JAGAT NARAYAN, C.J. - (1.) THIS D.B. Civil regular first appeal has been referred for decision to the Full Bench by a Division Bench as the learned Judges constituting it were of the opinion that the following observation made by a D.B. of this Court in Jetharam vs. Hazarimal (l) was not a correct interpretation of the decision of their Lordships of the Privy Council in Mohammed Ewaz vs. Brijial (2) - "On the other hand, the case of Mohammed Ewaz vs. Brijiall (2) is an authority to the contrary. It was held in that case that where the document was executed by two or more persons and some of them admitted execution while others denied it, the document should be registered as to the persons admitting the execution and it would be effective against the persons on whose instance the document was registered." The appeal arises out of a suit for the enforcement of a mortgage by the sale of the mortgaged properties instituted by Mukandass, his son Rameshwar Dass and his grandson Bhanwarlal against Bhaniram, his brother Nenuram and his sons Tara Chand and Jai Narayan. The case of the plaintiffs was that on Kartik Sudi 9, Smt. 2002 (corresponding to 14.11.45) the defendants who were members of a joint Hindu family with Bhaniram as Karta thereof, took a loan of Rs. 10,000/- on the security of certain immovable properties situated in the town of Barmer, by a registered mortgage-deed Ex. 2. On Mah Badi 13, Smt. 2002 (corresponding to 31-1-46) the defendants executed another mortgage-deed Ex. 1 for a total sum of Rs. 20,000/-(consisting of Rs. 10,000/- on the previous mortgage and a fresh loan of Rs 10,000/-in cash) in favour of the plaintiffs agreeing to pay interest at the rate of Re. 0-7-9 per cent per month and cancelled the first mortgage. Some more property was included in the second mortgage-deed the details of which are given in para 3 of the plaint. THIS mortgage was with possession and the defendants obtained the lease back of the properties mortgaged and executed a rent-note on the same date. As they allowed the rent to fall in arrears the plaintiffs brought suit No. 32/53 on 24-2-1953 in the first instance for the recovery of the arrears of rent and for possession of the mortgaged property. The period of payment fixed under mortgage-deed Ex. 1 was 5 years \n the written statement of suit No 32/53 the defendants denied the execution of the mortgage-deed as well as the rent note. As meanwhile the period of 5 years had come to an end the plaintiffs withdrew suit No 32/53 with the permission of the court with liberty to bring a fresh suit and this is how the suit out of which the present appeal arises came to be filed on 18th February 1954. According to the plaintiffs the defendants had paid a sum of Rs. 25/- only towards the principal amount of this mortgage and nothing by way of rent or interest and so they brought this suit for the recovery of Rs. 19,975/- as principal plus Rs.2626/-as interest, total amounting to Rs. 22,601/- and prayed for the usual mortgage decree.
(2.) WE may mention here that the mortgage-deed was executed by only 3 out of the 4 defendants. Tarachand did not execute it. Defendant No. 2 Nenuram alone filed a written statement while the other defendants allowed the suit to proceed ex parte against themselves. Bhani Ram, defendant, gave evidence as witness for Nenuram, defendant No. 2, and Jai Narayan cross-examined some witnesses as Mukhtar of Nenuram, defendant No. 2. Nenuram completely denied the factum of the loan or the execution of the mortgage-deed in his written statement. Bhaniram made similar denials as witness for Nenuram. Nenuram pleaded in the alternative that if the court held that the deed had been executed by him and the other two defendants it was without consideration and without legal necessity and represented losses sustained in wagering transactions and therefore the whole deed was void and inoperative in law. Pleas as to the suit being barred under O. 2, R. 2 CPC and as to limitation were also taken. Yet another plea that is important to mention was that the document was not registered according to law and was therefore not binding on defendant No. 2, 3 and 4. This last mentioned objection was raised on two grounds-(l) that the registration of the mortgage-deed was made by Shri Ran-jit Singh (as Sub-Registrar) who was the Naib Hakim of Barmer at that time, the Hakim Shri Ram Singh having taken leave on account of the death of his wife and the said Shri Ranjit Singh had not been duly authorised to perform the duties of the Sub Registrar during the absence on leave of Shri Ram Singh, and (2) that it was the appellant Bhani Ram alone who had appeared before the Sub-Registrar to admit the execution of the document and as the other two executants of the deed namely Nenuram and Jai Narayan had not appeared to admit it before the same authority the deed was not binding on them at all. On these pleadings 12 issues were framed by the trial court, which decided all of them in favour of the plaintiffs and decreed the suit. The issues framed by the trial court relating to the execution of the mortgage-deed Ex. 1 (part of issue No. 1), as to the repayment of Rs. 25/ on Migsar Badi 1, S. 2008 (issue No. 3), as to the transaction being bad on account of wager (issue No. 6), as to the suit being barred under order 2, rule 2 (issue No. 7), as to the mortgage-deed being without consideration (issue No. 9) and as to the suit being barred by limitation (issue No. 11) were not pressed before the Division Bench. The main issue that was pressed before the Division