Sri Sri Sri Kishore Chandra Singh Deo vs Babu Ganesh Prasad Bhagat And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 1 and 2 of 1949

Decision Date: 9 March, 1954

Coram: B.K. Mukherjea, Vivian Bose, Ghulam Hasan, T.L. Venkatram Ayyar

In the matter of Sri Sri Sri Kishore Chandra Singh Deo versus Babu Ganesh Prasad Bhagat and others, a judgment was rendered on 9 March 1954 by the Supreme Court of India. The petition was filed by Sri Sri Sri Kishore Chandra Singh Deo and the respondents were Babu Ganesh Prasad Bhagat and several other parties. The bench that heard the case comprised Justice Ayyar, T. L. Venkatarama, Justice B. K. Mukherjea, Justice Vivian Bose and Justice Ghulam Hasan. The citation for the decision is reported in 1954 AIR 316 and 1954 SCR 919, and it is also referenced in the citator under F 1973 SC 1346 (27). The decision principally concerned the interpretation of sections 32 and 33 of the Indian Registration Act, 1908 (XVI of 1908). The headnote explained that the term “resides” appearing in section 33(1)(a) is not defined in the statute, and that it embraces both permanent and temporary residence. Residence, according to the Court, denotes a place where a person habitually eats, drinks and sleeps, and ownership of the place is not a necessary condition. The Court further observed that, for the purpose of section 32(c) of the Act, a power of attorney does not require registration; it only needs to be executed and authenticated by the Registrar under the provisions of section 33. Consequently, an endorsement on such a power of attorney mistakenly stating that it was presented for registration must be disregarded, and it does not invalidate the later authentication performed by the Registrar, which is an independent and complete act valid under section 33. The Court also held that a decision of the Registrar made under section 33(1) proviso (i) regarding an applicant’s bodily infirmity and the difficulty of attending the Registration Office or a court is a procedural matter. Even if such a finding is erroneous, it does not affect the Registrar’s jurisdiction because the matter lies within his exclusive jurisdiction and cannot be questioned by any court. The judgment referred to several precedents, namely Jambu Prasad v. Mahammad Aftar Ali Khan (42 I.A. 22), Sharat Chandar Basu v. Bijay Chand Khatab (64 I.A. 77), Ma Pwa May v. Chettiar Firm (56 I.A. 379) and Mujeebunnissa v. Abdul Rahim (28 I.A. 15). The appeal arose under civil appellate jurisdiction, being Civil Appeals Nos. 1 and 2 of 1949, which were filed against the judgment and decree dated 22 December 1942 rendered by the High Court of Judicature at Patna in First Appeals Nos. 10 and 11 of 1939. Those first appeals were themselves derived from the judgment and decree dated 23 November 1936 of the Subordinate Judge of Berhampore in Original Suit No. 11 of 1935. Counsel for the appellant were D. V. Narasinga Rao and M. S. K. Sastri, while the respondents were represented by S. L. Chhibber and R. O. Prasad. The judgment of the Court was delivered by Justice Venkatarama Ayyar, and the judgment opened by noting that these appeals arose out of a suit instituted by the respondents.

In this case the suit was instituted to enforce a mortgage deed, identified as Exhibit A and dated 5 April 1923, which had been executed by the defendant in favour of Radha Prasad Bhagat. The mortgage related to an estate known as the Bodogodo Zemin, which at the relevant time lay in the District of Ganjam in the Province of Madras and, following re-organisation, now formed part of the State of Orissa. The estate was subject to the provisions of the Madras Impartible Estates Act of 1904. The mortgage amount was stipulated as Rs 1,25,000. The deed stated that a sum of Rs 12,500 had been advanced to the mortgagor by way of a promissory note dated 30 March 1923, and that the remaining balance of Rs 1,12,500 had been paid to the mortgagor in cash. Both amounts were said to have been borrowed for the purpose of meeting the expenses of the marriage of the mortgagor’s second daughter to the eldest son of the Rajah of Talcher; that marriage had in fact taken place on 27 April 1923. Although the deed recorded that the cash sum of Rs 1,12,500 was paid, the plaintiffs contended that the payment had actually been made on 14 April 1923, under the authority of the defendant, to his manager, a certain Mr Henry Tapp, after the mortgage bond had been registered on 10 April 1923. In the years 1926 and 1927 the defendant made several further payments towards the mortgage, which in total amounted to Rs 42,000. The mortgagee died on 18 November 1933 and his legal representatives subsequently filed the suit, from which the present appeals arise, seeking to recover the outstanding balance under the mortgage by way of sale of the hypothecated property. The defendant opposed the suit on several grounds. He pleaded that the consideration for the mortgage was limited to Rs 25,000 only, and that the payments made in 1926 and 1927 had effectually discharged the mortgage. He also asserted that the mortgage bond had not been properly attested nor validly registered, and therefore was void and unenforceable. The Subordinate Judge of Berhampur, who heard the suit, held that no consideration had passed for the promissory note of Rs 12,500 dated 30 March 1923 (Exhibit J), characterising it as a salami; however, the judge concluded that the balance of Rs 1,12,500 had indeed been paid to Mr Tapp under the authority of the defendant. The judge further held that the mortgage bond was duly attested and validly registered, and accordingly passed a decree based on those findings. Both parties appealed the decision to the High Court of Patna. The plaintiffs filed Appeal No 10 of 1937, asserting that Exhibit J was supported by consideration, while the defendant filed Appeal No 11 of 1937, contending that the alleged payment of Rs 1,12,500 to Mr Tapp was unauthorised and that the mortgage bond was void because it was neither properly attested nor correctly registered. The High Court agreed with the Subordinate Judge that Rs 1,12,500 had been paid to Mr Tapp under the defendant’s authority and that the bond had been duly attested and registered, but differed on the issue of the promissory note, finding that it too was supported by consideration. The defendant’s appeal challenges that finding and repeats all the contentions he raised before the lower courts.

