AMAR NATH (DEAD) THROUGH L.R. versus GIAN CHAND AND ORS.
[2022] 19 S.C.R. 281, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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AMAR NATH (DEAD) THROUGH L.R.
v.
GIAN CHAND AND ORS.
(Civil Appeal No. 5797 of 2009)
JANAUARY 28, 2022
[K. M. JOSEPH AND PAMIDIGHANTAM SRI
NARASIMHA, JJ.]
Deeds and Documents – Power of attorney – When not
cancelled – Plaintiff entered into an oral agreement for the sale of
his property for Rs. 55,000/- with the first defendant – It was
plaintiff’s case that the first defendant couldn’t arrange the money
and asked for further time – Plaintiff bonafide executed a special
power of attorney dtd. 28.01.87 in favour of the second defendant
for selling the property for Rs. 55,000/- – As per the plaintiff, as the
negotiation fell through in view of the first defendant not being
able to arrange the money, the second defendant surrendered the
original power of attorney to the plaintiff on 02.02.87 – However,
as per plaintiff, the second defendant applied for the copy of the
power of attorney, and fraudulently in collusion with the first
defendant executed the sale deed on 28.04.87 for Rs.30,000/- –
Plaintiff filed suit inter alia for declaration by way of permanent
injunction that he is the owner in possession of the property and
the mutation showing the sale in favour of the first defendant by
the second defendant was null and void – Trial Court declined the
relief of declaration by way of permanent injunction – Appellate
Court found that the case of the plaintiff that the power of attorney
was cancelled was unsustainable and that there
was a valid sale
deed and endorsement – High Court set aside the findings of the
courts below and decreed the suit by declaring the plaintiff as the
owner in possession of the land and mutation showing the sale in
favour of the first defendant was declared null and void – On appeal,
held: The production of original power of attorney before the
Registering Authority was unnecessary for effecting registration of
the sale deed – Further, the plaintiff admitted that he did not get the
power of attorney cancelled at the Sub-Registrar Office – Even,
more importantly, he admitted to not having sent any notice of
cancellation – The only evidence consists of a statement of plaintiff
that the first defendant was aware of the cancellation and the
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statement of PW6, who had said that the first defendant was also
there on 02.02.87, when on two papers a line was drawn to signify
the cancellation – Furthermore, the Trial Court and also the appellate
court relied upon the DX (letter dated 02.06.87) sent by the plaintiff
himself, which appears to undermine the evidence about the
cancellation on 02.02.1987 – High Court should not have, at any
rate, disturbed the said finding in a Second Appeal – The case of
the plaintiff that power of attorney stood cancelled, in the manner
done on 02.02.1987 cannot be accepted – First defendant, who is
the third party, could not be attributed any knowledge of the
surrender or the alleged cancellation on 02.02.1987 – Impugned
Judgment set aside – Contract Act, 1872 – ss.201, 202, 207, 208 –
Registration Act, 1908 – ss.18, 18 A, 32-35.
Allowing the appeal, the Court
HELD: 1.1 When a person empowers another to execute a
document and the power of attorney, acting on the power,
executes the document, the power of attorney holder can present
the document for registration under Section 32(a). Section 32(a)
of the Registration Act deals with the person executing a
document and also the person claiming under the same. It also
provides for persons claiming under a decree or an order being
entitled to present a document. Section 32(b) speaks about the
representative or assignee of ‘such a person’. The word such a
person in Section 32(b) is
intended to refer to the persons covered
by Section 32(a). Finally, Section 32(c) provides for the agent of
‘such a person’ which necessarily means the persons who are
encompassed by Section 32(a). Besides agent of the person
covered by Section 32(a), Section 32(c) also takes in the agent of
the representative or assignee. Now the words representative
or assignee are to be found in Section 32(b). Thus, Section 32(c)
deals with agents of the persons covered by Section 32(a) and
agents of the representative or assignee falling under Section
32(b). It is in respect of such an agent that there must be due
authorisation by a power of attorney, which in turn, is to be
executed and authenticated in the manner provided for in Section
33. However, the person, who has actually signed the document
or executed the document for the purpose of Section 32(a) does
not require a power of attorney to present the document. It may
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be open to the principal, who has entered obligations under the
document, to present the document. Section 32(c) must alone be
read with Section 33 of the Act. Thus, when Section 32(c) of the
Registration Act declares that a document, whether it is
compulsorily or optionally registrable, is to be presented, inter
alia, by the agent of such a person, representative or assignee,
duly authorised by power of attorney, it must be executed and
authenticated in the manner and hereinafter mentioned
immediately in the next following section. Section 33 by its very
heading provides for power of attorney recognisable for the
purpose of Section 32. Section 32(a) cannot be read with Section
33 of the Act. In other words, in a situation, if a document is
executed by a person, it will be open to such a person to present
the document for registration through his agent. The agency can
be limited to authorising the agent for presenting the document
for it is such a power of attorney, which is referred to in Section
32(c). It is in regard to a power of attorney holder, who is
authorised to present the document for registration to whom
Section 33 would apply. In the facts of this case, the second
defendant was armed with the power of attorney dated 28.01.1987
and if it was not cancelled and he had executed the sale deed on
28.04.1987, he would be well within his rights to present the
document for registration under Section 32(a) of the Act.
