Judgement

Appeal (No. 5 of 1921) from a judgment and decree of the High Court (March 7, 1918) reversing a decree of the Additional Subordinate Judge of Moradabad.

The question in the appeal was whether a deed of mortgage dated November 20, 1911, which the respondent sued to enforce was properly registered under the Indian Registration Act (XVI. of 1908). The material facts appear fully from the judgment of the Judicial Committee.

The trial judge held that the mortgage had not been duly registered, and he accordingly dismissed the suit.

Upon appeal to the High Court the decision was reversed, and a decree made remanding the suit for the trial of other issues. The learned judges (Piggott and Walsh JJ.) held that, in the absence of evidence to the contrary, the indorsement of the sub-registrar proved that the power of attorney was duly authenticated by him. They were of opinion that the Court was entitled to assume that the sub-registrar had acted in the proper exercise of his powers under the proviso to s. 33 of the Act. They held further that the presentation of the document in July, 1912, could be regarded as sufficient* without unduly straining the law; if there was a defect they considered that it was curable by s. 87.

1922. May 22. De Gruyther K.C. and Dube for the appellant. The mortgage was not validly registered under the Indian Registration Act, 1908, and was consequently ineffective under s. 49. The onus was upon the respondent to prove the facts.

The presentation in February, 1911, was defective; there is no proof that there was a power of attorney complying with s. 33. The decision of the Board in Jambu Par shad v. Muhammad Aftab (1) is conclusive in the appellants favour ; it shows that the registering officer had no power to certify. The subsequent presentation in July, 1912, did not comply with s. 32. Even if the first presentation is to be treated as duly made, the effect of s. 75, sub-s. 2, is that there had to be a presentation complying with s. 32 after the order was made.

Dunne K.C. and Kenworthy Brown for the respondent. Jambu Parshads Case (( 1914) L. R. 42 I. A. 22.) is distinguishable. The indorse ment there was merely that the document was presented by a person who purported to be the general agent under a power of attorney, and it was proved that the power of attorney in question had not been duly authenticated. As appears from the sub-registrars second indorsement he refused to register merely because the execution was not admitted. In these circumstances the first indorsement is prima facie evidence that the power of attorney was duly authenticated, and the presentation duly made in all respects. There is no evidence to the contrary. If

s. 75, sub-s. 2, applies to a document which has been duly presented before the order is made, there was a sufficient re-presentation. In any case, having regard to all the circumstances, any defect in the second presentation was merely one of procedure, and by virtue of s. 87 does not invalidate the certificate of registration. [Reference was made to In re Shaik Abdul Aziz ((1387) I. L. R. 11 B. 691.) and Bharat Indu v. Hamid Alt. (( 1920) L. R. 471. A. 177.)

De Gruyther K.C. replied.

July 11. The judgment of their Lordships was delivered by

LORD BUCKMASTER On November 20, 1911, Maulvi Maqbulur-Rahman executed a mortgage of considerable property in the district of Meerut in favour of Sahu Parshadi Lal, to secure repayment of Rs. 10,000 and interest. The mortgagor subsequently executed several transfers of the mortgaged property, some by way of mortgage and some apparently by way of absolute transfer.

The appellant claims under one of such transfers, but the extent and character of his interest is nowhere stated, nor need it be investigated, as it is admittedly sufficient to support . the appeal. He contends that the mortgage of November 20, 1911, was not properly registered in accordance with the provisions of the Indian Registration Act (XVI. of 1908), and is consequ