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PETITIONER: JUGRAJ SINGH & ANR.

       Vs.

RESPONDENT: JASWANT SINGH & ORS.

DATE OF JUDGMENT: 16/03/1970

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAY, A.N. DUA, I.D.

CITATION:  1971 AIR  761            1971 SCR  (1)  38  1970 SCC  (2) 386

ACT: Power  of  Attorney-Execution  by  Indian  abroad-Subsequent power ratifying defects-Effect of-If relates back. Declaration-Suit for declaration, but no prayers either  for cancellation  of  order  or injunction-Suit hit  by  s.  42, Specified  Relief Act-Mortgagor not party-Suit  if  properly framed-Costs-Award of.

HEADNOTE: V  the son of the mortgagor executed a power of attorney  in California  (U.S.A.) authorising S to sell the property  and to execute the sale deed and present it for registration.  S executed  the  sale deed in favour of the  respondents,  who applied for the redemption of the mortgage under s. 9 of the Punjab  Redemption  of Mortgages Act, 1913.   The  Collector ordered  the  redemption.  The appellants-the  sons  of  the mortgagees filed a suit suit under s. 12 of the Act  praying for a declaration that the -respondents were neither  owners nor  they had any right of redemption, as per the orders  of the Collector which was illegal and the appellants were  not bound  by  it.  V was not party to this  suit.   During  the pendency of the suit V executed a fresh power of attorney in California  in  favour  of S, stating  that  first  one  was defective and was being ratified and further that the act of S  will be that of V, which included not only the making  of the  document but also the presentations.  The second  power of  attorney  was  produced in the suit, and  the  suit  was dismissed.  Appeal in the District Court and a second appeal filed in the High Court failed.  Dismissing the appeal, this Court, HELD : The first power of attorney was not authenticated  as required  by s; 33 of the Indian Registration Act  which  in the case of an Indian residing abroad,requires  that   the document should be authenticated by a Notary Public. The document  only  bore  the signature  of  a  witness  without anythingto show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he  was one)  in the manner which the law would  consider  adequate. The  second power of attorney however did show that  it  was executed before a proper Notary Public who complied with the

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laws  of  California  and  authenticated  the  document   as required  by  that law, and was also duly  authenticated  in accordance  with our laws.  The only complaint was that  the Notary Public did not say in his endorsement that V had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that   it     had      been subscribed and sworn before him.  There is a presumption of regularity  of  official  acts and he  must  have  satisfied himself  in the discharge of his duties that the person  who was  executing  it  was the proper person.   This  made  the second  power of attorney valid and effective both under  s. 85  of  the  Indian Evidence Act and s.  33  of  the  Indian Registration Act. [42 G-43 C] The  second  power of attorney was a valid document  and  it authorised  S to execute the document as well as to  present it  for  registration.  This being a  document  ratifying  a former inconclusive act related back    39 to  the time when the first document was made and cured  the illegality  in the presentation for registration  which  had taken place. Now the law is quite clear that ratification relates back to the  original act provided there is a  disclosed  principal. [43 E-F] Keighly Maxsted & Co. v. Durant; [1901] A.C. 241 and  Wilson v. Tumman, 1843 6 M & G 242, relied on. Kottie  Keran & Ors. v. Lachmi Prasad Sinha & Ors.  58  I.A. 58, held inapplicable. The  appellants were not entitled to the declaration  prayed for.   They neither asked for the cancellation of the  order of the Collector nor for any injunction, two of the  reliefs which  they were entitled to ask in the case in addition  to the  declaration.   Such  a suit was hit by  s.  42  of  the Specific  Relief  Act  and  they  were  to  be  denied   the declaration  without these specified reliefs.  Indeed   they had only to ask for the setting aside of the order. The suit was notproperly  framed.        The  appellants as plaintiffs in the case joined the transferees from V  but made  no  attempt  to  join  V,  the  son  of  the  original mortgagor.  The suit could be only properly framed with  all the parties before the Court.Even if V was not a necessary party, he was at least a proper party.If   he   had   been brought before the court, it could have known from himwhether he  bad given the authority to execute the document  and  he could  have  adopted  the act of S by  ratifying  it  again. Normally  costs  should follow the event and it is  not  the rule  that costs should be left to be borne to the  parties. Here  a  case was decided against one of the  parties  in  a contentious ’matter, and costs should have been awarded. [44 F-45D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal    No. 198 of 1967. Appeal  by special leave from the judgment and  order  dated December  14, 1966 of the Punjab and Haryana High  Court  in Regular Second Appeal No. 399 of 1966. Hardev  Singh, H. L. Kapoor and Dhul Chand. for  the  appel- lants. Bishan  Narain,  Sadhu  Singh,  Bireswar  Bhattacharya   and Jagmohan Khanna, for the respondents. The Judgment of the Court was delivered by Hidayatullah C.J., This is an appeal against the judgment of

