SHYAMAL KUMAR SEN, J.

(1) THE facts in this appeal, inter alia, are that on July 1930, a registered deed of wakf was executed by Sahebzada Mirza and Ali Nakey where by he dedicated his properties mentioned in the schedule as wakf Alal Aulad appointing and constituting himself as the Mutwali. It was, inter alia, mentioned in the said deed that after death the office of Mutwali would devolve jointly on his daughter Shahebzadi Ahmedi Begum and her husband Dr. Abdullah Al Mamun Suharwardy and on the death of either on the survivor of them and after them on her lineal male descendents, if any, in order of seniority of age, one after another, in the absence of all lineal defendants, male or female of the said daughter, the nominee or nominees of the said daughter and son-in-law or of the survivor of them by a registered instrument shall be the Mutwaln.

(2) ON 13th January, 1985, the said Dr. Abdullah Al mamun Suharwardy died without appointing or nominating a Mutawali. In 1942 Sahibzada Mirza Mohammed Ali Nakey died after acting as Mutwali of the Wakf estate. On 9th may, 1967 an unregistered deed of appointment was executed by Sahebzadi Ahmedi Begum whereby she nominated Kulsum jalil being the defendanat as the Mutwali of the wakf estate. On the same date another unregistered deed of gift was executed whereby the said Sahebazadi Ahmedi Begum made a gift of the properties; mentioned in the said deed to the said Kulsum Jalil. On the 11th June, 1967, the said sahebzadi Ahmedi Begum died intestate and without leaving any issue or any decendant either in the male or in the female line. On 3rd July, 1967, the said Kulsum Jalil being the defendant presented for registration in the office of the Joint Registrar of Alipore at Behala the said deed of appointment executed by Sahabzadi Ahmedi Begum since deceased. On 11th December, 1967, suit no. 2748 of 1967 was instituted by the appellant against Kulsum Jalil claiming, inter alia, the following reliefs (a) declaration that the purported appointment or nomination of the defendant as the Mutwali is void, invalid etc. and the defendant was and is not entitled to act as such (b)declaration that the purported deed of appointment dated 9. 5. 67 is null and void and is of no effect and not binding on the wakf and/or the plaintiff decree for delivery up and cancellation of the purported deed of appointment dated 9. 5. 67 ; perpetual injunction restraining the defendant from acting as Mutwali and that the plaintiff be appointed mutwali of the Wakf created by an under the deed of wakf dated 22. 7. 30. On 6th February, 1968, Mr. Ramendra Mohan datta, J. as he then was appointed the said Miss Kulsum jalil receiver to collect rents, issues and profits of the premises being subject matter of the wakf estate and to pay municipal rates and fazes and to carry out the provisions of the deed of wakf upon notice to plaintiff. On 11th February, 1976, the said suit was dismissed by this court, on 25th March, 1976, the instant appeal was preferred against the said dismissal. On 18th June, 1976, the memorandum of cross objection was filed. It may be noted that the Appeal Court directed the said Kulsum Jalil to continue as receiver of the wakf estate. , On 12th december, 1985, the deed of appointment was executed by the said Miss. Kulsum Jalil appointing" the respondent no. 1 as the Mutwali. On 14th December, 1985, the said miss. Kulsum Jalil appointed one Mrs. Fatima Mahmood as permanent Mutwali in her death bed. On 19th December, 1985, the said Kulsum Jalil died. On 26th November, 1986, an order was passed by the Commissioner of wakf appointing Mrs. Fatima Mahraood as temporary Mutwali for a period of one year and directing the parties to move civil Court for appointment of permanent Mutwali. In 1987 another suit being no. 83 of 1987 was instituted by Syed md. Khurrem Hossain in this Court for his appointment of permanent Mutwali of the wakf estate. In 1987, suit being no. 328 of 1987 was instituted by the said Mrs. Fatima Mahmood in this Court for her appointment as permanent Mutwali. On 6th April, 1987, death of Kulsum jalil was recorded by the. appeal Court and Sayed Md. Khurram Hossain and Mrs. Fatima Mahmood were appointed in her place. On 13th November, 1987, an order was made in an application made by the said Syed Md. Khurram hossain in his suit being suit no. 83 of 1987 for appointing him as receiver of the wakf estate wherein Baboo Lai J. observed that the parties would be at liberty to obtain appropriate directions from the appeal court in view of the fact that the order for appointment of receiver passed in the instant appeal is subsisting even after death of kulsum Jalil. On 4th October, 1989 an order was passed by the Commissioner of Wakf re-appointing Mrs. Fatima mahmood as Mutwali for a period of one year. On 31st august, 1990, an order was passed by the Division Bench of this Court dismissing the application of the said Mrs. Fatima Mahmood for appointing herself as receiver over the said wakf estate.

