BIJAYESH Vs. SUDHIR GOPAL PANDEY

JUDGEMENT

(1.) THIS appeal by five out of the seven defendants, in an action in ejectment, from an appellate judgment and decree of substantial affirmance, is put in two ways: first, the very sale-deed put forward as the source of the. plaintiffs' title to the premises in controversy here goes down, because of infraction of the law of registration. Second, the plaint as constituted is bad at law, combining as it does an action in ejectment proper against a tenant and an action against the trespassers (which the appellants admittedly are),-badness which could have been, but was not, got rid of by the plaintiffs having been put to election at the trial.

(2.) TO the first point first. The vendors, the principals, do not reside at the relevant time in India. They, therefore, go in for a power-of-attorney executed before and authenticated by a magistrate, first class, Comilla (East pakistan), authorizing Surendra Nath pandey to execute the sale-deed for their house at Chinsurah, the premises in controversy, and that too to the present plaintiffs. The power-of-attorney has been produced before the two courts below and also before me. It purports on the face of it to have been executed before and authenticated by the aforesaid magistrate. So it proves itself under section 33, subsection 4, of the Registration Act 16 of 1908, let alone section 85 of the Evidence Act 1872, read with section 4 thereof, by which the court shall presume its due execution, nothing to the contrary disproving it. Armed with such power, Surendra Nath Pandey executes the impugned sale-deed in favour of the two plaintiffs. What is there to impugn it? The contention is that such authorization must appear on the endorsement. The endorsement of the registrar does contain, on the back of the first page of the sale-deed, such authorization: execution by Surendra Nath Pandey as constituted attorney for the vendors, and presentation by him. Thus, the requirements of section 32, clause (c), and section 33, subsection 1, clause (c), are well met here. Surendra Nath pandey, who executes the sale-deed under the power-of-attorney, is the person executing.

(3.) IN what goes before is seen no violation of the law laid down by Viscount Sumner in (1) Puran Chand nahatta v. Monmotho Nath Mukherjee, (1927) 32 CWN 629 (PC), as contended for, on behalf of the appellants. What is seen instead is compliance therewith. There the conveyance was signed on behalf of B by J, purporting to act under a power of attorney. When the conveyance came to be registered, B again acted by an attorney, not J. but another person. The objection that only J, the person whose hand signed the conveyance, could appear as the person executing it, and that appearance and admission by the second attorney was no good, was repelled. And it was held : "personal signature is not required, and another person, duly authorized, 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 instru ment. " the case before me appears to be so much the stronger, with no second attorney near about or anywhere. There is one, and only one, attorney : surendra Nath Pandey. He executes the sale-deed on behalf of the principals. He presents it, on their behalf, before the registrar who registers it, certifying that the document has been copied in Book No. 1, volume No. 38, at pages 208 to 218. More, such certificate is signed, sealed and dated by him : the registering officer. That being so, a conveyance as this is admissible for the purpose of proving that it has been duly registered in -the manner provided by the Registration Act 1908 and that the facts mentioned in the Registrar's (endorsement have occured as therein mentioned : just what section 60, subsection 2, prescribes. Execution by Surendra as a constituted attorney is one such fact. So, no departure from the law laid down in the nahatta case (Supra) is there.