RAFAT-UN-NISSA BEGAM Vs. HUSSAINI BEGAM

JUDGEMENT

(1.) This is an appeal by one of the defendants to a suit in which a certain lady, Nawab Hussaini Begam as plaintiff, sought to enforce certain rights alleged to exist in her favour under a mortgage-deed purporting to have been executed on the 6th of December 1918, by one Mt. Hashmat-un-nissa. The said executant died on the 13 of December 1918. Under Muhatn-madan Law her heirs were her two brothers, Aziz-ud-din and Sami-ud-din, and her sister Mt. Rafat-un-nissa. It is this sister who is the appellant before us. It so happens, however, that Md. Hashmat- un-nissa had also left a will, under which she bequeathed the one-third share in her estate, over which she had power of disposition under the Muhammadan Law, to two persons named Mushtaq Ali and Murshid Ali. All these paraons were impleaded as defendants to the suit. Various defences wara raised in the trial Court, all of which have been overruled, and the suit has been decreed against all the defendants. As already noted, the appeal is by Mt. Rafat-un-nissa Begam alone. The memorandum of appeal before us raises really two points. Six out of the seven paragraphs of which the memorandum of appeal consists amount in substance to a plea that the plaintiff, having been pub to proof of the fact, has failed to prove actual and intelligent execution of the deed in suit by Mt. Hashmat- un-nissa. We have been taken through the evidence, which is also discussed in detail in the careful judgment of the learned Subordinate Judge. We agree with the trial Court that importance attaches to the evidence given by the scribe Mohan Lal, who was also an attesting witness, and that no adequate cause has been shown for distrusting the evidence of this witness. Of the marginal witnesses to the deed two ware brothers at the executant, one was an agent of the mortgagee, and one was a karinda of the executant of longstanding. The witnesses examined at the hearing were one of the brothers by name Azid-ud-din, the agant by name Shams- ud-din, the scribe Mohan Lal and witness named Ali Hussain Khan who benefited under the mortgage-dead to this extent that a small promsisory-note in his favour was to be paid off out of the consideration. On this part of the case we are content to say that, having weighed all the arguments addressed to us in support of the appeal, we see no good reason to dissent from the finding of the trial Court. We agree that execution of this document by Mt. Hashmat-ua-nissa is proved according to law.

(2.) The remaining plea taken in appeal is one of law. It is contended that this document, even though executed by the lady in her life time, is now of no effect and not receivable in evidence, because it has not been duly registered. In this connexion our attention was drawn to the fact that it was pra3aated for registration at the office of the Sub-Registrar at Moradabad, whereas the property principally affected by the mortgage is a share in a village situated within the jurisdiction of the Sub-Registrar of Thakurdwara. The document, however, purports to include a small parcel of land in the town of Moradabad. It does not appear to us that the defendants laid any stress on this point in the trial Court. Consequently there are no materials before us on which we can hold that the executant did not in good faith intend to convey by way of mortgage this small parcel of land as well as the share in the village of Sarkara. We find no flaw in the registration proceedings on this account.

(3.) The other point taken is that there was neither a valid presentation of the document, before the Sub-Registrar of Moradabad, nor a satisfactory admission of execution, so as to justify the registration of the document. We shall have to refer in his connexion to two distinct sections of the Registration Act (No. XVI of 1908). One is Section 35(1)(c), which deals with the admission of execution in the case of a document the executant of which is dead; the other is Section 32(b) which relates only to the presentation of the document. The facts with which we have to deal are the following: As already mentioned by us, Mt. Hashmat-un-nissa died seven days after the execution of the deed. Ten days after liar death her brother Sami-ud-din, who was one of her heirs under the Muhammadan Law, and therefore a legal representative of her estate within the meaning of those words as used in the Civil P. C., presented the document in the suit to the Sub-Registrar of Moradabad, with a prayer that it might be registered. In his petition he gave the names of the remaining heirs-at-law of the deceased lady, namely, his own brother, Aziz-ud-din, and Mt. Rafat-un-nissa Begam, the appellant now before us. He said nothing about any will left by the deceased, or the rights of legatees under such will, and this in spite of the fact that the heirs-at- law had only a few days before come to terms ?with the legatees and executed a document under which they agreed that the will should stand. Sami-ud-din's prayer was that the Sub-Registrar should issue notice to the remaining heirs-at- law and call upon them also to admit execution of the deed. He himself admitted execution there and then took out a portion of the sale consideration, being his rateable share as an heir-at-law out of that portion of the consideration which had been left over to be paid at registration. The other brother, Aziz-ud-din, appeared before the Sub-Registrar in obedience to a summons. He too admitted execution and took out a similar share of the sale consideration. The appellant, Rafat-un- nissa Begam, never appeared in person before the Sub-Registrar of Moradabad, but sent her own husband who held a general power of attorney on her behalf. This gentleman also admitted execution and took out the balance of the Rs. 1,300 which had been left to be paid at registration. The first contention for the appellant is that Jamil-ud-din was not entitled to admit execution as agent of his wife, because he did not hold a special power of attorney to that effect. The learned Subordinate Judge has remarked, and, in our opinion, rightly that, even assuming that the Sub-Registrar committed an irregularity of procedure in accepting Jamil- ud-din's admission of execution, this would, so far as Section 35(1)(c) of the Registration Act I gees, amount to no more than an irregularity of procedure curable by the provisions of Section 87 of the same Act, and would I not affect the validity of the registration. On this point the Court below has referred to a decision of the Madras High Court, in Pakran V/s. Kunhammed (1900) 23 Mad. 580, which is directly in point and which in substance follows an older decision of this Court, in Hardei V/s. Ram Lal (1889) 11 All. 319, The real difficulty raised by the appellant's contention turns, however, on the wording of Section 32(b) of the Registration Act. If there has been no valid presentation, it is contended that the Sub-Registrar of Moradabad never had any jurisdiction to deal with this document, that the provisions of Section 87 of the Act are inoperative, and, in short, that the document has not been registered according to law. The words of the clause are to the effect that the document is required to be presented at the proper registration office "by the representative or assign" of some person "executing or claiming under the same." Now, as we have pointed out, the actual presentation of the document was by one of the legal representatives of the deceased lady. The contention before us is that the word "representative", in the clause above quoted must be read as including the plural "representatives," and that in the case of a deceased person there is no valid presentation on behalf of the executant unless the whole body of persons representing the estate of the deceased join in making the presentation. In our opinion this is one of those cases in which the context is repugnant to the idea of making the singular word include the plural in the manner in which the appellant contends. "When we look at Section 35, which we have already considered, it is obvious that if any person who is a representative of a deceased executant appears and admits execution of the document before the Sub-Registrar, that document must be registered, at any rate, as against the person making such admission. We are inclined to doubt whether in Section 32(b) the Legislature was specifically considering the case of a deceased executant at all. The definition given of the word "representative" in Section 2 of the Registration Act shows that the Legislature was thinking of executants still alive who could only enter an appearance before the Registrar through their representatives. The case of a deceased executant is specifically dealt with by Section 35(1)(c), and we have already held that the provisions of that section would not invalidate the registration of this document. We are content to say that, in so far as the provisions of Section 32(b) can be applied at all to the case of a deceased executant, it is sufficient if the document is presented for registration by a person who is a representative of the estate of the deceased, and that it is not necessary for the entire body of parsons, who between them represent the whole estate, to join in making the presentation.