Ram Lal Singh and others vs Mt. Bibi Shahrunnissa and others

Das, J.—This appeal comes before us from the judgment of the learned District Judge of Gaya and arises out of a suit instituted by the plaintiffs against the defendants to enforce two mortgage bonds executed by the defendant No. 1 through her attorney Abdul Hakim. The Court of first instance gave the plaintiffs a mortgage decree against the defendant No. 1 but on appeal the learned District Judge has reversed the decision of the Court of first instance.

The mortgage bonds, as I have mentioned, were executed by the lady through her attorney Abdul Hakim. The question which was debated before the Courts below was whether the lady had in fact executed the power of attorney in favour of her husband Abdul Hakim and whether the documents were read and explained to the lady.

The validity of the documents was also called into question and it was argued on behalf of the lady that there was a distinct violation of the provisions of Section 33 of the Registration Act. The learned District Judge differing from the Court of first instance came to the conclusion that there was such a violation and that it followed that the power-of-attorney was not executed and authenticated in accordance with law.

Section 33 of the Registration Act lays down that

"If the principal at the time of executing the power-of-attorney resides in any part of British India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-district the principal resides shall alone be recognised in Courts of Law."

The learned District Judge came to the conclusion that the power-of-attorney on which the plaintiffs rely was not executed in accordance with paragraph (a) of Section 33 of the Registration Act, but when he entirely ignored the provisions of the proviso to that section which provides that amongst other persons

"persons exempt by law from personal appearance if Court shall not be required to attend at any Registration Office or Court for the purpose of executing any such power-of-attorney as is mentioned in Clauses (a) and (b) of this section."

The defendant No. 1 is admittedly a pardanashin lady and accordingly is exempt by law from personal appearance in Court. She could not, therefore, execute the power-of-attorney in the manner provided by paragraph (a) of Section 33 of the Registration Act. Paragraph (2) of Section 33 gives the procedure which should be adopted by the Registrar in cases where persons exempt by law from personal appearance in Court are concerned.

The Paragraph provides that

"In every such case the Registrar or Sub-Registrar or Magistrate (as the case may be), if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid."

In my opinion, provided the plaintiffs have established that the Sub-Registrar did attest the document after being satisfied that the power-of-attorney was voluntarily executed by the defendant No. 1, the plaintiffs are entitled to succeed, so far as this point is concerned. Unfortunately the learned District Judge did not consider the question whether the Sub-Registrar was so satisfied and whether he attested the document after being so satisfied.

Mr. Manuk on behalf of the appellants urges that since the Sub-Registrar did attest a power-of-attorney it ought to be presumed that he was satisfied that it had been voluntarily executed by the person purporting to be the principal. There is great force in the argument, but still a presumption is only a rule of evidence which throws the onus on the other side, and there may be evidence on the record which would lead the Court below to the conclusion that there was not evidence sufficient to satisfy the Sub-Registrar that the power-of-attorney was voluntarily executed by the defendant No. 1 in favour of her husband.

While I hold that the decision of the learned District Judge is wrong on this point I am clearly of opinion that the case must go back in order to enable the learned District Judge to decide whether the Sub-Registrar attested the power-of-attorney after being satisfied that it had been voluntarily executed by the defendant No. 1 in favour of her husband. There is another point on which the learned District Judge has decided this appeal in favour of the respondents; viz., the power-of-attorney gave authority to Abdul Hakim

"to execute and admit its execution before the registering officer all sorts of deeds as sale, mortgage, lease bonds, etc., etc., and do the needful in the registration office."

The learned District Judge is of opinion that such a power-of-attorney has to be construed strictly and I entirely agree with him that all powers-of-attorney have always to be construed very strictly. But when the learned District Judge says that a power to execute a mortgage does not carry with it the power to incur any loan I entirely differ from him.

Mr. Sultan Ahmed appearing on behalf of the respondents has relied upon the case of Roy Radha Kissen v. Nauratan Lal (1). That was a case where it was held that a power to sign a mortgage bond did not carry with it a power to enter into a mortgage transaction. I entirely agree with the view which was taken in that case. It is worthy of note that in that case a distinction was drawn between a power to sign a document and a power to execute a document.

In my opinion, the power to execute a document carries with it the necessary powers to enter into transaction itself.

The other points have all been decided by the learned District Judge in favour of the appellants; but there is another question which he did not decide. It was contended in the Court of first instance on behalf of the defendants that assuming it be held that the defendants No. 1 did execute the power-of-attorney, the document was not read over and explained to her and that she did not understand what the mature of the document was.

The learned Munsif dealt with this question at very great length and came to the conclusion that the power-of-attorney was in fact read out and explained to the defendant No. 1 and that she understood the nature of that document. The learned District Judge has, however, not dealt with the question. It is obvious that this question must be investigated by the Court below.

In the result then I would allow the appeal, set aside the judgment and decree passed by the Court below and remand the case to that Court for decision after a consideration of the two points which I have mentioned in my judgment. Costs to abide the result.

Coutts. J.

I agree.