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a  learned  Single Judge of the High Court of  Punjab  dated December  14, 1966 confirming the dismissal of a suit  filed by the appellants.  The facts of the case are as follows : One Bhag Singh mortgaged certain lands to Ran Jang Singh  in the year 1923.  On September 6, 1961 one Vernon Seth Chotia, son  of Bhag Singh executed a power of attorney in  Califor- nia,  U.S.A.  authorising  Sardar Kartar  Singh  Chawla,  an advocate of this Court, to sell the property and execute the sale deed and 40 present  it  for registration.  This power of  attorney  was witnessed by one Daniel E. Cooper.  On the strength of  this document, Sardar Kartar Singh Chawla executed the sale  deed on May 30, 1963 in favour of the respondents in this appeal. He  presented  it  for registration  and  the  document  was registered.   The  vendees thereupon sought  to  redeem  the mortgage and applied under s. 9 of the Punjab Redemption  of Mortgages Act, 1913.  They deposited the entire amount  clue under   the  mortgage  in  the  Collector’s  court  and   we understand that the amount is still lying there, because  of the  later proceedings from which this appeal  arises.   The Collector  ordered the redemption of the mortgage.  The  Ap- pellants  who  are  the  sons  of  the  original   mortgagee thereupon  filed a suit under s. 12 of the Act on August  7, 1963.  It is necessary to refer to their petition of plaint, not  with a view to finding out what they stated there,  but to see what reliefs they claimed in the suit.  In para 10 of the petition of plaint, the appellants as plaintiffs stated               "The   plaintiffs  pray  that  a  decree   for               declaration to the effect that the  defendants               are neither the owners of the above  mentioned               land  nor  they  have any  right  to  get  the               aforesaid  land redeemed as per the orders  of               the  S.D.O. Mukatsar exercising the powers  of               Collector, dated the 6th August, 1963 which is               illegal and against law and the plaintiffs are               not bound by it and neither the defendants are               entitled  to take possession of the  aforesaid               land in accordance with that order, be  passed               in  favour  of  the  plaintiffs  against   the               defendants with costs." While  this  suit  was  still pending  and  because  of  the challenge to the power of attorney on the ground that it had not been properly authenticated under the law, a fresh power of attorney was executed by Vernon Seth Chotia on March  23, 1964  in favour of Sardar Kartar Singh Chawla.   The  second power  of  attorney was subscribed and sworn to  before  the Notary  Public  in and for the County of Alameda,  State  of California.  The Clerk of the Court as required by the  laws of California appended a certificate that the Notary  Public had  duly  given the certificate in acknowledgement  of  the execution  of the power of attorney by Vernon  Seth  Chatia. The endorsement of the Notary Public reads: I "Subscribed  and sworn to before me this 23rd day  of  March 1964. Betly J. Botelko Notary Public in and for the County of Alameda, State of California." 41 This  second power of attorney was produced in the suit  and the  court  of first instance ordered the dismissal  of  the suit, because it was of opinion that the transfer in  favour of the redeeming mortgagors by Vernon Chotia was  thereafter flawless.  Appeal in the District Court and a second  appeal filed  in  the  High Court failed.   This  appeal  has  been

