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Bombay High Court
Balkrishna Raoji Velankar vs Parashram Mahadeo Ketkar on 12 March, 1926
Equivalent citations: (1926) 28 BOMLR 949
Author: K Norman Macleod
Bench: N Macleod, Kt., Crump


Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover Rs. 11,616 from five defendants on a mortgage bond, dated October 24, 1917. Defendant No. 6 was made a party because he was a prior mortgagee. The property mortgaged belonged to defendants Nos. 1 and 2, who were brothers, members of a joint family. Defendant No. 1 executed a mortgage for himself and as agent for his brother. The property mortgaged consisted of lands and a house. It is admitted, first, that defendant No. 1 did not mortgage the property as manager of a joint family ; secondly, he did not mortgage the family property for family necessity; and, thirdly, that the power of attorney given to defendant No, 1 by defendant No. 2 did not empower defendant No. 1 to sell defendant No. 2’s share in the house. Defendants Nos. 8, 4 and 5 are the purchasers of the equity of redemption from defendants Nos. 1 and 2. Defendants Nos. 1 and 2 did not appear at the hearing. Having parted with the equity of redemption, they had no further interest in the property. Still, on their personal covenant in the mortgage deed, they were made liable to pay the mortgage amount, and on default the plaintiff was to recover what was due due on the mortgage by sale of the mortgaged property minus the share of defendant No. 2 in the suit house, Defendants Nos. 1 and 2 were ordered to bear the costs of defendant No. 6. That order is the subject-matter of an appeal by defendants Nos. 1 and 2. The plaintiff brought defendant No. 6 into the suit without any necessity whatever. Therefore, there can be no justification for ordering defendants Nos. 1 and 2 to pay coats of defendant No. 6. We must allow Appeal No. 204 of 1924 with costs, and direct the plaintiff, and not defendants Nos. 1 and 2, to boar the costs of defendant No. 6 in the lower Court. The cross-objections of respondent No. 1 are dismissed with costs.

2. Defendants Nos. 3, 4 and 5 were the contesting parties. They first contended that the power of attorney given by defendant No. 2 to defendant No. 1 did not authorise him to mortgage the suit property; that it was given for the purpose of executing the prior mortgage; and that after defendant No. 1 executed the prior mortgage as attorney for defendant No. 2, the power of attorney was exhausted. However, on a perusil of the power of attorney, it is perfectly clear that it was a general power of attorney, and authorised defendant No. 1 to dispose of defendant No. 2’s share in the lands by sale or mortgage without specifying how many sales or mortgages could be executed. The mortgage deed was registered, and so, at first sight, it would appear that defendants Nos. 3, 4 and 5, the purchasers of equity of redemption, were not entitled to dispute the plaintiff’s claim as mortgagee.

3. The point, however, was taken that the power of attorney was not executed as provided by Section 38 of the Indian Registration Act, and that, therefore, the document was not properly presented to the Registrar, and any registration that followed after an improper presentation was a nullity. Further, that as Section 34 requires the appearance of all the persons who have executed a document which requires registration, and has been presented for registration, and a person appearing by an agent must authorize such agent as provided by Section 33, and as defendant No. 1 was not so authorized, therefore, the appearance of defendant No. 2 through defendant No. 1 before the Registrar was not proper, and, consequently, so far as defendant No, 2 was concerned, the registration of the document against him was a nullity. Part VI of the Indian Registration Act deals with the presentation of documents for registration and the scheme of the Act is that a document which is to be registered must be presented at the proper registration office either by some person executing or claiming under the same, 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 mentioned in the Act.

4. Under Section 33, for the purposes of Section 32, the following powers of attorney shall alone be recognized, namely:-(a) if. the principal at the time of executing the power of attorney resides in any part of British India in which the 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.

5. That is the provision which is applicable to this case,, The power of attorney, therefore, executed by defendant No. 2 in favour of defendant No. 1 for the purposes of registration should have been executed and authenticated by the Registrar or Sub-Registrar within whose district or sub-district defendant No. 2 resided.

