Rajni Tandon vs Dulal Ranjan Ghosh Dastidar & Anr

2. The dispute pertains to a Flat situated on the ground floor of a building commonly known as "Nilachal" at Tollygunge, Calcutta (hereinafter referred to as the said premises). The appellant by virtue of a Registered Deed of Conveyance dated 28.02.1990 purchased the said premises from 1 one Sri Nandlal Tantia (also referred to as Shri N. L. Tantia), Karta of M/s R. L. Tantia & Sons (HUF). The said Deed of Conveyance was executed by the constituted attorney of Shri N. L. Tantia, Shri Indra Kumar Halani, on the basis of a Power of Attorney). It is pertinent of mention herein that the said premises was purchased by Shri Nandlal Tantia in his capacity as a Karta of M/s R. L. Tantia and sons (HUF) in August 1978. Mrs. Ava Rani Ghosh Dastidar (Predecessor in interest of Respondent No. 1 herein) was allowed to stay free of charge in the said premises from October, 1978 as a personal gesture of Shri Nandlal Tantia as a licensee only. Sri N. L. Tantia, Karta of M/s R. L. Tantia & Sons intimated the Society about their ownership in the said premises and asked them to send all future correspondence and maintenance bills in their name. They also informed the society that Mrs. Abha Rani Ghosh Dastidar was temporarily staying in the said premises as a licensee.

3. It is the case of the Appellant that all records / documents, conveyance deed, corporation records, maintenance bills of the "Nilachal Housing Society" in which the said premises was located, resolution of the "Nilachal Housing Society" under the West Bengal Apartment Owners Act giving the detailed list of flat owners, show N. L. Tantia / R. L. Tantia and Sons as the owner of the said premises.

4. Mrs. Ava Rani Ghosh Dastidar served a notice in the year 1982 on the Society as to why maintenance bills etc. were not made out in her name. Mrs. Ava Rani Ghosh Dastidar thereafter filed Civil Suit No. 322 of 1982 against the Society asking them to include her name as the owner and send all correspondence, maintenance bills etc to her. The President and Secretary of the Housing Society filed a reply in this Suit stating that Mrs. Ava Rani Ghosh, Dastidar could not be recognized as a owner in absence of any document to prove her ownership. She was asked to submit better documents proving her ownership.

9. The Trial Court recorded a finding that the Power of Attorney under which the Sale/Conveyance Deed was executed was not registered and the same ought to have been registered as Mr. Indra Kumar Halani executed the said Sale Deed on behalf of Nandalal Tantia as his constituted Attorney and presented the same for registration. Hence, it was held to be in violation of provisions of Section 32 and 33 of the Act. Consequently, it was also held that the Title in the said premises had not passed in favour of the Appellant. The Trial Court accordingly dismissed the Suit as the Appellant/Plaintiff did not acquire any right title and interest by virtue of her purchase by the said deed of conveyance dated 28.02.1990.

12.The High Court, after hearing arguments of the counsel appearing for the parties, answered the question No. 1 as also question No. 2 in favour of the Respondents - Defendants. So far as question No. 1 is concerned, it was held that since the power of attorney (Exhibit 10) is, admittedly, not a registered document and was simply notarized by a Notary, therefore Indra Kumar Halani, was not authorized to execute and present the sale deed (Exhibit 1) before the Sub-Registrar for registration. It was, therefore, held by the High Court that no right and title had passed to the Plaintiff on the basis of the aforesaid sale deed. Accordingly, the issue No. 1 was decided in favour of the Respondents - Defendants. So far question No. 2 is concerned, upon a conjoint reading of Section 32, Section 33 (1) (a) and Section 34 of the Act, the High Court took the view that it was difficult to conclude that Indra Kumar Halani became the executant by himself on the basis of the power of attorney which was neither executed nor authenticated in the manner provided under Section 33 (1) (a) of the Act so as to enable him to present the sale deed for registration in compliance with the provisions of Section 32 (a) of the 7 Act. The second appeal was accordingly allowed and the suit filed by the Appellant - Plaintiff was dismissed vide its judgment and order dated 20.08.2003.

14. Leave was granted by this Court and the Respondent Nos. 2(a) and 2(b) entered appearance. The preparation of the paper books was dispensed with and it was directed that the case be heard on the basis of the SLP paper books. On an application being filed by the appellant-plaintiff herein, it was ordered that the appeal would be listed during the summer vacation, 2009 before this Court. Consequently, the appeal was listed for hearing before us on 19th May 2009.

(i) by the person executing the document

31.Accordingly, we allow the present appeal and set aside the judgment and order passed by the High Court and restore the judgment and decree passed by the first appellate court whereby and whereunder a decree for eviction of the respondents-defendant was passed. No order as to the costs.