In this appeal the Court examined the promissory note identified as Exhibit J and concluded, unlike the Subordinate Judge, that the note was indeed supported by consideration. The defendant challenged this finding and filed an appeal, insisting that every argument he had raised before the lower courts be considered again.

The final ground advanced by the appellant was that the deed in question had not been validly registered pursuant to sections 32 and 33 of the Registration Act, and consequently was void. Section 32 provides that, except in the circumstances enumerated in sections 31, 88 and 89, any document that must be registered under the Act must be presented for registration either by the person who executed the document or by a person claiming under it, by the representative or assign of such a person, or by an agent of the person, representative or assign who is duly authorised by a power-of-attorney that has been executed and authenticated in the manner prescribed in the Act.

Section 33, as applicable to the present case, sets out the qualifications for powers-of-attorney that will be recognised for the purpose of section 32. Sub-section (1) stipulates that a power-of-attorney will be accepted only if, at the time of its execution, the principal resides in a province where the Act is in force and the power-of-attorney is executed before and authenticated by the Registrar or Sub-Registrar of the district or sub-district in which the principal resides. The provision further exempts from personal attendance at a registration office or court certain classes of persons, namely those who are physically infirm, those detained under civil or criminal process, and those exempted by law from appearing in court.

Sub-section (2) empowers the Registrar, Sub-Registrar or Magistrate, as the case may be, to attest a power-of-attorney without the principal’s personal presence if they are satisfied that the document was voluntarily executed by the purported principal. Sub-section (3) authorises the same official to verify the voluntary nature of the execution by personally visiting the principal’s residence, the jail where the principal is confined, or by issuing a commission for his examination.

The operative effect of these provisions is that a document may be presented for registration only by the party to the document, that party’s legal representative or assign, or an agent who holds a power-of-attorney executed and authenticated in accordance with section 33. The Court referred to the authority in Jambu Prasad v. Muhammad Aftar Ali Khan, noting that the Judicial Committee, while approving the decision in Ishri Prasad v. Baijnath, emphasized that the terms of sections 32 and 33 are mandatory and that a document presented by an unauthorised agent cannot provide the registrar with the essential basis for registering the document, rendering such registration void.

In this case the Court explained that sections 32 and 33 of Act III of 1877 are mandatory provisions, and that a document may be presented for registration only by a party to the document, that party’s legal representative, an assignee, or an agent who holds a power-of-attorney that has been executed and authenticated in the manner prescribed by section 33. The Court quoted the observation in Jambu Prasad v. Muhammad Aftar Ali Khan that “the terms of sections 32 and 33 of Act III of 1877 are imperative, and that a presentation of a document for registration by an agent…who has not been duly authorized in accordance with those sections, does not give to the Registering Officer the indispensable foundation of his authority to register the document.” Consequently, when a document is presented by any person who is not a party, nor a legal representative, nor an assignee, nor an agent authorized under section 33, such presentation is completely inoperative and any registration effected on that basis is void.

