Both these appeals are from the same order and raise the same question, namely, the validity of the registration of a document, Ex. 1, dated the 17th of March, 1921, purporting to be a relinquishment by the plaintiff and 1st defendant, the two elder sisters, in favour of the 2nd defendant, the youngest sister, of a mortgage right taken in the names of all the three. The question arose in a partition suit brought by the plaintiff against her two sisters of their father's property. It is not relevant to this appeal to mention the other disputes in that suit. It is sufficient to say that the appeal to the lower appellate Court was brought by the plaintiff concerning two points the first relating to the question whether she was entitled to the benefit of a legacy given to her under her father's will which the defendants said had been a deemed by a subsequent gift. This was decided by both the lower Courts against the plaintiff. The other point in dispute in appeal was about Ex. 1. The Court of First instance held that the plaintiff and the 1st defendant who had executed the relinquishment were bound by it and that the objections raised by the plaintiff on the ground (1) that it was brought about by fraud and misrepresentation and (2) that its registration was invalid because the presentation of the document before the Sub-Registrar and of the appeal before the Registrar were invalid according to the Registration Act, are not well-founded.
In appeal the learned District Judge upheld the 1st Court's finding as to fraud and misrepresentation affecting Ex. 1 but differed from the 1st Court in its opinion about the validity of its registration. He held first, though not without hesitation, that the presentation of the document by the 2nd defendant (the present appellant) before the Sub-Registrar might be valid although she was a minor at the time, but secondly that the presentation of the appeal from the order refusing registration to the Registrar was invalid because it was made three days after the 2nd defendant had attained majority and that the appeal was filed by her husband purporting to act as guardian when in fact his authority as guardian had ceased. On this ground the learned Judge held the registration of Ex. 1 invalid and therefore the document itself inoperative and sent the case down to enable the plaintiff to get her proper share of the mortgage right which still belonged to her.
In these appeals the only question which has been argued is the last mentioned one relating to the validity of the registration of Ex. 1.
On this point it is clear that the facts on which the lower appellate Court held the registration invalid were quite different from those on which the 1st Court held it valid. In the 1st Court and so far as appears from the records after the plaintiff had filed her memorandum of appeal the validity of the registration was attaked on the basis that the appellant (the 2nd defendant) was throughout a minor and the case made was that a minor was incompetent to present a document for registration in her favour to the Sub Registrar and as a minor has no power to appoint an attorney the husband acting as a holder of such power was incompetent to present the appeal. From the judgment in appeal however it is clear that the learned Judge adopted quite a distinct ground. He held that the 2nd defendant had attained majority on the 31st August 1921 but as the appeal to the Registrar was filed on the 3rd day of September 1921 she was on the latter date a major. Therefrom he concluded that though if she had been a minor her husband as guardian might have validly presented the appeal, yet as she had ceased to be a minor, the guardianship also ceased with it and his authority to act on behalf of his wife; and as for the power of attorney he held that his minor wife had no authority to execute a power during her minority. Both grounds of representation thus having disappeared he held that the appeal was filed by an incompetent person.
The learned Judge has fallen into more than one error in thus dealing with the point. The finding that the appellant (the 2nd defendant) had attained majority three days before the appeal was filed was a point not raised by any of the parties. It was not raised in the first Court and so far as appears it was not raised in the lower appellate Court. I have examined the grounds of appeal to the lower Court and do not find any such ground taken in it. The only ground taken in the appeal grounds is that the 2nd defendant's husband filed the appeal not as guardian, in which case it would be saved on the footing that his wife was a minor, but as her agent. (Ground No. 13). To sustain this ground apparently the appellant in the lower Court (the plaintiff) was allowed to produce a new document, Ex. P, which showed that the 2nd defendant's husband had filed the appeal as agent. Now this document which was obviously filed to sustain Ground No. 13 in the memorandum of appeal was used by the learned Judge for an entirely different purpose. Having upon Ex. G. series found that the date of birth of the 2nd defendant was the 31st August 1903 and that the date of the appeal was the 3rd September he put two and two together and concluded that the 2nd defendant had attained majority three days before the appeal. The whole of the rest of the learned Judge's judgment is built upon this. In my opinion the learned Judge was not justified in introducing a new ground of fact by way of objection to the registration of Ex. 1 which had not been taken by the parties and which so far as the 2nd defendant was concerned must have taken her entirely by surprise at a time when it was absolutely impossible to meet it. But quite apart from that the whole of this argument is derived from the document Ex. P, which the learned Judge had no jurisdiction to admit. It is now settled beyond possibility of controversy that fresh evidence in an appeal can only be taken if the Judge on an examination of the record discovers some lacuna which makes it necessary for him in the exercise of his duty to decide the case to get some more evidence. It is not a right of the parties; it can be exercised only by the Judge and that exercise is hedged in by the requirement that “grounds” must be stated. None of these precautions seems to have been adopted before Ex. P was admitted in this appeal. I have therefore come to the conclusion after hearing the respondents' learned Advocate upon the point that Ex. P must be struck out of the record and if that goes the whole of the foundation upon which the structure of the learned Judge's judgment is built disappears.