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brought by special leave, Mr.  Hardev  Singh  in arguing the appeal  referred  to  the provisions  of  S.  85  of the  Indian  Evidence  Act  which provides  that  a Court shall presume  that  every  document purporting  to  be  a power of attorney  and  to  have  been executed  before  and authenticated by a Notary  Public  was duly   executed  and  authenticated.   He   contended   that authentication  of  the  power of attorney had to  be  in  a particular  form,  and  that it was not  sufficient  that  a witness  should  have signed the document, be  he  a  Notary Public  or any other.  It ought to have been signed  by  the persons  named in s. 85 and should have  been  authenticated properly.  He admitted that there was no prescribed form  of authentication, but he relied upon a ruling of the Allahabad High Court reported in Wali Mohammad Choudhari and others v. Jamal   Uddin   Chaudhari(1)  where  it   is   stated   that authentication means that the person who authenticates  must satisfy  himself about the identity of the person  executing or  making the document.  He argued that the  authentication should  have  shown on its face that the Notary  Public  had satisfied himself that Vernon Chotia was the real person who had signed the power of attorney before him.  He  contended, therefore,  that  the first power of  attorney  was  invalid because  it was not authenticated before any of the  persons named in s. 85 and the second power of attorney was invalid, because  it did not show on its face that the Notary  Public had satisfied himself that it was Vernon Chotia who executed the  document.   He also contended that, in any  event,  the execution  of the second power of attorney  was  ineffective after  the expiry of four months during  which  registration had to be obtained and further that the act of Mr. Chawla in presenting  the document for registration under the  invalid first power of attorney, could not be cured by the execution of a second power of attorney. Mr. Hardev Singh referred us to the provisions of ss. 32 and 33  of  the  Indian Registration Act.  Under s.  32,  it  is provided  that  a  document to be  registered,  whether  the registration  is  compulsory or optional,’ must  be  by  the presentation  at  the proper registration office  either  by some  person executing or claiming under the same or by  the agent  of  such  person,  representative  or  assign,   duly authorised  by power-of-attorney executed and  authenticated in the manner therein mentioned.  His contention was (1) A.I.R. 1950 All. 524. 1Sup,CI (NP)/70-4 42 that  for  a  proper registration, due  presentation  was  a condition  precedent  and that presentation  could  only  be either by the executant, that is the Principal who  conveyed under the deed or a duly constituted representative under  a power of attorney properly executed.  He referred then to s. 33 which says that if the principal at the time of execution does  not  reside  in India the power of  attorney  will  be recognised  only if it is executed before and  authenticated by a Notary Public.  In other words, his contention was that power of attorney for purpose of presentation of a  document for  registration  as  also  for its  execution  must  be  a properly authenticated document and in the case of a  person residing  abroad,  it  must be a document  executed  by  the Principal   before  the  Notary  Public  and  attested   and authenticated  by the Notary Public after due proof  of  the identity  of  the  person making the  document.   He  relied further upon the ruling in Dottie Karan and others v. Lachmi Prasad Sinha and others(1) and contended that if a power  of attorney  under  which  a document  was  presented  and  got

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registered,  were found to be defective, then the  registra- tion  would  be of no consequence, because  the  registering officer would lack jurisdiction to register the document. These  are  the stages by which Mr. Hardev  Singh  contended that  registration  in this case was ineffective,  that  the vendees derived no title and therefore they had no, title to claim  redemption  either  under the  Punjab  Redemption  of Mortgages  Act  or otherwise.  These contentions  were  also raised in the High Court and the two courts below, but  were concurrently rejected. It  is  plain that presentation for registration  could  be, either  by the Principal or by a duly constituted  attorney. It  is  equally plain that a proper power of  attorney  duly authenticated as required by law had to be made before power could be conferred on another either to execute the document or to present it for registration.  That indeed is the law. The  short  question  in this case  is  whether  Mr.  Chawla possessed  such  a  power  of  attorney  for  executing  the document and for presentation of it for registration.   Now, if we were to take into account the first power of  attorney which  was executed in his favour on May 30, 1963, we  would be   forced  to  say  that  it  did  not  comply  with   the requirements  of the law and was ineffective to  clothe  Mr. Chawla  with  the authority to execute the sale deed  or  to present  it for registration. Mat power of attorney was  not authenticated   as   required  by  s.  33  of   the   Indian Registration  Act  which in the case of an  Indian  residing abroad,  requires that the document should be  authenticated by a Notary Public.  The document only bore the signature of a witness without anything to (1)  58 I.A. 58. 43 show that he was a Notary Public.  In any event there was no authentication  by the Notary Public if he was one)  in  the manner  which the law would consider adequate.   The  second power  of  attorney however does show that it  was  executed before a proper Notary Public who complied with the laws  of California  and  authenticated the document as  required  by that law.  We are satisfied that that power of attorney  was also  duly authenticated in accordance with our  laws.   The only complaint was that the Notary Public did not say in his endorsement  that  Mr.  Chawla had been  identified  to  his satisfaction.  But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him.  There is a presumption of regularity of official  acts and  we are satisfied that he must have satisfied him.  self in  the  discharge  of his duties that the  person  who  was executing  it was the proper person.  This makes the  second power  of attorney valid and effective both under s.  85  of the Indian Evidence Act and s. 33 of the Indian Registration Act. The  only question is whether the second power  of  attorney was  effective to render valid the transaction of  sale  and the registration of the document both earlier than the power of  attorney.  In our judgment, it would be so.  Mr.  Hardev Singh   does  not  read  into  this  matter  the   fact   of ratification  by Vernon Seth Chotia of his earlier power  of attorney.   The second power of attorney states  in  express terms that the first power of attorney was defective and was being  ratified.   Vernon  Seth Chotia also  stated  in  the second power of attorney that the act of Mr. Chawla would be his  act which included not only the making of the  document but also the presentation of that document.  Now the law  is quite  clear that ratification relates back to the  original act  provided  there is a disclosed principal and  this  has

