' SARDAR SAID MUHAMMAD KHAN, J.-This is an appeal, by leave, against the judgment and decree of the High Court, dated 16-3-1978, whereby the judgments, and decrees of the Courts below were set aside.
2., The brief facts giving rise to the present appeal are that property measuring 6 Kanals and 8 Marlas, out of total area of 12 Kanals and 16 Marlas. Comprising Survey Nos. 196, 957/196, 95S/148 and 160 situate in village Phalote, Tehsil and District. Mirpur, which was in the ownership of plaintiff- respondent, was transferred through a gift-deed, dated 4-12-1968, executed by Muhammad Lal, defendant No, 4, acting as ., attorney for Hukam. Dad, plaintiff-respondent. The power-of-attorney in favour of Muhammad Lal was allegedly executed by Hukam Dad, plaintiff-respondent, when he happened to be in England and the same .Was, authenticated by the First Secretary of the Pakistan Mission in U. K. Plaintiff-respondent brought a declaratory suit alleging that the defendants- donees, who were his real nephews, had got -the( land transferred' on the basis of a forged power of-attorney,, and in fact he bad not executed or signed any power-ofattorney in favour of Muhammad. .Lal, who happened 4o be the maternal uncle of the donees, Qurban Hussain and others. In the written statement the averments made in the plaint were denied and it was contended that the gift-deed was validly executed in favour of the defendants-. Appellants. The trial Court dismissed the suit of the plastic respondent holding, that a presumption of truth attaches to, the power-of-attorney in queStion tinder aectidn 85 of the 'Evidence Act and as such the power-of-attorney stands proved to hate been executed by the plaintiff-respondent. On appeal to the District Judge, the judgment and decree of the trial Court were affirmed, but the Second appeal, Sled by the plaintiff respondent, in-the High Court was accepted and the judgments and decrees of the Courts below were set aside on the pound that the presumption under section 85 of the Evidence Act is 'rebuttable and the same stood rebutted in view of the statements of Hukam Dad and A. R. Pasha, the Handwriting Expert, who opined that the signature of Hukam Dad on the power-of-attorney, Exh. P. A. Did not tally with the specimen signature of the plaintiff-respondent. The High Court also took note of attending circumstances of the case in reaching the conclusion that power-of-attorney was not executed by the plaintiff.
3. It has been argued by learned counsel for the appellant that the question as to whether the power-of-attorney was executed by the plaintiff-respondent was a question of fact and as such could not be disturbed by the High Court in second appeal in view of the concurrent findings of the trial Court and the first appellate Court. He has argued that the findings of fact are not open to challenge in the second appeal unless those are vitiated by misreading of evidence or non- consideration of the material evidence resulting in the error of law. He has maintained that merely an error in coming to the fiading of fact cannot be said an error of law justifying interference in second appeal. In support of his contention the learned counsel relied on Sarwa Begum v. Ali Muhammad and 6 others (1), Asghar Ali v. Fazal Karim and 11 others (2) and Muhammad Rafique v.
Mst. Surta Bi (3).
4. In reply the learned counsel for the respondent has contended that the evidence has not been discussed by the District Judge and he has not considered the relevant evidence at all. He has maintained that the first appellate Court has merely professed to have considered the evidence and as such it cannot be said that there are concurrent findings of the Court below or that the first appellate Court has appraised the evidence on the record according to the accepted norms of law. He has further contended that the trial Court and the first appellate Court have been mainly influenced in reaching the conclusion with regard to the execution of the power-of-attorney, Exh. P.
A. By raising presumption in favour of it under section 85 of the Evidence Act, whereas such a presumption could not be raised in the instant case because the document in question neither purports to have been executed before the relevant authority nor it purports to have been authenticated as envisaged under section 33 of the Registration Act and 85 of the Evidence Act.
5. The question as to whether in view of the facts apparent on the face of the record, presumption under section 85 of the Evidence Act could be raised, is a question of law and -can be raised for the first time in this Court despite the fact that the same was not specifically raised in any of the Courts below. Since the findings of trial Court and the first appellate Court were mainly influenced due to the presumption raised under section 85, the argument that concurrent findings of fact could not be disturbed by the High Court Is devoid of any force and becomes immaterial when we have' decided to consider the point ourselves as to whether such a presumption could be raised in the instant case in view of the facts apparent on the face of the record.
