SULTAN AHMAD Vs. GAUHAR BEGAM

JUDGEMENT

(1.) This is a first appeal by defendant 1 against a decree in favour of the plaintiff of the Civil Judge of Moradabad directing that the sale deed executed by defendant 1 in favour of the plaintiff be registered if presented to the proper registering officer within thirty days of the date of the decree. The facts are that there was a sale deed dated 23 December 1935 executed by defendant 1, Hafiz Sultan Ahmad, a vakil of Moradabad, in favour of the plaintiff Nawab Gauhar Begam who is the wife of Prince Jafar Ali Khan, resident in Rampur State. The sale deed was executed by defendant 1 in accordance with the direction of the Insolvency Court and defendant 1 was the receiver in an insolvency case. Page 29 shows the document, which was one in which there was an admission of Rs. 26,600 as paid before registration, and a provision for the payment in cash at the time of registration of Rs. 11,400. The total sale consideration was Rs. 38,000. The Sub- Registrar on 23 December 1935 made an endorsement: Hafiz Sultan Ahmad, son of Haji Badruddin Sheikh, by occupation a pleader, resident of mohalla Nai Sarak, in the City of Moradabad, presented this document on 23 December 1935 between 3 and 4 P.M.

(2.) Having written this endorsement of presentation an endorsement of admission of execution would naturally have followed, but at this precise moment an injunction arrived from the Court of the District Judge directing that the proceedings should stop and the proceedings therefore stopped. This injunction was issued by the District Judge under an order in a miscellaneous appeal filed by one Indra Swarup against the receiver. Later on, the receiver executed another sale deed dated 11 January 1936 comprising the same property sold now to Brij Lal, the father of Indra Swarup. This was done under orders of the Court and the receiver got this document duly registered and then the appeal of Indra Swarup was dismissed and the injunction terminated. Thereafter one Sajid Ali as mukhtar- i-am of the plaintiff made an application to the Sub-Registrar who issued summons to defendant 1 to attend on 10 February 1936 and as be did not attend on that date in spite of service of summons the Sub-Registrar refused registration as he was bound to under the Registration Act. This order is printed on p. 38. On the next day, 11 February 1936, Sajid Ali, as mukhtar-i-am of the plaintiff, made an application through a vakil to the District Registrar for compulsory registration under Section 73, Registration Act. On 13 July 1936 the District Registrar by an order printed on page 40 rejected this application on the ground that Sajid Ali was not the duly authorized agent of the plaintiff and that Section 33(1)(c), Registration Act, required that when the principal does not reside in British India there should be "a power-of-attorney executed before and authenticated by...a Magistrate." The present suit was filed within the period of 30 days allowed by Section 77, Registration Act, the plaint being filed on 22 July, 1936, the relief being a request for a decree for compulsory registration.

(3.) The written statement of the appellant-defendant 1 raised two points. One that there was no proper application to the District Registrar under Section 73, Registration Act, and so a suit does not lie under Section 77, and the second point was that the receiver was an officer of the Court and that he should have received two months notice before the suit was brought under Section 80, Civil P.C. Other points were raised, but these are the two which Mr. Dar for the appellant has stated that he desires to raise today in this appeal. The first point raises certain questions of fact. The plaintiff resides in Rampur State and there is the evidence of two witnesses from Rampur State. P. W 5, Mr. Abdul Wahid Khan, on p. 7 is a retired Deputy Collector who was later Chief Magistrate in Rampur State. He states that the document was presented to him without the signature of the plaintiff or the marginal witnesses and that as the plaintiff was a purdah lady he went to the palace of her husband the Prince, who is the second brother of H.H. the Nawab of Rampur. He found two witnesses who wore persons before whom the lady was not purdah, one being the brother of the executant. The following events took place: The lady was called and I sat in the verandah while she was behind the door. I asked the two persons above if she was the executant. They said "Yes." I then addressed her and asked her if she had got the deed written (ki unhon ne likkha hai?). She replied in the affirmative. Then the document was given to the Private Secretary to get it signed by the lady on the margin as executant and she then signed it behind the door. It was then given to me and it was then signed in my presence by the two marginal witnesses, Kamil Husain and Mobin Raza. I then read over the deed word by word to the lady. She said that it was all right. I then wrote down the verification endorsement below while I took the signature of the executant through the above Private Secretary and then her brother and the Private Secretary signed in my presence. I also took their thumb marks. By referring to Section 33, Clause 3, Registration Act, in the endorsement I meant that the document was also executed in my presence.