1. This is a first appeal by defendant 1 against a decree in favour of the plaintiff of the Civil Judge of Moradabad directing that the sale deed executed by defendant 1 in favour of the plaintiff be registered if presented to the proper registering officer within thirty days of the date of the decree. The facts are that there was a sale deed dated 23rd December 1935 executed by defendant 1, Hafiz Sultan Ahmad, a vakil of Moradabad, in favour of the plaintiff Nawab Gauhar Begam who is the wife of Prince Jafar Ali Khan, resident in Rampur State. The sale deed was executed by defendant 1 in accordance with the direction of the Insolvency Court and defendant 1 was the receiver in an insolvency case. Page 29 shows the document, which was one in which there was an admission of Rs. 26,600 as paid before registration, and a provision for the payment in cash at the time of registration of Rs. 11,400. The total sale consideration was Rs. 38,000. The Sub-Registrar on 23rd December 1935 made an endorsement:
Hafiz Sultan Ahmad, son of Haji Badruddin Sheikh, by occupation a pleader, resident of mohalla Nai Sarak, in the City of Moradabad, presented this document on 23rd December 1935 between 3 and 4 P.M.
2. Having written this endorsement of presentation an endorsement of admission of execution would naturally have followed, but at this precise moment an injunction arrived from the Court of the District Judge directing that the proceedings should stop and the proceedings therefore stopped. This injunction was issued by the District Judge under an order in a miscellaneous appeal filed by one Indra Swarup against the receiver. Later on, the receiver executed another sale deed dated 11th January 1936 comprising the same property sold now to Brij Lal, the father of Indra Swarup. This was done under orders of the Court and the receiver got this document duly registered and then the appeal of Indra Swarup was dismissed and the injunction terminated. Thereafter one Sajid Ali as mukhtar-i-am of the plaintiff made an application to the Sub-Registrar who issued summons to defendant 1 to attend on 10th February 1936 and as be did not attend on that date in spite of service of summons the Sub-Registrar refused registration as he was bound to under the Registration Act. This order is printed on p.
38. On the next day, 11th February 1936, Sajid Ali, as mukhtar-i-am of the plaintiff, made an application through a vakil to the District Registrar for compulsory registration under Section 73, Registration Act. On 13th July 1936 the District Registrar by an order printed on page 40 rejected this application on the ground that Sajid Ali was not the duly authorized agent of the plaintiff and that Section 33(1)(c), Registration Act, required that when the principal does not reside in British India there should be "a power-of-attorney executed before and authenticated by...a Magistrate." The present suit was filed within the period of 30 days allowed by Section 77, Registration Act, the plaint being filed on 22nd July 1936, the relief being a request for a decree for compulsory registration.
3. The written statement of the appellant-defendant 1 raised two points. One that there was no proper application to the District Registrar under Section 73, Registration Act, and so a suit does not lie under Section 77, and the second point was that the receiver was an officer of the Court and that he should have received two months' notice before the suit was brought under Section 80, Civil P.C. Other points were raised, but these are the two which Mr. Dar for the appellant has stated that he desires to raise today in this appeal. The first point raises certain questions of fact. The plaintiff resides in Rampur State and there is the evidence of two witnesses from Rampur State. P. W 5, Mr. Abdul Wahid Khan, on p. 7 is a retired Deputy Collector who was later Chief Magistrate in Rampur State. He states that the document was presented to him without the signature of the plaintiff or the marginal witnesses and that as the plaintiff was a purdah lady he went to the palace of her husband the Prince, who is the second brother of H.H. the Nawab of Rampur. He found two witnesses who wore persons before whom the lady was not purdah, one being the brother of the executant. The following events took place:
The lady was called and I sat in the verandah while she was behind the door. I asked the two persons above if she was the executant. They said "Yes." I then addressed her and asked her if she had got the deed written (ki unhon ne likkha hai?). She replied in the affirmative. Then the document was given to the Private Secretary to get it signed by the lady on the margin as executant and she then signed it behind the door. It was then given to me and it was then signed in my presence by the two marginal witnesses, Kamil Husain and Mobin Raza. I then read over the deed word by word to the lady. She said that it was all right. I then wrote down the verification endorsement below while I took the signature of the executant through the above Private Secretary and then her brother and the Private Secretary signed in my presence. I also took their thumb marks. By referring to Section 33, Clause 3, Registration Act, in the endorsement I meant that the document was also executed in my presence.
