signature of sub-registrar)

"Nawab Saiyid Muhammad Khan, aged 50 years, and Muhammad Ilyas Khan, aged 35 years " (here followed particulars of identification), " admitted the execution of this document and received at this time in my presence the sum of Rs.59,000 in cash as per detail given in this document.

"Dated July 3, 1882."

Then followed the signature of the sub-registrar and that of the mortgagors.

The indorsement upon the mortgage of August 10, 1886, was in similar terms, except that "Ilahi Bakhsh, general attorney of Lala Mitter Sen," signed as presenting the document.

The respondents called as a witness the sub-registrar, who produced the register of powers of attorney which contained a power of attorney by Lala Mitter Sen in favour of Natthu Mal dated June 19, 1882, and one in favour of Ilahi Bakhsh dated February 17, 1885. These powers of attorney, however, did not authorize them to present the documents in question for registration.

The Subordinate Judge dismissed the suits, holding that the documents had not been presented by duly authorized agents within ss. 32 and 33 of the registration Act, 1877.

The High Court (Sir H. Griffen J. and Chamier J.), by its judgment delivered on February 12, 1912, affirmed the judgment of the Subordinate Judge so far as it related to the mortgages of July 2, 1882, and August 10, 1886. The learned judges were of opinion that the certificates of registration indorsed upon them raised a strong presumption that they were duly registered, but that this presumption was rebutted by the evidence. They rejected the argument that the executants could be regarded as the persons presenting the documents for registration, and held that the admission of the mortgagors under

s. 34 did not dispense with a strict fulfilment with the provisions of ss. 32 and 33 of the Registration Act, 1877.

The proceedings upon the appeal to the High Court are reported at I. L. R. 34 Allah. 331.

De Gruyther, K.C., and 0Gorman, for the appellant. An indorsed certificate of the registering officer under s. 60 of the Act is conclusive that the document to which it relates has been duly registered and renders it admissible in evidence Sah Mukhun Lall Panday v. Sah Koondun Lall (( 1875) L. R 2 Ind. Ap. 210.) ; Mohammed Ewaz v. Birj Lall . (( 1877) L. R. 4 Ind. Ap. 166.) This is so at any rate where, as in the present case, ss. 34, 35, 58 and 59, referred to in s. 60, have been complied with. Sect. 49 must be regarded as being controlled by s. 60; a document whose registration is certified under s. 60 is a registered document within s. 49. If compliance with s. 32 is essential, it may be inferred from the indorsements that the executants were present at the time of the presentation of the documents, and it should be presumed that they presented or joined in presenting them. In the circumstances it is not material by whose hand the documents were handed to the registering officer. In any event there was a mere irregularity of pro cedure by the sub-registrar; and by s. 87 that does not invalidate his certificate. Mujibunnissa v. Abdul Rahim (( 1900) L. R. 28 Ind. Ap. 15.) is distinguishable, as in that case it was clear that the person presenting the document had no authority at all in connection with it. The statement in the judgment of the Board that " the power and jurisdiction of the registrar only come into play when it is invoked by some person having a direct relation to the deed " must be read in reference to the particular facts of that case and not as a proposition of general application Quinn v. Leathern . ([ 1901] A. C. 495, at p. 506.) In Ishri Prasad v. Baijnath (( 1906) I. L. R. 28 Allah. 707.) there was no person before the registering officer who was competent to present the document. Since the decision of the present case the High Court has decided two appeals upon very similar facts, namely, Karta Kishan v. Harnam Chand (( 1912) I L. R, 35 Allah. 72.) and Atma Ram v. Agra Sen . (( 1912) I. L. R. 35 Allah. 134.) Neither of those decisions is consistent with the decision in the present case. [ Isak Mahamad v. Bai Katija (( 1879) I.

