: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.230 OF 2009 Vijay Bapu Kalbere & Anr. .. Appellants V/s. Smt. Rafiya Hamid Khanjade since deceased through her LRs Jamil Hamid Khanjade & Ors. .. Respondents ..... Mr. R.R. Salvi for the appellants Mr. Rajiv Patil for the respondents ..... CORAM : R.Y. GANOO, J. DATE : 15TH JUNE, 2009. P.C. : 1. The original plaintiff Smt. Rafiya had instituted the suit in the Court of Civil Judge, Junior Division, Srivardhan, Dist. Raigad for seeking declaration that Sale Deed dated 11 th September, 1998 is null and void as the same is purported to have been executed by appellant No.1 on the strength of Power of Attorney : 2 : dated 9 th September, 1998 which was brought by fraud and misrepresentation. Learned Civil Judge, Junior Division dismissed the suit by judgment and decree dated 21 st November, 2003. 2. Against this judgment, the Appeal came to be filed in the District Court being Civil Appeal No.29 of 2008. It is seen that during the pendency of the said suit itself said Smt. Rafiya had expired and therefore, the appeal came to be filed by the heirs of said Rafiya who are respondents before this Court. The learned District Judge at Mangaon, District Raigad by his judgment and decree dated 22 nd April, 2009 allowed the appeal and set aside the judgment and decree delivered by the learned Civil Judge, Junior Division. Against this judgment and decree, in Civil Appeal No.29 of 2008, this Second Appeal is filed. 3. I have heard learned advocate on both the sides. It was sought to be argued that the said power of attorney was brought by fraud or misrepresentation is not elaborately stated through oral evidence by any of the witnesses on behalf of the respondents and that : 3 : Smt. Rafiya had expired during the pendency of the suit and could not lead evidence. If one peruses the evidence, it is true that there is no specific evidence lead on behalf of heirs of the original plaintiff as to how the power of attorney came to be executed by fraud and misrepresentation. However, relevant facts have been elaborately discussed in the judgment delivered by learned District Judge to decide whether said power of attorney was brought by fraud and misrepresentation and whether appellants took the advantage of the situation by joining hands with each other. It is to be noted that a conveyance dated 11 th September, 1998 for a sum of Rs.10,000/- was executed by appellant No.1 in favour of appellant No.2 by using power of attorney in question when the Agreement to Sale dated 17 th August, 1998 was executed in respect of same land and the total consideration agreed to be paid was Rs.90,000/- and a sum of Rs.20,000/- was already paid by way of earnest money and said agreement to sale was executed by Smt. Rafiya. 4. The learned District Judge has considered the various probabilities and has rightly arrived at the : 4 : conclusion that it is inconceivable that when the property initially was agreed to be sold by Smt. Rafiya directly to appellant No.2 for a sum of Rs. 90,000/- it is improbable that her power of attorney after about 6 months would agree to execute the transaction in regard to the same property for a small amount of Rs.10,000/- without giving reasons as to why quantum of consideration is reduced. Before this Court, it was sought to be argued by learned advocate Mr. Salvi that because the price mentioned in the reckoner was Rs.10,000/- parties agreed that the consideration would be the Rs. 10,000/- only. In so far as this aspect is concerned, there is no specific reference in the Sale Deed which is said to have been executed on 11 th September, 1998 to this effect. It is inconceivable that in the beginning a party would agree to mention consideration of Rs.90,000/- and then bring down the amount of consideration at the time of execution of sale deed. 5. It is to be noted that appellant No.1 was Bond Writer and representation is said to have been made to Smt. Rafiya that permission from the competent : 5 : authority was required to be obtained before execution of the Sale Deed and it is clear that on the strength of such representation, the power of attorney was sought to be procured. 6. If one peruses the text of the power of attorney, it is apparent that the signature of Smt. Rafiya in terms of execution of the power of attorney and signature of her son appears to have been obtained on a plain stamp paper in the beginning and the said stamp paper is subsequently converted into the power of attorney. In the normal course, the power of attorney though was executed before the Executive Magistrate, would bear an identification of the party executing the power of attorney by an advocate. In my view, absence of endorsement by an advocate identifying Smt. Rafiya as an Executrix of the power of attorney before the Executive Magistrate is the fact which clearly indicates that the signature was obtained and then the said document is subsequently converted into a power of attorney. 7. In my view, learned District Judge has considered : 6 : all the facts and circumstances in the proper perspective and has rightly set aside the judgment delivered by the learned Trial Judge. In my view, no interference is required in the impugned judgment particularly because no substantial question of law was placed before the Court as all questions presented before the Court related to appreciation of the evidence. Hence, the following order. ORDER . Second Appeal is dismissed. In the facts and circumstances, there shall be no order as to costs. . In view of the above, Civil Application No.839 of 2009 is disposed of with no order as to costs. (R.Y. Ganoo, J.)