Presentation is not a matter of
form. Without a valid presentation
of the document, the registration would be illegal. However, in
the facts, the IInd defendant having presented the sale deed as
executant, the presentation and registration cannot be
questioned. For reasons indicated, Section 32(c) read with Section
33 and Section 34(2)(c) are interrelated and they would have no
application in regard to the document presented for registration
by a power of attorney holder who is also the executant of the
document. In other words, there is really no need for the
production of the original power of attorney, when the document
is presented for registration by the person standing in the shoes
of the second defendant in this case as he would be covered by
the provisions of Section 32(a) as he has executed the document
though on the strength of the power of attorney. To make it even
further clear, the inquiry contemplated under the Registration
Act, cannot extend to question as to whether the person who
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executed the document in his capacity of the power of attorney
holder of the principal, was indeed having a valid power of attorney
or not to execute the document or not. [Paras 20, 21, 25][303-D-
H; 304-A-E; 305-B; 306-D-F]
1.2 On an analysis of the provisions, the argument of the
Plaintiff that the non-production of the original power of attorney
by the Respondent No. 2, was fatal to a valid registration being
effected is rejected. The understanding of the Courts regarding
Section 18A is also erroneous. Section 18A was enacted only to
ensure that the copying process is hastened, as noticed from the
Objects and Reasons. The Trial Court was right when it held that
Section 18A is concerned only with the document which is
presented for registration. The Trial Court clearly erred relying
upon Section 18(A) to hold that certified copy however being
produced of the power of attorney was in conformity with Section
18A and the High Court was equally in error to hold that Section
18A contemplated production of true copy of the power of attorney.
[Para 32][309-C-D]
1.3 Since, it is not disputed that the plaintiff did execute
the power of attorney, empowering the Respondent No. 2 to sell
the property and it is further not in dispute that the Respondent
No. 2 has executed the sale deed in favour of the Appellant, the
only question which arises is whether the power of attorney was
cancelled before the execution of the sale deed
on 28.04.1987.
Undoubtedly, the further question would be whether the
cancellation was effected in a valid and legal manner and finally,
whether it was made known to not only to the Respondent No. 2
but also to the Appellant. Section 201 of the Contract Act, dealing
with termination of agency, declares that an agency can be
terminated by the principal revoking the authority of the agent.
An exception to the power of principal to revoke the agency is
found in Section 202 of the Contract Act, which provides that
where an agent has himself an interest in the property which forms
the subject of the agency, in the absence of an express contract,
the agency cannot be terminated to the prejudice of the agent’s
interest. In such cases, the agency would be clearly irrevocable.
Section 207 of the Contract Act declares that revocation may be
express or may be implied in the conduct of that principal or
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agent, respectively. Section 208 deals with the time when
termination of the agent’s agency takes effect. [Para 52][317-B-
E]
1.4 It is no doubt true that the case of the plaintiff is that
the second defendant was bereft of the authority to transfer the
property as on 28.04.1987 in view of the fact that the second
defendant had surrendered the power of attorney dated 28.01.1987
on 02.02.1987 and the plaintiff had produced the document. The
second defendant has denied the case of surrender before the
execution of sale deed. According to him, the power of attorney
had been misplaced. It is, accordingly, he applied for the certified
copy of the same and went ahead with the execution and
registration of the sale deed. According to the second defendant,
when sale was effected, the power of attorney was given back.