(3) IT may be noted that the disputes arose in respect of the said wakf created by one Sahebzada Mirja Mohammad all Nakey a Haanafi Musalman, under the registered deed dated the 22nd July, 1930 whereby various properties were dedicated in perpetuity by way of an wakf alal aula. The said deed, the factum thereof is undisputed, inter alia, provided as follows : - (1) The wakf will be known as "sahebzada Mirja mohammad Ali Nakey Wakf". (2) The wakf would be appointed and constitute the first mutwali of the said wakf. (3) After the death of the wakf, the office of mutwali would develope jointly on the Sahebzadi ahmedi Begum the daughter of the wakif and her husband Dr. Abdulla Almamoon Suhrawardi and on the death of either, on the survivor and after the death of both of them on her lineal male descendants, if any, successively in order of seniority and in the absence of such male descendants on her lineal female descendants, if any, successively, in order of seniority. (4) In the absence of all lineal descendants male or female the nominee of the said daughter and son-in-law of the wakif or of their survivor by registered instrument would be the mutawali.

(4) IT is the common case of this parties that the wakif managed and administered the wakf during his lifetime and the last undisputed mutwalli of the wakf was the daughter of the wakif ahmedi Begum who acted as the sole mutwalli till she died intestate on or about the 11th June, 1967, without leaving any issue or any descendents.

(5) ONE Mohammed Ali Asgar alias Pearay Sahib has instituted the suit against one Kulsum Jalil. The plaintiff alleges to be the grand son of one Ali Nakey, the wakif. It is further alleged that the plaintiff is a pious Hannifin muslim, fit and competent to act as a mutwalli of the said wakf and there is no other male descendant of the wakif or Ahmedi Begum competent to act or be appointed as a mutwalli. The plaintiff claims to be the only suitable and competent person to be so appointed.

(6) IT is alleged that the defendant Kulsum Jalil, who is not related to the wakif or Ahmed Begum and is a stranger, is falsely contending that by an alleged and purported deed of appointment dated the 9th May, 1967 she has been nominated by Ajhmedi Begum as the mutwalli of the said wakf, and by virtue of such appointment is wrongfully pretending to act as the mutwalli of the said wakf.

(7) IT is contended that the defendant was not entitled to be appointed or nominated as a mutwali or to act as such under the deed of wakf or otherwise.

(8) IT is alleged that under the said deed Ahmedi Begum was authorised to nominate a mutwalli only by registered instrument and not otherwise The plaintiff appellant alleges to have learnt on enquiry that the said deed of appointment" was wrongfully presented for registration on or about the 3rd July, 1967 in the office of the joint Registrar of alipore at Behala by the defendant who falsely alleged and hed herself out as the representative of Ahmedi Begum.

(9) EVEN assuming the said deed of appointment was executed by Ahmedi Begum,, the same could only be registered under the Indian Registration Act, 1908 only if the representative or the assign of Ahmedi Begum would have appeared before the Registering Officer and admitted execution of the said deed. It has been alleged that the defendant Kulsum Jalil was neither the representative nor the assign of Ahmedi Begum nor was she in any way competent to appear before the Registering officer or to admit the execution of the said deed. It is contended that the appearance of the defendant before the Registering officer and her admission of the execution of the said deed was not in terms of nor in compliance with said Act and as such the registration of the said deed was not in accordance with law and without jurisdiction. It is alleged that the said deed is void and is of no effect.

(10) IT is alleged that the appointment of the defendant was not by a registered instrument and was not in terms of the deed of wakf. in the premises, it is contended that Ahmedi Begum died without making any valid or proper lawful appointment or nomination of any mutwalli of the said wakf.

(11) IT is alleged that relying on the said deed of appointment the defendant has wrongfully taken possession and control of the wakf estate and is purporting to act as the mutwalli thereof without any authority and is wrongfully inter-meddling with and mismanaging the same and is misappropriating the income thereof. It is contended that the dependent is liable to render full accounts of her dealings with the estate and to pay and/or reimburse such sum as may be found due after taking accounts inter alia, the following reliefs claimed in this suit.