Though these appeals ought to be decided upon the footing that the 2nd defendant was a minor on both dates, namely, the date of presentation of the document before the Sub-Registrar and of the appeal before the Registrar, it will appear from what follows that it would not affect the result even if she had attained majority before the date of this appeal. It is admitted that the 2nd defendant herself, then a minor, presented the document before the Sub-Registrar and the plaintiff her elder sister appeared and denied execution. The Sub-Registrar thereupon refused registration. There can be no question in view of the authorities that presentation by a minor claiming under a document in her favour for the purpose of registration before a Sub-Registrar is perfectly valid. In Rajah Keesara Venkatappayya v. Rajah Nayanis Venkata Ranga Row(1) which is also reported in Venkatappayya v. Venkata Ranga Rao(2) power to adopt a minor aged 14 was in question. The document was presented for registration by his natural father, and the question was whether that was valid presentation. In the course of the argument, two of the learned Lords of the Privy Council made observations which leave the matter no longer in doubt. At page 222 Lord Phillimore during the argument of Mr. Dunne put it to him that in the case then under appeal the adopted boy could present (the document) and at page 224 Lord Atkin said the same thing in these words: “If they had then objected the adopted son could have been produced to present the document and the defect could have been cured at once.
There is a direct decision of a single Judge in the late Chief Court of Rangoon reported in Chetty Firm v. Ma On Shwe. There is no decision to the contrary and therefore so far as the presentation to the Sub-Registrar was concerned, Ex. 1 was validly presented.
Then as regards the appeal the learned Judge was in error in thinking that the language used in S. 73 (1) and S. 32 is exactly the same and that the principles which apply to the first presentation of a document under S. 32 must also apply to the presentation of an application under S. 73 (1). The language of the two sections is not the same. All that is similar is that the class of persons who are empowered to make the application under S. 73 (1) are included in those who may present a document under S. 32. But they are not identical. Secondly there is no question of presentation at all under S. 73. All that S. 73 requires is making an application and as far as I can see there is no reason why, if the Registrar is satisfied that the person making the application is entitled to do so, the application should not be made in any way which is satisfactory to him. It may no doubt be presented in person but I do not see why it should not be sent by post. However, that is not the material point. It is admitted that the application under S. 73 was made by the 2nd defendant's husband on her behalf and styling himself as agent, under a power of attorney. As to this the learned Judge seems to have thought that the application was incompetent because the power of attorney by the 2nd defendant during her minority was itself inoperative. By S. 5 of the Powers-of-Attorney Act (VII of 1882) a married woman, whether a minor or not, shall, by virtue of this Act, have power, as if she were unmarried and of full age, by a non-testamentary instrument, to appoint an attorney on her behalf, for the purpose of executing any non-testamentary instrument or doing any other act which she might herself execute or do. The words of this Section are perfectly general and I have not been shown that there is anything which limits the generality of those words. It is no doubt the case that by S. 183 of the Contract Act any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent. But as the words of S. 5 of the Powers-of-Attorney Act show, by virtue of that Act minor married women are empowered to appoint attorneys on their behalf to execute such documents and do such acts as they are competent to execute or do. In this case the presentation of an application by way of appeal to the Registrar was undoubtedly an act which the 2nd defendant might have herself done and therefore by the Section above referred to her attorney lawfully appointed was capable of doing that act on her behalf whether she was a minor or a major at the time of doing it. It is not disputed that the power of attorney falls within S. 33 of the Registration Act. The presentation of the application to the Registrar was thus perfectly valid whether the 2nd defendant was a minor or had attained majority on the date of the appeal. If she was still a minor the same result is arrived at in another manner. The 2nd defendant's husband whether empowered under the power of attorney or not was himself the husband and according to Hindu Law the lawful guardian of his minor wife. As such he comes within the description of representative of the claimant who was himself competent to make the application. On these grounds the application to the Registrar was valid.
The result is that the opinion of the learned District Judge as to the registration of Ex. 1 cannot be upheld. It is admitted that the consequence of that is that the plaintiff's appeal to the lower appellate Court will stand dismissed. The appellant (2nd defendant) must have her costs from the plaintiff in C.M.A No. 59 of 1931. There will be no order as to costs in the Second Appeal.
N.R.R Appeal allowed.
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