Bench was relating to defective registration, defective both because the officer registering the document was not competent to do so and also because two of the executants of the mortgage deed Ex. 1 had not appeared before the Sub-Registrar to admit the execution thereof. The Division Bench was of the opinion that the objection as to the registration on the score of the incompetence of the officer registering it was without force. This case was referred to the Full Bench on account of the other objection relating to registration. The present appeal was filed by all the 4 defendants namely Bhani Ram, Nenuram, Tarachand and Jai Narayan. It was not disputed before us that these four defendants constituted a joint Hindu family at all material times and that Bhani Ram was the Karta of this joint family. We have already mentioned above that although the mortgage-deed purported to be on behalf of the 4 defendants only Bhani Ram, Nenuram and Jai Narayan executed it. Tarachand did not execute it. Further Bhani Ram alone who was the Karta of the joint Hindu family of the defendants appeared before the Sub-Registrar and admitted the execution of the document. Nenuram and Jai Narayan do not appear to have personally admitted the execution of the document by them before the Sub-Registrar as the following endorsement on mortgage-deed Ex. 1 goes to show: - "Sub-Registrar Banner. Execution has been admitted. Four shops, four Bhandas with one Maalia mentioned in the deed have been mortgaged with possession with Shri Mukand Das s/o Khubchand, Maheshwari of Balotra, Pargana Pachpadra and the consideration thereof amounting to Rs. 20,000/- (rupees twenty thousand only) has been received by the mortgagors. The possession of the shops, Bhandas etc. has been delivered. The aforesaid Bhaniram S/o Pannalal, Maheshwari of 65 years, occupation Halwai, resident of Barmer is known to me, the Sub-Registrar. Dated 1-2-46 Sd/- Ranjit Singh Sub-Registrar, Sd/- Bhaniram Pannalalani r/o Barmer. This document has been entered today, the 4th Feb., 46 at S.No. 63 of Bahi No. 1, Vol. No. 19 at pages 112-113 and has been registered after realising registration fee of Rs. 14/-., Ujarat Rs. 2/- total Rs. 16/-. Sd/- Ranjit Singh Sub-Registrar, Barmer." The Marwar Registration Act, 1934 which governs the case is almost identical with the Indian Registration Act, 1908. Secs.34, 35 and 36 of the Marwar Registration Act run as follows: "34. (1) Subject to the provisions contained in this Part and in Secs. 41, 43, 45, 69, 75, 77, 88 and 89 no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under secs.23, 24, 25 and 26. Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under sec. 25, the document may be registered. (2) Appearances under sub-sec. (1) may be simultaneous or at different times. (3) The registering officer shall thereupon: - (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document, and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. (4) Any application for a direction under the proviso to sub-sec. (1) may be lodged with a Sub-registrar, who shall forthwith forward it to the Registrar. (5) Nothing in this section applies to copies of decrees or orders. 35. (l)(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) If in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or, (c) If the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution. the registering officer shall register the document as directed in sec. 58 to 61 ( inclusive J. (2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3) (a) If any person by whom the document purports to be executed denies its execution, or (b) If any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, or (d) If any person by whom the document purports to be executed or his representative or assign, after being duly summoned fails to appear before the registering officer on the date mentioned in the summons, the registering officer shall refuse to register the document to be person so denying, appearing dead or not appearing. Provided that where such officer is a Registrar he shall follow the procedure prescribed in Part XII. 36. If any person presenting any document for registration or claiming under any document, which is capable of being so presented desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer in his discretion may, upon receipt of the process fee payable in such cases, issue a summons requiring him to appear at the Registration Office, either in person or by duly authorized agent, as in the summons may be mentioned and at a time named therein, and cause it to be served upon the person whose appearance is no required. On the strength of the observations made in Jetharam vs. Hazarimal (l), which we have referred to above, it was contended before the Division Bench that the mortgage-deed Ex.1 is operative only against Bhaniram who appeared before the Sub-Registrar to admit it and not against the other two executants namely Nenuram and Jainarayan who did not personally admit the execution of the deed by them before the Sub-Registrar. We may state here that the wordings of sec. 34 of the Marwar Act and those of the corresponding sec. 34 of the Indian Act are identical. Further so far as sections 35 and 36 of the Marwar Act are concerned there can be no difference in the interpretation of these two sections when compared to the corresponding provisions contained in secs.35 and 36 of the Indian Act. In the Marwar Act clause 3(d) has been introduced in sec. 35 which lays down that if any person by whom the document purports to be executed