(12) A declaration that the purported appointment or nomination of the defendant as the mutwalli of the said wakf estate is void, invalid and of no effect and that the defendant was and is not entitled to act as such, a declaration that the purported deed of appointment is null and void and of no effect and not binding on the wakf and/or the plaintiff, a decree directing the same be delivered up and cancelled and/or set aside; perpetual injunction restraining the defendant from acting or pretending to act as mutwalli and from representing herself or holding herself out as the mutwalli of the said wakf, the appointment of the plaintiff as the mutwalli of said wakf, accounts, receiver, injunction, costs and other reliefs.

(13) IN the written statement filed on behalf of the defendant it is alleged that Dr. Abdullah Suhrawardi, predeceased the wakf and that after the death of wakif, ahmedi Begum became and acted as the sole mutwalli thereof.

(14) THE defendant denied the relationship clamed by the plaintiff with the wakif or the competency of the plaintiff to be a mutwalli of the said wakf.

(15) IT is alleged that Ahmedi Begum was the foster mother of the defendant and had brought up the defendant from childhood and had treated her as a daughter with love and affection. It is alleged further that Ahmedi Begum made a gift in favour of the defendant by a deed of gift also dated the 9th May, 1967 and lawfully appointed the defendant as the sole mutwalli of the said wakf by the said deed of appointment.

(16) IT is alleged that as mutwali the defendant has lawfully taken possession of the estate of the wakf and has duly administered the same. The defendant claims to be a pious Hannifin Muslim the responsible position of government.

(17) IT is alleged the defendant Kulsfim Jalil on or about the 18th July, 1967 applied to the Commissioner of Wakf, west Bengal, for substitution of her name as mutwalli of the said wakf. The commissioner after being satisfied as to her competency and her night to act as such mutwalli substituted her as the mutwalli in place of the deceased ahmedi Begum and issued a notice to that effect. It is alleged that the plaintiff similarly applied to the commissioner for substitution of his name as a mutwalli but the plaintiffs application was rejected.

(18) IT has been contended on behalf of the heirs of the defendant Kulsum Jalil the defendant, that Ahmedi Begum died within a month after the execution of the said deed of appointment and as the said Kulsum Jalil was not keeping good health the said deed could not be registered during her lifetime.

(19) IT has also been submitted that as the representative or assign of, Ahmedi Begum the said Kulsum Jalil was competent to appear and admit the said deed of appointment, it is alleged that the registering authority was satisfied and the deed of appointment was properly registered in accordance with the provisions of the Indian registration Act. It is contended in the alternative, that even if the Registering Officer erred in accepting- the defendant said Kulsum Jalil, as representative or assign of the executants, the same was ,only a defect in procedure within the meaning of the section 35 of the act and was not sufficient to invalidate the registration.

(20) IT has been contended that the suit is bad for non-joinder of the Commissioner of Wakf, and other existing persons admitted by the plaintiff to be related to the wakif.

(21) THE following issues were raised and settled at the trial :

1. Is the plaintiff entitled to be appointed mutwalli upon the death of Sahebzadi Ahmedi begum as alleged in paragraphs 4, 5 and 6 of the plaint 2. Was the defendant been validly or at all appointed as the mutwalli 3. Is the defendant liable to render any accounts to the plaintiff or to pay any money as alleged in paragraph 13 of the plaint 4. Is the suit bad for non joinder of the parties as alleged in paragraph 14 of the written statement

(22) IT has been contended on behalf of the respondent, on the other had that Dr. Abdullah Suhrawardi, predeceased the wakif and,, that after the death of the wakif, Ahmedi Begum became: and acted as the sole mutwalli thereof. It has been further contended that Ahmedi Begum was the foster-mother of the defendant and had brought up the defendant from childhood and had treated her as a daughter with love and affection. Ahmedi Begum made a gift in favour of the defendant by a deed of gift also dated the 9th May, 1967 and lawfully appointed the defendant as the sole mutwalli of the said wakf by the said deed of appointment. It has also been the case of the defendant as appears from the record that the said defendant Kulsum Jalil applied to the Commissioner of Wakf, west Bengal for substitution of her name as mutwalli of the said wakf. The Commissioner after being satisfied as to her competency and her right to act as such mutwalli substituted her as the mutwalli in place of the deceased ahmedi Begum and issued a notice to that effect. It has been alleged that the plaintiff applied to the Commissioner for substitution of his came as a mutwalli but the plaintiffs application was rejected. It has been contended on behalf of the original defendant that Ahmedi Begum died within a month after the execution of the said deed of appointment and as she was not keeping good health the said deed could not be registered during her life-time. It has been further contended that representative or assign of the said Ahmedi Begum she was competent to appear and admit the said deed of appointment. It has been further submitted that the registering authority was satisfied and the deed of appointment was properly registered in accordance with the provisions of the Indian registration Act. It is the case of the respondent that even if the Registering Officer erred in accepting the defendant as representative or assign of the executants the same was only a defect in procedure within the meaning of the section 35 of the act and was not sufficient to invalidate the registration.

