Sri Sri Sri Kishore Chandra Singh DEO
Vs. Babu Ganesh Prasad Bhagat & Ors  INSC 17 (9 March 1954)
AIYYAR, T.L. VENKATARAMA MUKHERJEA, B.K.
BOSE, VIVIAN HASAN, GHULAM
CITATION: 1954 AIR 316 1954 SCR 919
CITATOR INFO :
F 1973 SC1346 (27)
Indian Registration Act (XVI of 1908), ss.
32, 33- "Resides", meaning of Power-of-attorney containing mistaken
endorsement, effect of-Applicability of ss. 32 and 33 to such a case-Legal
effect of decision under s. 33(1), proviso (i).
The word "resides" in s. 33(1)(a)
of the Indian Registration Act, 1908, is
not defined in the statute. It contemplates not only permanent residence but
also temporary residence.
Residence only connotes that a person eats,
drinks and sleeps at that place and it is-not necessary that he should own it.
For purposes of s. 32(c) of the Act, a power-of-attorney
needs, in view of the provisions of s. 33 of the Act, no registration but is
only required to be executed before and authenticated by the Registrar. Hance
an endorsement mistakenly made on such power-of-attorney that it was presented
for registration must be ignored and does not affect the validity of subsequent
authentication by the Registrar which was an independent act complete in itself
and valid under s. 33.
A decision of the Registrar under s. 33(1)
proviso (1) of the Indian Registration Act that an applicant is suffering from
bodily infirmity and is unable to attend the Registration Office or court
without risk or serious inconvenience relates to a matter of more procedure and
even if erroneous does not affect his jurisdiction. The finding is on a matter
which is within his exclusive jurisdiction, and cannot be questioned in a court
Jambu Prasad v. Mahammad Aftar Ali Khan (42
I.A. 22), Sharat Chandar Basu v Bijay Chand kahtab (64 I.A. 77), Ma Pwa May v.
Chettiar Firm (56 I.A. 379) and Mujiibunnnissa v. Abdul Rahim (28 I.A. 15)
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1 and 2 of 1949.
Appeals from the Judgment and Decree dated
the 22nd December, 1942, of the High Court of Judicature at Patna in First
Appeals Nos. 10 and 1 1 of 1939 arising out of the Judgment and Decree dated
the 23rd November, 1936, of the Court of the Subordinate Judge of Berhampore in
Original Suit No. 11 of 1935.
D.V. Narasinga Rao and M. S. K. Sastri for
S. L. Chhibber and R. 0. Prasad for
respondents Nos. 1-4, 6- 9, 11 and 12.
1954. March 9. The Judgment of the Court was
delivered by VENKATARAMA AYYAR J.-These appeals arise out of a suit instituted
by the respondents to enforce a mortgage deed, Exhibit A, dated 5th April,
1923, executed by the defendant in favour of one Radha Prasad Bhagat. The
subject-matter of the mortgage is an estate called the Bodogodo Zemin situated
in 921 what was the District of Ganjam in the Province of Madras and now
comprised in the State of Orissa, and governed by the provisions of the Madras
Impartible Estates Act 11 of 1904. The mortgage is for' Rs. 1,25,000 and the
deed recites that a sum of Rs. 12,500 was advanced to the mortgagor on a
promissory note executed on 30th March, 1923, that the balance of Rs. 1,12,500
was paid to him in cash, and that the entire amount was borrowed for meeting
the expenses of the marriage of his second daughter with the eldest son of the
Rajah of Talcher. The marriage, in fact, took place on 27th April, 1923. Though
the deed recites that Rs. 1, 12,500 was paid in cash, the case of the
plaintiffs is that it was, in fact, paid on 14th April, 1923, on the authority
of the defendant to his manager, one Mr. Henry Tapp, after the mortgage bond
was registered, which was on 10th April, 1923. In 1926 and 1927 the defendant
made several payments towards the mortgage, in all aggregating to Rs. 42,000.
The mortgagee died on 18th November, 1933, and thereafter his legal
representatives filed the suit, out of which these appeals arise, for recovery
of the balance due under the mortgage by sale of the hypothecated property.
The defendant resisted the suit on several
grounds. He pleaded that the mortgage was supported by consideration only to
the extent of Rs. 25,000, and that it had become discharged by the payments
made in 1926 and 1927. He also contended that the mortgage bond was not duly
attested or validly, registered, and that it was therefore void and unenforceable.
The Subordinate Judge of Berhampur who heard
the suit held that no consideration passed for the promissory note for Rs.