or his representative or assign, after being duly summoned, fails to appear before the registering officer on the date mentioned in the summons he shall refuse to register the document as to the person not so appearing. This clause does not appear under the Indian Act but it has been held in all reported decisions that the effect of non-appearance under that Act is also the same. We may in this connection refer to the decision of the Bombay High Court in re Shaik Abdul Aziz (3). In that case the executant failed to appear before the Sub-Registrar of Bombay and admit execution though he was served with a summons as provided by S. 36, The mortgagee thereupon applied to the Sub Registrar to treat the mortgagor's neglect to attend and admit execution as equivalent to a denial of execution and to "refuse to register"the deed u/s. 35(3) in order that an application might be made to the Registrar u/s. 73 for the purpose of establishing his right to have the deed registered. The Sub-Registrar thought (though erroneously) that he could not treat the mortgagor's non-appearance as a denial of execution and he did not "refuse to register". The mortgagee thereupon took out a rule u/s. 45 of the Specific Relief Act 1877, calling on the Registrar to show cause why he should not be directed to endorse the deed with his refusal to register. It was held that the mortgagor's non-appearance despite service was equivalent to a denial of execution and the Court made an order directing the Registrar to proceed u/s. 74 to make the enquiry therein directed. We may here reproduce the provisions of sections 71, 73 and 74 of the Marwar Act which are almost similar to the provisions of the corresponding sections of the Indian Act: - S.71. Reasons for Refusal to register to be recorded. - (1) Every Sub-Registrar refusing to register a document except on the ground that the property to which it relates is not situate within his district, shall make an order of refusal and record his reasons for such order in his Book No. 2 and endorse the words "registration refused" on the document; and on application made by any person executing or claiming under the document, shall on payment of a copying fee of annas four and without unnecessary delay, give him a copy of the reasons so recorded. (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered. S. 73. Application to Registrar where Sub-Registrar refused to register on ground of denial of execution. - (1) When a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed or his representative, assign or authorized agent denies its execution, any person claiming under such document, or his representative assign or agent authorized as aforesaid, may within thirty days after the making of the order of refusal, exclusive of the time occupied in obtaining a copy of the order apply to the Registrar in order to establish his right to have the document registered. (2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints. S. 74. Procedure of Registrar on such application, - In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire - (a) whether the document has been executed; (b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration." The only other sections to which we may refer in connection with this case are sections 52, 54, 58, 59, 60 and 61 of the Marwar Act which are practically identical to the corresponding provisions of the Indian Act. They are reproduced below: - S. 52. Duties of registering officers where document presented. - (1) (a) The day, hour and place of presentation, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it; (b) a receipt for such document shall be given by the registering officer to the person presenting the same ; and (c) subject to the provisions contained in section 62, every document admitted to registration shall, without unnecessary delay, be copied in the book appropriated therefor according to the order of its admission. (d) any interlineation, blank, erasure or alteration which appears in the original document admitted to registration, shall be accurately and carefully noted in the copy thereof entered in the Book. (2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Registrar. S. 54. Current Indexes and entries therein - In every office in which any of the books herein before mentioned are kept, there shall be prepared current indexes of the contents of such books, and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of the document to which it relates. S. 58. Particulars to be endorsed on documents admitted to registration. - (1) On every document admitted to registration, other than a copy of decree or order, or a copy sent to registering officer under sec. 89, there shall be endorsed from time to time the following! particulars namely : - (a) The signature and addition of every person admitting the execution of the document, and if such execution has been admitted by the representative, assign or agent of any person the signature and addition of such representative, assign or agent. (b) The signature and addition of every person examined in reference to such document under any of the provisions of this Act; and (c) Any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission for receipt of consideration, in whole or in part, made in his presence in reference to such execution. (2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time, endorse a note of such refusal. S. 59. Endorsements to be dated and signed by registering officer. - The registering officer shall affix the date and his signature to all endorsements made under secs.52 and 58, relating to the same document and made in his presence on the same day. S. 60. Certification of Registration. - (1) After such of the provisions of secs.34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officers shall endorse thereon a certificate containing the word "registered" together with the number and page of the book in which the document has been copied. