MOHD.AHMED ANSARI, J. - (1.) This appeal by the plaintiff is against the decree of the Lower appellate Court, whereby the appellant's suit for the declaration of his title to a house has been dismissed and the decree of the trial Court varied.
(2.) The facts in the case are not complicated. On June 16, 1949, the respondent had a house No. 31, Sadar Bazar, Bolaram, attached in execution of his decree against Abdul Majid Khan. The appellant by a sale deed of June 20, 1949, has purchased the same house. Some of the executants of the sale deed are not the owners; but profess to be holders of two powers of attorney from four persons, who claim to be the owners and were then in Pakistan. One of such executants is Mohd. Ayud Khan and purports to be the holder of a power of attorney from Abdul Majid Khan. The other, Abdul Rahman Khan, claims to have another power of attorney in his favour by Abdul Aziz Khan. Abdul Haq Khan and Mt. Kulfatbi. Both these powers of attorney are admitted to have been executed and registered in Pakistan. Ex. P. 6 is the document in favour of Abdul Majid, and Ex. P. 7 is in favour of the Abdul Rahman Khan. These, however, are not on the records of the case; but the learned Judge of the lower appellate Court had called them from the office of the Sub-Registrar, and had found them not to have been properly certified for purposes of Section 69 of the Hvderabad Evidence Act, whose provisions were similar to Section 85 of the Evidence Act. The appellant on the basis of the sale deed in his favour, had objected to the execution of the decree against the house, and being unsuccessful in the execution proceedings, has filed the suit from which this second appellate Court has dismissed the claim. The learned Judge of the lower appellate Court has allowed the appeal on the ground that the appellant had failed to prove the powers of attorney and has, therefore, failed to establish his title to the disputed house. There is no oral evidence on the record to prove the signatures of the executants of the two powers, and if those documents be held to be otherwise proved, both the authorities to execute the sale deed and the registration of the deed would fail. The learned Judge of the lower appellate Court has referred to certain authorities concerning the failure of the Registrar to satisfy himself about the authority of the person presenting the document for registration, but he does specifically decide the registration of the sale deed to be invalid. The objection as to proper registration of the document was specifically raised in the trial Court. But there is an issue as to whether the sale deed in favour of the appellant is by a duly authorised person, and the learned Advocate of the appellant has argued that as the two powers of attorney had been acted upon by the Registrar when he registered the sale deed, there is a presumption about their being genuine. Such a presumption cannot arise if the sale deed was properly registered, which must be, therefore, determined in the case. The facts are disputed that the sale deed has been executed by the persons holding the two powers and the Registrar had registered the deed on the assumption that the two executants were duly authorised. Evidently, the Registrar has acted under Section 26(1) of the Hyderabad Registration Act. The Advocate of the appellant had argued that because the executants have themselves presented the document for registration, no question of their having been properly authorised to present the deed for registration by the two powers of attorney arose. He relies on the use of the word "executant" in Section 26(1) of the Hyderabad Act, which is similar to Section 32 of the Indian Registration Act. Admittedly, there is divergence of authorities on the point. In Sitaram Laxman Rao v. Dharmasukhram, ILR 51 Bom 971 , the Full Bench of the Bombay High Court had taken the view that if a person executed a document even though as an agent of the owner and presented it for registration, the provisions of Section 33(1) of the Registration Act was complied with and no question of his having a power of attorney arose. In Satish Chandra v Harendra Kumar, 40 Cal WN 1051 . this view has been held to be contrary to the decision of the Privy Council in Puran Chand v. Monmotho Nath, 55 Ind App 81 , and, therefore, no longer correct. In the aforesaid case, the Calcutta High Court has held that a person who has a power of attorney from another to execute a document and on the basis of such a power signs a document on behalf of the executant, is a person executing a document within the meaning of Section 32 of the Registration Act. The learned Judges have based their judgment on the following observations of Lord Sumner in 55 Ind App 81 : Hence the words 'person executing" in the Act cannot be read merely as 'person signing'. They mean something more, namely the person who by a valid execution enters into obligation under the instrument."
(3.) Obviously, an agent executing the document on behalf of the principal, does not incur such an obligation under the instrument, and, therefore, cannot be said to be the person executing the document. The reason is sound and, accordingly I prefer the Calcutta decision to the later authority of the Bombay High Court in Ratilal Nathu-bhai v. Rasiklal Maganlal, ILR 1950 Bom 473 . Therein the Bombay High Court has adhered to the view taken in ILR 51 Bom 971 , on the ground that the view is supported by an earlier decision of the Privy Council in 55 Ind App 81 . It is clear that where there are conflicting decisions the later authority is to be preferred and admittedly the later authority of the Privy Council does not favour the Bombay view. The observations there are in support of the decision of the Calcutta High Court and, in these circumstances, I would follow the Calcutta view.;