12,500 dated 30th March, 1923, Exhibit J, and
that it was really a salami; but that the balance of Rs. 1, 1 2,500 was paid to
Mr. Tapp under the authority of the defendant. He also held that the mortgage
bond was duly attested and validly registered, and a decree was passed in
accordance with these findings Both the parties took up the matter in appeal to
the High Court of Patna.' The plaintiffs filed A. S.
119 922 No. 10 of 1937 claiming that Exhibit
J was supported by consideration, and the defendant filed A. S. No. 11 of '1937
pleading that the alleged payment of Rs. 1,12,500 to Mr.
Tapp was unauthorised, and that the mortgage
bond was void, as it was neither duly attested nor properly registered.
The High Court concurred with the Subordinate
Judge in finding that Rs. 1,12,500 was paid to Mr. Tapp under the authority of
the defendant, and that the bond was duly attested and registered. But as
regards' the promissory note, Exhibit J, it held differing from the Subordinate
Judge that it was also supported by consideration. Against this decision, the
defendant appeals. and repeats all the contentions urged by him in the courts
* * * * [The court held on a consideration Of
the evidence that the mortgage bond was supported by consideration and that it
was duly attested.] The last contention of the appellant was that the deed was
not validly registered in accordance with the provisions of sections 32 and 33
of the Registration Act, and that it was therefore void. Section 32 enacts
that, " Except in the cases mentioned in sections 31, 88 and 89 every
document to be registered under this Act shall be presented...............
(a) by some person executing or claiming
under the same,..... or (b)by the representative or assign of such person, or
(c)by the agent of such person, representative or assign duly authorised by
power-of-attorney executed and authenticated in manner hereinafter mentioned.
" Section 33, so far as is material for
the present purpose, runs as follows:
33(1) " 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 (the Provinces) in which this Act is for the time being in force, a 923
power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar
within whose district or sub- district the principal resides;...
Provided that the following persons shall not
be required to attend at any registration office or court for the purpose of
executing any such power-of-attorney as is mentioned in clauses (a) and (b) of
this section, namely :- (i)persons who by reason of bodily infirmity are unable
without risk or serious inconvenience so to attend ;
(ii)persons who are in jail under civil or
criminal process and (iii)persons exempt by law from personal appearance in
(2)In the case of every such person the
Registrar or Sub- Registrar or Magistrate, as the case may be, if satisfied
that the power-of-attorney has been voluntarily executed by the person
purporting to be the principal, may attest the same without requiring his
personal attendance at the office or court aforesaid.
(3)To obtain evidence as to the voluntary
nature of the execution, the Registrar or Sub-Registrar or Magistrate may
either himself go to the house of the person purporting to be the principal, or
to the jail in which he is confined, and examine him, or issue a commission for
The substance of these provisions is that a.
document must be presented for registration either by a party to it or his
legal representative or assign or by his agent holding a power-of-attorney
executed and authenticated in accordance with section 33 of the Act.
In Jambu Prasad v. Muhammad Aftar Ali
Khan(1), it was observed by the Judicial Committee approving of the decision in
Ishri Prasad v. Baijnath(2) that, " ...the terms of sections 32 and 33 of
Act III of 1877 are imperative, and that a presentation of a document for
registration by an agent....... who has not been duly authorized in accordance
with those (1) 42 I.A. 22.
(2) I.L.R. 28 All. 707.
924 sections, does not give to the
Registering Officer the indispensable foundation of his authority to register
,the document." Where, therefore, a document is presented for registration
by a person other than a party to it or his legal representative or assign or
by a person who is not an agent authorized in the manner prescribed in section
33, such presentation is wholly inoperative, and the registration of such a
document is void. In-the. present case, Exhibit A was presented for
registration by Mr. Tapp as the agent of the defendant under a
power-of-attorney executed by him, Exhibit B, and the question is whether that
power satisfies the requirements of section 33. Exhibit B was executed by the
defendant before the Registrar at the residence of the Chief of Hindol at
Cuttack and was authenticated by him. It was argued for the appellant that the
authentication was invalid on three grounds: (1) that the defendant was not
residing at Cuttack at the time of the execution of Exhibit B, and consequently
the Registrar at Cuttack had no jurisdiction'to' authenticate the deed under
section 33 (1) (a); (2) that Exhibit B was presented for registration by one
Sundaram who described himself as the personal assistant of the defendant, but
was, in fact, a person not authorised to present the document as required by
section 32, and therefore the authentication of the power based on such
presentation was void; and (3) that the authentication of the power under the
proviso to section 33 (1) at the residence of the defendant was bad, as he was,
in fact not suffering from any bodily infirmity at that time, and that in
consequence the registration of Exhibit A pursuant thereto was void.
