BALKRISHNA RAOJI VELANKAR Vs. PARASHRAM MAHADEO KETKAR

JUDGEMENT

(1.) The plaintiff sued to recover Rs. 11,616 from five defendants on a mortgage bond, dated October 24, 1917. Defendant No. 6 was made a party because he was a prior mortgagee. The property mortgaged belonged to Defendants Nos. 1 and 2, who were brothers, members of a joint family. Defendant No. 1 executed a mortgage for himself and as agent for his brother. The property mortgaged consisted of lands and a house. It is admitted, first, that Defendant No. 1 did not mortgage the property as manager of a joint family; secondly, he did not mortgage the family property for family necessity; and, thirdly, that the power of attorney given to Defendant No. 1 by Defendant No. 2 did not empower Defendant No. 1 to sell Defendant No. 2's share in the house. Defendants Nos. 3, 4 and 5 are the purchasers of the equity of redemption from Defendants Nos. 1 and 2. Defendants Nos. 1 and 2 did not appear at the hearing. Having parted with the equity of redemption, they had no further interest in the property. Still, on their personal covenant in the mortgage deed, they were made liable to pay the mortgage amount, and on default the plaintiff was to recover what was due on the mortgage by sale of the mortgaged property minus the share of Defendant No. 2 in the suit house. Defendants Nos. 1 and 2 were ordered to bear the costs of Defendant No. 6. That order is the subject-matter of an appeal by Defendants Nos. 1 and 2. The plaintiff brought Defendant No. 6 into the suit without any necessity whatever. Therefore, there can be no justification for ordering Defendants Nos. 1 and 2 to pay costs of Defendant No. 6. We must allow Appeal No. 204 of 1924 with costs, and direct the plaintiff, and not Defendants Nos. 1 and 2, to bear the costs of Defendant No. 6 in the lower Court. The cross-objections of Bespondent No. 1 are dismissed with costs.

(2.) Defendants Nos. 3, 4 and 5 were the contesting parties. They first contended that the power of attorney given by Defendant No. 2 to Defendant No. 1 did not authorize him to mortgage the suit property; that it was given for the purpose of executing the prior mortgage; and that after Defendant No. 1 executed the prior mortgage as attorney for Defendant No. 2, the power of attorney was exhausted. However, on a perusal of the power of attorney, it is perfectly clear that it was a general power of attorney, and authorized Defendant No. 1 to dispose of Defendant No. 2's share in the lands by sale or mortgage without specifying how many sales or mortgages could be executed. The mortgage deed was registered, and so, at first sight, it would appear that Defendants Nos. 3, 4 and 5, the purchasers of the equity of, redemption, were not entitled to dispute the plaintiff's claim as mortgagee.

(3.) The point, however, wag taken that the power of attorney was not executed as provided by Section 83 of the Indian Registration Act, and that, therefore, the document was not properly presented to the Registrar, and any registration that followed after an improper presentation was a nullity. Further, that as Section 34 requires the appearance of all the persons who have executed a document which requires registration and has been presented for registration, and a person appearing by an agent must authorize such agent as provided by Section 33, and as Defendant No. 1 was not so authorized, therefore, the appearance of Defendant No. 2 through Defendant No. 1 before the Registrar was not proper, and, consequently, so far as Defendant No. 2 was concerned, the registration of the document against him was a nullity. Part VI of the Indian Registration Act deals with the presentation of documents for registration and the scheme of the Act is that a document which is to be registered must be presented at the proper registration office either by some person executing or claiming under the same, or by the representative or assign of such person, or by the agent of such person, representative or assign, duly authorized by power of attorney executed and authenticated in the manner mentioned in the Act.