The first defendant, in fact, has set up the case that the original
power of attorney was with the second defendant even at the
time of the registration of the sale deed. It has already been held
that the production of original power of attorney before the
Registering Authority was unnecessary for effecting registration
of the sale deed. [Para 54][318-D-F]
1.5 Exhibit-DX may help to resolve the controversy. This
is a letter dated 02.06.1987 which was admittedly, got scribed
and dispatched by the plaintiff to the second defendant. [Para
55][318-G]
1.6 Contrary to the case of the plaintiff that the power of
attorney stood cancelled on 02.02.1987, after
it was surrendered
to him on that day, it is that the plaintiff writes to the second
defendant about having spoken to the second defendant regarding
the land in question at Mehre and also gave him the power of
attorney. There is no mention about the power of attorney having
been surrendered on 02.02.1987 or about the so-called
cancellation of the same. The further stand of the plaintiff was by
way of asking the second defendant to inform the plaintiff at the
earliest, if he could talk to anyone or had talked to anyone. The
meaning of the of latter portion is made clear when he says that
the money may be sent to him because he is in dire need of money.
Therefore, it means that the case of the plaintiff that he had
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cancelled the power of attorney by writing the word ‘cancelled’
on 02.02.1987, upon it being surrendered by the second
defendant, cannot be accepted. The letter sent by the second
defendant to the plaintiff on 16.06.1987 indicates that the second
defendant tells the plaintiff that the plaintiff may have come to
know that as power of attorney he had made the sale deed of the
property. No doubt, he says that the plaintiff might have been
‘astonished to know’ regarding the sale. The second defendant
further writes to the plaintiff that he has done this job in faith of
friendship and for betterment. He admits that he could not go to
the plaintiff as his brother was ill and, later on, his wife fell ill. He
admits to having spent some amount from the money paid. This
correspondence between the plaintiff and the second defendant
would be fatal to the plaintiff’s case that the plaintiff had cancelled
the power of attorney. [Paras 57, 58][320-E-H; 321-A-B]
1.7 The plaintiff, in his deposition, has stated that he had
cancelled the power of attorney at Mehre and there itself was
the Office of the Sub-Registrar located. He has admitted that he
did not get the power of attorney cancelled at the Sub-Registrar
Office. Even, more importantly, he has admitted to not having
sent any notice of cancellation. The only evidence consists of a
statement of PW1 that the first defendant was aware of the
cancellation and the statement of PW6,
who had said that the
first defendant was also there on 02.02.1987, when on two papers
a line was drawn to signify the cancellation. The Trial Court and
also the appellate court have relied upon the DX sent by the
plaintiff himself, which appears to undermine the evidence about
the cancellation on 02.02.1987. The High Court should not have,
at any rate, disturbed the said finding in a Second Appeal. In such
circumstances, the conclusion is inevitable that the case of the
plaintiff that power of attorney stood cancelled, in the manner
done on 02.02.1987, cannot be accepted. At any rate, it is difficult
to accept the case of the plaintiff that the first defendant, who is
the third party, could be attributed any knowledge of the surrender
or the alleged cancellation on 02.02.1987, even assuming for a
moment that this Court could lend credence to the plaintiff’s
version in this regard that the second defendant surrendered
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the power of attorney. This Court need not pronounce on the
question whether the power of attorney being registered, it could
be cancelled only by a registered power of attorney. This is said
as even in the absence of a registered cancellation of the power
of attorney, there must be cancellation and it must further be
brought to the notice of the third party at any rate as already
noticed. Such a cancellation is not made out. In this regard it is
highly significant to notice the case actually set up in the plaint.
In the plaint what is averred by the plaintiff is that when the
negotiations fell through the second defendant surrendered the
original power of attorney to the plaintiff which is still in possession
of the plaintiff and the plaintiff told the defendant no. 1 that the
same stand cancelled and he shall not execute any sale deed on
behalf of the plaintiff. [It is not even clear whether it should be
understood as the plaintiff told the second defendant that same
stand cancelled and he shall not execute any sale deed on behalf
of the plaintiff.] It is further averred that “even defendant no. 2
was not competent to transfer the possession, rather the special
power of attorney deemed to cancelled in the eyes of law since it
was handed over to the plaintiff”. Therefore, the case set up by
the plaintiff was that on the second defendant handing over the
power of attorney to the plaintiff, the special power of attorney
was deemed to have been cancelled in
the eye of law. There is no
whisper in the plaint about the plaintiff having cancelled it in the
manner in which he has deposed to in the evidence on 02.02.1987.
