Ali Abbas v. Babu Moghal Sah — 1957 DIGILAW 158 (PAT)

Judgment Sinha, J. 1. The defendant is the appellant. The suit was based on two mortgage bonds, dated the 11th May, 1934 and the 11th July, 1939. The plaintiffs prayed for recovery of the sums due on these mortgage bonds, and the suit has been decreed. 2. The plaintiffs case is that one Syed Ghulam Abbas, father of the defendant, had executed the first bond for a sum of Rs 3,350/-on the 21st Baisakh 1341 B. S., corresponding to 4th May, 1934, stipulating to pay interest at the rate of Re. 1/- per cent. per month. The said Syed Ghulam Abbas executed another mortgage bond for a sum of Rs. 3,600.00 on the 26th Asarh 1346 B. S., corresponding to 11th July, 1939 and the stipulated rate of interest was 6 per cent per annum. It is stated that the said Ghulam Abbas had paid a sum of Rs. 900.00 towards interest of the first bond on the 10th Asarh, 1353 B. S. and the payment was duly endorsed on the back of the bond by the executant. As the amounts due under the mortgage bonds were not paid, the suit had to be instituted against the defendant who is the son and the only heir of the said Syed Ghulam Abbas. The plaintiff claimed interest only at 9 per cent. per annum as per account given in the schedule of the plaint. 3. The suit was contested by the defendant on several grounds. In the present appeal, however, we are concerned with two defences only, namely, (1) that the mortgage bonds had not been presented and registered according to law; and (2) that the suit on the second mortgage bond of the 11th July, 1939 is barred under the provisions of Sec. 4 of the Bihar Money-Lenders (Regulation of Transactions) Act of 1939 (Act VII of 1939). 4. So far as the first point is concerned, it appears that the executant, Ghulam Abbas, had executed a power of attorney on the 12th February, 1926 in favour of his son, Ali Abbas, and another, one Munshi Ahmad Hussain. Under the terms of the power of attorney, the son presented these documents of mortgage, duly executed by his father before the Registering Officer, and the latter, being satisfied as to the power of the defendant to present the documents for registration, duly registered the documents. 5. Under the terms of the power of attorney, the son presented these documents of mortgage, duly executed by his father before the Registering Officer, and the latter, being satisfied as to the power of the defendant to present the documents for registration, duly registered the documents. 5. So far as the second point is concerned, the materials on record show that the first bond was executed long time before the Bihar Money-Lenders Act, 1939 (VII of 1939) was enacted. The second mortgage bond, however, was executed after Act VII of 1939 had been enforced on the 3rd May, 1939 (Vide Notification No. 561-Com., dated the 2nd May, 1939). Therefore, it is contended that, under the provisions of Sec. 4 of this Act, the suit relating to the second bond is not maintainable. 6. The Court below has held that, in the absence of the power of attorney, the abstract of the same, which purports to be the substance of the power of attorney in English (Exhibit A), did not amount, in law, to secondary evidence and was not admissible in evidence. Even if the document was admissible, it showed that the defendant, the son of the executant of the mortgage bonds, had been empowered to present all sorts of sale deeds for registration. According to the Court below, the expression "all sorts of sale deeds" included mortgage bonds. It was further found that, at the time of registration, the Registering Officer, on reading the power of attorney, was satisfied that the defendant had the requisite power to present the documents for registration. On these grounds, the Court below held that the defendant was duly authorised by the power of attorney to present the mortgage bonds in question for registration and to admit execution thereof. It has also been held that the plaintiff No. 1 had obtained a certificate of registration within six months of the date of coming in force of the Bihar Money-Lenders Act, 1938 (Act III of 1938), and, therefore, the bar of Section 4 of Act VII of 1939 did not apply even to the second mortgage bond. As regards the contention of the plaintiffs, that they were casual money-lenders, the Court below said, that there was some force in that contention. On the aforesaid grounds, the Court below decreed the suit. 7. I propose to take up the second point first. As regards the contention of the plaintiffs, that they were casual money-lenders, the Court below said, that there was some force in that contention. On the aforesaid grounds, the Court below decreed the suit. 7. I propose to take up the second point first. The defendant stated in paragraph 7 of the written statement that his father never borrowed in cash Rs. 3,600.00 from the plaintiffs on the 26th Asarh, 1346 B. S. (11-7-39), and he further elucidated his defence in paragraph 10 of the written statement wherein he said that the second mortgage bond was not executed for cash consideration. It was stated that the defendants father had taken Rs. 600.00 on the 11th May, 1934, and when he again fell in need of money, he took another sum of Rs. 400.00 on the 4th June, 1935 "and so on" till on the 26th Asarh, 1346, the plaintiff No. 1, after adjustment of the previous dues on account of principal and interest, asked the executant to get the bond in question executed, otherwise he would file suit against him. It is further said that the said bond was executed although nothing was taken in cash on that date. This written statement