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been  stated  nowhere  better than by  Lord  Macnaughton  in Keiehley,  Maxted and Co.v. Durant(1) quoting Tindal, C.  J. in Wilson v. Tumman(2).               "That  an act done, for another, by  a  person                             though   without   any   precedent authority               whatever,  becomes then act of the  principal,               subsequently ratified by him, is the known and               well-established  rule of law.  In  that  case               the principal is bound by the act, whether  it               be  for  the detriment or his  advantage,  and               whether  it  be  founded on a  tort  or  on  a               contract,  to the same effect as by, and  with               all  the consequences which follow  from,  the               same act done by his previous authority.   And               so  by a wholesome and convenient  fiction,  a               person  ratifying  the act  of  another,  who,               without authority, has made a contract  openly               and  avowedly on his behalf, is deemed to  be,               in fact he was not, a party to the contract." (1) [1901] A.C. 241 at 246-47. (2) 1843 6 M. &. G. at p. 242. 44 Relation  back  of  an act  of  ratification  was  expressly accepted in this case.  Other cases have been summarised  in the  manual  of the Law and Practice of Powers  of  Attorney issued  by  the  Council  of  the  Chartered  Institute   of Secretaries.   This  follows from the maxim  of  law  "Canis ratihabitio  retrotrahitur at mandate priori  sequiparatur"- that  is to say, ratification is thrown back to the date  of the  act done, and the agent is put in the same position  as if  he had authority to do the act at the time the  act  was done  by  him.  The learned authors quote the  case  of  the House  of  Lords  which we have above cited and  add  to  it certain other cases with which we do not consider  necessary to encumber this judgment. It therefore follows that the second power of attorney was a valid  document and it authorised Mr. Chawla to execute  the document  as well as to present it for  registration.   This being a document ratifying a former inconclusive act related back to the time when the first document was made and  cured the  illegality in the presentation for  registration  which had taken place. The  case of the Privy Council on which great  reliance  was placed, namely, 58 I.A. 58 (cit. supra) no doubt states that presentation by a person who is not properly authorised by a power of attorney is ineffective and the registration  void, but  there  the Judicial Committee was not  considering  the case of a subsequent ratification.  They were only concerned with  an  invalid document and nothing more.  If  there  had been  ratification,  the other principle to  which  we  have adverted here would have been taken note of and the decision would probably have been different. In  these  circumstances, we are satisfied  that  there  was proper  execution of the document and registration.   It  is hardly  necessary, in view of our decision, to say  anything more  about  this  case.  We are  also  satisfied  that  the appellants  were  not entitled to a  declaration.   We  have reproduced the paragraph in which the reliefs were asked  in the plaint.  It will be noticed that they neither asked  for the  cancellation of the order of the Collector nor for  any injunction,  two of the reliefs which they were entitled  to ask in the case in addition to the declaration.  Such a suit would  be  hit by s. 42 of the Specific Relief  Act  and  we would  be quite in a position to deny them  the  declaration

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without these specific reliefs.  Indeed they had only to ask for the setting aside of the order. Further, this is obviously an unmeritorious suit on the part of  the  mortgagees.   They  are  after  all  mortgages  and redemption  has been offered to them by a person who is  the son  of the original mortgagor and who has resorted  to  the quick remedy of the Redemption Act, for getting the mortgage redeemed.  This mortgage took place as far back as 1923  and we are now in the year 45 1970.  It is obvious that over the years this property  must have  appreciated considerably in value.  The  intention  of the mortgagees is to retain the property as long as they can by raising technical objections in the way of the mortgagors seeking  to  redeem  it.  Further again  the  appellants  as plaintiffs  in the case joined the transferees  from  Vernon Seth Chotia but made no attempt to join Vernon Seth  Chotia, the  son of the original mortgagor.  The suit could be  only properly  framed with all the parties before the Court.   In our opinion, even if Vernon Seth Chotia was not a  necessary party,  he  was  at least a proper party. ,If  he  had  been brought  before  the  court, we would have  known  from  him whether  he had given the authority to execute the  document and  he  could  have adopted the act  of  Sardar  Chawla  by ratifying it again.  The suit was not properly framed.   For all these reasons, the appeal has no merits and it fails and will be dismissed with costs. We are surprised to note that the learned Judge in the  High Court did not award costs.  Normally costs should follow the event and it is not the rule that costs should be left to be borne  to the parties.  Here a case was decided against  one of  the  parties in a contentious matter, and  costs  should have been awarded. Y.P.                          Appeal dismissed. 46