L. R. 6 Bomb. 96.) and Sheo Shunkur Sahoy v. Hirdey Sarain Sahu (( 1881) I. L. R. 6 Calc. 25,) were also referred to.]

Lowndes, for the respondents. The registration was invalid since the persons presenting the deeds were not properly authorized to do so by power of attorney as required by ss. 32 and 33 of the Act. The decision in Mujibunnissa v. Abdul Rahim (L. R. 28 Ind. Ap. 15.) is conclusive that strict compliance with those sections is a condition precedent to any jurisdiction in the registering officer to grant a certificate. Under s. 49 the deeds were inadmissible in evidence. The defect was not one of procedure but of substance, as it went to the jurisdiction of the sub-registrar. The executants did not give evidence at the trial, and it cannot be inferred from the indorsements that they were present at the time wen the deeds were presented; moreover the indorsements show that the persons presenting the documents purported to act as agents for the mortgagee.

De Gruyther, K.C., replied.

The judgment of their Lordships was delivered by

SIR JOHN EDGE. These are consolidated appeals from two decrees, dated February 13, 1912, of the High Court of Judicature at Allahabad, one of which affirmed a decree of the Subordinate Judge of Saharanpur of September 26, 1910, and the other of which partly affirmed and partly reversed a decree of the same Subordinate Judge of that date. The suits in which the decrees were made were brought in the Court of the Subordinate Judge of Saharanpur, one on May 20, 1909, and the other on March 16, 1910. They were suits for sale of immovable property. The suit of 1909 was based on a mortgage deed of August 10, 1886, the consideration for the mortgage having been Rs,7000. The suit of 1910 was based on a mortgage deed of July 2, 1882, the consideration for that mortgage deed having been Rs.59,000, and upon a mortgage deed of October 25, 1892. There was in each suit a claim for a money decree. The Subordinate Judge dismissed the suits on the grounds that the mortgage deeds had not been validly registered, and con sequently could not affect the immovable property which was comprised in the mortgages, and that claims for money decrees were time-barred. On appeal to the High Court at Allahabad, the High Court dismissed the appeal in the suit of 1909, which was based on the mortgage of 1886, dismissed the appeal in the suit of 1910 so far as it related to the mortgage of 1882, and allowed the appeal in that suit so far as it related to the mortgage of 1892. These consolidated appeals are from the decrees of dismissal. The plaintiff in the suits is the appellant here. The respondents have been defendants in these suits, and one of them is the representative of a deceased defendant.

The only qu3stions which have to be considered in these consolidated appeals are whether the mortgage deed dated July 2, 1882, and the mortgage deed dated August 10, 1886, were validly registered under Act III. of 1877. They were documents which were required by s. 17 of that Act to be registered. If they were not validly registered they could not, by reason of s. 49 of chat Act, affect any immovable property comprised in them, or be received as evidence of any transaction affecting such property. Further, if the documents of 1882 and 1886 were not validly registered instruments, no mortgage could, by reason of the first paragraph of s. 59 of Act W. of 1882, be effected by them. They were in fact registered, but the question is, was the registration a valid registration? The Subordinate Judge and the High Court found that there was no valid registration in either case.

In s. 32 of Act III. of 1877 it is enacted that " Except in the case 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 regis tration office,

" 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 by the representative or assign of such person,

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

So far as is material to the decision of these appeals, it is in s. 33 of Act III. of 1877 enacted " For the purposes of section 32 the powers-of-attorney next hereinafter mentioned shall alone be recognised (that is to say)—

" (a) If the principal at the time of executing the power-of-attorney resides in any part of British India 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 district or sub-district the principal resides."