6. It must be taken as a fact in this case that the power of attorney was not so executed and authenticated. But for the purposes of presentation, as defendant No, 1 was a party executing the document on his own behalf, then the document was properly presented, Section 34 is as follows:-

(1)…no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26….

(2) Appearances under Sub-section (1) may be simultaneous or at different times.

(3) The registering officer shall thereupon –

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed :

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as a representative assign or agent, satisfy himself of the right of such person so to appear….

7. Therefore, defendant No. 2 was bound to appear before the Registrar, and if he appeared through an agent, he could only appear through an agent duly authorised under the provisions of Section 33.

8. It has been contended that the provisions of a, 33 only apply in a case of a power of attorney executed for the purpose of enabling an agent to present a document for registration. The words ” authorised as aforesaid” in Section 34 clearly show that an agent for an executing party must be authorised as provided by Section 33, The result is that defendant No. 2 as a mortgagor, of the mortgage propounded by the plaintiff, did not duly appear before the Registrar, and in default of such appearance the document ought not to ‘ have been registered so far as it affected his share in the suit property.

9. We have teen referred to the decision in Jambu Parshad v. Muhammad Nawab Aftab Ali (1914) 17 Bom. L.R. 413, P.C. The Privy Council in that case had only to deal with the question whether the document requiring registration had been duly presented within the previsions of Section 32. The mortgage deed was presented for registration at the proper registration office on behalf of the mortgagee by one N who held a power of attorney from the mortgagee which, however, did not empower N to present documents for registration. The power of attorney had been duly authenticated by the proper registering officer, but it had not been executed before him. Another mortgage deed was similarly presented on behalf of the mortgagee by one I B, who held a similar power of attorney from the mortgagee. This power of attorney had neither been authenticated by nor executed before the proper registering officer, In both cases the mortgagors admitted before the registering officer the execution and completion of the deeds and either received the mortgage money in his presence or acknowledged the receipt thereof. The registering officer, thereupon, registered the two deeds It was held that the mortgagors attended the registration office to enable the registering officer to comply with Sections 34 and 35 of Act III of 1877 by satisfying himself that they had executed the deeds, and not to present them for registration ; that the mortgagors did not present the deeds for registration ; that in neither case did the agent of the mortgagee hold such a power of attorney as was necessary under Section 33 of that Act to enable a valid registration to be made ; that the omission of the registering officer to notice in each case that the power of attorney, under which the agent had presented the mortgage deed for registration, had not been executed or authenticated, in accordance with Section 33 of that Act, could not be regarded as a defect in procedure within the meaning of Section 87 thereof, and that in each case the registration of the mortgage deed was not a valid registration under Act III of 1877. Their lordships observed at p, 419 :-

One object of Sections 32, 33, 34 and 85 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under the Act.

It is the duty of Courts in India not to allow the imperative provisions of the Act to be defeated when, as in this case, it is proved that an agent who ‘presented a document for registration had not been duly authorised in the manner prescribed by the Act to presentil.

10. It will be seen that in that ease the mortgagors actually admitted before the registering officer the execution and completion of the deeds, and either received the mortgage money or acknowledged the receipt thereof. Still, in spite of these facts, the suit was dismissed with regard to the mortgage deeds.

11. The argument, therefore, as it has been put forward in this case, that defendant No. 2 cannot resist the claim of the mortgagee in spite of the fact that the mortgage has not been properly registered, and that consequently, defendants Nos. 3, 4 and 5 as purchasers from defendants Nos. 1 and 2 cannot raise the same defence, fails.

12. It follows, then, that we must vary the decree of the Subordinate Judge by directing that, on default of payment by defendants Nos. 1 and 2, the plaintiff will recover the mortgage amount by sale of the share of defendant, No. 1 only in the mortgaged property. No order as to costs in the appeal. The cross-objections are dismissed. No order as to costs of the cross-objections.

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