D SARDAR SINGH Vs. SETH PISSUMAL HARBHAGWANDAS BANKERS

JUDGEMENT

(1.) This appeal by the plaintiff is against the decree of the Lower appellate Court, whereby the appellant's suit for the declaration of his title to a house has been dismissed and the decree of the trial Court varied.

(2.) The facts in the case are not complicated. On June 16, 1949, the respondent had a house No. 31, Sadar Bazar, Bolaram, attached in execution of his decree against Abdul Majid Khan. The appellant by a sale deed of June 20, 1949, has purchased the same house. Some of the executants of the sale deed are not the owners; but profess to be holders of two powers of attorney from four persons, who claim to be the owners and were then in Pakistan. One of such executants is Mohd. Ayud Khan and purports to be the holder of a power of attorney from Abdul Majid Khan. The other, Abdul Rahman Khan, claims to have another power of attorney in his favour by Abdul Aziz Khan. Abdul Haq Khan and Mt. Kulfatbi.

(3.) Obviously, an agent executing the document on behalf of the principal, does not incur such an obligation under the instrument, and, therefore, cannot be said to be the person executing the document. The reason is sound and, accordingly I prefer the Calcutta decision to the later authority of the Bombay High Court in Ratilal Nathu-bhai v. Rasiklal Maganlal, ILR 1950 Bom 473 . Therein the Bombay High Court has adhered to the view taken in ILR 51 Bom 971 , on the ground that the view is supported by an earlier decision of the Privy Council in 55 Ind App 81 . It is clear that where there are conflicting decisions the later authority is to be preferred and admittedly the later authority of the Privy Council does not favour the Bombay view. The observations there are in support of the decision of the Calcutta High Court and, in these circumstances, I would follow the Calcutta view.