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in sec. 59 have occurred as therein mentioned. S.61. Endorsements and certificates to be copied and document returned - (1) The endorsements and certificate referred to and mentioned in secs. 59 and 60, shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in sec. 21, shall be filed in Book No. 1. (2) The registration of the document shall thereupon be deemed complete and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in this behalf on the receipt mentioned in sec. 52." A perusal of the provisions of the Registration Act goes to show that every document required to be registered is to be presented within the time prescribed under secs. 23 to 27 which occur in Part IV headed "Of the time of presentation." Further the document is to be presented to the registering officer of the place specified in Part V headed "Of the place of registration". The next important provision is contained in sec. 32 which runs as follows - S. 32. Persons to present documents for registration - Except in the cases mentioned in sec. 31 and sec. 89, every document to be registered under this Act, whether such registration be compulsory or optional shall be presented at the proper registration office - (a) by some person executing or claiming under the same or in the case of a copy of a decree or order claiming, under the decree or order, or (b) by the representative or assign of such person, or (c) by the agent or such person, representative or assign duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned."
(3.) SEC. 33 then prescribes the powers of attorney which alone shall be recognised for the purposes of sec. 32. It runs as follows - S. 33. "Powers-of-attorney recognisable for purposes of sec. 32 - (1) For the purposes of sec. 32, the following powers-of-attorney shall alone be recognized - (a) If the principal at the time of executing the power-of-attorney resides in any part of Marwar in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose jurisdiction the principal resides; (b) If any principal is a Tazimi, a power of attorney executed on plain paper duly signed and sealed by him in favour of his agent. (c) If the principal at the time aforesaid does not reside in Marwar, a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, British Consul or Vice-Consul or representative of His Majesty or of the Government of India ; Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing by such power-of-attorney as is mentioned in Cl. (a) 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 or order of Darbar from personal appearance in Court; (iv) Ladies who by custom of the land live in Pardah and (v) recognized religious or spiritual heads. (2) In the case of every such person the Registrar or Sub Registrar 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 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. (4) Any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf." We may mention here that secs. 32 and 33 of the Marwar Act are identical to the corresponding sections of the Indian Act. It will be seen that sec. 23 provides for a period of 4 months for presenting a document for registration. Sec. 25 provides for a further period of 4 months in cases of urgent necessity or unavoidable accident on payment of fine. Sec. 34 provides that no document shall be registered unless the persons executing the document appear before the registering officer within the time allowed for presentation by secs.23 and 25. But the proviso to sec. 34(1) allows a further period of 4 months with the result that while the maximum period for presenting a document is 8 months that for the appearance of parties before the registering Officer is 12 months. If a document is presented within the time allowed under the Act by a person authorised to do so under sec. 32 read with sec. 33 it is the duty of the registering officer to admit it to registration and proceed as prescribed under sec.52 onwards. Under sec. 52(1) (a) the registering officer is required to endorse on the document at the time of presentation the day, hour and place of registration and obtain the signature of every person presenting it for registration. Under sec. 52(l) (c) he is required to copy the document in the appropriate book prescribed under sec. 51 without unnecessary delay. Under sec. 54 as soon as the registering officer has copied the document in the appropriate book he is required to make an entry about it in the current index of the contents of such book. Sec. 58(1)(a) lays down that the registering officer shall obtain the signature of every person admitting execution of the document, and if such execution has been admitted by the representative, assign or agent of any person, the signatures of such representative, assign or agent as soon as such admission is made. Sec. 59 lays down that the registering officer shall affix the date and his signature to all endorsements |made under sec. 52(l)(a) about presentation of the document for registration and under sec. 58(l)(a) about the admission to execute by each executant on the day on which such presentation or such admission is made. ;