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TMI Blog1954 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... k place on 27th April, 1923. Though the deed recites that ₹ 1,12,500 was paid in cash, the case of the plaintiffs is that it was, in fact, paid on 14th April, 1923, on the authority of the defendant to his manager, one Mr. Henry Tapp, after the mortgage bond was registered, which was on 10th April, 1923. In 1926 and 1927 the defendant made several payments towards the mortgage, in all aggregating to ₹ 42,000. The mortgagee died on 18th November, 1933, and thereafter his legal representatives filed the suit, out of which these appeals arise, for recovery of the balance due under the mortgage by sale of the hypothecated property. 2. The defendant resisted the suit on several grounds. He pleaded that the mortgage was supported by consideration only to the extent of ₹ 25,000, and that it had become discharged by the payments made in 1926 and 1927. He also contended that the mortgage bond was not duly attested or validly registered, and that it was therefore void and unenforceable. 3. The Subordinate Judge of Berhampur who heard the suit held that no consideration passed for the promissory note for ₹ 12,500 dated 30th March, 1923, Exhibit J, and that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal resides;... Provided that the following persons 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, namely :- (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) persons who are in jail under civil or criminal process; and (iii) persons exempt by law from personal appearance in court. (2) In the case of every such person 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. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination. 7. The substance of these provisions is that a document must be presented for registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequently the Registrar of that place had no jurisdiction to register it under section 33(1)(a), the finding of the courts below is that the defendant had been residing at Cuttack for a week prior to the date of Exhibit B, and that was sufficient for the purpose of section 33(1)(a). In Sharat Chandra Basu v. Bijay Chand Mahtab 64 I.A. 77 the Privy Council observed : The expression 'resides', as used in section 33, is not defined in the statute; but there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence. 11. It must therefore be taken as settled that even temporary residence at a place is sufficient to clothe the Registrar of that place with jurisdiction under section 33(1)(a). It was argued for the appellant that his permanent place of residence was at Bodogodo, that he owned no house at Cuttack, that the house where Exhibit B was registered belonged to his brother-in-law, the Chief of Hindol, and that he stayed there only for the purpose of registering the power, and that on these facts, it could not be held that there was residence even of a temporary character at Cuttack. The fact that the house did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uttack. It is also in evidence that the defendant's son was studying at Cuttack at that time, and was residing in the house of the Chief of Hindol. Under the circumstances there were ample materials to support the finding of the courts below that the appellant was residing at Cuttack at the time of Exhibit B, and that must be affirmed. 15. It was next contended that as Exhibit B was presented for registration by one Sundaram, who was neither a party to it nor an agent holding a power-of-attorney duly registered or authenticated, and as such presentation was void under section 32, the registration of Exhibit A under the authority contained in Exhibit B must also be held to be void. The answer to this contention is that section 32 would apply only if a power-of-attorney is presented for registration, and not when it is produced merely for authentication, in which case, the only requirements that have to be complied with are those set out in section 33. The endorsements in Exhibit B show that the Registrar examined the principal at his residence and satisfied himself that he had executed it voluntarily. Then there was the authentication which was made expressly under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erruling this contention, the Privy Council observed that even though the presentation of the power for registration by the servant of the principal was bad, when it was subsequently registered at the residence of the executant in accordance with section 33 it should be deemed to have been presented by him to the Registrar, and that in that view the registration would be valid. On the same reasoning, Exhibit B should be deemed to have been presented for authentication by the defendant when the Registrar attended at his residence, and the requirements of section 33 were fully satisfied. This objection must, therefore, be rejected. 17. It was finally contended that the defendant was, in fact, not suffering from any bodily infirmity at the time of Exhibit B, that the authentication of the power by the Registrar at the residence under the proviso to section 33(1) was therefore bad, and that the registration of Exhibit A pursuant thereto was void; and reference was made to the evidence in the case that the defendant was not ill at the time. But there is the fact that the Registrar did, in fact, attend at the residence and authenticate the document, and that could have been only on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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