Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat, (SC) BS113295
SUPREME COURT OF INDIA

(Large Bench)

Before:- B.K. Mukherjea, Vivian Bose, Ghulam Hasan and T.L. Venkatarama Ayyar, JJ.

Civil Appeals Nos. 1 and 2 of 1949. D/d. 9.3.1954.

Kishore Chandra Singh Deo - Appellant

Versus

Babu Ganesh Prasad Bhagat and others - Respondents

For the Appellant :- D.V. Narsinga Rao and M. S.K. Sastri, Advocates.

For the Respondent :- S.L. Chibber and R.C. Prasad, Advocates.

A. Evidence Act, 1872, Sections 3 and 88 - Telegraphic message - Proof - No presumption shall be made as to the person by whom such message was sent - No evidence to show that it was sent by the person by whom it was purported to be sent - On the other hand he has specifically denied it - Message must held, therefore, be not proved.

[Para 6]

B. Evidence Act, 1872, Section 67 - Comparison of Handwriting - Conclusion based must, at best, be indecisive and yield to positive evidence.

[Para 7]

C. Evidence Act, 1872, Sections 101, 102 and 103 - Execution of promissory note - Burden on the defendant to prove that admission was made under a mistake and is not true - It must be held that A was fully supported by considerations.

[Para 10]

D. Evidence Act, 1872, Section 68 - Transfer of Property Act, 1882, Section 3 - Attestation of Mortgage Deed - Proof of - Attesting witness deposing that other attestors also witnessed its execution - It is sufficient evidence of valid attestation.

[Para 11]

E. Registration Act, 1908, Sections 32 and 33 - Presentation of a Document 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 authorised in the manner prescribed in Section 33 - Such presentation in wholly inoperative, and the registration of such a document is void.

[Para 13]

F. Registration Act, 1908, Section 33(1)(a) - Expression 'Resides' - Even temporary residence at a place is sufficient to clothe the Registrar of that place with jurisdiction under Section 33(1)(a).

[Para 14]

G. Registration Act, 1908, Sections 32 and 33 - Bihar and Orissa Registration Manual, Rule 157 - Applicability of - Section 32 would apply only if a power of attorney is presented for registration and not when it is produced merely for authentication, in which case - The only requirements that have to be complied with are those set out in Section 33 - Moreover, Rule 157 of the Bihar and Orissa Registration Manual provides that any person can present a document for authentication.

[Para 16]

H. Registration Act, 1908, Section 33(1), Proviso - Scope of - Registrar authenticates a power of attorney at the residence of executant - It must be presumed that 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 executant was suffering from bodily infirmity is not a matter which can be gone into in a court of law - 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.

[Paras 18 and 19]

Cases Referred :-

Shamu Pattar v. Abdul Kadir Rauthan, 39 Ind App 218 (P.C.).

Jambu Prasad v. Muhammad Aftab Ali Khan, AIR 1914 Privy Council 16.

Ishri Prasad v. Baijnath, 28 All 707.

Sarat Chandra v. Bijoy Chand, AIR 1937 Privy Council 46.

Bharat Indu v. Mohammad Hamid Ali Khan, AIR 1921 Privy Council 93.

Ma Pwa May v. Chettiar Firm, AIR 1929 Privy Council 279.

Mujibunnissa v. Abdul Rahim, 28 Ind App 15(PC).

JUDGMENT

Venkatarama Ayyar, J. - These appeals arise out of a suit instituted by the respondents to enforce a mortgage deed, Exhibit A dated 4-5-1923, 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 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, 2 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 30-3-1923, 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 27-4-1923. 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 14-4-1923 on the authority of the defendant to his manager, one Mr. Henry Tapp after the mortgage bond was registered, which was on 10-4- 1923. In 1926 and 1927 the defendant made several payments towards the mortgage, in all aggregating to Rs. 42,000. The mortgagee died on 18-11-1933, 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.

2. 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.

3. The subordinate Judge of Berhampur who heard the suit held that no consideration passed for the promissory note for Rs. 12,500 dated 30-3-1923, Exhibit J, and that it was really a 'salami', but that the balance of Rs. 1,12,500 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.

4. Bot the parties took up the matter in appeal to the High Court of Patna. The plaintiffs filed A.S. 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 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.

5. On the question of consideration for Exhibit A, it was not disputed before us that the mortgagee paid Rs. 1,12,500 to Mr. Tapp under the receipt, Exhibit D dated 14-4-1923. The contention was limited to the question whether such payment was made under the authority of the defendant. The plaintiffs rely on Exhibits C and H-1 as containing that authority. Exhibit C is a letter dated 9-4-1923 purporting to be signed by the defendant and addressed to Radha Prasad and is as follows :

Yours

Sd. K. Ch. S. Deo

Zamindar of Bodagada".