The mortgage deed of July 2, 1882, was presented for registration on July 11, 3882, at Saharanpur at the proper registration office on behalf of Lala Mitter Sen, the mortgagee, by one Natthu Mal, who held a power of attorney, of June 19, 1882, from Lala Mitter Sen, which, however, did not empower Natthu Mal to present documents for registration. Lala Mitter Sen lived at Saharanpur, and the power of attorney had been duly authenticated by the then sub-registrar of Saharanpur on June 19, 1882, but apparently it had not been executed before the registrar or the sub-registrar. The sub-registrars note to the copy of the power of attorney in the register merely states that Lala Mitter Sen was known to him, and admitted the execution and completion of the document. It has not been proved that Natthu Mal held any other power of attorney from Lala Mitter Sen. The mortgagors admitted before the sub-registrar of Saharanpur, on July 11, 1882, the execution and completion of the mortgage deed, and received in his presence the mortgage money, Rs.59,000, and thereupon the sub-registrar registered the mortgage deed.

The mortgage deed of August 10, 1886, was presented for registration on September 9, 1886, at Saharanpur, at the proper registration office, on behalf of Lala Hitter Sen, the mortgagee, by one Ilahi Bakhsh, who held a power of attorney of February 17, 1885, from Lala Mitter Sen, which, however, did not empower Ilahi Bakhsh to present documents for registration. This power of attorney had not been authenticated by the registrar or the sub-registrar of Saharanpur, and it does not appear that it had been executed by Lala Mi liter Sen before either of those officials. It has not been proved that Ilahi Bakhsh held any other power of attorney from Lala Mitter Sen. The mortgagors admitted before the sub-registrar of Saharanpur, on September 9, 1886, the execution and completion of the mortgage deed of August 10, 1886, and acknowledged the receipt by them of the mortgage money, Rs.7000, and thereupon the sub-registrar registered the mortgage deed.

It was contended on behalf of the appellant here that it might be presumed that the mortgage deeds had been presented for registration by the mortgagors who had executed the deeds, and who attended before the sub-registrar. It is, however, obvious that the mortgagors had attended at the office of the sub-registrar to admit that they had executed the deeds and not to present them for registration, and that they did not present them for registration. The mortgagors attended to enable the sub-registrar to comply with ss. 34 and 35 of Act III. of 1877 by satisfying himself that they had executed the deeds. In the one case the deed was presented for registration by Natthu Mal, an agent of the mortgagee, and in the other case the deed was presented for registration by Ilahi Bakhsh, another agent of the mortgagee, and in neither case did the agent hold such a power of attorney as was necessary to enable a valid registration to be made.

It was decided, and as their Lordships consider correctly, by Sir John Stanley C.J. and Sir George Knox J. in 1906, in Ishri Prasad v. Baijnath (I. L. R, 28 Allah. 707.), that the terms of ss. 32 and 33 of Act III, of 1877 are imperative, and that a presentation of a document for registration by an agent, in that case the agent of a vendee of immovable property, who has not been duly authorized in accordance with those sections, does not give to the registering officer the indispensable foundation of his authority to register a the document. As those learned judges said, " His (the sub-registrars) jurisdiction only comes into force if and when a document is presented to him in accordance with law."

These learned judges also rightly decided in the same case that the fact that the sub-registrar had summoned before him the executant of the deed, who was the vendor, and had obtained his consent to the registration of the deed, did not give the sub-registrar jurisdiction to register it, and that the omission of the registering officer to notice that the power of attorney under which the agent had presented the sale deed for registration had not been executed or authenticated in accordance with s. 33 of Act III. of 1877 could not be regarded as a defect in procedure within the meaning of s. 87 of that Act.

Although the facts in these consolidated appeals are not the same as were the facts in Mujibunnissa v. Abdul Rahim (L. R. 28 Ind. Ap. 15.), 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 of such person, or by an agent of such person, representative, or assign, duly authorized by a power of attorney executed and authenticated in manner prescribed in s. 33 of that Act. It is obvious that executants of a deed who attend a registrar or sub-registrar merely to admit that they have executed it cannot be treated, for the purposes of s. 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

53 Law Rep. 42 Ind. App. 22 ( 1914- 1915) Jambu Parshad V. Muhammad Aftab Ali Khan

158

jurisdiction.

One object of ss. 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 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.

Their Lordships will humbly advise His Majesty that the appeals should be dismissed. The appellant must pay the costs.