JAMBU PRASAD Vs. MUHAMMAD AFTAB ALI KHAN

JUDGEMENT

(1.) This appeal arises out of a suit for sale on two mortgages; the first executed on the 2nd July, 1882, by Muhammad Ilias Khan, now deceased, the father of defendant 1 and the husband of defendant 2, and by one Syed Muhammad Khan, now deceased, who is represented by defendant 1 and the second executed on the 25th October, 1892, by defendant 1 and Syed Muhammad Khan, now represented by defendant 1. Defendant 3 has been joined as a puisne mortgagee. The suit was defended on various grounds, among others on the ground that the documents on which the suit was based had not been validly registered according to law. The learned Subordinate Judge framed the following issue:--Whether or not the documents in suit had been presented for registration by persons authorized to do so; and whether or not they had been validly registered; and whether or not they affected the property sought to be sold; and whether the claim for money was time-barred. The court below has found that the registration of both documents was invalid, and on this ground alone, has dismissed the suit. The plaintiff appeals.

(2.) The material portions of the registration endorsements on the two documents are as follows: On the mortgage deed of the 2nd July, 1882. Present :--Narain Singh, Sub-Registrar of Saharanpur. This document was presented in the office of the Sub-Registrar of tahsil Saharanpur, on Tuesday, the 11th July, 1882, at 3 p.m. Dated the 11th July, 1882. (Sd.) Nathu Mal, general attorney of Lala Mittar Sen. Signature of the Sub-Registrar. Nawab Syed Muhammad Khan, aged 50 years, and Muhammad Ilias Khan, aged 35 years, son of Muhammad Sardar Khan, sect Afghan, Bahraich, occupation zamindars, rais and residents of Kasba Saharanpur, identified by Rao Muhammad Ali Khan, Rajput, 35 years, occupation zamindari, rais and resident of mauza Sakranda, tahsil Roorkee, and Syed Tawangar Ali, son of Syed Kabir Ali, aged 50 years, mukhtar of the court, resident of Kasba Saharanpur, who are known to me personally, admitted the execution and completion 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 the 11th July, 1882. Signature of Sub-Registrar (Sd.) Syed Muhammad Khan, in autograph. (Sd.) Muhammad Ilias Khan, in autograph--Witnesses. (Sd.) Muhammad Ali Khan. (Sd.) Tawangar Ali Khan, Mukhtar of the Court. On the mortgage-deed of the 25th October, 1892: Present:--Munshi Anand Singh, Sub-Registrar, Maula Bakhsh (karinda) (agent), presented this document in the office of the Sub-Registrar of tahsil Saharanpur, to-day (Wednesday), the 26th October, 1892, at 1 p. m. Signature of the Sub-Registrar. (Sd.) Maula Bakhsh, karinda, in autograph. Nawab Syed Muhammad Khan, son of Sardar Khan, aged 65 years, and Aftab Ali Khan, son of Muhammad Ilias Khan, aged 24 years, by occupation zamindars, residents of Saharanpur, sect Pathan, residents of mohalla Nawabganj, admitted the execution and completion of this document. I am satisfied at to (the identity of) these executants. The document be made over to Nathu Mal karinda (agent). Dated the 26th October, 1892. Signature of the Sub-Registrar. (Sd.) Syed Muhammad Khan, in autograph. (Sd.) Muhammad Aftab Ali Khan, in autograph. Section 32 of the Registration Act No. III of 1877, the Act then in force, is as follows: 32. Except in the cases mentioned in Sections 31 and 89, every document to be registered under this Act whether such registration be compulsory or optional, shall he presented at the proper registration 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 authorized by power of attorney executed and authenticated in the manner hereinafter mentioned. The material portions of Section 33 are as follows: 33. For the purposes of Section 32, the powers of attorney next hereinafter mentioned shall alone he recognized, (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. 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 on that behalf.

(3.) In both the documents in suit, Lala Mittar Sen (now represented by plaintiff), in whose favour they were executed, is described as a resident of Saharanpur. It is not alleged that at the time of execution of these documents, Lala Mittar Sen resided elsewhere than at Saharanpur. The validity of the registration of the documents was impugned by the defendant No. 1 on the ground that they were presented for registration by persons not qualified under the Registration Act to make such presentation. The registration endorsements show that in the case of the mortgage-deed of 1882, it was presented by one Nathu Mal, described as the general attorney of Lala Mittar Sen, and in the case of the mortgage of 1892, that it was presented by one Maula Bakhsh, described as karinda (agent).