6. The next point which needs determination is as to whether when a document is executed by an Extent on the basis of power-of-attorney; such agent can present the same for registration under section 32 (a). Of the Registration Act without being in possession of a power-of-attorney 'executed before' and 'authenticated :iv' an authority recognized under 'section
7. {{FOOT NOTE}}
(1) P LD 1981 SC (A & 1 - (2) 1982 CLC 1309
(1) 1981 CLC 208 {{FOOT NOTE}} 33 of the Registration Act. The words 'person executing' a document appearing in section 32 (a) of the Registration Act are capable of two interpretations. They may mean the person actually signing the document by his own band or a person executing the document by the band of another duly authorised to sign the same. There has been divergence of opinion amongst the judicial authorities with regard to the interpretation of the words 'person executing' a document. One view is that an agent who signs a document on behalf of the principal as his attorney is a 'person executing' the document within the meaning of section 3h (a) of the Registration Act and he can present the same for registration without having a power-of-attorney 'executed before, and 'authenticated by' any of the authorities envisaged under section 33 of the Registration Act, whereas the contrary view is that an agent signing the document on behalf of the principal is not a 'person executing' the document within the meanings of section 32 (a) of the Registration Act and it is necessary that if such an agent presents a document for registration, he must have power-of-attorney 'executed before' and authenticated by' an authority recognised under section 33 of the Kegistration Act.
7. The aforesaid proposition of law has been subject of judicial consideration in various cases. In Satish Chandra Basu v. Harendra Kumar Ghose (1) following the view held in Puran Chand Nahatta v. Monmotho Nath Muhherjee and others (2) and in Monmotho Nath Mukherjee and others v. Puran Chand Nahattta (3) it was opined that the words 'person executing' in the Act cannot be read merely as 'person . Signing'. They mean something more, namely, the person who by valid execution, enters into obligation under the instrument. It was further opined that, the words 'person executing' the document are capable of two constructions. They may mean the persons actually signing the document by their own hands or persons executing the document by the hand of another duly authorised to sign on their behalf. The learned Judges taking note of the divergence of judicial opinion on the point, considered the question as to which of the aforesaid constructions was correct and finally came to the conclusion that 'person executing' a document in the relevant provisions of the Act means persons who actually signed the document by their own hands and not through agent authorised on that behalf.
' In Abdus Samad v. Majitan Bibi and another (4) the scope of the provisions contained in section 32
(a) and section 33 (1) of the Registration Act was considered and it was held that a person who executes a document on a power-of-attorney on behalf of another person who resides outside India is not a 'person executing' the document within the meaning of section 32 (a) of the Registration Act. When such person presents a document for registration, he does so an agent of the principal under the power-of attorney and not as an executants. Therefore, if the power-of- attorney has not been executed and authenticated as provided under section 33 (1) of the Registration Act, it is not recognisable for the purpose of section 32 (a) and as such the presentation of the document for registration by such a person is invalid and does not pass any title. The learned Judges followed the dictum laid down in case reported as Satish Chandra Basu v.
Harendra Kumar Ghose and dissented from the view taken in Sitaram Laxmanrao v. Dharma Sukhram (5). {{FOOT NOTE}}
(1) AIR 1936 Cal. 442 (2) AIR 1928 P C 38
(3) AIR 1925 Cal. 703 (4) AIR 1961 Cal. 540
(5) AIR. 1927 Born. 487 {{FOOT NOTE}} ' In Puran Chand Nahatta v. Manmotho Nath Mukherjee and others while discussing the meaning of 'persons executing the document' it was opines as under :- "A document is executed, when those who take benefits and obligations under it have put or have caused to be put their names to it. Personal signature is not required, and another person, duly authorised, may, by writing the name of the party executing, bring about his valid execution, and put him under the obligations involved. Hence the words 'person executing" in the Act cannot thereby be read merely as "person signing". They mean something more, namely the person, who by a valid execution enters into obligation under the instrument. When the appearance referred to is for the purpose of admitting the execution already accomplished there is nothing to prevent the executing person appearing either in person or b any authorized and competent attorney in order to make valid admission."
' In D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers (1), while discussing the scope of section 32 (a) and (c) of the Registration Act it was held that the 'person executing the document' cdnnot be read merely as a person signing the document as an agent. They may mean something more, namely, the person who by a volid execution enters into an obligation under the instrument.
Obviously, it was opined that an and-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 learned Judges followed the view taken in Puran Chand Nahatta v.
Monmotho Nath Mukherjee and Others and Zatish Chandra Basu v. Harendra Kumar Ghose and .Dissented from one held in Sitaram Laxmanrao v. Dharma Sukhram and Walt Muhammad Chaudhari and others v. Jamal Uddin Chaudhari (2). It was father opined that where a person holding the power-of-attorney executes the sale-deed and presents it for registration, the Registrar must statisfy himself whether the power-of-attorney is in the form and authenticated in a manner required by section 27 (b) of the Hyderabad Registration Act (cones ponding to section 32
(c) of the Indian Registration Act). It was also ruled that where the power-of-attorney is not authentication. The form required by the relevant provisions of the Registration Act, the- Registration of the sale-deed on the basis of such power of attorney cannot be considered to be valid.