As far as P-1 is concerned, it is dated 30.01.1987. The Trial Court
has entered the finding that the P-1 stood proved and that the
second defendant is bound by it. The Appellate Court has not
disturbed the finding. In other words, proceeding on the basis
that the second defendant had a duty to not sell the property
below Rs.55,000/-, in terms of P-1, the breach of duty to not sell
below Rs.55,000/-, when the second defendant sold the property
for Rs.30,000/-, cannot invalidate the sale or render it null and
void. A perusal of the power of attorney will make it clear that
any restriction on the price is conspicuous by its absence in the
power of attorney. The impugned Judgment is set aside. [Paras
59-63][321-B-H; 322-A-E]
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS.
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Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and
Another (2009) 14 SCC 782 : [2009] 11 SCR 686 –
relied on.
Anathula Sudhakar v. T. Buchi Reddy (dead) by LRs &
Ors. (2008) 4 SCC 594 : [2008] 5 SCR 331; Madhukar
Vishwanath v. Madhao & Ors. (1999) 9 SCC 446 –
referred to.
Jambu Parshad v. Muhammad Nawab Aftab Ali Khan
& Anr. AIR 1914 PC 16; Ma Shwe Mya v. Maung Ho
Hnaung AIR 1922 PC 359; Jambu Prasad v.
Muhammad Aftab Ali Khan and others AIR 1914 PC
16; Daya Shanker & Ors. v. Rajendra 14 Kumar &
Ors. (2016) 118 ALR 62; Ratilal Nathubhai & Anr. v.
Rasiklal Maganlal & Ors. AIR 1950 Bom. 326 –
referred to.
Pollock and Mulla, The Indian Contract and Specific
Relief Acts, 14th Edition – referred to.
Case Law Refrence
[2009] 11 SCR 686
relied on
Para 10
[2008] 5 SCR 331
referred to
Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5797
of 2009.
From the Judgment and Order dated 31.07.2008 of the High Court
of Himachal Pradesh at Shimla in R.S.A. No. 27 of 1997.
Rajesh Gupta, Harpreet Singh for M/s K J John and Co., Advs.
for the Appellant.
V. Giri, Sr. Adv., Sanchar Anand, Anant Kumar Vatsya, Shiv Kumar,
Sameer Singh, Devendra Singh, Advs. for the Respondents.
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The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. By the impugned judgment the High Court in a second appeal
has reversed the concurrent findings rendered in a suit filed by the first
respondent and the appellant who is the second defendant in the suit has
filed the present appeal. The second respondent who is the second
defendant in the suit though served has chosen not to appear. The parties
shall be referred to by their status in the Trial Court.
THE SUIT
2. The plaint schedule property hereinafter referred to as the
‘property’ consists of 2 Kanals, 10 Marlas and odd land belonged to the
plaintiff and was in his possession. He was serving as a junior engineer.
He entered into an oral agreement for the sale of the property for a
consideration of Rs. 55,000/-. It is the plaintiff’s case that when the
plaintiff came on leave, the first defendant could not arrange the money
and asked for further time. The plaintiff bonafide executed a special
power of attorney in favour of the IInd defendant for selling the property
for the amount of Rs. 55,000/-. As the negotiation fell through in view of
the first defendant not being able to arrange the money, the second
defendant to whom the power of attorney was executed, surrendered
the original to the plaintiff, and the plaintiff told the first defendant that
the same stood cancelled. The second defendant is alleged to be a deed
writer and a clever person. He applied for the copy of the power of
attorney, and fraudulently in collusion with the first defendant, executed
the sale deed on 28.04.1987 for Rs. 30,000/. The second defendant,
according to the plaintiff, could not execute the sale deed in the absence
of the original power of attorney, and the sub registrar was supposed to
verify the aspect from the second defendant under Sections 32, 33 and
34 of the Registration Act. The sale deed was without authority. The
second defendant ‘was not competent to transfer the possession’. The
special power of attorney is deemed to have been cancelled in the eye
of law since it was handed over to the plaintiff. When the plaintiff came
from his service and enquired with the officials of the revenue staff or
the consolidation authority, and got the copies, then he came to know
about the sale and that the mutation has been sanctioned. It is on this
case that the plaintiff filed a suit for declaration by way of permanent
injunction that he is the owner in possession of that property and the
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mutation showing the sale in favour of the first defendant, by the second
defendant, was null and void, and that the second defendant was not
having any authority to sell the land owned by the plaintiff, and hence
the defendant be restrained from interfering with the ownership and
possession of the plaintiff. It was further prayed that in case it was
proved that the second defendant was an agent of plaintiff then in that
case, the suit for rendition of accounts be decreed.
3. The first defendant (appellant) in his written statement inter
alia pleaded that he while admitting that the plaintiff is a junior engineer,
his actual place of posting was not known to him. It is also admitted that
the first defendant entered into an agreement orally to get the property
purchased for Rs.30,000/- and not Rs.55,000/-. It is denied that the first
defendant could not arrange for the money. The plaintiff received
Rs.10,000/- as part price. The remaining Rs.20,000/- was paid at the
time of registration. The negotiation of the sale did not fall through. Second
defendant never surrendered the original power of attorney. The plaintiff
got the power of attorney after the sale deed was executed by the second
defendant. The sum of Rs.20,000/- was given in the presence of the sub
registrar. The first defendant was a bonafide purchaser. The sale deed
was effected in a legal manner and after verification by the sub registrar.
The second
defendant was competent to execute the sale deed.
4. The second defendant also filed a written statement. He
contended that there was an agreement between the plaintiff and the
first defendant independently without the intervention of the second
defendant for the sum of Rs.30,000/- out of which the plaintiff was
himself given Rs.10,000/- as earnest money from the first defendant.
The remaining Rs.20,000/- was to be received on the registration of the
sale deed as at the time of sale, it could not be effected immediately.
The plaintiff had to join his duty and therefore wanted the second
defendant to have a registered special Power of Attorney from him and
then, execute the sale deed and get it registered after receiving the
remaining amount of consideration of Rs.20,000/. The consideration of
the sale deed being Rs.55,000/- is stoutly denied. It is his further case
that the remaining consideration was handed over to the plaintiff and the
power of attorney was handed over to the plaintiff. However, the case
that the power of attorney was handed over before execution of sale
deed is denied. He denied acquaintance with the government officer
much less the sub registrar. There is no prohibition of law for executing
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a sale deed on the basis of the copy of the registered power of attorney,
when the original could not be traced and the plaintiff insisted for the
money showing that he has a great need. Legally and factually, it is
pleaded ‘that no registered deed to cancelled orally.’ It requires another
registered deed to cancel it.
5. The Trial Court framed the following issues, inter alia:-
I. Whether sale in question is without consideration and void as
alleged;
II. Whether the plaintiff is entitled to the relief of declaration and
permanent injunction;
III. Whether the plaintiff is entitled to the rendition of account
from defendant No.2 in the alternative;
IV. Whether the plaintiff is estopped from filing the present suit
by his act and conduct;
V. Whether the suit is not properly valued for Court fee and
jurisdiction;
6. The evidence consisted of oral evidence on behalf of the plaintiff
tendered through eight witnesses. The documentary evidence on behalf
of the plaintiff consisted of P1 to P11. The first defendant was examined
as DW1. The second defendant was examined as DW4. DW2 and
DW3 were two other witnesses examined on behalf of the defendant.
DX which will assume considerable significance was also adduced apart
from D1 and D2. The Trial Court, interalia, while answering issues no. 1
and 2 was alerted about the provisions of Section 33 and 34 of the
Registration Act apart from Section 18A. Section 18A was found to
deal with the document presented for
registration. It went on to find
inter alia that the reading of Section 58,59 and 60 of the Registration Act
leads to the conclusion that the registration of the document is a solemn
act. The endorsement of the registration raised a presumption that the
executants or their duly authorised agents appeared before the Registrar.
It is for the other side to prove that the document was not presented for
registration, once it is proved that the document had been presented.
The execution was proved before the sub registrar. The sub registrar
has given evidence as PW4 and proved the sale for a consideration of
Rs.30,000/. The sale was also proved by the marginal witnesses. Section
18 A of the Registration Act makes it clear that the sale deed must be
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
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accompanied with a true copy of the power of attorney. That second
defendant was having a certified copy of the special power of attorney.
The Trial Court did not accept the plaintiff’s case that the second
defendant was not his power of attorney at the time of the sale. It relied
upon DX-letter dated 02.06.1987 written by the plaintiff. The Trial Court
did not attach any weight to the alleged cancellation of the power of
attorney especially when the second defendant was having a certified
copy of the special power of attorney, which was a registered power of
attorney. The cancellation also required registration. Exhibit PW 5A dated
02.07.1987 by which the second defendant agreed to pay Rs.30,000/- to
the plaintiff is relied upon and it was inexplicable as why it was executed,
if on 02.02.1987, the special power of attorney given to the second
defendant was cancelled. The power of attorney was found subsisting.
