# Kaj Krus/ma Bose v. Binod Kanungo and Others - **Citation:** [1954] 1 S.C.R. 919 - **Court:** Supreme Court of India - **Decided:** 1954 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kaj-krus-ma-bose-v-binod-kanungo-and-others-283 - **Pages:** 12 ## Headnote :S.C.R. SUPREME COURT REPORTS 919 Also, "to give the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice." Their duty does not end by declaring an election to be void or not because section 99 provides that in addition to that "at the time of making an order under section 98 the tribunal shall also make an order etc ...... " A number of allegations were made in the petition about corruption and illegal practices, undue influence and bribery. It was the duty of the tribunal not only to enquire into those allegations, as it did, but also to complete the enquiry by recording findings about those allegations and either condemn or clear the candidate of the charges made. We make no order about costs. BosE J.-I agree on all but one point. I have :some doubt about the reason given by my learned brother which is based on the d<:hnition of "candidate" ·in the Act. I prefer not to express any opinion on :that one point. Case remanded. Agent for the appellant: Ratnaparkhi Anant Govind. Agent for respondent No. 1. .-1.. D. Mathur. SRI SRI SRI KISHORE CHANDRA SINGH DEO v. 'BABU GANESH PRASAD BHAGAT AND OTHERS. [MuKHERJEA, VIVIAN BosE, GHULAM HASAN and VENKAIARAMA AYYAR TJ.) Indian Registration Act (XVI of 1908), ss. 32, 33-"Resides", .1neaning -of-Pou•er-of-attorney containing mistaken endorsement, .effect of-Applicability of ss. 32 and 33 to such a case-Legal .effect of decision under s. 33(1), proviso (i). 1954 Kaj Krus/ma Bose v. Binod Kanungo and Others, la.r J. 1954 Marth 9. 1954 Sri Sri Sri Kishore Chandra Singh Dto v. Babu Ganesh Prasad Bhagat and Othrrs. 920 SUPREME COURT REPORTS [1954] The word "resides" in s. 33( 1) (a) of the Indian Registration Act, 1908, is not defined in the statute. It contemplates not only permanent residence but also temporary residence. Residence only connotes that a person eats, drinks and sleeps at that place and it is not ~:ecessary that he should own it. For purposes of s. 32( c) of the Act, a power-of-attorney needs, in vie\v of the provisions of s. 33 of the Act, no registration but is only required to be execcted before and authenticated by the Registrar. Hence an endorse1nent mistakenly 1nad::: on such power-of-attorney that it was presented for registration must be ignored and does not affect the validity of subsequent authentication by the Registrar \vhich \Vas an independent act complete in itself and valid under s. 33. A decision of the Registrar under s. 33( 1) proviso (i) of the Indian llegistration Act that an applicant is suffering from bodily infirmity and is unable to attend the Registration Office or court without risk or serious inconvenience relates to a matter of mere procedure and even if erroneous does not affect his jurisdiction .. The finding is on a matter which is within his exclusive jurisdiction, and cannot be questioned in a court of la\v. fambu Prasad v. Maham mad Aftar Ali Khan ( 42 I.A. 22), Sharat Chandar Basu v. Bijay Chand Mahtab (64 I.A. 77), Ma Pwa May v. Chettiar Firm (56 I.A. 379) and Mujibunnissa v. Abdul' Rahim (28 I.A. 15) referred to. CML APPELLATE JuRrsmcTION : Civil Appeals Nos. 1 and 2 of 1949. Appeals from the Judgment and Decree dated the 22nd December, 1942, of the High Court of Judicature at Patna in First Appeals Nos. 10 and 11 of 1939 ansmg out of the Judgment and Decree dated the 23rd November, 1936, of the Court of the Subordinate Judge of Berhampore in Original Suit No. 11 of 1935 .. D. V. Narasinga Rao and M. S. K. Sastri for the· appellant. S. L. Chhibber and R. C. Prasad for respondents Nos. 1-4, 6-9, 11 and 12. 1954. March 9. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These appeals anse out of a suit instituted by the respondents to enforce a mortgage deed, Exhibit A, dated 5th April, 1923, executed by the defendant in favour of one Radha. Prasad Bhagat. The subject-matter of the mortgage is an estate called the Bodogodo Zemin ## Text :S.C.R. SUPREME COURT REPORTS 919 Also, "to give the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice." Their duty does not end by declaring an election to be void or not because section 99 provides that in addition to that "at the time of making an order under section 98 the tribunal shall also make an order etc ...... " A number of allegations were made in the petition about corruption and illegal practices, undue influence and bribery. It was the duty of the tribunal not only to enquire into those allegations, as it did, but also to complete the enquiry by recording findings about those allegations and either condemn or clear the candidate of the charges made. We make no order about costs. BosE J.-I agree on all but one point. I have :some doubt about the reason given by my learned brother which is based on the d<:hnition of "candidate" ·in the Act. I prefer not to express any opinion on :that one point. Case remanded. Agent for the appellant: Ratnaparkhi Anant Govind. Agent for respondent No. 1. .-1.. D. Mathur. SRI SRI SRI KISHORE CHANDRA SINGH DEO v. 'BABU GANESH PRASAD BHAGAT AND OTHERS. [MuKHERJEA, VIVIAN BosE, GHULAM HASAN and VENKAIARAMA AYYAR TJ.) Indian Registration Act (XVI of 1908), ss. 32, 33-"Resides", .1neaning -of-Pou•er-of-attorney containing mistaken endorsement, .effect of-Applicability of ss. 32 and 33 to such a case-Legal .effect of decision under s. 33(1), proviso (i). 1954 Kaj Krus/ma Bose v. Binod Kanungo and Others, la.r J. 1954 Marth 9. 1954 Sri Sri Sri Kishore Chandra Singh Dto v. Babu Ganesh Prasad Bhagat and Othrrs. 920 SUPREME COURT REPORTS [1954] The word "resides" in s. 33( 1) (a) of the Indian Registration Act, 1908, is not defined in the statute. It contemplates not only permanent residence but also temporary residence. Residence only connotes that a person eats, drinks and sleeps at that place and it is not ~:ecessary that he should own it. For purposes of s. 32( c) of the Act, a power-of-attorney needs, in vie\v of the provisions of s. 33 of the Act, no registration but is only required to be execcted before and authenticated by the Registrar. Hence an endorse1nent mistakenly 1nad::: on such power-of-attorney that it was presented for registration must be ignored and does not affect the validity of subsequent authentication by the Registrar \vhich \Vas an independent act complete in itself and valid under s. 33. A decision of the Registrar under s. 33( 1) proviso (i) of the Indian llegistration Act that an applicant is suffering from bodily infirmity and is unable to attend the Registration Office or court without risk or serious inconvenience relates to a matter of mere procedure and even if erroneous does not affect his jurisdiction .. The finding is on a matter which is within his exclusive jurisdiction, and cannot be questioned in a court of la\v. fambu Prasad v. Maham mad Aftar Ali Khan ( 42 I.A. 22), Sharat Chandar Basu v. Bijay Chand Mahtab (64 I.A. 77), Ma Pwa May v. Chettiar Firm (56 I.A. 379) and Mujibunnissa v. Abdul' Rahim (28 I.A. 15) referred to. CML APPELLATE JuRrsmcTION : Civil Appeals Nos. 1 and 2 of 1949. Appeals from the Judgment and Decree dated the 22nd December, 1942, of the High Court of Judicature at Patna in First Appeals Nos. 10 and 11 of 1939 ansmg out of the Judgment and Decree dated the 23rd November, 1936, of the Court of the Subordinate Judge of Berhampore in Original Suit No. 11 of 1935 .. D. V. Narasinga Rao and M. S. K. Sastri for the· appellant. S. L. Chhibber and R. C. Prasad for respondents Nos. 1-4, 6-9, 11 and 12. 1954. March 9. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These appeals anse out of a suit instituted by the respondents to enforce a mortgage deed, Exhibit A, dated 5th April, 1923, executed by the defendant in favour of one Radha. Prasad Bhagat. The subject-matter of the mortgage is an estate called the Bodogodo Zemin situated in S.C.R. SUPREME COURT REPORTS 921 what was the District of Ganjam in the Province of Madras and now comprised in the State of Orissa, and governed by the provisions of the Madras Impartible Estates Act II of 1904. The mortgage is for Rs. 1,25,000 and the deed recites that a sum of Rs. 12,500 was advanced to the mortgagor on a promissory note executed on 30th March, 1923, that the balance of Rs. 1,12,500 was paid to him in cash, and that the entire amount was borrowed for meeting the expenses of the marriage of his second daughter with the eldest son of the Rajah of