The matter before the Court involved Exhibit A, which had been presented for registration by Mr Tapp who claimed to be the defendant’s agent under a power-of-attorney, Exhibit B. The central issue was whether Exhibit B satisfied the requirements of section 33. Exhibit B had been executed by the defendant before the Registrar at the residence of the Chief of Hindol in Cuttack and had been authenticated by that Registrar. The appellant raised three grounds for challenging the authentication. First, the appellant argued that the defendant was not residing in Cuttack at the time Exhibit B was executed, and therefore the Cuttack Registrar lacked jurisdiction to authenticate the deed under section 33(1)(a). Second, the appellant contended that Exhibit B had been presented for registration by a person named Sundaram who described himself as the defendant’s personal assistant, but who was not authorised to present the document as required by section 32, rendering the authentication void. Third, the appellant asserted that the authentication under the proviso to section 33(1) at the defendant’s residence was invalid because the defendant was not suffering from any bodily infirmity at that time; consequently, the registration of Exhibit A based on that power of attorney was void.

Addressing the first contention, the Court noted that the lower courts had found the defendant to have been residing in Cuttack for a week prior to the execution of Exhibit B, which satisfied the requirement of section 33(1)(a). The Court cited Sharat Chandra Basu v. Bijay Chand Mahtab, where the Privy Council held that the term “resides” in section 33 is not defined in the statute and should not be interpreted as limiting residence to permanent domicile; temporary residence is sufficient to confer jurisdiction on the Registrar of that place. The Court therefore concluded that the defendant’s temporary residence in Cuttack gave the Cuttack Registrar the authority to authenticate Exhibit B under section 33(1)(a). The appellant’s argument that his permanent residence was elsewhere and that he stayed at the Chief of Hindol’s house only for the purpose of registration was rejected, because ownership of the house is irrelevant to the concept of residence, which only requires that a person lives, eats and sleeps at the place. The Court further observed that the appellant himself described his stay in Cuttack as temporary in Exhibit B, and there was no reason to discount his own statement.

The appellant asserted that he did not own any house in Cuttack, that the house where Exhibit B had been registered was owned by his brother-in-law, the Chief of Hindol, and that his presence in that house was solely for the purpose of registering the power-of-attorney, so that, on those facts, no residence—temporary or otherwise—could be said to exist in Cuttack. The Court observed that ownership of the house was irrelevant for the question of residence, because residence is understood to mean that a person eats, drinks and sleeps at a place, not that he possesses the property. Whether the appellant’s stay in Cuttack was merely casual or amounted to residence had to be determined from the totality of circumstances proved, and this issue was essentially a question of fact. The appellant himself described in Exhibit B that he was temporarily residing at Cuttack, and the Court found no reason to reject his statement as reflecting the true situation. The endorsement of the Registrar on Exhibit B read: “Having visited and examined at his residence the principal Sri Sri Sri Kishore Chandra Singh Deo, son of Durga Mahtab Singh Deo, of at present Hindol House … by profession Zamindar, who is personally known to me, I am satisfied that this power-of-attorney has been voluntarily executed by him and I accordingly authenticate it under section 33 of Act XVI of 1908.” In Sharat Chandra Basu v. Bijay Chand Mahtab the endorsement on the power-of-attorney similarly stated the principal’s residence, and the Privy Council had held that such an endorsement was reliable evidence of residence because it expressly declared the principal was living at the stated place and because the Sub-Registrar personally knew him, making a mistake unlikely. The present endorsement was even more explicit, referring directly to the executant’s residence. Moreover, it was incorrect to say that the appellant came to Cuttack solely to execute the power; he had traveled there to complete negotiations for obtaining a loan from Radha Prasad, and the execution of the power was only one incident in that business matter. The record also showed that the appellant borrowed Rs 12,500 under Exhibit J on 30 March 1923 while he was in Cuttack, and that his son was studying and residing in Cuttack at the Chief of Hindol’s house, providing further material supporting the finding that the appellant was residing in Cuttack at the time of Exhibit B.

It was shown that the defendant’s son was staying in the house of the Chief of Hindol while he pursued his studies, which placed the family in Cuttack. In view of that circumstance, the lower courts possessed sufficient material to conclude that the appellant was residing in Cuttack at the time Exhibit B was executed, and the present judgment affirmed that conclusion.