Exhibit H-1 is a telegram sent in the name of the defendant to Radha Prasad on 14-4-1923 and runs as follows :

From Radha Prasad Bhagat,

Cuttack, 13-4-1923".

The defendant denied that he signed Exhibit C. or that he sent the wire, Exhibit H-1. The Subordinate Judge was of the opinion that while the genuinesses of Exhibit C had been proved, that of Exhibit H-1 was established beyond doubt. The learned judges of the High Court held that both Exhibits C and H-1 were genuine. The appellant disputes the correctness of this finding.

6. With reference to Exhibit H-1, the contention is that there is no evidence that it was the appellant who sent it. Section 88 of the Evidence Act enacts that while the Court may presume that the message delivered to the addressee corresponds with the message as delivered at the office of transmission, no presumption shall be made as to the person by whom such message was sent. In this case, there is no evidence that it was the defendant who sent Exhibit H-1. On the other hand, he has specifically denied it. Exhibit H-1 must therefore be held to be not proved, and so finding that the defendant had authorised the payment to Mr. Henry Tapp could be based thereon.

7. Turning next to Exhibit C, the question is whether it is genuine. The Subordinate Judge answered it in the negative, while the High Court took a different view. One of the reasons given by the Subordinate Judge for holding that Exhibit C is not genuine is that otherwise there was no need for the telegram. Exhibit H-1, authorising Mr. Tapp to receive the money. But this argument assuming it is sound, cannot be maintained consistently with the contention of the appellant that he did not send Exhibit H-1 a contention which we have accepted. Another ground on which the Subordinate Judge based his conclusion was that the signature in Exhibit C was dissimilar to the admitted signatures of the defendant.

The High Court, however, was of the opinion that there was no such dissimilarity. As the signatures are not before us, we are unable to say that the finding of either Court is more acceptable than that of the other. But conclusions based on mere comparison of handwriting must, at best, be indecesive, and yield to the positive evidence in the case P.W. 1 and 2 have given evidence that Exhibit C bears the signature of the defendant, and there are no sufficient grounds for rejecting it.

The Subordinate Judge also observed that the statement in Exhibit C that the registered bond was sent therewith was a clear indication that it could not have been executed on 9-4-1923 as the deed was, in fact, registered on 10-4-1923. But as observed by the learned Judges of the High Court the defendant must have expected that the document would be registered and delivered on 9-4-1923, and in that expectation must have inserted a recital in those terms.

When the document was produced before the registration office it was discovered that it was insufficiently stamped and some time was taken up in making up the deficiency, and an unexpected delay occurred. The recital in question would seem to indicate, if anything that Exhibit C is genuine rather than otherwise. None of the reasons given by the Subordinate Judge for rejecting Exhibit C is convicting.

8. The broad probabilities are also in favour of the genuineness of Exhibit C. The evidence is that Mr. Henry Tapp, the Dewan, presented this letter to Radha Prasad on 13-4-1923 after Exhibit. A had been registered and asked for payment. Radha Prasad wanted an assurance about the genuineness of Exhibit C and there upon P. Ws 1 and 2 gave the certificate Exhibit C-1. The Chief of Hindol, who is the brother-in-law of the defendant, and who took a prominent part in settling the marriage and arranging the loan was also present on this occasion, Exhibit C bears his signature. (After discussion of the evidence the judgment proceeds). The learned Judges of the High Court have accepted the evidence of P. Ws. 1 and 2 as true and there are no grounds for differing from them.

9. The subsequent conduct of the defendant also is consistent only with his having given authority to Mr. Tapp to receive the amount. The defendant states that he had directed the mortgagee to pay the amount to the Rajah of Talcher; but he never troubled himself to ascertain whether, in fact he paid it. The marriage took place on 27-4-1923. Even then, he made no enquiries about it. The defendant deposes that in December 1927 when he had been to Talcher it was casually mentioned by a man of that place that only Rs. 25,000 was paid as dowry. The Jubraj was himself sitting there at that time, but he kept quiet.

The defendant put no question to him about the payment and made no enquiries with reference to it. He quietly returned to Bodogodo, and enquired of the mortgagee how much he had paid. That is the case put forward by the defendant. If the information stated to have been received in December 1927 was true, then the payments made by the defendant in 1926 and 1927 amounting to Rs. 42,000 would have been more than discharged the mortgage. But the defendant took no steps to redeem the mortgage, and get back the bond cancelled. He did nothing while the mortgagee was alive, and failure of consideration and want of authority in Mr. Tapp are put forward for the first time as defences to an action by his legal representatives to enforce the mortgage.

The defendant admits that the arrangement with the Rajah of Talcher was that "the entire sum of Rs. 2 lakhs was to be paid before marriage". The marriage itself having been actually performed on 27-4-1923 it cannot be doubted that the full amount of the dowry must have been paid before that date, and if the defendant had no other source of payment available to him, it follows that it was the money which was received by Mr. Tapp under Exhibit D that was utilised for the payment of the dowry.