(23) IT appears from evidence on record that the, defendant was a triple M. A. of the Calcutta University, in Persian, urdu and Mysticism. She was a lecturer at Lady Braboume college, Calcutta and was a Gazetted Officer. She knew ahmedi Begum and her husband , and Ahmedi Begum used to look after her as her own daughter. Abdullah Suhrawardi and Ahmedi Begum used to live at No. 56, Mirjapur Street. She used to live at 24/ib Buddhu Ostagar Lane nearby. After the death of her husband Ahmedi Begum resided with her at her house. Three days prior to her death Ahmedi begum went to No. 3, Suhrawardi Avenue with her which had been let out to the Pakistan High Commissioner. There, ahmedi Begum fell ill with blood pressure and dysentery and expired. Ahmedi Begum had a room in No. 3 Suhrawadi avenue in her possession. The owner of this house, one hasan Suhrawadi, had gone to Pakistan and the house was left in charge of Ahmedi Begum. It appears from evidence on record that after the death of Ahmedi Begum the original defendant Kulsum Jalil became the mutwalli of the wakf estate. She used to look after and manage the wakf even during the life-time of Ahmedi Begum. The Deed of Appointment dated the 9th Way, 1967, had been executed by Ahmedi Begum and contained the latters signature. This document, except the handwritten portion, was tendered and marked as Exhibit- I. In 1967 the deed was registered in the office of the Sub-Registrar, Alipore, at Behala. She was present at the time of registration and had put her signature and thumb impression on the document. She also indentified the handwriting on the document being that of S. M. Ghose Advocate, and the seal and the signature of the Sub-Registrar. The said signatures were put in her presence. She was identified by S. M. Ghose, her advocate before the Registration officer. The writings in red ink were made in the office of the Sub-Registrar in her presence. In her evidence kulsum Jalil the said original defendant since deceased also that she did not see the plaintiff before the death of Ahmedi Begum She further stated in her evidence before the trial Court that at the registration of the deed, she was the claimant and had acted also as the representative of the deceased executants. A certified copy of an affidavit filed by her before the Registrar was tendered and marked as ext. 4. She had taken steps to have her name recorded in the records of the Commissioner of Wakf. A notice dated the 22nd August, 1967 issued by the Commissioner of Wakf was tendered and marked as exhibit 5. She stated that she was related to Abdullah Suhrawardi. The mother of abdullah Suharawardi and her grand-mother were cousins. She stated that apart from appointing her as a Mutwalli ahmedi Begum executed in her favour a Deed of gift also dated the 9th May, 1967. This deed was tendered subject to objection and marked as exhibit 7. She stated that in respect of the wakf properties her name has been mutated as the mutwalli in the records of the Corporation of calcutta. In cross examination, she admitted that she had endorsed the Deed of Appointment as the representative of Ahmedi Begum without exactly understanding the import thereof. She did not apply for any letter of administration or succession certificate in respect of the estate of Ahmedi begum. In her affidavit Exhibit 4 she had claimed to be a competent person to admit and present the deed as she was a Hanafi Muslim and had been nominated by Ahmedi begum in the absence of any lineal descendant. She stated that the deed of Appointment was executed at premises no. 24/b, Buddhu Ostagar lane, when Ahmedi Begum was residing with her. She admitted that the records of the commissioner of Wakf disclosed the address of Ahmedi begum being No. 7 Wellesley First lane, Calcutta, and appeared in Exhibit 1. She stated that Ahmedi Begum had herself instructed N. C. Biswas, Advocate, to draft the deed. The document was not registered on the day it was executed, Ahmedi Begum had intended to register it shortly thereafter but she died before registration could be effected. In further cross-examination she stated that after she was appointed the mutwalli she performed her duties as laid down in the deed of Wakf. She admitted that maintenance and upkeep of a Muslim Girls school had not been done as the girls school in Midnapore, the intended beneficiary, had been closed. Publication of a work on Muslim Law and Religion had also not been financed as there was no offer. She had, however, helped poor muslim widows and orphans in need of medical help, and had made payments to muslim students for their education. Some payment had been made to the Islamia hospital. She admitted that she had been involved in a criminal proceeding in 1973. The dispute related to the property of her sister. It was suggested to her that the deed of gift in her favour was a forgery. She denied the suggestion.