4. This evidence is also confirmed by P.W. Mobin Raza on p. 10. There is no evidence to the contrary. The learned District Registrar and the learned Civil Judge both disbelieved this Magistrate and their disbelief was based on the wording of his endorsement of verification. The Court below has quoted the actual words:
5. Is mukhtarnama am ko Mt. Gauhar Begam Saheba ne pas-i-pardah sunkar samajh Tear tasdiq kiya our uske tahrir karane aur takmil se iqbal kiya. Tasdiq hash mansha dafa 33, haraf (jim) Act 1908 ki gai.
6. The argument which has been put forward by learned Counsel for the appellant and which found favour with these two Courts was that the Magistrate had clearly written that there was an admission of execution before him and therefore he cannot be believed when he states in evidence that there was actually execution before him. Now the Magistrate has stated on page 8, line 27:
The Registration Act was not then before me, nor was it read over to me then. I knew what Section 33, cl. C was.
7. The Court below has believed this statement of the Magistrate. It appears to us that as the Magistrate did not have the Registration Act before him he wrote an endorsement from memory which was not necessarily precise but which he thought was the endorsement which would be required by the Section. As a matter of fact, the Section does not prescribe any particular form of endorsement and there is no doubt that the attention of the Magistrate was not drawn to the point now put forward by the appellant. There is however one point which has escaped the notice of the Court below and the District Registrar which in our opinion strongly confirms this statement of the Magistrate; that is, that there are two signatures by the plaintiff on this document; one is on the front of the document on the margin below the word "Alabd." The other signature is on the back of the document below the endorsement made by the Magistrate. Now, both these signatures are in the same handwriting and it is admitted by Mr. Dar for the appellant that they appear to be both written by the plaintiff. No suggestion to the contrary has been put forward in the Court below. It appears further to us that the signatures are written with the same pen and with the same ink. This is indeed what is stated by the Magistrate as he states in the portion quoted that there was first the signature by the lady (which will be on the document on the front) and then he took the signature of the lady below his verification endorsement. We asked Mr. Dar what he considered the signature of the lady on the back was intended to convey and he stated that he thought she intended to affirm the endorsement by the Magistrate. The endorsement by the Magistrate was signed by the Magistrate. In my opinion, both the signatures on the front and the back of this document amount to signatures of execution of the document by the lady. Mr. Dar was not able to show any ruling or any Section of any law which would limit the signature of a person on a document to anything less than the execution of that document and he admitted that the signature on the back was certainly taken when the Magistrate was present.
8. I am of opinion that the evidence of the Magistrate should be accepted as it stands and that there is no reason to disbelieve this officer who is a person of responsible position and whose evidence is confirmed by that of another witness. The argument from the wording of this endorsement appears to us to be far-fetched. I therefore hold that the Court below was wrong in considering that there was anything irregular in regard to the execution of the power-of-attorney by the plaintiff and I hold that this was a perfectly valid power-of-attorney executed in the manner prescribed by Sec. 33(1)(c), Registration Act. The point of validity of the execution on the finding of the Court below was raised, but as I differ from that finding the point need not be further considered by us. The case really terminates on this point. One further point was argued and that was that under Section 80, Civil P. C, defendant 1 appellant should have had two months' notice before the suit was brought. We consider that See. 80 does not apply to the present case. Sec. 80 provides:
No suit shall be instituted against the Secretary of State for India in Council, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity.
