SEKAR MUDALIAR Vs. SHAJATHI BI

JUDGEMENT

(1.) These two appeals have been preferred by the 16th defendant and defendants 10 to 13 in O.S. 49 of 1973, Sub Court, Tirupattur, North Arcot District, questioning the correctness of the judgement and the decrees of the Courts below holding that the properties settled by late Kuttamalangu Moosa Sahib under a settlement deed dated 5-3-1948 in favour of defendants 8, 14 and 15 and the husband of the 10th defendant and father of defendants 11 to 13 in the suit, are also available for partion. There is no dispute that the properties dealt with by late Kuttamalangu Moosa Sahib under the settlement deed Ex. B-3 dated 5-3-1948 belonged to him. The 1st respondent in Second Appeal No. 1418 of 1979 and the only respondent in Second Appeal No. 618 of 1979, who figured as the plaintiff in the suit, challenged the validity of the settlement under Ex. B-3 on the ground that it was obtained by the settlees fraudulently and collusively and that it was in any event a death-bed gift and as such, invalid. It was also her further case that the settlor died on 6-3-1948 and thereafter on 16-3-1948, the settlement deed was presented for registration by one K.M. Azizullah Sahib as the Power of Attorney agent of the settlor and as on the date of presentation of the documents for registration. K.M. Azizullah Sahib did not have the authority to present the document for registration, its registration was invalid and would not affect the properties dealt with thereunder. The trial Court as well as the appellate Court found that though the settlement deed under Ex. B-3 was executed, it was invalid in law as its presentation for registration was done by a person, who had no authority to do so. On this conclusion, the Court below pronounced against the validity of the settlement deed as well as the title to the properties dealt with thereunder in favour of the several settlees and granted a preliminary decree in favour of the plaintiff in the suit. It is the correctness of this that is challenged in these second appeals and the counsel on both sides agreed that the decision in Second Appeal No. 1418 of 1979 would govern the other second appeal as well.

(2.) The learned counsel for the appellants first contended that Ex. B-3 was no doubt presented for registration on 16 3-1948 by K.M. Azizullah Sahib, who held a power of attorney from the settlor, after the death of the settlor 6-3-1948; but that would not in any manner invalidate the registration of the document by the concerned Sub Registrar in view of S.208 of the Contract Act. Reliance in this connection was also placed by the learned counsel upon the decision in Maung Lu Gate v. U Po Hlaing, AIR 1934 Rangoon 104. On the other hand, the learned counsel for the contesting respondents in these appeals submitted that having regard to the admitted presentation of the settlement deed for registration by a person not competent to do so under the provisions of the Indian Registration Act, the registering officer did not have the indispensable foundation of authority to register the document and therefore, the registration was invalid and the document did not operate to convey title with reference to the immovable properties dealt with thereunder in favour of the settlees.

(3.) Before proceeding to examine this contention, it would be necessary to set out a few undisputed facts. B 3 dated 5-3-1948, according to the finding of the Courts below, was executed by Kuttamalangu Moosa Sahib on 5-3-1948, a day prior to his death on 6-3-1948. That there was a power of attorney executed by the settlor under Ex. B-3 in favour of K.M. Azizullah, examined as D.W. 9 is also not disputed, though the power as such had not been produced in evidence. There is no controversy that D.W. 9 presented Ex. B3 for registration on 16-3-1948 and had also known at that time that his authority as the power of attorney agent of the settlor under Ex. B-3 had come to an end. In these circumstances, the question that arises is whether the presentation of Ex. B 3 by D.W. 9, the erstwhile power of attorney of the settlor under Ex. B 3 for its registration on 16-3-1948 after the death of the principal on 6- 3-1948, is valid and whether its registration would operate to convey title to the properties in favour of the settlees under that document.