(24) NARAYAN Chandra Biswas, Advocate practising in the alipore Court, also gave evidence before the trial Court. It appears from his evidence that he came to know Ahmedi begum and saw her for the first time at premises No. 24/b, Buddhu Ostagar Lane, 1967. He drafted the deed of appointment and had made over the same to one S. M. Ishaq. On the 9th May, 1967, Ahmedi Begum and the attesting witnesses signed this document at no. 34/ib, buddhu Ostagar Lane. He has also signed the document on that date. He has read over and explained the document to Ahmedi Begum who stated that she had understood the same. Instructions to draft this deed were given to him by Ahmedi Begum orally at No. 34/1c, Buddhu Ostagar lane two or three days before the execution. He also stated that he knew the defendant. He had seen the original deed of Wakf dated the 22nd July, 1930 in connection with drafting a deed of gift also on the instructions of Ahmedi Begum. On the 9th May, 1867, the deed of gift was executed before the deed of appointment. In cross examination the said advocate stated that he had done other work as a lawyer for Ahmedi Begum. In April or May, 1967 about 8 or 10 days before the execution of the deed he went to Ahmedi Begum to take instructions. Ishaq had told him that he would have to do some work for Ahmedi Begum. He came to know that the would have to draft two deeds. Ishaq was a relation of the defendant and was residing at Buddhu Ostagar Lane in the same house. He remembered to have taken some notes of the oral instructions of Ahmedi Begum, within two or three days whereafter he drafted the deeds and made them over to Ishaq. He also came to know from Ishaq some time later that Ahmedi Begum had approved the drafts. He did not advise Ishaq as to the stamps required for the deeds. He admitted that eight or ten years back he had done some legal work for the defendant. He had written letters to the tenants of the defendant. He had advised Kulsum jalil and Ahmedi Begunn to register the deed of appointment. At the time of the execution of the deed ahmedi Begum was confined to bed but she had no Bordha. She talked with the witness in Bengali mixed with Hindi and he explained the deed to her also in Bengali and Hindi.

(25) SACHINDRA Mohan Ghose an advocate practising in the city Civil Court also gave evidence before the trial Court. It appears from his evidence that he knows the defendant for the last 25 or 30 years. He also knew Ahmedi Begum who also resided sometime at No. 24/ib Buddhu Ostagar lane. He identified the signature of the defendant. He had said the document recording that he had identified the defendant. He had accompanied the defendant to the registration Office. He knew of the nature of the document which was presented for registration. The affidavit affirmed by the defendant in connection with the registration of this document was most probably drafted by him. In cross examination, he stated that he did not know why it was necessary to affirm this affidavit nor did he remember whether he advised the defendant to affirm this affidavit. He had something to do with, the deed of lease in respect of the premises No. 28, Golf Club road, executed in favour of one B. N. Mitra by Ahmedi begum. The address No. 3 Suhrawardi Avenue was stated in this document to be the address of Ahmedi Begum on the latter1 s instruction. Exhibit 1 was registered at Behala for convenience.

26) IT was contended on behalf of the appellant that the appointment of the defendant as the mutwalli, in the instant case, was not in conformity with the deed of wakf and was therefore invalid. The deed provided for the appointment of a mutwalli by Ahmedi Begum by a registered instrument. The registration of deed of appointment dated 9th May, 1967, according to the appellant was invalid and not in terms of the Indian Registration Act- and, therefore, it should be deemed not to have been registered at all. The registration of the deed was in violation of the mandatory provisions of sections 34 and 35 of the Indian registration Act, 1908. The sections inter alia, provided as follows :-34 (1) Subject to the provisions contained in this part. . . . . . . . . . . no document shall be registered under this act unless the person executing such document, or their representatives assign or agents authorised as aforesaid appear before the Registering Officer within the time allowed for representation under Sections 23, 24, 25 and 26. . . . . . . . . . . . (2) 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 also to the identify 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. . . . . (a). . . . . . . . . . (b). . . . . . . . (c) If the person executing the document is deeds and his representative or assign appear before the Registering officer and admits the execution. The registering Officer shall register the document as directed in Section 58 to 61. (2) The Registering Officer may, in order to satisfy himself that the persons they represent themselves to be, for any other purpose contemplated by this act, examine any one present in his office. . . . . . . "

(27) IT has been contended that the provisions of the above sections had not been complied with in the instant case in as much as the person who admitted the execution of the document before the Registering Officer, namely, the defendant was not a representative of the executants nor was the defendant an assign of the executant in as much under the deed no property has passed from the executants to the defendant. The only right the defendant could have obtained from the deed was to become a mutwali and mutwaliship was not a property. In the premises, the registrar had no jurisdiction to register the deed; and consequently the purported appointment of the defendant by an instrument not properly registered was invalid.

