Calcutta High Court

Satish Chandra Basu vs Harendra Kumar Ghose on 27 March, 1936

Equivalent citations: AIR 1936 Cal 442, 166 Ind Cas 443
JUDGMENT
1. This appeal arises out of a suit for recovery of arrears of rent. Plaintiffs claimed
rent at the rate of Rs. 3 per kani on the basis of a lease of the year 1264 B.S. in respect
of their 5 annas 3 gandas 1 kara and 1 krant share of the land demised. The defence of
the tenants is that the plaintiffs are entitled to get rent at the rate of Rs. 2 per kani.
The trial Judge overruled the defence and passed a decree for arrears of rent at the
rate claimed by the plaintiffs. The defendants appealed to the lower appellate Court.
The learned Additional District Judge has allowed the appeal in part. He has
affirmed the rate decreed by the trial Judge in respect of 1 anna share but in respect
of the remaining share he has reduced the rate to Rs. 2. Hence this second appeal by
the plaintiffs. The defendants have also filed cross-objections.
2. Mr. Gupta appearing on behalf of the plaintiffs appellants has raised two points in
this appeal. The first contention is that the learned Additional District Judge was
wrong in reducing the rate of rent on the basis of the two subsequent leases of the
years 1289 and 1290 B.S. inasmuch as these documents were not registered in
accordance with the provisions of Registration Act and are therefore inadmissible in
evidence. His argument is that though there was no intention to demise certain
shares in some properties lying within the local limits of the jurisdiction of the
Registering Officer at Dacca where these documents were registered, these lands
were included in the two documents simply for the purpose of getting the documents
registered at the Dacca Registration Office and consequently the registration was
void as the properties really intended to be demised by the two leases were situated
wholly in the district of Bakargunj. The question about the intention is primarily a
question of fact and it appears from the judgment of the lower appellate Court that
the lessees being men of the Dacca District really took settlement of these properties
in the Dacca District along with the lands in the District of Bakargunj. This
contention therefore is overruled. The second point raised by Mr. Gupta is that the
registration of the lease of the year 1289 B.S. (Ex. B-2) is invalid inasmuch as it was
presented for registration by a person who had no power to do so. It appears that the
name of the lessor who granted the lease was signed on these documents by the pen
of her son on the basis of an ammuktearnama. It further appears that the son
presented the document for registration before the Registering Officer and admitted

the execution of the document and on that admission the document was registered.
The question is whether the presentation of this document for registration by the son
was a valid presentation. By Section 32, Act 3 of 1877, a person executing a document
or the agent of any such person is entitled to present the document for registration.
3. The words "persons executing the document" are capable of two constructions.
They may mean persons actually signing the document by their own hands or
persons executing the document by the hand of another duly authorised to sign on
their behalf. In Mohammad Ewaz v. Birj Lall (1875) 1 All 465, Sir Montague E. Smith,
while construing the provisions of Section 34, Registration Act of 1871 made the
following observations:
There the persons described are the persons executing the document not those who
on the face of the deed are parties to it, or by whom it purports to have been
executed, but those who have actually executed it:
4. There has been a divergence of judicial opinion in the Courts in India as to the
precise effect of this passage. In some cases although these observations have been
taken as obiter, nevertheless they have been taken to imply that the words "persons
executing the document" in the Act mean persons who actually execute the document
by their own hands and do not include the principal who only executes by means of
an agent. In Monmotho Nath Mukerji v. Puran Chand Nahatta 1925 Cal 703 decided
by this Court it was however observed that the observations of the Judicial
Committee must be confined to the facts of that particular case and that the only
question in that case was whether a partial registration of a document was valid. In
this case it was held that the ordinary meaning of "executing a document" is signing a
document as a consenting party thereto and that in case of Bakalam signature the
person whose name is put with his authority in evidence of his assent to a document
is executant within the meaning of Section 35. When this case went up in appeal to
their Lordships of the Judicial Committee, Puran Chand Nahatta v. Monmotha Nath
Mukerji 1928 P C 38, Lord Sumner, in affirming the judgment of this Court observed
as follows:
The appellant contends that in these words "the person executing the document"
executing means and means only actually signing. Their Lordships cannot accept
this. A document is executed when those who take benefits and obligations under it
have put or have caused to be put their names to it. Personal signature is not
required and another person duly authorised may, by writing the name of the party
executing, bring about his valid execution and put him under the obligations

involved. Hence the words "person executing" in the Act cannot be read merely as
person signing. They mean something more, namely the person who by a valid
execution enters into obligation under the instrument.
5. The decision of the Full Bench of the Bombay High Court in Sitaram Laxmanrao
Kadam v. Dharmasukhram 1927 Bom 487 was given before the decision of the
Judicial Committee in Puran Chand Nahatta v. Monmotha Nath Mukerji 1928 P C
38. Under these circumstances we are of opinion that the son who signed the name of
the lessor on the lease is not the person executing the document. Now after the
execution of the document the son presented it for registration. He admitted the
execution of the document on the basis of a power of attorney which is noted by the
Registering Officer in his endorsement of the document itself. The learned Additional
District Judge on a consideration of the facts and circumstances disclosed in the
evidence in this case has drawn the presumption that the son had authority not only
to execute the document and to admit its execution before the Registering Officer on
the basis of the power of attorney but he had the power also on the basis of that
power of Attorney to present it to the Registering Officer for the purpose of
registration. It appears that the lessor was very old about 90 years of age, at the time
of the execution of this document. She had already executed a will appointing the son
as her executor. There is nothing to show that the son practised any fraud on the
mother. It is true that Ammuktearnama by which the son was appointed agent is not
forthcoming and the extract of this document which has been exhibited in this case
does not specifically mention the power to present the document for registration. The
extract however is not exhaustive. The deed was executed and registered about 50
years ago. In view of these facts and the circumstances, as the final Court of fact has
held that the son had authority on the basis of the power of attorney all the terms of
which cannot be proved now to present the document for registration, we are not
prepared to say that the son had no such authority to present the document for
registration and the registration of the document was invalid.
6. The two contentions raised by Mr. Gupta on behalf of the appellants therefore fail.
The appeal is accordingly dismissed. The cross-objections filed by the respondents
were not pressed and are there fore dismissed. There will be no order for costs either
in the appeal or in cross-objections.