With reference to the first contention that
the defendant was not residing at Cuttack at the date of Exhibit B, and that
consequently the Registrar of that place had no jurisdiction to register it
under section 33 (1) (a), the finding of the courts below is that the defendant
had been residing at Cuttack for a week prior to the date of Exhibit B, and
that was sufficient for the purposes of section 33 (1) (a). In 925 Sharat
Chandra Basu v. Bijay Chand Mahtab(1) the Privy Council observed:
" The expression 'resides', as used in
section 33, is not defined in the statute; but there is no reason for assuming
that it contemplates only permanent residence and excludes temporary residence.
" It must therefore be taken as settled that even temporary residence at a
place is sufficient to clothe the Registrar of that place with jurisdiction
under section 33 (1) (a).
It was argued for the appellant that his
permanent place of residence was at Bodogodo, that he owned no house at
Cuttack, that the house where Exhibit B was registered belonged to his
brother-in-law, the Chief of Hindol, and that he stayed there only for the
purpose of registering the power, and that on these facts, it could not be held
that there was residence even of a temporary character at Cuttack. The fact
that the house did not belong to the appellant is not material for this
purpose; because residence only connotes that a person eats, drinks and sleeps
at that place, and not that he owns it. Whether the stay of the appellant at
Cuttack was of a casual nature, or whether it amounted to residence must depend
on all the circumstances proved, and is essentially a question of fact.
The appellant described himself in Exhibit B
as temporarily residing at Cuttack, and there is no reason why his words should
not be accepted as indicating the true position.
Then there is the endorsement of the
Registrar on Exhibit B, and that runs as follows:
" Having visited and examined at hi8
residence the principal Sri Sri Sri Kishore Chandra Singh Deo, son of Durga
Mahtab Singh Deo, of at present Hindol House ... by profession Zamindar, who is
personally known to me, I am satisfied that this power-of-attorney has been
voluntarily executed by him and I accordingly authenticate it under section 33
of Act XVI of 1908. " In Sharat Chandra Basu v. Bijay Chand Mahtab(1) the
endorsement on the power-of-attorney was as follows (1) 64 I.A. 77 926 Executed
in my presence at the Hazaribagh Registration Office on August 8, 1916, by
Sharat Chandra Basu, son of Nalinaksha Basu of Burd wan, at present of
Hazaribagh in Hazaribagh, who is personally known to me and I accordingly
authenticate it under section 33, Act XVI of 1908.......
In accepting this endorsement as evidence of
residence, the Privy Council observed:
" It is true that he (tile principal)
ordinarily resiided at Burdwan, but the endorsement of the SubRegistrar on the
document expressly states that he was living, at that time, at Hazaribagh. The
endorsement also shows that he was Personally known to the Sub-Registrar, and
it is not likely that a mistake would be made about his place of residence."
The endorsement in the present case is even more positive, in that it refers
expressly to the residence of the executant. It is also not correct to' say
that the defendant came to Cuttack only for the purpose of executing the power,
Exhibit B. He came there to complete the negotiations for raising a loan from
Radha Prasad, and the execution of the power was only one and not a major
incident in the business for which he came to Cuttack. As already mentioned, he
also borrowed a sum of Rs. 12,500 under Exhibit J on 30th March, 1923, while at
Cuttack. It is also in evidence that the defendant's son was studying at
Cuttack at that time, and was residing in the house of the Chief of Hindol.
Under the circumstances there were ample materials to support the finding of
the courts below that the appellant was residing at Cuttack at the time of
Exhibit B, and that must be affirmed.
It was next contended that as Exhibit B was
preseated for registration by one Sundar am, who was neither a party to it nor
an-agent holding a power-of-attorney duly registered or authenticated, and as
such presentation was void under section 32, the registration of Exhibit A
under the authority-contained in Exhibit B must also be held to be void. The
answer to this contention is that section 32 would apply only if a power
-of-attorney is presented for registration, and not when 927 it is produced
merely for authentication, in which case, the only requirements that have to be
complied with are the set out in section 33. The endorsements in Exhibit B show
that the Registrar examined the principal at his residence and satisfied
himself that he had executed it voluntarily. Then there was the authentication
which was made expressly under section 33, and then the defendant signed in the
presence of the Registrar. The defendant also admits in his evidence that the
Registrar questioned him about the execution of the power, and then
authenticated it, and that he thereafter signed before him. If the matter had
stood there would have been no question but that Exhibit B was validly
authenticated under section 33. But then, there is an earlier endorsement on
Exhibit B that it was," presented for registration at 1 1 A.M. on the 5th
day of April, 1923, at the Sadar Sub-Registrar's Office, Cuttack; by P. Sundaram."