The mere writing of a word ‘cancelled’ on the original power of attorney
(P2) did not mean that the power of attorney had been cancelled, till
notice was given to the second defendant. The Ist defendant was not
bound by any agreement between plaintiff and the second defendant.
As per Section 18A, sale deed should accompany true copy of the power
of attorney and the original is not required. P1-agreement binds the plaintiff
and the second defendant having been proved by the scribe and witnesses.
P1 and P2 must
be read together. Plaintiff agreed with the second
defendant to sell the land for consideration not less that Rs.55,000/-. No
ground was given to set aside the sale. The sale was found effected for
Rs.30,000/- and was not a void transaction. In answering issue no. 3, it
was found however that the plaintiff was entitled to the rendition of the
account from the second defendant. The second defendant was in fact
found liable to pay Rs.55000/- based on P1 agreement. It was found
that the P1 agreement controlled the power of attorney. The agent could
not act against the interest of the principal. The court fee of Rs.19.50
was found correctly fixed. The Trial Court proceeded to decline the
relief of declaration by way of permanent injunction as the plaintiff was
not the owner in possession but the Suit for rendition of accounts from
the second defendant was decreed.
FINDINGS OF THE FIRST APPELLATE COURT
7. The plaintiff authorised the second defendant by power of
attorney dated 28.01.1997 to sell the property for Rs.55,000/-. The Court
found that the case of the plaintiff, that the power of attorney was
cancelled was unsustainable, having regard to the evidence of DW4,
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wherein he has deposed that he has received DX-letter also. The plaintiff
has admitted sending DX. The Court proceeded to find that there was a
valid sale deed and endorsement (PW4A). It was found that the sale
deed was executed.
FINDINGS OF THE HIGH COURT
8. The following questions of law were framed:
“1. Whether in view of the admitted position that defendant No.2
who was the petition writer, and in whose favour power of attorney
had been executed by the appellant for executing the sale deed
for a consideration of Rs. 55,000/- to the knowledge of respondent
No.1, it had to be assumed that the sale deed Ex.PW-3/A was
fraudulently executed for Rs. 30,000/- when the Power of attorney
had been cancelled and revoked and returned by the appellant
and the document Ex.PW-5/A was duly proved?
2. Whether the court below has misconstrued the basic document
of title Ex.PW-5/A, PW-3/A, P-1, P-2 and wrong inference have
been drawn from facts proved on record?
3. Whether on the material on record it was established that there
was non-compliance of mandatory provisions of section 18A, 59
and 61 of Registration Act and the findings that registered power
of attorney could only be executed by registered document is
sustainable in law?
4. Whether the sale deed Ex.PW-3/A conferred any valid title on
defendant No.1 and the plaintiff was entitled to the relief of
injunction and declaration?
5. Whether in the facts and circumstances of the case, the
presumption raised stood
rebutted and the plaintiff was entitled to
the relief of injunction and declaration instead of the alternative
relief of rendition of accounts as held by the court below?”
9. Thereafter, the Court proceeded to discuss the evidence and
records the following findings:
Defendant No.2 was not competent to execute the sale deed.
Power of attorney dated 28.1.1987 was cancelled on 02.02.1987.
Therefore, no reliance could be placed on Exhibit-DX dated 02.06.1987.
The evidence of PW4-Sub-Registrar, is referred to wherein he has
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admitted that it was not clear from the endorsement on the sale deed as
to by whom Defendant No.2 was identified to be the power of attorney.
It is further found that it is evident from the language of Section 18 of
the Registration Act that it was necessary for the Registering Authority
to see the true copy of the special power of attorney. In view of the
cancellation of the original power of attorney which was cancelled on
02.02.1987, the same could not be relied upon by the Registering Authority
for the purpose of execution of the sale deed. The evidence of PW6 is
relied upon to find that at time of the cancellation of the power of attorney,
Defendant No.1 was present. This implied that Defendant No.1 was
aware of the cancellation. In the written statement, it is noted that the
stand of second defendant was that the power of attorney had been
misplaced. The High Court proceeded to set aside the findings of the
courts below and decreed the suit by declaring the plaintiff as the owner
in possession of the land and the mutation showing the sale in favour of
the First Defendant was declared null and void.