Talcher. The marriage, in fact, took place on 27th April, 1923. Though the deed recites that Rs. 1,12,500 was paid iri cash, the case of the plaintiffs is that it was, in fact, paid on 14th April, 1923, on the authority of the defendant to his manager, one Mr. Henry Tapp, after the mortgage bond was registered, which was on 10th April, 1923. In 1926 and 1927 the defendant made several payments towards the mortgage, in all aggregating to Rs. 42,000. The mortgagee died on 18th November, 1933, and thereafter his legal representatives filed the suit, out of which these appeals arise, for recovery of the balance due under the mortgage by sale of the hypothecated property. The defendant resisted the suit on several grounds. He pleaded that the mortgage was supported by consideration only to the extent of Rs. 25,000, and that it had become discharged by the payments made in 1926 and 1927. He also contended that the mortgage · bond was not duly attested or validly registered, and that it was therefore void and unenforceable. The Subordinate Judge of Berhampur who heard the suit held that no consideration passed for the promissory note for Rs. 12,500 dated 30th March, 1923,. Exhibit J, and that it was really a salami; but that the balance of Rs. 1,12,500 was paid to Mr. Tapp unJer the authority of the defendant. He also held t11at the mortgage bond was duly attested and validly registered, and a decree was passed in accordance with these findings. Roth the parties took up the matter in appeal to the High Court of Patna. The plaintiffs filed A. S. 1954 Sri S•i Sti Kish.ore Chandro.c Singh .Veo v. Babu.Ganesh Prasad Bhagat· and Others. Venkatarama Ayyar J. 1954Sri Sri S1i Jlis:'.cr~ Ci:andru Singh Dee> v. Babu Cants.·: Pru~ad Bhagt1.t and Ot/,crs. .i:tnkaiarau;a Ay)"ar ]. 922 SUPREME COURT REPORTS [1954] No. 10 of 1937 claiming that Exhibit J was supported by consideration, and the defendant filed A. S. No. 11 of 1937 pleading that the alleged payment of Rs. 1,12,500 to Mr. Tapp was unauthorised, and that the mortgage bond was void, as it was neither duly attested nor properly registered. The High Court concurred with the Subordinate Judge in finding that that Rs. 1,12,500 was paid to Mr. Tapp under the authority of the defendant, and that the bond was duly attested and registered. But as regards the promissory note, Exhibit J, it held differing from the Subordinate Judge that it was also supported by consideration. Against this decision, the defendant appeals, and repeats all the contentions urged by him in the courts below. • • • :t(c [The court held on a consideration of the evidence that the mortgage bond was supported by consideration and that it was duly attested.] The last contention of the appellant was that the deed was not validly registered in accordance with the provisions of sections 32 and 33 of the Registration Act, and that it was therefore void. Section 32 enacts that, "Except in the cases mentioned ;11 sections 31, 88 and 89 every document to be registered under this Act ............ shall be presented ..... . (a) by some person executing or claiming under the saITle, ........ or (b) by the representative or assign of such person, or ( c) by the agent or such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinatter mentioned." Section 33, so far as is material for the present purpose, runs as follows: • 33(1) "For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namelv:- (;) if the principal at the time of executing the power-of-attorney resides in any part of (the Provinces) in which this Act is for the time being in force, a S.C.R. SUPREME COURT REPORTS 923 pov·~er-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides; .... Provided that the following persons shall not be required to attend at any registration office or court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, name! v:- (i) persons who by reason of bodily infirmity arc unable without risk or serious inconvenience so to attend; (ii) persons who are in jail under civil or criminal proces.s; and (iii) persons exempt c y law from personal appearance in court. (2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been volunta· rily executed by the person purporting to be the principal, rr:.oy attest the sJme without requiring his personal attengance at the office