JAMBU PARSHAD Vs. MUHAMMAD NAWAB AFTAB ALI KHAN

JUDGEMENT

(1.) These are consolidated appeals from two decrees, dated the 13th February 1912, of the High Court of Judicature at Allahabad, one of which affirmed a decree of the Subordinate Judge of Saharanpur of the 26th September 1910, and the other of which partly affirmed and partly reversed a decree of the same Subordinate Judge of the 26th September 1910. The suits in which the decrees were made were brought in the Court of the Subordinate Judge of Saharanpur, one on the 20th May 1909 and the other on the 16th March 1910. They were suits for sale of immovable property. The suit of 1909 was based on a mortgage-deed of the 10th August 1886 the consideration for the mortgage having been Rs. 7,000. The suit of 1910 was based on a mortgage-deed of the 2nd July 1882, the consideration for that mortgage-deed having been Rs. 59,000, and upon a mortgage-deed of the 25th October 1892. There was in each suit a claim for a money decree. The Subordinate Judge dismissed the suits on the grounds that the mortgage-deeds had not been validly registered, and consequently could not affect the immovable property which was comprised in the mortgages, and that claims for money decrees were time barred. On appeal to the High Court at Allahabad, the High Court dismissed the appeal in the suit of 1909, which was based on the mortgage of 1886, dismissed the appeal in the suit of 1910 so far as it related to the mortgage of 1882, and allowed the appeal in that suit so far as it related to the mortgage of 1892. These consolidated appeals are from the decrees of dismissal. The plaintiff in the suits is the appellant here. The respondents have been defendants in these suits, and one of them is the representative of a deceased defendant.

(2.) The only questions which have to be considered in these consolidated appeals are, whether the mortgage-deed dated the 2nd July 1882 and the mortgage deed dated the 10th August 1886 were validly registered under Act III of 1877. They were documents which were required by Section 17 of Act III of 1877 to be registered. If they were not validly registered they could not, by reason of Section 49 of that Act, affect any immovable property comprised in them, or be received as evidence of any transaction affecting such property. Further, if the documents of 1882 and 1886 were not validly registered instruments, no mortgage could by reason of the first paragraph of Section 59 of Act IV of 1882, be effected by them. They were in fact registered but the question is was the registration a valid registration ? The Subordinate Judge and the High Court found that there was no valid registration in either case.

(3.) In Section 32 of Act III of 1877 it is enacted that :- Except in the cases mentioned in Section 3, 31 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office, by some person executing or chiming 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 authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.