is followed up by the oral evidence of the defendant, who is the only witness examined on behalf of the defence, wherein he said: "The second mortgage bond was executed for the sabik (previous) dues on the blank hand-notes and also for some cash which was taken from time to time." In effect, therefore, the defence is that the mortgage bonds, including the second one, were not executed for cash considerations, but were executed for loans due to the plaintiffs from the defendants father from before. That being the position, it must be held that the second mortgage bond was executed for loan not advanced on that date but for loans advanced previously. The defendant has referred to loans advanced on the 11th May, 1934 and 4th June, 1935. That being the position, it must be held that the second mortgage bond was executed for loan not advanced on that date but for loans advanced previously. The defendant has referred to loans advanced on the 11th May, 1934 and 4th June, 1935. Sec. 4 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 (VII of 1939) runs as follows: "No Court shall entertain a suit by a moneylender for the recovery of a loan advanced by him after the commencement of this Act unless such money-lender was registered under the Bihar Money-Lenders Act, 1938, at the time when such loan was advanced: Provided that such a suit shall be entertain-able if the loan to which the suit relates was advanced by the money-lender at any time before the expiration of six months after the date of the commencement of this Act and if he is granted a certificate of registration under Sec. 5 of the Bihar Money-Lenders Act, 1938, at any time before the expiration of the said six months". I have underlined (here in ) the important words in the section. Now, there is no doubt that the mortgage bond in question was for a loan within the definition of that word given in the Act. "Loan" therein "means an advance, whether of money or in kind, on interest made by a money-lender, and shall include a transaction on a bond bearing interest executed in respect of past liability and any transaction which, is substance, is a loan ....." The definition of "loan" is wide enough, and, therefore, the mortgage bond did constitute loan. But, here we have to consider not only the definition of "loan", but the meaning of the expression "loan advanced by him after the commencement of this Act." The question, therefore, is whether the loan in question was advanced by the plaintiffs after the commencement of this Act. I have already indicated that this Act came into force on the 3rd May, 1939, and the bond in question, namely, exhibit 1 (a), was executed on the 11th July, 1939. The execution, therefore, was after the Act had come into operation, but the bond was in respect of loans advanced long before the Act: came into force, which is amply borne out by the written statement and the evidence of the defendant himself. In the case of Mt. Surajbansi Kuer V/s. Mt. Larho Kuer. The execution, therefore, was after the Act had come into operation, but the bond was in respect of loans advanced long before the Act: came into force, which is amply borne out by the written statement and the evidence of the defendant himself. In the case of Mt. Surajbansi Kuer V/s. Mt. Larho Kuer. ILR 25 Pat 90 : (AIR 1946 Pat 310) (A), it was observed as follows: "There is a further argument which strikes me that if this transaction is a loan, it is a loan not because the handnote was executed but not advanced on the 25th of May, 1941, but because something was advanced previous to the commencement of this Act. To such an advancement the section, in its very terms, is inapplicable." That appears, and I say with great respect, to follow from the plain meaning of the language used. To the like effect is the decision in Atld Hussain v Jai Narain, ILR 27 Pat 1187: (AIR 1949 Pat 307) (B). Sec. 4 of the Act applies to loans advanced after the commencement of this Act, and if that be so, sec. 4 can have no application to the bond in question. It is true that this bond was executed in July, 1939 after Act VII of 1939 had come into force sometime in May 1939, but the loans for which the bond was executed had been advanced before the commencement of this Act and there is no material to hold that the loan was advanced after the Act came into force. In that view of the matter, in my opinion, Sec. 4 of the Bihar Money-Lenders Act, 1939 (VII of 1939) has no application, and I hold accordingly. The other question relating to the application of this section, namely, that the plaintiffs were casual money-lenders or that the plaintiffs had obtained a certificate of registration under Sec. 5 of the Bihar Money-Lenders Act, 1938 (III of 1938) need not be considered. 8. The Court below is wrong in thinking that, according to the provisions of Section 4 of the Act, registration within six months from the date of the coming in force of the 1933 Act was sufficient. That is not so. According to the proviso, registration, under Sec. 5 of the Bihar Money-Lenders Act. 8. The Court below is wrong in thinking that, according to the provisions of Section 4 of the Act, registration within six months from the date of the coming in force of the 1933 Act was sufficient. That is not so. According to the proviso, registration, under Sec. 5 of the Bihar Money-Lenders Act. 1938, has to be effected within six months after the commencement of the 1939 Act, In the present case, the 1939 Act having come into force in May, 1939 and the registration having been made on the 2nd December, 1939, it is beyond six months. In that view of the matter, so far as the proviso to Sec. 4 of the 1939 Act is concerned, the relevant date would be the date of the commencement of the 1939 Act and not the 8th of June, 1939, the date of the commencement of the 1938 Act. aS I said, however, in the view which I have taken, these questions need not be seriously considered. 