or court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate 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." The substance of these provisions is that a document must be presented for registration either by a party to it or his legal representative or assign or by his agent 11olding a power-of-attorney executed and authenticated in accordance with section 33 of the Act. In Jambu Prasad v. Muhammad Aftar Ali Khan(') it was observed by the Judicial Committee approving: of the decision in Ishri Prasad v. Baijnat!z(2) that, " .... the terms of sections 32 and 33 of Act III of 1877 are imperative, and that n presentation of a document for registration by agent ...... ., who has not been duly authorized in accordance with those (r) 4' I.A. 22. · (2) I.L.R. 2B All. 707. !954 Sri S1i Sri !1' is ho re Liiandrs Singh Deo , .• Babu Ganesh Pra~ad BJ;agat an.i Ot/;ef',f. T/'enkataramo: ~);'rnr.J. 1954 Sri Sri Sri KishiJre Clandra Sing.'i Deo v. Babu 'Ganesh Prasad Bhagat and Others. Venkatarama AY.yar J. 924 SUPREME COURT REPORTS [1954] sections, does not give to indispensable foundation the document." the Registering Officer the of his authority to register Vi'here, therefore, a document is presented for registration by a person other than a part to it or his legal representative or assign or by a person who is not an agent authorized in the manner prescribed in section 33, such presentation is wholly inoperative, an the registration of such a document is void. In the present case, Exhibit A was presented for registration by Mr. Tapp as the agent of the defendant under a power-of-attorney executed by him, Exhibit B, and the question is whether that power satisfies the requirements of section 33. Exhibit B was executed by the defendant before the Registrar at the residence of the Chief of Hindol at Cuttack and was authenticated by him. It was argued for the appellant that the authentication was invalid on three grounds: (1) that the defendant was not residing at Cuttack at the time of the execution of Exhibit B, and consequently the Registrar at Cuttack had no jurisdiction to authenticate the deed under section 33 (1) (a); (2) that Exhibit B was presented for registration by one Sundaram who described himself as the personal assistant of the defendant, but was, in fact, a person not authorised to present the document as required by section 32, and therefore the authentication of the power based on such presentation was void; and (3) that the authentication of the power under the proviso to section 33 (1) at the residence of the defendant was bad, as he was, in fact not suffering from any bodily infirmity at that time, and that in consequence the registration of Exhibit A pursuant thereto was void. With reference to the first contention that the defendant was not residing at Cuttack at the date of Exhibit B, and that consequently the Registrar of that place had no jurisdiction to register it under section 33 (1) (a), the finding of the courts below is that the defendant had been resi :ling at Cuttack for a week prior to the date of Exhibit B, and that that was sufficient for the purposes of section 33 ( 1) (a). In S.C.R. SUPREME COURT REPORTS 925 Sharat Chandra Basu v. Bijay Chand Mahtab (1) the Privy Council, observed: "The expression 'resides', as used in section 33, is not defined in the statute; but there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence." It must therefore be taken as settled that even temporary residence at a place j5 sufficient to clothe the Registrar of that place with jurisdiction under section 33 ( 1) (a). It was argued for the appellant that his permanent place of residence was at Bodogodo, that he owned no house at Cuttack, that the house ~here Exhibit B was registered belonged to his brother-in-law, the Chief of Hindol, and that he stayed there on! y for the purpose of registering the power, and that on these facts, it cou 1.d not be held that there was residence even of a temporary character at Cuttack. The fact that the house did not belong to the appellant is not material for this purpose; because residence only connotes that a person eats, drinks and sleeps at that place, and not that he owns it. Whether the stay of the appellant at Cuttack was of a casual nature, or whether it amounted to residence must