9. The cause of action in the present suit was no doubt the action of a public officer in refusing to register the document, but that public officer was the District Registrar and the suit was not brought against him and therefore no notice under Sec. 80 was necessary. Indirectly no doubt the act of the appellant-defendant in executing the sale deed in favour of the plaintiff gave rise to the proceedings in the Registration Department, but it is not the execution by defendant which is the cause of action under Section 77, Registration Act, but the refusal to register by the District Registrar. I may also point out that Section 77, Registration Act, prescribes a period of 30 days for the filing of a suit from such refusal and under Section 4, Sub-section (1), Civil P. C, "nothing in the Code in the absence of any special provision to the contrary shall affect any special law." The Registration Act is a special law, and I do not consider that Sec. 80, Civil P.C., will apply in view of the provision of 30 days limitation under Sec. 77, Registration Act, as that period, 30 days, is less than the two months provided by Section 80, Civil P.C. I would therefore dismiss the appeal with costs.
10. I agree that the appeal is without force and should be dismissed. The essential facts are these. On 23rd December 1935, the appellant executed a deed of sale in respect of certain house property situated in the town of Moradabad in favour of the plaintiff-respondent, who is a resident of the Indian State of Rampur, for a consideration of Rs. 38,000, out of which he had already received Rs. 26,600, and was to receive the balance, Rs. 11,400, at the time of registration. The appellant himself presented the deed before the sub-registrar on the same day. Just when the sub-registrar had written and signed the endorsement of presentation, an injunction directing him not to register the deed was received by the sub-registrar. The injunction was issued by the District Judge in connexion with an appeal filed in his Court by one Indra Swarup. The sub-registrar accordingly stopped further proceedings. On 11th January 1936, the appellant executed another sale deed in respect of the same property in favour of Brij Lal, father of Indra Swarup. After the execution of this sale deed in favour of his father, Indra Swarup had his appeal in the District Judge's Court dismissed, and the injunction ceased to operate. Thereupon one Sajid All purporting to act as the general attorney of the plaintiff-respondent, applied to the sub-registrar for the issue of a summons to the appellant under Section 36, Registration Act, and the summons was issued. The appellant failed to appear, and the sub-registrar, treating his non-appearance as denial of execution, refused registration of the sale-deed in favour of the plaintiff. On 11th February 1936 an application under Section 73, Registration Act, was presented to the District Registrar by a legal practitioner on behalf of the plaintiff. This application was rejected by the District Registrar on 13th July 1936 on the ground that the power-of-attorney from which Sajid Ali purported to derive his authority had not been 'properly executed, as required by Section 33(1)(c), Registration Act. The power of attorney had, according to the plaintiff's case, been 'executed before' and authenticated by Mr. Abdul Wahid Khan, Chief Magistrate of Rampur. The District Registrar was of opinion, firstly, that Mr. Abdul Wahid Khan, who was examined before him, did not give truthful evidence, and secondly, that even if he was to be believed, the plaintiff's signature as an executant having admittedly been written on the power-of-attorney behind a purdah and thus in such a manner that Mr. Abdul Wahid Khan could not actually see the plaintiff or her hand when she was writing the signature, the fact that Mr. Abdul Wahid Khan was seated just outside the purdah when the signature was made, could not bring it within Section 33(1)(c), Registration Act. The present suit was filed on 27th July 1936 in accordance with the provisions of Sec. 77, Registration Act.
11. The Court below has agreed with the District Registrar in holding against the plaintiff that the power of attorney in favour of Sajid Ali was not 'executed before' the Magistrate at Rampur, but has decreed the suit on the grounds that in a suit under Section 77 all that the Court has to see is whether the deed sought to be registered is genuine and has been executed by the person by whom it purports to have been executed, that 'the only essential condition precedent to a suit of this nature is an order of refusal by the Registrar to register the document under Sec. 76' and that 'it is not necessary that the proceedings before the Registrar should have been validly taken.'
