Case: Shankar Gopinath Apte Vs. Gangabai Hariharrao Patwardhan

the property was not consistent with the true facts, it is wrong for that reason to say that the power of attorney was a sham and colourable document. Admittedly;, immediately after the execution of the power of attorney, the appellant wrote a letter (Ex. 155) dated February 3, 1963 to the respondent accepting the power of attorney in terms, agreeing to pay to her a sum of Rs. 2000 per year from the net income of the lands and reserving the rest of the income as his own "honorarium". Unquestionably, the letter was written by the appellant in furtherance and in fulfillment of the terms of the power of attorney. Then again, in the absence of a concluded sale, the appellant continued in possession under the power of attorney and indeed he used to make the annual payment of Rs.2000 to the respondent, which by reason of the letter Ex. 155, , had become a part and parcel of the power of attorney itself. It is therefore impossible to accept the appellants contention1 that the power of attorney was not intended to be acted upon and was a sham.The appellant having failed to establish that he was a tenant of the respondent or that he was put in possession of the lands in part performance of an agreement of sale, we are unable to appreciate the drive of a persistent argument that the power of attorney is a sham and colourable document. Assuming that it is so, the appellant can claim no right apart from that document except the two rights which stand negatived. It then is inconsequential whether the power of attorney was or was not intended to be acted upon.9. Faced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr. Bal is that the appellant must be deemed to be a licensee of the respondent and since he has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under section 60(b) of t he Easements Act, 1882. This argument was made expressly on the assumption that the power of attorney was a nominal document and therefore inoperative. In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument or irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, , we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards t he amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one .more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sate will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity, as a licensee.Mr. Bal also challenged the decree for the payment of Rs.4390 which has been passed in favour of the respondent by the trial court. It is true that there was no accountability as such between the appellant and the respondent but in substance the contention of the respondent was that the appellant had failed to pay the agreed amount of Rs. 2000 to her for certain years and should therefore be held accountable to pay the same. There is, on merits, no infirmity in the finding of the trial court that a sum of Rs. 4390 is due to the respondent in pursuance of the letter of consent, Ex. 155.10. Finally, Mr. Bal urged that the trial court was in error in awarding possession of the suit lands to the respondent along with the valuable improvements made by the appellant. No issue was sought on this question and indeed no argument was made in the trial court that it could not award possession of the lands together with the improvements. Originally, the sole defence of the appellant to the suit was that he was a tenant. That contention having failed, he attempted to urge that he was in possession of the lands in part performance of a contract of safe. In neither of these two capacities could he claim the value of improvements alleged to have been made by him. That explains why he did not urge the contention which he is now urging as an argument of last resort11. Counsel for the appellant at tempted to draw some sustenance from the provisions of section 221 of the Contract Act in support of the claim for the value of improvements but that section has nothing to do with the case. It gives to the agent a lien over the principals property which is received by the agent, until the amount due to the agent as commission, disbursements and services in respect of the property has been paid or accounted for to him. The amounts said to have been spent by the appellant for improving the property, without any reference whatsoever to the respondent cannot be recovered under section 221 of the Contract Act, as it does not fall within its terms. In the result, the unspeaking order of dismissal passed by the Bombay High Court can seek its justification in the reasons given by us above.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument or irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, , we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards t he amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one .more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sate will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity, as a licensee.Mr. Bal also challenged the decree for the payment of Rs.4390 which has been passed in favour of the respondent by the trial court. It is true that there was no accountability as such between the appellant and the respondent but in substance the contention of the respondent was that the appellant had failed to pay the agreed amount of Rs. 2000 to her for certain years and should therefore be held accountable to pay the same. There is, on merits, no infirmity in the finding of the trial court that a sum of Rs. 4390 is due to the respondent in pursuance of the letter of consent, Ex.contention having failed, he attempted to urge that he was in possession of the lands in part performance of a contract of safe. In neither of these two capacities could he claim the value of improvements alleged to have been made by him. That explains why he did not urge the contention which he is now urging as an argument of lastfor the appellant at tempted to draw some sustenance from the provisions of section 221 of the Contract Act in support of the claim for the value of improvements but that section has nothing to do with the case. It gives to the agent a lien over the principals property which is received by the agent, until the amount due to the agent as commission, disbursements and services in respect of the property has been paid or accounted for to him. The amounts said to have been spent by the appellant for improving the property, without any reference whatsoever to the respondent cannot be recovered under section 221 of the Contract Act, as it does not fall within its terms. In the result, the unspeaking order of dismissal passed by the Bombay High Court can seek its justification in the reasons given by us above.