8. It is evident from the authorities referred to above that after the decision of the Privy Council in Puran Chand Nahatia v. Monmotho Nath Mukherjee and others the weight of the judicial opinion is in favour of the view that when a person signs a document as an agent of the principal on the basis of power-of-attorney, he is not a 'person executing the document' within the meaning of section 23 (a) of the Registration Act and for valid Registration, if of course he presents the document for C registration, be must possess a power-of-attorney executed and authenticated according to the provisions contained in with 33 of the Registration Act. We are in respectful agreement with the . Majority view on the aforesaid point and venture to add further that object of provisions contained in sections 32 (c) and 33 of the Registration Act is to {{FOOT NOTE}}
(1) AIR 1958 A P 107 (2) AIR 1950 AI 524 {{FOOT NOTE}} exclude the element of fraud and forgery in transactions' regarding alienation of the immovable property. Thus, in our view, there' is hardly any logic that although an agent must possess power- of-attorney duly executed and authenticated and as envisaged under sections 32 (c) and 33 of the Registration Act if he presents the document for registration, yet such an execution and authentication can be dispensed with. In case when the person holding the power-of-attorney signs the document on behalf of the principal. Obviously, mere signing of the document on behalf of the principal would not minimise the risk of fraud and forgery which the Legislature intended to avoid by bringing sections 32 and 33 of the Registration Act on .The statute book. Thus, we are of the view that when an agent presents a document for registration, irrespective of the fact whether he has signed the document on behalf( of the principal or not, he must have a power-of-attorney executed and' authenticated as envisaged under section 33 of the Registration Act.
9, In the instant case Muhammad Lal, defendant No, 4, signed the gift deed on behalf of the ,alleged donor, Hukam Dad, plaintiff-respondent, and thus he being not a person executing' the document within the meaning of section 32 (a) of the Registration Act, he could present the same for registration only if he possessed power-of-attorney 'executed before' and 'authenticated by' any of the authorities visualised under. Section 33 (1) of the registration Act. For appreciating the point as to whether the power of attorney, Exh. P. A. Conforms to the relevant provisions contained in section 33 of the Registration Act and whether presumption under section 85 of the Evidence ACE could be raised in the instant case, the aforesaid provisions are reproduced as under.
' Section 33 of the Registration Act :-
33. Power-of-attorney recognizable for purposes of section 32.-(1) For the purposes of section 32, the following powers-of-attorney shall alone be recognized namely :-
(a) if the principal at the time of execution of power-of-attorney resides in any part of Pakistan 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 district or sub-district the principal resides ;
(b) if the principal at the time of aforesaid resides in any other part of Pakistan. a power-of attorney executed before and authenticated by any Magistrate ;
(c) if the principal at the time aforesaid does not reside in Pakistan a power-of attorney executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul or representative of the Central Government : ' Provided that the following persons shall not be 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, namely ; (0 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 (W) persons exempt by 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 voluntarily executed by the persons 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 voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to 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.
' Section 85 of the Evidence Act:- "85. The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, (Pakistan) consul of Vice-consul, or representative of the (Central Government), was so executed and authenticated."
10.It is evident that both, under subsection (4) of section 33 of the Registration Act and under section 85 of the Evidence Act, presumption regarding the execution' and 'authentication' would arise only if a document purports to have been executed before and authenticated by one of the persons visualised in section 33 (I) of the Registration Act. In the instant case power-of-attorney, Exh. P. A. Purports to have been executed and signed by Hukam Dad, respondent, in presence of Muhammad Aslam Mian, Barrister-at-Law Advocate, High Court Lahore, on 8-10-19o8 at Birmingham, England. The same purports to have been authenticated by the first Secretary in U. K., on 15-10-1968. The First Secretary authenticated the document in the following words:- "I, Rao A. R. Khan, First Secretary at the Office of' the High Commissioner for Pakistan in the 1J. K., certify that the above signature is the. Signature (or seal) of Hukam Dad temporarily residing at U.
K. This day of Oct. 15, 1968 at the Office of the High Commissioner for Pakistan in the U. K.
' For the contents of this document this office of the High Cominissioner for Pakistan in the U. K.
Assumes no responsibility."
11. It follows from the above-mentioned endorsement of the First Secretary that he click not obtain fresh signature of Hukam Dad, the alleged executant of Exh. P A. On the power-of-attorney in his presence at the time of the authentication. According to the provisions contained in section 33 for the validity of the power-of-attorney it must not only be authenticated by any of the persons mentioned in clauses (a), (b) and (c) of section 33 (1) of the Registration Act, but it must also be executed before such person or authority. In our view the words 'executed before' appearing in section 33 (1) of the Registration Act and section 85 or the Evidence Act imply that the power-of- attorney must be signed by QURBAN HUSSAIN v. HUIexecutant or his thumb-impression must be affixed on it in presence of the relevant authority or at least its contents must be admitted to be true by the executant. The Legislature did employ the expressions 'executed before' and 'authenticated by' in the identical sense. The execution of power-of-attorney before the authority concerned and its authentication are two distinct acts and must be performed according to the provisions of section 33 of the Registration Act for their validity. Authentication of the power-of- attorney is not merely an attestation of power-of-attorney, rather it implies that person authenticating must satisfy himself not only about the identity of the executant but also satisfy himself about the factum of execution. We are fortified in our view by a case reported as Wall Muhammad Chaudhari and others v. Jamal Uddin Chaudhari wherein it has been held that authentication under section 85 of the Evidence Act is not merely attestation but means that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution.
