GOMTI Vs. RAMESHWAR DAS

JUDGEMENT

(1.) THIS D.B. Civil regular first appeal has been referred for decision to the Full Bench by a Division Bench as the learned Judges constituting it were of the opinion that the following observation made by a D.B. of this Court in Jetharam vs. Hazarimal (l) was not a correct interpretation of the decision of their Lordships of the Privy Council in Mohammed Ewaz vs. Brijial (2) - "On the other hand, the case of Mohammed Ewaz vs. Brijiall (2) is an authority to the contrary. It was held in that case that where the document was executed by two or more persons and some of them admitted execution while others denied it, the document should be registered as to the persons admitting the execution and it would be effective against the persons on whose instance the document was registered." The appeal arises out of a suit for the enforcement of a mortgage by the sale of the mortgaged properties instituted by Mukandass, his son Rameshwar Dass and his grandson Bhanwarlal against Bhaniram, his brother Nenuram and his sons Tara Chand and Jai Narayan. The case of the plaintiffs was that on Kartik Sudi 9, Smt. 2002 (corresponding to 14.11.45) the defendants who were members of a joint Hindu family with Bhaniram as Karta thereof, took a loan of Rs. 10,000/- on the security of certain immovable properties situated in the town of Barmer, by a registered mortgage-deed Ex. 2. On Mah Badi 13, Smt. 2002 (corresponding to 31-1-46) the defendants executed another mortgage-deed Ex. 1 for a total sum of Rs. 20,000/-(consisting of Rs. 10,000/- on the previous mortgage and a fresh loan of Rs 10,000/-in cash) in favour of the plaintiffs agreeing to pay interest at the rate of Re. 0-7-9 per cent per month and cancelled the first mortgage. Some more property was included in the second mortgage-deed the details of which are given in para 3 of the plaint. THIS mortgage was with possession and the defendants obtained the lease back of the properties mortgaged and executed a rent-note on the same date. As they allowed the rent to fall in arrears the plaintiffs brought suit No. 32/53 on 24-2-1953 in the first instance for the recovery of the arrears of rent and for possession of the mortgaged property. The period of payment fixed under mortgage-deed Ex. 1 was 5 years \n the written statement of suit No 32/53 the defendants denied the execution of the mortgage-deed as well as the rent note. As meanwhile the period of 5 years had come to an end the plaintiffs withdrew suit No 32/53 with the permission of the court with liberty to bring a fresh suit and this is how the suit out of which the present appeal arises came to be filed on 18th February 1954. According to the plaintiffs the defendants had paid a sum of Rs. 25/- only towards the principal amount of this mortgage and nothing by way of rent or interest and so they brought this suit for the recovery of Rs. 19,975/- as principal plus Rs.2626/-as interest, total amounting to Rs. 22,601/- and prayed for the usual mortgage decree.

(2.) WE may mention here that the mortgage-deed was executed by only 3 out of the 4 defendants. Tarachand did not execute it. Defendant No. 2 Nenuram alone filed a written statement while the other defendants allowed the suit to proceed ex parte against themselves. Bhani Ram, defendant, gave evidence as witness for Nenuram, defendant No. 2, and Jai Narayan cross-examined some witnesses as Mukhtar of Nenuram, defendant No. 2. Nenuram completely denied the factum of the loan or the execution of the mortgage-deed in his written statement. Bhaniram made similar denials as witness for Nenuram. Nenuram pleaded in the alternative that if the court held that the deed had been executed by him and the other two defendants it was without consideration and without legal necessity and represented losses sustained in wagering transactions and therefore the whole deed was void and inoperative in law. Pleas as to the suit being barred under O. 2, R. 2 CPC and as to limitation were also taken. Yet another plea that is important to mention was that the document was not registered according to law and was therefore not binding on defendant No. 2, 3 and 4. This last mentioned objection was raised on two grounds-(l) that the registration of the mortgage-deed was made by Shri Ran-jit Singh (as Sub-Registrar) who was the Naib Hakim of Barmer at that time, the Hakim Shri Ram Singh having taken leave on account of the death of his wife and the said Shri Ranjit Singh had not been duly authorised to perform the duties of the Sub Registrar during the absence on leave of Shri Ram Singh, and (2) that it was the appellant Bhani Ram alone who had appeared before the Sub-Registrar to admit the execution of the document and as the other two executants of the deed namely Nenuram and Jai Narayan had not appeared to admit it before the same authority the deed was not binding on them at all.

(3.) SEC. 33 then prescribes the powers of attorney which alone shall be recognised for the purposes of sec. 32. It runs as follows - S. 33. "Powers-of-attorney recognisable for purposes of sec. 32 - (1) For the purposes of sec. 32, the following powers-of-attorney shall alone be recognized - (a) If the principal at the time of executing the power-of-attorney resides in any part of Marwar 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 jurisdiction the principal resides; (b) If any principal is a Tazimi, a power of attorney executed on plain paper duly signed and sealed by him in favour of his agent. (c) If the principal at the time aforesaid does not reside in Marwar, a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, British Consul or Vice-Consul or representative of His Majesty or of the Government of India ; Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing by such power-of-attorney as is mentioned in Cl. (a) of this section, namely - (i) Persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) Persons who are in jail under civil or criminal process; and (iii) Persons exempt by law or order of Darbar from personal appearance in Court; (iv) Ladies who by custom of the land live in Pardah and (v) recognized religious or spiritual heads. (2) In the case of every such person the Registrar or Sub Registrar as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar may either himself go to the house of the person purporting to be the principal, or to the Jail in which he is confined and examine him, or issue a commission for his examination. (4) Any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf."