The interpretation of the expression 'person executing the document' under S. 34 of the Registration Act and its implications in determining the validity of conveyance and admission of execution.

Chagla, C.J. - The question of law that arises in this second appeal is whether a Full Bench decision of this Court in Sitaram Laxmanrao v. Dharmasukhram Tansukhram, 51 Bom 971 : (AIR (11) 1927 Bom 487 FB), is no longer good law in view of the decision of the Privy Council in Puran Chand v. Monmotho Nath, 55 IA 81 : (AIR (15) 1928 PC 38).

2. A few facts may be stated in order to understand the point of law that has been debated at the bar. The plaintiffs are vendees of a certain property and the property was sold to them by one Yinodrai and Sumantrai who executed a power of attorney on 20th March 1946, in favour of one Indulal, and it was in pursuance of this power of attorney that Indulal executed the sale in favour of the plaintiffs. The defendants, who were the tenants of the vendors, challenged the plaintiffs title to the property in the suit which the plaintiffs filed for ejectment of the defendants and for possession of the property.

3. The contention of Mr. Shah on behalf of the appellants is that the conveyance has not been properly registered and there is no title in the plaintiffs because there is no proper admission of execution under S. 34, Registration Act. Section 34 contemplates admission of execution either by persons executing a document or their representatives, assigns or agents authorised as aforesaid. In this case Indulal cannot fall in the category of authorised agents because it has been found as a fact by both the lower Courts that the power of attorney executed in his favour by the vendors was not authenticated by the Registrar or the Sub-Registrar as required by S. 33(1)(a), Registration Act. Therefore, the registration would only be proper provided Indulal can be considered to be a person executing the document within the meaning of S. 34(1). Now, the two rival contentions are that the person executing a document as required by S. 34(1) is a person who incurs obligations by executing the document. It is not the person who merely puts his signature to the document and acts as the attorney of the party who incurs obligations under the document. The other contention is that the person executing the document is the person who puts his signature to the document, whether he is the person who incurs obligations or not. The mere signature to the document is sufficient to make the person putting that signature the executant of the document. If the matter was res integra we would certainly have attached considerable importance to the argument advanced by Mr. Shah that taking a logical view of the section a distinction is made between the person executing the document and his agent, and therefore in the first category we could only have persons who are the real parties to the document and who incur obligations under the document, and in the latter category would fall persons who without incurring any obligations merely execute the document as the constituted attorneys of the party to the document. But the matter is not res integra and is decided by a Full Bench of this Court.

4. The question first came to be considered by a Division Bench in Balkrishna Raoji v. Parasharam Mahadeo, 50 Bom 628 : (AIR (13) 1926 Bom 479). The Division Bench consisting of Sir Norman Macleod, C.J. and Cramp, J., took the view that the expression "person executing the document" used in s. 33, Registration Act is the principal who is a party to the document and that expression cannot apply to an agent who merely puts his signature to the document. This decision came to be considered subsequently by a Full Bench in the case to which I have already referred, viz., Sitaram V. Dharmasukhram, (51 Bom 971 : AIR (14) 1927 Bom 487 FB), and in that case Sir Amberson Marten, C.J., Kemp and Blackwell, JJ., took the view that the decision of the Division Bench was erroneous and that the expression "person executing the document" used in S. 33 meant the person who actually signed the document. Two reasons influenced Sir Amberson Marten and hi