(28) IT has been contended on behalf of the respondent on the other hand that the registering authority in the instant case had ample, jurisdiction to register the deed as the same had been validly and lawfully presented for registration by the proper person which conferred jurisdiction on the Registering Officer. The subsequent admission of execution to the satisfaction of the registering officer as laid down in sections 34 and 35 were merely procedural. Defect, if any, resulting from the non-compliance with the said sections would not affect jurisdiction of the authority and would not invalidate the registration of the document, In support of his contentions as aforesaid Mr. Bose relied an sections 32 and 87 of the act which read as follows :

32. "except in the cases mentioned in sections 31, 88 and 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 persons executing or claiming under the same. (b) By the representative of assign of such person or (c) By the agent of such person, representative or assign duly authorised by power of attorney executed and authenticated in manner here in after mentioned. 1 87. "nothing done in goad faith pursuant to this act. . . . . . . . . . . . . . . . . . . . . by registering officer shall be deemed invalid merely by reason of any defect in this appointment or procedure. "

(29) IT has been further contended that the said defendant kulsum Jalil was lawful assign of the executant as admittedly some rights had passed from the executant to the defendant under the deed, He also contended that in any event the defendant to the extent she received the personal properties of Ahmedi Begum under the deed of dated the 9th May, 1967 could be deemed to be representative of the executant within the meaning of the act. The provision of sections 34 and 35 of thehe contended, had been fully complied with and the document was properly and validly registered resulting in the lawful appointment of the defendant as the mutwalli.

(30) IN support of the respective contentions of the parties the following decisions were cited from the bar. (1) Mujibunnissa and Ors. v. Abdul Rahim and Abdul Aziz, reported in 28 Indian Appeals at page 15. (2) Akshoy Chandra Majhi and Ors v Manmatha Natfa chatterjee, reported in 20 Calcutta Weekly Notes at page 1345. (3) Ma Shwe Mya v. Maung Ho Hnaung, reported in 49 indian Appeals at page 395. (4) Jambu Prashad v Muhammed Aftab Ali Khan 6 anr. , reported in 42 Indian Appeals at page 12. (5) Baijnath Singh and Ors. v. Jamal Brother and Co. Ltd. , reported in 51 Indian Appeals at page 18. (6) Aninachala Mudali v. Venkatachala Pillar and Ors. , reported in AIR 1934 Madras at page 425. (7) Satindra Nath Choudhury v. Jatindra Nath Chowdhury, reported in 62 Indian Appeals at page 265. (8) Dukaribala Dassi v. Gadadhar Paul and Ors. , reported in AIR 1955, Calcutta at page 571.

(31) IN the case of Mujibunnissa and Ors. v. Abdul Rahira and Abdul Aziz (supra) the facts, inter alia, are that a. deed of wakf was presented for registration after the death of the executant by a person described as the general attorney and trustee of the executant. Their lordships of the Judicial Committee, on these facts, held that the person who presented the deed for registration held a power of attorney of a dead person and as such he was in the position of a volunteer. The registration authority was also aware of the above fact. Their Lordships held as follows : -

"the power and jurisdiction of the Registrar only comes into play when invoked by some persons having a direct relation to the deed. It is for these persons to consider whether they will or will not give the deed the efficiency conferred by registration. The Registrar could not be held to exercise the jurisdiction conferred on him, if hearing of the execution of a deed, he got possession of it and registered it; and the same objection applies to his proceeding at the instigation of a third party, who might be a busy body. . . . . . . . . . "

"the Registrar, indeed, did not merely disregard section 32 but proceeded to accept the admission of the alleged attorney as a good admission of the execution of the deed although section 34 requires in the case of a deceased the admission of the representative or assign. In the case of akahoy Chandra Majhi and Ors. v. Manmatha Nath chatterjee (supra) it was laid down in this case that a donee under a deed of gift is an- "assign" of the execution within the meaning of Section 35 of the Registration Act and may, when the donor is deed, admit the execution of the deed before the Registering Officer.

