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1914 Supreme(SC) 73
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD SHAW OF DUNFERMLINE, SIR JOHN EDGE, AND MR. AMEER ALI
JAMBU PARSHAD - Appellant
Versus
MUHAMMAD AFTAB ALI KHAN - Respondents
On Appeal from the High Court at Allahabad.
Decided On : Nov. 2, 25, 1914.
Solicitors for appellant: T. L. Wilson & Co.
Solicitors for respondents: Ranken Ford, Ford & Chester.
Registration is invalid if a document is not presented by a person authorized under Sections 32 and 33 of the Registration Act, 1877. Such a failure is a jurisdictional defect that cannot be cured by the executants' admission of execution or treated as a procedural irregularity.
Headnote:(A) Registration Act, 1877 - Sections 17, 32, 33, 49, 60, 87 - Transfer of Property Act, 1882 - Section 59 - Presentation of documents for registration - Validity of registration by unauthorized agent - Jurisdiction of registering officer - The provisions of Sections 32 and 33 regarding the presentation of documents are imperative; a document must be presented by a person executing it, claiming under it, or a duly authorized agent - An agent must be authorized by a power-of-attorney executed and authenticated in the manner prescribed by Section 33 - If a document is not presented in accordance with these sections, the registering officer lacks the indispensable foundation of authority to register the document - Such a defect is one of jurisdiction and not a mere irregularity of procedure under Section 87 - Mere admission of execution by the executants before the registering officer does not amount to presentation of the document under Section 32.
(B) Registration Act, 1877 - Section 49 - If a document required to be registered is not validly registered, it cannot affect any immovable property comprised therein or be received as evidence of any transaction affecting such property.
Facts of the case:
Two mortgage deeds were presented for registration by agents of the mortgagee. The powers of attorney held by the agents did not specifically authorize them to present documents for registration and were not authenticated as required by the applicable law. Although the mortgagors appeared before the registering officer to admit execution and receive the mortgage money, they did not present the documents for registration. The registering officer proceeded to register the deeds despite the lack of proper authorization of the presenting agents.
Findings of Court:
The registration of the mortgage deeds was invalid because the documents were not presented by persons competent to do so under the law. The admission of execution by the mortgagors before the registering officer did not cure the defect in presentation nor did it constitute a valid presentation under the Act.
Issues: Whether mortgage deeds presented by agents lacking the requisite authorization under Sections 32 and 33 of the Registration Act, 1877, were validly registered.
Ratio Decidendi: The court held that strict compliance with Sections 32 and 33 of the Registration Act is a condition precedent to the registering officer's jurisdiction. A document presented by an unauthorized agent is not validly registered, and this jurisdictional failure cannot be excused as a procedural irregularity under Section 87. The presence of executants for the purpose of admitting execution is distinct from the act of presenting the deed for registration and does not grant the registrar jurisdiction to register the document.
Result: Appeals dismissed.
Legal Category Hierarchy
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practice and procedure
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registration of documents
- presentation of documents
- jurisdiction of registering officer
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registration of documents
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property law
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mortgages
- registration of mortgages
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mortgages
Judgement
Consolidated Appeals from two judgments and decrees of the High Court (February 13, 1912), one of which confirmed and the other partly confirmed a decree of the Subordinate Judge of Saharanpur (September 26, 1910).
The question for determination in the appeals was whether two mortgages, dated respectively July 2, 1832, and August 10, 1886, had been duly registered under the Registration Act (III. of 1877).
The mortgage dated July 2, 1882, was executed by Nawab Saiyid Muhammad Khan and Muhammad Ilyas Khan in favour of Lala Mitter Sen.
The mortgage dated August 10, 1886, was executed by the said Nawab Saiyid Muhammad Khan, Muhammad Khurshed Ali Khan, and the first respondent also in favour of Lala Mitter Sen.
There was a third mortgage dated October 25, 1892, which was not the subject of the present appeal.
The appellant instituted two suits against the respondent, the first to enforce the mortgage of 1886, and the second to enforce the mortgages of 1882 and 1892.
The first respondent, by an amendment of his written statement, pleaded that the mortgages sued on were not presented for registration by a competent person, and that the sub-registrar had no jurisdiction to register them.
The provisions of the Registration Act, 1877, with regard to the presentation of a document for registration under the Act are contained in ss. 32 and 33, which, so far as material, are set out in the judgment of their Lordships.
The indorsement of the registering officer upon the deed of July 2, 1882, was as follows —
" This document was presented in the office of the sub-registrar at tahsil Saharanpur on Tuesday, July 11, 1882, at 3 p.m. " (sd.) Natthu Mal, general attorney of Lala Mitter Sen. " (Signature of sub-registrar)
"Nawab Saiyid Muhammad Khan, aged 50 years, and Muhammad Ilyas Khan, aged 35 years " (here followed particulars of identification), " admitted the execution of this document and received at this time in my presence the sum of Rs.59,000 in cash as per detail given in this document.
"Dated July 3, 1882."
Then followed the signature of the sub-registrar and that of the mortgagors.
The indorsement upon the mortgage of August 10, 1886, was in similar terms, except that "Ilahi Bakhsh, general attorney of Lala Mitter Sen," signed as presenting the document.
The respondents called as a witness the sub-registrar, who produced the register of powers of attorney which contained a power of attorney by Lala Mitter Sen in favour of Natthu Mal dated June 19, 1882, and one in favour of Ilahi Bakhsh dated February 17, 1885. These powers of attorney, however, did not authorize them to present the documents in question for registration.
The Subordinate Judge dismissed the suits, holding that the documents had not been presented by duly authorized agents within ss. 32 and 33 of the registration Act, 1877.
The High Court (Sir H. Griffen J. and Chamier J.), by its judgment delivered on February 12, 1912, affirmed the judgment of the Subordinate Judge so far as it related to the mortgages of July 2, 1882, and August 10, 1886. The learned judges were of opinion that the certificates of registration indorsed upon them raised a strong presumption that they were duly registered, but that this presumption was rebutted by the evidence. They rejected the argument that the executants could be regarded as the persons presenting the documents for registration, and held that the admission of the mortgagors under
s. 34 did not dispense with a strict fulfilment with the provisions of ss. 32 and 33 of the Registration Act, 1877.
The proceedings upon the appeal to the High Court are reported at I. L. R. 34 Allah. 331.
De Gruyther, K.C., and 0Gorman, for the appellant. An indorsed certificate of the registering officer under s. 60 of the Act is conclusive that the document to which it relates has been duly registered and renders it admissible in evidence Sah Mukhun Lall Panday v. Sah Koondun Lall (( 1875) L. R 2 Ind. Ap. 210.) ; Mohammed Ewaz v. Birj Lall .