9. The other contention on behalf of the appellant is that both the mortgage bonds in suit were not properly presented before the Registering Officer under Sections 32 and 33 of the Indian Registration Act. In the present case, it is apparent that; on the strength of the power of attorney executed by the executant, namely, the father of the defendant, the defendant presented the documents before the Registering Officer and in each of these cases the Registering Officer was satisfied that the defendant had the power under the power of attorney to present the documents on behalf of his father, and the documents mentioned the fact that the defendant presented the documents under the General Power of Attorney No. 5 of 1926 authenticated by the Registering Officer of Katihar. After the documents were registered, it appears that the executant, namely, Syed Ghulam Abbas, had acted as if the documents had been properly registered and were legally enforceable in law, because he had paid Rs. 900.00 towards interest on the first bond on the 25th June, 1946 as per endorsement on the bond itself. In this background I would consider the question whether the defendant had the power of attorney on behalf of his father to present the documents. I have already mentioned that the power of attorney itself was not produced in the Court below; an abstract of it was produced. In this background I would consider the question whether the defendant had the power of attorney on behalf of his father to present the documents. I have already mentioned that the power of attorney itself was not produced in the Court below; an abstract of it was produced. Here in this Court, however, the appellant has filed an application for the reception of the power of attorney under the provisions of Order XLI, Rule 27 of the Code of Civil Procedure. His ground is that the power of attorney was with the other mokhtar-am, namely, Munshi Ahmad Hussain, and that Munshi Ahmad Hussain had died, and, therefore, though search was made by the son of the deceased to find out the document, the document could not be found out. It has been stated on oath that the document was found out during the pendency of the appeal in this Court. Therefore, on that ground, a prayer has been made to take this document, by way of additional evidence. After having heard the parties, I am of the opinion that the ground given by the appellant is bona fide. It was likely that, after the death of Ahmad Hussain, his son was not able to trace out the document in time to be filed in the Court below. In my view, this document should be admitted as additional evidence to enable the Court to pronounce judgment in the appeal. Having decided to admit this document as additional evidence, we have got the relevant portion of it officially translated by the Court Translator. The relevant passage, as translated, runs as follows: They (the mokhtars-am) shall be competent jointly or severally to appear and present pattas, kabuliyats, ekrarnamas and documents, such as sale deeds executed and signed by me, the executant, on my behalf before the Registrars and Sub-Registrars of the aforesaid district and mufassil Sub-Registry offices and jointly or severally admit (?) and (sic) get admitted the execution thereof before them (Sub-Registrars)". I have marked the important words in this extract. It is true that mortgage bonds are not specifically mentioned; what is mentioned is "documents such as sale deeds". In my opinion, the expression "such ss sale deeds" is merely illustrative and not restrictive, that is to say, the mokhtars-am had the power to present documents as for example sale deeds and other documents. It is true that mortgage bonds are not specifically mentioned; what is mentioned is "documents such as sale deeds". In my opinion, the expression "such ss sale deeds" is merely illustrative and not restrictive, that is to say, the mokhtars-am had the power to present documents as for example sale deeds and other documents. It is established, no doubt, that the power of attorney must be strictly construed, and I am not departing from that wholesome rule when I hold that the mokhtar-am, the holder of the power of attorney, had the right given in the deed to present documents executed by the maker for registration, and the word "documents", in my opinion, would certainly include mortgage bonds In that view of the matter, I think the Court below came to the right conclusion, though on different grounds, in holding that the documents, namely, the mortgage bonds in suit, were validly and legally presented for registration. 10. Mr. De had submitted, in the alternative, that even if it were to be conceded that, under the power of attorney, the holder of the power had no authority to present the mortgage bonds for registration on behalf of the executant, in the present case, the defendant was estopped from challenging the due presentation of the mortgage bonds before the Registering Officer on behalf of his father, and further that these mortgage bonds were ratified by the executant himself during his life time. In the view which is have taken, however, of the power of attorney, it is not at all necessary to consider the alternative submission of Mr. De. 11. In the result, I would dismiss this appeal with costs. Dayal, J. 12 I agree.