Judgement

Law. Rep. 51 Ind. App. 18 ( 1923- 1924) Baijnath Singh V. Jamal Brothers and C ompany, Limited

Appeal (No. 40 of 1922) from a decree (January 10, 1921) of the Court of the Judicial Commissioner, reversing a decree (July 31, 1916) of the Additional District Judge of Yenangyaung.

The suit was brought by the respondents, Jamal Brothers & Co., Ld., against the appellants to enforce a mortgage of oil well sites dated August 16, 1904. The mortgage was to secure money advanced to the appellants by the firm of Jamal Brothers & Co., but was taken in the name of a Chetty firm. By a deed of transfer dated September 11, 1914, made by the Chetty firm, Jamal Brothers & Co., and the respondents, the limited company, the mortgage was transferred to those respondents. The deed of transfer is more particularly described in the judgment of the Judicial Committee.

The mortgage of 1904 had been presented for registration under the Upper Burma Registration Regulation (II. of 1897) and the rules made under s. 8 thereof. It was indorsed with a statement signed by the registering officer that the document had been presented by "S. R. M. Venkatachellam, son of Raman Chetty." Under, or at the side of the signature of the registering officer, there were words in Tamil, which were translated as follows "Ramasawmy Chetty, clerk on behalf of S. R. M. Venkatachellam Chettyar." Below was a further statement by the registering officer, "Execution was admitted by Baijnath Singh, son of A. D. Singh Twinza of Yenangyaung."

The trial judge dismissed the suit on the ground of want of consideration and defect of pleading. Upon appeal to the Court of the Judicial Commissioner the pleadings were allowed to be amended, and after further evidence had been taken with regard to the execution of the deed of transfer, a decree was made in favour of the plaintiff company.

1923. Oct. 30; Nov. 2. De Gruyther K.C. and Parikh for the appellants. The registration of the mortgage was defective ; the signature in Tamil shows that it was presented by a person who is not proved to have been duly authorized Upper Burma Reg. II. of 1897, rr. 4, 6, 7 ; s. 32 of Act III. of 1877 ; Jambu Parshad v. Muhammad Aftab Ali Khan (( 1914) L. R. 42 I. A. 22.); Bharat Indu v. Hamid Ali Khan (( 1920) L. R. 47 I. A. 177.) ; Chhotey Lal v. Collector of Moradabad (( 1922) L. R. 49 I. A. 375.); Ma Shwe Mya v. Maung Ho Hnaung. (( 1922) L. R. 49 I. A. 395.) Further, execution of the mortgage was not admitted before the registering officer by one of the mortgagors. That is not a mere defect of procedure, but a fundamental defect. The registration of the deed of transfer was also defective, as the power of attorney is not in evidence, and there is nothing to show that it specifically authorized the presentation. Moreover, the deed cannot be read as a transfer by Jamal Brothers & Co. ; if it is so read the registration was defective, as there was no presentation by the firm.

Micklem K.C. and Dube for the respondents. The mortgage was duly registered. Under the rules proof of execution is sufficient, even if there is no indorsement. But in any case the indorsement is to be presumed to be correct, and it establishes that presentation was made by the mortgagees. The mortgage bears the admitted signature of the second mortgagor. A mere omission by the officer to record that he did not appear would be merely an error of procedure, and not fatal Mukhun Lall Panday v. Koondun Lall (( 1875) L. R. 2 I. A, 210, 215.); Bharat Indu v. Hamid Ali Khan. (L. R. 47

I. A. 177.) [They were stopped.]

Nov. 22. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS. This is an appeal from a decree dated January 10, 1921, of the Court of the Judicial Commissioner of Upper Burma, which reversed a decree dated July 31, 1916, of the Court of the Additional District Judge of Yenangyaung.

Law. Rep. 51 Ind. App. 18 ( 1923- 1924) Baijnath Singh V. Jamal Brothers and C ompany, Limited

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The suit is to enforce a