(32) THE next decision cited was of the Privy Council in the case of Ma Shwe Mya v Mating Ho Hnaung. In the said decision a security bond had been given to a District court. A clerk of the Court presented this document for registration under the Indian Registration Act, 1908. It was held that without a power of attorney duly authorizing the clerk under section 33 of the act the presentation as made was invalid. In the judgment it was observed as follows ;

"the word representative is a term of ambigous meaning, and must be construed according to its context. In ordinary legal use, it demotes the executor or administrator, or sometimes the heir or next kin. In a certain context it may mean an agent. . . . . . " "upon the whole their Lordships are satisfied that the terms representative in section 32 refers to the legal personal representatives or (by virtue of section 2) the guardian or committee of the person described and does not include a clerk or agent. "

(33) IN the case of Jambu Earshed v. Mahammed Aftab All khan and Anr. , two mortgages were presented for registration by a general attorney of the mortgagee. The mortgagors were present at the registration and admitted the execution of the documents. It was found that the power of attorney in favour of the agent did not empower the agent to present c, document for registration. it was held that the documents were not validly presented for registration and therefore the registration was invalid. It was also held that the authority had no jurisdiction to register the documents unless he was moved to do so by a person who had executed or claimed under it, or by his representative or assign or by the agent of such person or representative or assign duly authorised. The fact that the executants of the documents were present at the registration to admit execution did not cure the defect in presentation and confer jurisdiction upon the registering authority. Their Lordship observed in their judgment as follows :-

"one object of sections 32, 33, 34 and 35 of the act III of 1877 was to make it difficult for persons to commit fraud by means of registration under the act. It is this duty of Courts in India not to allow the imperative provisions of the act to be defeated when, as in this case it is proved that an agent who presented a document for registration had not been duly authorised in the manner prescribed by the to present it. "

(34) IN the case of Baijnath Singh and Ors. v. Jamal brothers and Co. Ltd. , (supra J and considering the Upper burma Registration Regulation 1877 and the rules framed there under, it was held, inter alia, that where one of the mortgagors was not present at the registration of the document to admit the execution, the deed could be registered by the officer concerned under Rule 5 of the said Regulations. The said statute and the rules there under are different from those with which we are concerned in the instant case and as such this decision is not of much assistance.

(35) IN the case of Arunachala Mudali v. Venkatachala Pillai and Ors. (supra), following the earlier decisions of Madras, bombay and allahabad High Courts it was held inter alia that where a person is accepted by the Registration Officer as the representative of a deceased executant, though in fact he may not be legally entitled to represent the deceased, and the document is registered, the same constitutes merely an error in procedure on the part of the Registering Officer, and does not invalidate the registration. It was also held that earlier decision of the privy Council in 42 Indian Appeals at page 22 (supra) was not an authority for cases falling under sections 31 and 35 of the Indian Registration act.

(36) IN the case of Satindra Nath Choudhury v. Jatindra nath Chowdhury (supra) a deed of gift was registered under section 51 of the Act, in Book IV and not in Book i where it should have been registered. The Judicial committee held that the registration was valid and the error of the Registering Officer in registering the document in the incorrect book was an error within the meaning of section 87 of the Registration Act and did not affect the validity of the registration,, This decision of the judicial Committee was quoted with approval in an earlier decision of the Privy Council in the case of Sah Mukhan lal Panday v. Sah Koondun Lall reports in 2 Indian Appeals at page 210. The quotation from the judgment of Sir Barnes peacock is as follows :-It is scarcely reasonable too suppose that it was the intention of the legislature that every registration of a deed should be null and void by reason of a non-compliance with the provisions of sections 19, 21 or 36 or other similar provisions. It is rather to be inferred that the legislature intended that such errors or defects should be classified under the general words "defect in procedure" in section 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or in advertance of a public officer, on whom they would naturally place reliance. If the registering officer refuses too register, the mistake may be rectified - but if he registers where he ought not to register, innocent persons ay be misled, and may not discover, until it is too late to rectify it, the error by which, if the registration is in consequence if it to be treated as a nullity, they may be deprived of their just rights. "

(37) THE next decision cited was that of a Division Bench of this Court in the case of Furnanda Narayan v. Maleka bibi, reported in 51 Calcutta Weekly Notes at page 675. In his judgment Chakravarti, J. as he then was considered the scope and ambit of section 315 of the Indian Registration act and expressed his doubt about the correctness of the decision of the earlier Division Bench of this court in 20 Calcutta Weekly Notes at page 1345 (supra). He observed that an admission as contemplated in this section could only come form the executant himself or someone claiming under him otherwise than from the document to be registered. He noted however, that as a matter of practice, documents were registered on the admission of assigns under the document itself in cases where the actual executants were not available. He did not expressly dissent from the earlier decisions.

