Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Chhuttan Lal vs Shiam Parshad And Ors. on 17 December, 1909
Equivalent citations: 5 Ind Cas 766
Bench: J Stanley, Banerji


1. The suit out of which this appeal has arisen was brought by the plaintiffs-respondents for sale upon a mortgage executed on the 31st of October, 1897, by Musammat Mul Kunwar and one Budh Sen. The appellant who was the fifth defendant to the suit is the purchaser of the mortgaged property. It is contended on his behalf that the mortgage-deed was not validly registered and cannot, therefore, affect the mortgaged property. The foundation for this contention is that the document was presented for registration by one Mazhar Ali who purported to hold a general power-of-attorney from Musammat Mul Kunwar. It is urged that the power-of-attorney was not registered and authenticated in accordance with the provisions of the Registration Act and that, therefore, the presentation of the mortgage-deed for registration was not a valid presentation. In our judgment this contention has no force. The mortgage deed was presented for registration by Mazhar Ali, who held a power-of-attorney which authorized him to produce any document executed by Musammat Mul Kunwar in the registration department and have the same registered. Section 32 of the Registration Act provides that a document shall be presented for registration by some person executing or claiming under it, or, among others, by the agent of such person duly authorized by power-of-attorney executed and authenticated in the manner provided in the following section. Section 33 provides that 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, would be recognised as a power-of-attorney, authorizing the agent to present the document for registration. This section, however, has a proviso to the effect that persons exempt by law from personal attendance in Court would not be required to attend at a registration office or Court for the purpose of executing such power-of-attorney; and that in the case of such a person if the Registrar or Sub-Registrar be satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, he may attest it without requiring the personal attendance of the principal. The proviso further lays down that to obtain evidence as to the voluntary nature of the execution the Registrar or Sub-Registrar may either go himself to the house of the person purporting to be the principal and examine him or issue a commission for his examination. Musammat Mul Kunwar was a purdanashin lady who was exempt from personal attendance in Court. In the case of such a person, under the proviso to which we have referred, it is not necessary that she should execute the power-of-attorney in the presence of the Registrar or Sub-Registrar, but all that is required is that the Registrar or Sub-Registrar should satisfy himself that the power-of-attorney was voluntarily executed by her. We are unable to agree with the contention of the learned Advocate for the appellant that the proviso requires that an executant of a power-of-attorney should sign it in his presence. In the present case the Sub-Registrar has endorsed on the power-of-attorney that he had satisfied himself that Musummat Mul Kunwar had of her own free will executed the mukhtarnama. He went to her house and questioned her and she admitted to him that she had executed the document of her own free will and accord. We think that the requirements of Section 33 were carried out in the case of the power-of-attorney executed by Musammat Mul Kunwar, inasmuch as even if she executed it before its presentation for registration, she admitted execution and the Sub-Registrar satisfied himself that she had voluntarily executed it, and authenticated the document by a certificate to the effect that he had satisfied himself that she had voluntarily executed it. As the mortgage-deed in question was presented for registration by the agent who held a power-of-attorney authenticated in the manner provided by Section 33, there was a valid presentation of the document and there was no defect in it in the matter of registration. We, therefore, dismiss the appeal with costs including fees on the higher scale, to be paid to the plaintiffs-respondents. The objections under Section 561 of Act No. XIV of 1882, are dismissed.

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