12. The learned Counsel for the defendant-appellant relies on the finding of the Court below in his favour that the power-of-attorney under which Sajid All purported to act on behalf of the plaintiff when he presented the applications under Sections 36 and 73 was not a validly executed document, and urges that on that finding the suit should have been dismissed and that the grounds on which the Court below has decreed it are not sound in law. The plaintiff-respondent, on the other hand, supports the decree on the ground decided against her in the Court below, as she is entitled to do under Order 41, Rule 22, Civil P.C., and urges that the decision on the question of the due execution of the power-of-attorney in favour of Sajid Ali is erroneous. The contention is that if the decision of the Court below on that point is not accepted and the power-of-attorney is held to have been duly executed, that is sufficient to entitle the plaintiff to a decree and the other grounds given by the Court below need not be considered.
13. I agree with my learned brother in holding that the contention put forward on behalf of the plaintiff-respondent must be accepted. I am content to base my decision on the ground that it is established that the power of attorney executed by the plaintiff in favour of Sajid Ali was 'executed before' the Magistrate within the meaning of Section 33(1)(c), Registration Act. The Court below has given for its decision the same two reasons as had been given by the Registrar, namely that the evidence given by Mr. Abdul "Wahid Khan, who was examined in the Court below also, was not credible, and that even if Mr. Abdul Wahid Khan was to be believed, the execution of the power-of-attorney was not in accordance with Section 33(1)(c). As to the first of these reasons, I entirely agree with my learned brother that the criticizms of the learned Civil Judge on the evidence of Mr. Abdul Wahid Khan are without foundation. As my learned brother has pointed out, the criticizm based on the use of the word 'Iqbal in the endorsement is far fetched. In his deposition Mr. Abdul Wahid Khan has definitely stated that after he had reached the plaintiff's house and had found two suitable persons who could identify the lady,
the document was given to the Private Secretary to get it signed by the lady on the margin as executant and she then signed it behind the door. It was then given to me....
14. To the same effect is the evidence of Mobin Raza. In my opinion there is absolutely no reason to doubt the veracity of these two witnesses. It is therefore established that the plaintiff executed the power-of-attorney after the arrival of the Magistrate at her house and in his presence while she herself was sitting behind the purdah. The second reason given by the learned Civil Judge, and repeated before us by learned Counsel for the appellant, is that execution of the document by the plaintiff in this manner was not execution 'before' the Magistrate. The learned Civil Judge has followed the learned District Registrar in his reasoning, and has made the following observation:
Assuming that it was executed at the meeting while the Magistrate was present but behind the purdah, I think it cannot be said to have been executed before the Magistrate. The lady was, of course, a purdahnashin, but it was not impossible to devise some method by which the lady could remain in purdah and at the same time be able to put her signature on the document before the eyes of the Magistrate.:
15. Neither the learned District Registrar, nor the learned Civil Judge, nor the learned Counsel appearing for the appellant, has stated what method could be devised which would be acceptable to a purdahnashin lady of the status of the plaintiff. It was conceded by learned Counsel that a woman observing strict purdah, as the plaintiff does, would not be willing to put her hand out of the purdah and to let a stranger see it. If the argument of the learned Counsel is accepted, the result will be that a purdahnashin residing in an Indian State can never execute a power of attorney. In view of the fact that the plaintiff is a purdahnashin, it must, in my opinion, be held that the execution by her of the power of attorney in the manner stated above was execution 'before' the Magistrate. I therefore agree with my learned brother in the conclusion that the power of attorney in Sajid Ali's favour was executed in accordance with Section 33(1)(c), Registration Act. As to the contention that a notice under Section 80, Civil P.C., should have been given before the suit could be instituted, I agree with my learned brother in holding that no such notice was necessary and have nothing to add to the reasons given by him.