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TMI Blog1986 (8) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... 979 and the only respondent in Second Appeal No. 618 of 1979, who figured as the plaintiff in the suit, challenged the validity of the settlement under Ex. B-3 on the ground that it was obtained by the settlees fraudulently and collusively and that it was in any event a death-bed gift and as such, invalid. It was also her further case that the settler died on 6-31948 and thereafter on 16-3-1948, the settlement deed was presented for registration by one K. M. Azizullah Sahib as the Power of Attorney agent of the settler and as on the date of presentation of the documents for registration. K. M. Azizullah Sahib did not have the authority to present the document for registration, its registration was invalid and would not affect the properties dealt with there under. The trial Court as well as the appellate Court found that though the settlement deed under Ex. B-3 was executed, it was invalid in law as its presentation for registration was done by a person, who had no authority to do so. On this conclusion, the Court below pronounced against the validity of the settlement deed as well as the title to the properties dealt with thereunder in favour of the several settlees and granted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lees under that document. 4. It would be necessary to notice some of the relevant provisions of the Indian Registration Act. Section 32 enumerates the persons, who are entitled to present documents for registration. By Cl. (a), the person who executes the document or claims under the same or a person who claims under a decree or order, are enabled to present those documents for registration. The representative or assign of such person is enabled under S. 32(b) to present the document. However, S. 32(c) provides for the presentation of documents by the agent of such person, representative or assign duly authorised by a power of attorney executed and authenticated. Section 33 provides for the recognition of powers of attorney for purposes of S. 32. Section 34 provides for an ,enquiry before registration by the registering officer and under S. 34(3)(c) the registering officer can satisfy himself about the right of the representative of a person appearing, to so appear and present the document. That section also prohibits the registration of documents unless the persons executing such documents or their representatives, assigns or agents appear before the registering officer within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been done by the registering authority would not validate the document present for registration by a person not authorised by the provisions of the Indian Registration Act. Indeed, that it is, so, has been clearly laid down by several decisions. In Mujibunnissa. v. Abdul Rahim and Abdul Azis, (1901) 28 Ind App 15: ILR All 233, the Privy Council considered the scope of Ss. 32 and 34 of the Indian Registration Act Ill of 1877 with reference to a situation similar to the one in the present case. In-that case, the presentation for registration of a deed of endowment executed by a Munshi was done by his power of attorney agent, after his death. Considering the question of the validity of the registration of the deed, the Privy Council pointed out that it is perfectly plain not merely from the general law, but from the terms of S. 32 itself, that after the man's death, the only attorney who would have any locus standi would have been the attorney of the representative or assign of the deceased and that the power and jurisdiction of the Registrar comes into play only when it is presented by a person having direct relation to the deed and as the deed was presented by a voluntee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 10-8-1886 was presented for registration by one IIahi Baksh on behalf of the mortgagee, who held a power of attorney, which however did not empower him to present the document for registration. There was also defect in the authentication of the power in his favour. The mortgagors' admitted before the Sub Registrar the execution and the completion of the mortgage deed and also acknowledged the receipt of the mortgage money and thereupon, the mortgage deed was registered. Based on these documents, two suits were instituted, one on 20-5-1909 on the mortgage deed dated 10-8-1886 and the other on 16-3-1910 on the mortgage deed dated 2-7-1882 and another mortgage deed on 25-10-1892, which were dismissed on the ground that the mortgage deeds had not been validly registered and could not affect the immovable properties and that they were also barred by time. On appeal, the High Court dismissed the appeal arising from the suit instituted on 20-5-1909 in the mortgage of the year 1886 and also dismissed the appeal arising out of the suit of the year 1910, in so far as it related to the mortgage deed dated 2-7-1882; but allowed the appeal as regards the mortgage deed dated 25-10-1892. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the document upon, such presentation is invalid and does not pass title. 5. As against the principle enunciated in the aforesaid decisions, reliance was placed by the learned counsel for the appellant upon Maung Lu Gale v. U Po Hlaing, AIR 1934 Rangoon 104. In that case, the question raised related to the validity a deed of gift and sale executed by an agent. The transactions were challenged on the ground that prior to the presentation of the documents for registration, the authority of the agent had been cancelled by the principal. Applying S. 208 of the Indian Contract Act it was held that there was no communication of the revocation of the authority and that the Sub Registrar had also no knowledge of the revocation of the authority and, therefore, the transactions would be valid. In my view, the principle of this decision is inapplicable in the facts of the present case. For, it is clearly admitted by D.W. 9, the erstwhile power of attorney agent of the principal and that his authority had come to an end even at the time when the document Ex. B-3 was presented for registration. In other words, by suppressing the death of the settlor and the consequent termination of his aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould affect the jurisdiction of the registering authority to register the document, as the provisions of the Indian Registration Act do not permit registration of documents presented by all and sundry, who are not empowered to present the documents according to its provisions. In this view, the defect in this case regarding registration cannot be merely treated or brushed aside as an error in procedure, but it would be substantial defect affecting the jurisdiction of the registering authority. Under those circumstances, the conclusion of the Courts below that the registration of Ex. B-3 would be invalid cannot be taken exception to. The first contention of the learned counsel for the appellants has therefore to be rejected. 7. The learned counsel for the appellants next contended that persons competent to ratify the action of D.W. 9 in having presented Ex. B-3 for registration, have accepted the settlement of the properties thereunder and that, therefore, no objection could be taken to the registration of the settlement deed or the manner of disposal of the properties thereunder. There is no factual support for this contention. No doubt, Rahamadullah husband of the plaintiff had f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument as the identifying witness. The attestation of the document by the husband of the plaintiff purports to have been done on 5-3-1948, when the settlor under Ex. B-3 was alive. Thus, at the time of the attestation by him in Ex. B-3, he had no subsisting interest, for, if at all he acquired any interest in the properties dealt with any in thereunder, it was only on the death of his father, the settlor under Ex. B-3, on 6-3-1948 and not before. Thus, the attestation by the husband of the plaintiff (sic) from claiming a share in the properties dealt with under Ex. B3. 9. Lastly, the learned counsel for the appellants contended that the appellants have prescribed title by adverse possession to the items dealt with under Ex. B-3. There is no dispute that these items have earlier been usufruct ally mortgaged by the settlor as far back as 29-10-1942 under Ex. B-29. The evidence of D.W. 1 is to the effect that there was a lease-back by the mortgage in favour of the mortgagors and the lessees were in possession. Thus, the properties were in the possession of the usufructuary mortgagee, though the mortgagee had leased them out to the mortgagors themselves. The appellants cannot claim th ..... 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