(38) IN the case of Dukaribala Dassi v. Gadadhar Paul and Ors. (supra) (a) whether or not a donee under an instrument of gift which is sought to be registered can admit execution under section 3!5 (l) (c) of the Registration act, the person executing the document being dead and whether registration effected on such admission is altogether void and (b) Whether or not the action of the registrar in registering the document in question on the admission of such a person is a mere irregularity in procedure without affecting jurisdiction of the registrar to effect such registration.

(39) THE facts in that case were that the appellant was a done from her grand-mother under an instrument of gift in respect of certain land. The Registrar registered the document on the admission of the appellant. In a suit filed by the appellant for recovery of possession of the land the question whether the deed was validly registered or not came up for consideration.

(40) IN his judgment S. R. Dasgupta, J as he then was, considered the scope of sections 32, 34 and 35 of the registration Act and the earlier decisions including the decision in AIR 1934 Madras at page 425 (supra) AIR 1922 bombay page 137 AIR 1935 Lahore page 215 and 51 CWN page 675. It was observed in the said judgment as follows: "there is no direct authority on this point so far as this High Court is concerned. We see no reason to take a view different from the view taken systematically in all those High Courts. In our opinion, once a document has been presented for registration by the person executing the document or claiming under the same or by the assign or representative of such person the registrar is clothed with jurisdiction to deal with the matter and any mistake which he may have made in the process of registering the said document would be a mistake in procedure.

(41) WE are of opinion that the defect, if any, in the present case is a defect in procedure. Besides as appears from the judgment of Chakrabortti J. it has been the long standing practice existing for a considerable time to allow the document to be registered on admission of execution made by the done where actual executants are not available. "

(42) WE have considered the facts on record and the decisions cited from the bar and it appears to us that section 34 of the act in substance, only provides for an enquiry by the Registering Officer as to whether or not the document in question was executed by the person who purported to have executed it. This is also indicated by the Marginal note to the section. The appearance of the persons indicated in the section is; for the purpose of such enquiry.

(43) IN our opinion the Learned Trial Judge was correct that after appearance has been made, sub-section (3) of section 34 comes into operation and where a person appears as a representative, assign or agent then the Registering officer has to satisfy himself of the right of such person so as to appear. The Learned Judge correctly held that provisions of the section, it appears, would be sufficiently complied with if person claiming to be representative or assign or agent of the executant do appear and the registering Officer satisfies himself of the right of such person so to appear. This satisfaction is subjective.

(44) THERE cannot be any doubt that the section 35 which follows section 34 is admittedly a procedural section. After the enquiry as enjoined by section 34, the Registering officer, under this section has to either register or refuse to register the document on this admission or denial of the executant or persons representating the executant. Where the executant is deed and his representative or assign appearing before the registering officer admits the execution then the document has to be registered. Sub-section (2) section 35 further empowers the Registering officer to examine anyone present for his satisfaction.

(45) IN our view the Ld. Judge correctly held that the mandate laid down in the said sections 34 and 35 is that the Registering Officer must hold an enquiry to satisfy himself that the persons appearing before him as the representative or assign of a deceased executant have the right and/or capacity so to appear. In the course of coming to such subjective satisfaction, if any mistake is committed by the Officer the mandate of the section would not be violated and it would only be a defect in procedure. Unless there was absence of good faith on the part of the registering Officer, registration of a document made pursuant to an enquiry where the satisfaction reached was mistaken or defective would not be invalid.

(46) IN the instant case, the defendant Kulsum Jalil appeared before the Registering Authority at the time of registration of the document and claimed to be a representative of the deceased executant. The Registering authority apparently has been satisfied as to the right of the defendant to appear in such capacity and has noted the same in the document by endorsing the word representative The document was presented for registration by the defendant who was a claimant under the document and as such the presentation satisfied the requirements of the section 32 conferring upon the registration Officer jurisdiction to register the document. In these circumstances, the Ld. Judge correctly held that the document has been duly registered and consequently, it must be held that the nomination and/or appointment of the defendant as a Mutwalli of the said wakf was in terms of the deed of wakf and such nomination and appointment is lawful and valid.

(47) IN our opinion the judgment and decision does not call for interfere by this Court. Accordingly, the appeal is dismissed with costs. With regard to the cross-objection, in our opinion the observation of the learned trial judge was really in the nature of an obiter and, as such, it is not necessary to make any finding on the same. Accordingly, the cross-objection is disposed of. Appeal dismissed.