The contention of the appellant based on this endorsement is that as Exhibit B
was presented for registration, section 32 applied, and as Sundaram was not
authorised to present it was inoperative. But the endorsement in question is
clearly based on a misapprehension of the true position. Exhibit B was
obviously produced before the Registrar along with the application for
attendance at the residence for authentication and not for the purpose of
Rule 148 of the Bihar and Orissa Registration
Manual provides both for registration and for authentication of a
power-of-attorney, and prescribes separate endorsements for them. It also
requires that they should be separately charged. Rule 157 provides that any
person can present a document for authentication. Exhibit B was, in fact, not
registered but only authenticated.' It contains only an endorsement of
authentication, and the charges collected were only for authentication. The
endorsement therefore that Exhibit B was presented for registration is clearly
a mistake, and must be ignored.
Moreover, even if there had been a
presentation of Exhibit B for registration and that was unauthorised, that does
not detract from the validity of the subsequent authentication before the
Registrar, which was an 928 independent act complete in itself and valid under
33. In Bharat Indu v. Hamid Ali Khan(1), a power-of-attorney
executed by a mortgagor was presented for registration by his servant but
actually the Registrar registered it at the residence of the principal under
section 33. In a suit to enforce the mortgage, the contention was raised that
the registration of the mortgage deed was bad, as the power-of- attorney in
pursuance of which it was registered was presented for registration by a person
not authorised. In overruling this contention, the Privy Council observed that
even though the presentation of the power for registration by the servant of
the principal was bad, when it was subsequently registered at the residence of
the executant in accordance with section 33 it should be deemed to have been
presented by him to the Registrar, and that in that view the registration would
be valid. On the same reasoning, exhibit B should be deemed to have been
presented for authentication by the defendant when the Registrar attended at
his residence, and the requirements of section 33 were fully satisfied. This
objection must, therefore, be rejected.
It was finally contended that the defendant
was, in fact, not suffering from any bodily infirmity at, the time of Exhibit
B, that the authentication of the power by the Registrar at the residence under
the proviso to section 33 (1) was therefore bad, and that the registration of
Exhibit A pursuant thereto was void; and reference was made to the evidence in
the case that the defendant was not ill at the time. But there is the fact that
the Registrar did, in fact, attend at the residence and authenticate the
document, and that could have been only on the application of the defendant.
In evidence the defendant stated:
"Perhaps an application was filed by me
for private attendance of the Sub-Registrar at Cuttack. I do not remember what
reasons were given for Sub Registrar's private attendance." (1) 47 I.A.
929 No application has been produced in
court, and it must be presumed that when the Registrar authenticated Exhibit B
under section 33 of the Act, he did so on an application setting out the proper
ground, and' that he satisfied himself that ground did exist. Whether he was
right in his conclusion that the defendant was suffering from bodily infirmity
is not a matter which can be gone into in a court of law. It is a matter
exclusively within his jurisdiction, and any error which he might have
committed would not affect his jurisdiction to register the document.
In Ma Pwa May v. Chettiar Firm(1) Lord Atkin
"In seeking to apply this section
(section 87), it is important to distinguish between defects in the procedure
of the Registrar and lack of jurisdiction. Where the Registrar has no
jurisdiction to register, as where a person not entitled to do so presents for
registration, or where there is lack of territorial jurisdiction, or where the
presentation is out of time, the section is inoperative: see Mujibunnissa v.
Abdul Rahim(2). On the other hand, if the registrar having a jurisdiction has
made a mistake in the exercise of it, the section (section 33) takes
effect." A decision of the Registrar that an applicant was suffering from
bodily infirmity for the purposes of section 33 (1), proviso, clause (1),
relates to a mere matter of procedure not affecting his jurisdiction, and even
if erroneous, would not affect the validity of the registration. Moreover,
there is the fact already mentioned that when the Registrar came to the
residence for authenticating Exhibit B, the defendant signed it once again
before him, and that would, in any case, be sufficient. There is no substance
in this contention and it must be overruled.
In the result, the appeals fail and are
dismissed. As for costs, it must be mentioned that the defendant died while the
appeals were pending, and that it is his legal (1) (1929) 56 I.A. 379.
(2) (1901) 28 I.A. 15.
120 930 representatives who are prosecuting
them. The property mortgaged is an estate governed by the Madras impartable Estates
Act 11 of 1904. The plaintiffs alleged in their plaint that the mortgage was
binding on the estate under section 4 of the Act. Issue 6 was framed with
reference to this allegation, and the finding of the trial court was that it
was not binding on the estate. But on appeal, the High Court held that the
question could not be gone into in a suit laid against the mortgagor. It
accordingly discharged the finding, and left the question open to be determined
in other and appropriate proceedings. In view of this, we direct that the
parties do bear their own costs in this court.