1954 (3) TMI 89 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the consideration for the mortgage.
2. Validity of the attestation and registration of the mortgage bond.
3. Validity of the power-of-attorney under Section 33 of the Registration Act.
4. Jurisdiction of the Registrar for authentication of the power-of-attorney.
5. Presentation of the power-of-attorney for registration.
6. Authentication of the power-of-attorney at the residence due to alleged bodily infirmity.

Detailed Analysis:

1. Validity of the Consideration for the Mortgage:
The defendant contended that the mortgage was supported by consideration only to the extent of Rs. 25,000 and had been discharged by payments made in 1926 and 1927. The Subordinate Judge found that no consideration passed for the promissory note for Rs. 12,500 dated 30th March 1923, Exhibit J, but the balance of Rs. 1,12,500 was paid to Mr. Tapp under the authority of the defendant. The High Court concurred with the Subordinate Judge regarding the payment of Rs. 1,12,500 and also held that Exhibit J was supported by consideration. The Supreme Court upheld these findings, confirming that the mortgage bond was supported by consideration.

2. Validity of the Attestation and Registration of the Mortgage Bond:
The defendant argued that the mortgage bond was not duly attested or validly registered, making it void and unenforceable. Both the Subordinate Judge and the High Court found that the mortgage bond was duly attested and registered. The Supreme Court, upon reviewing the evidence, upheld these findings, confirming the validity of the attestation and registration.

3. Validity of the Power-of-Attorney Under Section 33 of the Registration Act:
The defendant challenged the validity of the power-of-attorney, Exhibit B, arguing that it did not satisfy the requirements of Section 33 of the Registration Act. The Supreme Court examined the provisions of Sections 32 and 33, emphasizing that a document must be presented for registration either by a party to it or his legal representative or assign, or by his agent holding a power-of-attorney executed and authenticated as per Section 33. The court found that Exhibit B was executed before the Registrar at the residence of the Chief of Hindol at Cuttack and was authenticated by him, thus satisfying the requirements of Section 33.

4. Jurisdiction of the Registrar for Authentication of the Power-of-Attorney:
The appellant argued that the Registrar at Cuttack had no jurisdiction to authenticate Exhibit B as the defendant was not residing at Cuttack at the time of execution. The courts below found that the defendant had been residing at Cuttack for a week prior to the date of Exhibit B, which was sufficient for the purpose of Section 33(1)(a). The Supreme Court affirmed this finding, noting that temporary residence at a place is sufficient to confer jurisdiction on the Registrar under Section 33(1)(a).

5. Presentation of the Power-of-Attorney for Registration:
The appellant contended that Exhibit B was presented for registration by one Sundaram, who was not authorized to present the document as required by Section 32, rendering the authentication void. The Supreme Court clarified that Section 32 applies only if a power-of-attorney is presented for registration, not when it is produced for authentication. Exhibit B was authenticated, not registered, and the Registrar followed the proper procedure for authentication under Section 33. The court dismissed this contention, affirming the validity of the authentication.

6. Authentication of the Power-of-Attorney at the Residence Due to Alleged Bodily Infirmity:
The appellant argued that the defendant was not suffering from any bodily infirmity at the time of Exhibit B, making the authentication at the residence under the proviso to Section 33(1) invalid. The Supreme Court noted that the Registrar attended the residence and authenticated the document based on an application likely submitted by the defendant. The court held that the Registrar's decision regarding bodily infirmity is a procedural matter within his jurisdiction and any error does not affect the validity of the registration. The court also noted that the defendant signed the document again before the Registrar, further affirming its validity.

Conclusion:
The Supreme Court dismissed the appeals, confirming the findings of the lower courts that the mortgage bond was supported by consideration, duly attested, and validly registered. The power-of-attorney, Exhibit B, was found to be validly authenticated under Section 33 of the Registration Act. The court also upheld the jurisdiction of the Registrar at Cuttack for authentication and dismissed the contentions regarding the presentation and authentication of the power-of-attorney. The parties were directed to bear their own costs in the Supreme Court.