As the defendant himself did not make the payment it was Mr. Tapp who must have made it and the conclusion is inevitable that he did so under the authority of the defendant. We have no hesitation in agreeing with the learned Judges that the sum of Rs. 1,12,500 was paid by the mortgagee to Mr. Tapp under the authority contained in Exhibit C.

10. We have next to consider whether Exhibit J. the promissory note for Rs. 12,500 dated 30-3-1923 was or was not supported by consideration. The finding of the Subordinate Judge was that it was merely a 'Salami'; but the High Court held otherwise. The burden of proving that no consideration passed under Exhibit J is on the defendant. Counsel for the appellant relied apart from the evidence of the defendant which is interested, on Exhibits G and G-1 as proving that no amount could have been advanced on 30-3-1923.

These are two letters written on 3-4-1923 to P.W. 2, one by the Revenue Superintendent of the defendant and the other by Mr. Henry Tapp both of them being practically identical in their terms. Therein it is stated : ---- "unless Rs. 1,25,000 be borrowed, the marriage cannot be celebrated". It is argued that if Rs. 12,500 had been borrowed on 30-3-1923, Exhibits G and G-1 would have mentioned Rs. 1,12,500 as the amount to be borrowed and not Rs. 1,25,000. But Rs. 12,500 was advanced not as an independent loan but towards the loan of Rs. 1,25,000 which was under negotiation.

That clearly appears from the recitals in Exhibit A which treat Rs, 12,500 as advance towards the loan of Rs, 1,25,000. Exhibit A also contains an admission by the defendant that he had received the amount of the promissory note on 30-3-1923. The burden is on the defendant to prove that this admission was made under a mistake and is not true, and in the absence of satisfactory evidence on his side, the learned Judges were right in holding that Exhibit J was supported by consideration. In the result, it must be held that Exhibit A is fully supported by considerations.

11. It was next contended that Exhibit A was not properly attested, and that it was consequently void. The case of the defendant was that he executed it at Berhampur on 3-4-1923, that the attesting witnesses did not see him execute the deed, that the attestations must have been taken subsequently at Cuttack, and that therefore Exhibit A was not duly attested. P. Ws. 1 and 2 deposed that the defendant executed the deed at Cuttack, and that they and other witnesses witnessed the execution. Both the Courts below have accepted this evidence.

It was argued for the appellant that P. Ws. 1 and 2 did not speak to their having seen the defendant sign the document, and that therefore it was not duly attested as laid down in - 'Shamu Pattar v. Abdul Kadir Rauthan', 39 Ind App 218 (P.C.) P.W. 1 stated in his evidence :

This evidence which was not subjected to any cross-examination is sufficient to satisfy the requirements of law as to valid attestation, and the decision of the Courts below on the this point must be upheld.

12. The last contention of 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,

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.

13. In 'Jambu Prasad v. Muhammad Aftab Ali Khan', AIR 1914 Privy Council 16 . it was observed by the Judicial Committee approving of the decision in - 'Ishri Prasad v. Baijnath', 28 All 707 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 authorised in accordance with those 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 authorised 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 (f) 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.

14. With reference to the first contention that the defendant was not residing at Cuttack at the date of Exhibit B, 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 "Sarat Chandra v. Bijoy Chand', AIR 1937 Privy Council 46 the Privy Council observed :

It must therefore be taken as settled that even temporary residence at the 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 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 :

15. In AIR 1937 Privy Council 46 the endorsement on the power-of-attorney was as follows :

In accepting this endorsement as evidence, the Privy Council observed :

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 30-3-1923 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 was 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.

16. It was next contended that as Exhibit B was presented for registration by one Sundaram, who was neither a party to it nor an agent holding a power-of-attorney duly registered or authenticate, 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 it is produced merely for authentication in which case, the only requirements that have to be complied with are those 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, 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 11 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, 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 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 the Exhibit B was presented for registration is clearly a mistake, and must be ignored.

17. 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 independent act complete in itself and valid under Section 33.

In - 'Bharat Indu v. Mohammad Hamid Ali Khan', AIR 1921 Privy Council 93 , 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 his 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.

18. 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 pursuance 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 at authenticate the document, and that could not been only on the application of the defendant.

In his evidence the defendant stated :

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 exclusive within his jurisdiction, and any error which he might have committed would not affect his jurisdiction to register the document.

19. In - 'Ma Pwa May v. Chettiar Firm', AIR 1929 Privy Council 279 , Lord Atkin observed :

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 mere matter of procedure not affecting his jurisdiction, and even if erroneous, would not affect that 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.

20. 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 representatives who are prosecuting them. The property mortgaged is an estate governed by the Madras Impartible Estates Act II 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 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.