THE SUBMISSIONS OF THE Ist DEFENDANT/
APPELLANT
10. The High Court has clearly erred in exercising jurisdiction
under Section 100 of the Code of Civil Procedure, 1908 (hereinafter
referred to as ‘the CPC’, for short). The substantial questions of law
were purely factual. The terms of the power of attorney would show
that the case of the plaintiff that the consideration was settled at
Rs.55,000/-, was incorrect. It is further contended that it is an admitted
fact that Defendant No.1 was put in possession on the execution of the
sale deed and Defendant No.1 has been found by trial court to be in
possession. The power of attorney which was registered, could have
been cancelled only by a registered document. In this regard, we drew
support from the judgment of the Allahabad High Court in Daya Shanker
& Ors. v. Rajendra Kumar & Ors.1 . He also sought support from
judgment of the Madras High Court (Madurai Bench) dated 11.12.2019
in Second Appeal No. (MD) 652 of 2015. The first defendant would
contend that the registration of a document brings it in public domain and
the registered document must be cancelled by the same means. It cannot
be permitted to be cancelled in secrecy. He relied on Ratilal Nathubhai
& Anr. v. Rasiklal Maganlal & Ors.2 Sections 32(a) of the Registration
1 (2016) 118 ALR 62
2 AIR 1950 Bom. 326
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Act, 1908 (hereinafter referred to as ‘the Act’, for short) contemplates
a situation where a power of attorney holder is authorised to execute a
sale deed. In this case, under the power of attorney executed by the
plaintiff, the second defendant was competent to execute the sale deed
and he could, therefore, present it for registration. In this regard, he
drew support from the judgment of this Court in Rajni Tandon v. Dulal
Ranjan Ghosh Dastidar and Another3 (2009) 14 SCC 782. The
appellant also points to the relief sought in the plaint and the court fees to
be paid being Rs.19.50, which was the court fees paid for injunction
simplicitor only. The plaintiff never sought cancellation of the sale deed
nor recovery of possession. The appellant relied on judgment of this
Court in Anathula Sudhakar v. T. Buchi Reddy (dead) by LRs &
Ors.4 and Madhukar Vishwanath v. Madhao & Ors.5, in this regard.
THE SUBMISSIONS OF THE PLAINTIFF
11. The High Court was justified in interfering under Section 100
of the CPC. The High Court rightly found it necessary that the First
Appellate Court should have discussed the evidence after formulating
the points for determination under Order XLI Rule 31 of CPC. It is
further contended that there was fraud and collusion and to the knowledge
of both the defendants, the power of attorney stood withdrawn. Non-
consideration of relevant evidence justified the High Court in interfering
under Section 100 of the CPC. Construction of a
document of title or of
a document which was foundation of a right, raised a question of law. In
cases of extreme perversity, the High Court can interfere under Section
100. Referring to Sections 32, 33 and 34 of the Registration Act, it is
contended that improper presentation of a document is not a mere defect.
The provisions are intended to prevent forgery and procurement of
conveyance by fraud or undue influence. Reliance was placed on
judgment of Privy Council in Jambu Parshad v. Muhammad Nawab
Aftab Ali Khan & Anr.6 and Ma Shwe Mya v. Maung Ho Hnaung7. It
is further contended that Section 33(4) clearly contemplates the original
power of attorney being produced at the time of presentation of the sale
deed. The original power of attorney was not produced in this case by
the second defendant. The original power of attorney was with the plaintiff
3 (2009) 14 SCC 782
4 (2008) 4 SCC 594
5 (1999) 9 SCC 446
6 AIR 1914 PC 16
7 AIR 1922 PC 359
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and he has produced the same which was marked as Exhibit-P2. It was
surrendered by the second defendant. The evidence of PW6 is relied
upon. The case of the first Defendant that he was a bonafide purchaser,
was a false pretence. After the cancellation of the power of attorney,
the entire procedure of making an application by the second defendant
for a copy, its preparation and receipt, shows fraud and collusion between
the Defendants and the Sub-Registrar (PW4) and officials of the
Registering Authority. The plaintiff took us through the deposition to
demonstrate the falsity of the Defendant’s case. There was an oral
agreement between the plaintiff and the first defendant to sell and
purchase, respectively, the property at Rs.55,000/-. The plaintiff was
not paid Rs.10,000/- as claimed by the first defendant. Finding that the
first defendant will not be able to raise Rs.55,000/-, the second defendant
surrendered the power of attorney on 02.02.1987. The plaintiff has not
received any amount from the first defendant or the second defendant.
