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PETITIONER: SRI SRI SRI KISHORE CHANDRA SINGH DEO

       Vs.

RESPONDENT: BABU GANESH PRASAD BHAGAT AND OTHERS.

DATE OF JUDGMENT: 09/03/1954

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM

CITATION:  1954 AIR  316            1954 SCR  919  CITATOR INFO :  F          1973 SC1346  (27)

ACT:  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).  920

HEADNOTE: 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 initself 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 of law. 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) referred to.

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JUDGMENT: 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 the appellant. 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.

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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 below. *             *          *                   * [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 court. (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 his examination. 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

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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

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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

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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  registration. Rule  148  of  the  Bihar  and  Orissa  Registration  Manual provides both for regis tration 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  section 33. In Bharat Indu v. Hamid Ali Khan(1),  apower-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

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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 SubRegistrar’s  private attendance." (1)  47 I.A. 177. 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 observed: "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. Appeals dismissed.