12. The learned counsel for the appellant, Raja Muhammad Siddique Khan, has relied on Performing Right Society, Ltd. v. Indian Morning Post Restaurant (I) in support of his contention that under section 85 of the Evidence Act the Court shall presume that all the necessary requirements for the proper execution, of the power-of-attorney were fulfilled. If a document has been executed before and authenticated by the concerned authority to the provisions contained in section 33 of the Registration Act: there is no quarrel with the proposition that such a presumption must be raised.
However, in the instant case the difficulty for the learned counsel for appellant is that the power-of- attorney does not purport to have been executed before the First Secretary, who authenticated the same. As has already been pointed out that Exn. P.A. The power-of-attorney, was' not signed by the alleged executant in presence of the First Secretary and endorsement on the document regarding its authentication itself negates the assumption that the contents of the documents were admitted to be! True by the executant because the First Secretary has recorded in his endorsement that the office of the High Commissioner in England assumes no responsibility for the contents of the document. As the document, Exh. P.A., does not purport to have been executed before the authority concerned, nor the officer authenticating assumes the responsibility with regard to the correctness of the contents of the document, no presumption under K section 85 of the Evidence Act can be raised in the instant case. The learned counsel for the appellant has also referred to a case reported as Aziz Khan v. Maiz Muhammad Khan and 6 others (2) in support of his contention that authentication of Exh. P. A. Is valid and a presumption under section 85 of the evidence Act must be raised. The facts of the aforesaid case were that a power-of attorney was authenticated by the Pakistan Mission in Thailand and said document was subsequently registered in Pakistan on the basis of said attestation, but later on the attestation was withdrawn by the concerned authority of the Pakistan Mission in Thailand. It was observed in the circumstances of that case that presumption under section 85 of the Evidence Act was rebuttable and could not be raised in that case in view of the fact that authentication was subsequently withdrawn by the authority concerned. The facts of that case were quite different and point decided therein has no relevancy to the case in hand. {{FOOT NOTE}}
(1) AIR 1939 Bom. 347 (2) PLD 1980 Pesh. 227 {{FOOT NOTE}}
13. It may be observed that Hukam Dad, plaintiff-respondent, appeared as his own witness in the trial Court and stated that Exh. P. A. Was a forged document and he did not sign the same. The statement of Hukarfi Dad was not challenged in corss-examination so far it relates to his deposition that the power-of-attorney, Exh. P.A., is forged and he did not sign the same. The statement of Hukam Dad is fully corroborated by A.R. Pasha, the Handwriting Expert. Thus, the initial burden of proof on the plaintiff was shifted but there is no evidence worth the name in rebuttal that in fact the plaintiff-respondent executed the power-of-attorney. Exh. PA, in favour of Muhammad Lal, defendant No,
4. The trial Court and first appellate Court decided the issue with regard to the execution of power-of-attorney, Exh. P. A. Against the plaintiff-respondent only on the strength of presumption under section 85 of the Evidence Act which,1 l., in our view, as has already been pointed out, cannot be raised in the ins-, taut case in view of the reasons listed above.
14. The learned counsel for the appellant has also argued that plaintiff-respondent, Hukam Dad, in his own statement has deposed in cross-examination that the suit land is in his possession, but in his suit he has averred that possession was with the appellants-defendants. Thus, according to the learned counsel, the contradictory stand taken by the plaintiff are fatal to his suit must be dismissed. It may be observed that the case of the appellants-defendants has been that the' suit land is in their possession ; no objection was raised that the suit of the plaintiff-respondent was not properly constituted because the possession was with him. Thus, mere assertion of the plaintiff- respondent in the cross-examination that one year prior to the date when the plaintiff appeared as witness, the suit land was Ai cultivated by his son would not affect the merits of the case of the plaintiff-respondent, in view of the stands taken by the parties in their pleadings and also in view of the material evidence which the parties adduced in support of their respective contentions regarding possession of the suit land.
' In the light of what has been stated above we dismiss the appeal and maintain the judgment and decree of the High Court, though on somewhat different grounds from those relied upon by the learned Single Judge in the High Court. In view of difficult law points involved in the case, we make no order as to costs.