The appellant then argued that Exhibit B had been presented for registration by a person named P Sundaram, who was neither a party to the document nor an agent holding a duly registered or authenticated power-of-attorney, and therefore the presentation was void under section 32. Consequently, the appellant insisted that the registration of Exhibit A, which relied on the authority contained in Exhibit B, should also be declared void. The court explained that section 32 applies only when a power-of-attorney is presented for registration, not when it is produced solely for the purpose of authentication; in the latter case the only statutory requirements are those laid down in section 33. The endorsements on Exhibit B demonstrated that the Registrar visited the principal’s residence, verified that the principal had executed the document voluntarily, and then proceeded to authenticate it under section 33, after which the defendant signed in the Registrar’s presence. The defendant’s testimony corroborated that the Registrar had questioned him about the execution of the power, authenticated the document, and thereafter obtained his signature. Had the matter stopped there, there would have been no doubt that Exhibit B was validly authenticated pursuant to section 33. An earlier endorsement on Exhibit B, however, stated that it was “presented for registration at 11 A.M. on the 5th day of April 1923 at the Sadar Sub-Registrar’s Office, Cuttack; by P Sundaram.” The appellant relied on this endorsement to maintain that section 32 applied and that, because Sundaram lacked authority, the presentation was inoperative. The court found that endorsement to be a misapprehension of the true facts. Exhibit B was in fact produced before the Registrar together with an application for attendance at the principal’s residence for authentication, not for registration. Rule 148 of the Bihar and Orissa Registration Manual authorises both registration and authentication of a power-of-attorney and requires distinct endorsements and separate charges for each. Rule 157 permits any person to present a document for authentication. In the present case Exhibit B was only authenticated; it bore a single endorsement of authentication and the fees collected were solely for that purpose. Accordingly, the statement that Exhibit B was presented for registration is a plain mistake and must be disregarded. Even assuming, for argument’s sake, that Exhibit B had been presented for registration without proper authority, that error would not affect the later authentication, which is an independent act complete in itself and valid under section 33. The court therefore rejected the appellant’s objection.

In the case cited, a power of attorney executed by a mortgagor was presented for registration by the mortgor’s servant, but the Registrar actually effected registration at the mortgor’s residence under section 33. In a suit to enforce the mortgage, the plaintiff argued that the registration of the mortgage deed was defective because the power of attorney had been presented by an unauthorized person. The Privy Council rejected that argument, holding that although the initial presentation by the servant was improper, the subsequent registration at the executant’s residence in compliance with section 33 amounted to a presentation by the executant himself, and therefore the registration was valid. Applying the same reasoning, the Court held that Exhibit B could be regarded as having been presented for authentication by the defendant when the Registrar attended the defendant’s residence, and that all the requirements of section 33 were satisfied. Consequently, the objection was dismissed. The plaintiff later contended that the defendant was not suffering from any bodily infirmity at the time Exhibit B was authenticated, and therefore the authentication under the proviso to section 33(1) was invalid, rendering the registration of Exhibit A void. Evidence showed that the Registrar did attend the defendant’s residence and authenticated the document, an act that could only have occurred on the defendant’s application. The defendant testified that he possibly filed an application for the Sub-Registrar’s private attendance at Cuttack, but could not recall the reasons given. No application was produced before the Court, and the Court presumed that the Registrar acted on an application stating a proper ground and that he was satisfied such ground existed. Whether the Registrar was correct in concluding that the defendant suffered bodily infirmity is a matter within his exclusive jurisdiction; any error in that factual finding does not affect his jurisdiction to register the document. The Court quoted Lord Atkin in Ma Pwa May v. Chettiar Firm(1) observing that a distinction must be drawn between procedural defects of the Registrar and a lack of jurisdiction. When the Registrar lacks jurisdiction—such as when an unauthorized person presents a document, there is no territorial jurisdiction, or the presentation is untimely—the section is inoperative, but a procedural mistake by a registrar who otherwise has jurisdiction does not invalidate the registration.

It was observed that when a registrar possessed jurisdiction but made a mistake while exercising that jurisdiction, the provisions of section 33 became applicable. The registrar’s decision that an applicant suffered from bodily infirmity for the purpose of section 33(1), proviso, clause (1) was characterised as a purely procedural matter that did not affect the registrar’s jurisdiction. Consequently, even if that decision proved to be erroneous, it would not invalidate the registration. In addition, the record showed that the registrar had visited the defendant’s residence to authenticate Exhibit B, and the defendant had signed the document again in the registrar’s presence. That act, by itself, satisfied the requirements for authentication. The claim that a procedural error undermined the registration therefore lacked any substantive basis and was required to be overruled.

The court consequently concluded that the appeals could not succeed and were dismissed. Regarding costs, the court noted that the defendant had died while the appeals were still pending, and that his legal representatives were now prosecuting the matters on his behalf. The mortgaged property involved an estate governed by the Madras Imparitable Estates Act, 1904. The plaintiffs had contended in their plaint that the mortgage was binding on the estate under section 4 of that Act, and Issue 6 was framed in relation to this allegation. The trial court had found that the mortgage was not binding on the estate. On appeal, the High Court held that the question could not be addressed in a suit against the mortgagor; consequently, it set aside the trial-court finding and left the issue to be resolved in other appropriate proceedings. In view of these circumstances, the court directed that each party bear its own costs in this Court, and affirmed that the appeals were dismissed.