There is no equity in the case of first defendant. To do complete justice,
the impugned judgment must be upheld.
ANALYSIS
A BRIEF SURVEY OF THE REGISTRATION ACT.
12. We must make a survey of the relevant provisions of the
Registration Act. Section 17 deals with the documents which are
compulsorily to be registered. The consequences of a compulsorily
registrable document not being
registered are spelt out in Section 49 of
the Act. Section 18 deals with documents, which are optionally registrable.
In other words, they are documents, which do not attract the wrath of
Section 49 of the Act. In the state of Himachal Pradesh from where this
case arises, Section 18A has been inserted (vide Vide Himachal Pradesh
Act 2 of 1969, s. 3). It reads as follows:
“18-A. Documents for registration to be accompanied by a
true copy.- Notwithstanding anything contained in this Act, the
registering officer shall refuse to register any document presented
to him for registration unless such document is accompanied by a
true copy thereof.”
13. The argument of the first defendant, based on Section 18A, is
as follows:
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Section 18A contemplates the production of the certified copy of
the power of attorney and therefore the production of the certified copy
of the power of attorney along with the original of the sale deed, was
fully justified. The High Court, in the impugned judgment, has referred
to Section 18 (apparently Section 18A) and held that it is evident from
the said provision that it was necessary for the Registering Authority to
see the true copy of the special power of attorney.
IMPACT OF SECTION 18A
14. What Section 18A contemplates is the production of a true
copy of a document, which is sought to be got registered. The document,
which is sought to be registered in this case was the sale deed executed
by the second defendant in favour of the first defendant. We are not
called upon to decide the case that the true copy of the sale deed was
not produced.
15. In fact, our view finds support from the Statement of Objects and
Reasons to be found in the Indian Registration (Punjab Amendment Bill),
1961. Section 18A was first introduced in Punjab and it, is thereafter, that it
was also made applicable in respect of the State of Himachal Pradesh. The
Statement of Objects and Reasons to the Punjab Bill reads as follows:
“According to section 52(1)(c) of the Indian Registration Act,
1908, all documents registerable under the Act, are copied in the
relevant Bahis before they are returned to the executant. It takes
a considerable time to copy out these documents in the
relevant
Bahis and the delay causes considerable loss to the litigant people.
Similarly, there is no check on the writing of deeds and
to give relief to the public on these two accounts. Applications under
this Act, and also on the fees charged by deed-writers. Often, people
with little. experience and knowledge of the laws on Stamp Registration
are. writing out these documents at very high rates. This Bill seeks to
give relief to the public on these two accounts.”
16. It is, therefore, clear that the true copy of the document presented
for registration is to be produced under Section 18A. It is only to avoid the
delay resulting from having to copy the document, that Section 18A was
inserted.
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THE OTHER PROVISIONS
17. The argument of the plaintiff would appear to be that it is
imperative, having regard to Sections 32 and 33 of the Act, that the
original power of attorney should be produced. In view of this, we consider
it necessary to advert to Sections 32 and 33 of the Act, which read as
follows:
“32. Persons to present documents for registration
‘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 person executing or claiming under the same, or, in
the case of a copy of a decree or order, claiming under the decree
or order, or
(b) by the representative or assignee of such a person, or
(c) by the agent of such a person, representative or assign, duly
authorised by power-of-attorney executed and authenticated in
manner hereinafter mentioned.”
33. Power-of-attorney recognisable for purposes of section 32
(1) For the purposes of section 32, the following powers-of-attorney
shall alone be recognised, namely:-
(a) if the principal at the time of executing the power-of-attorney
resides in any part of India in which this Act is for the time being
in force, a power-of-attorney executed before and authenticated
by the Registrar or Sub-Registrar within whose district or sub-
district the principal resides;
(b) if the principal at the time
aforesaid resides in any part of
India in which this Act is not in force, a power-of-attorney executed
before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in India, a
power-of-attorney executed before and authenticated by Notary
Public, or any court, Judge, Magistrate, Indian Consul or vice-
consul, or representative of the Central Government: PROVIDED
that the following persons shall not be required to attend at any
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registration-office or court for the purpose of executing any such
power-of-attorney as is mentioned in clauses (a) and (b) of this
section, namely-
(i) persons who by reason of bodily infirmity are unable without
risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in court.
Explanation: In this sub-section “India” means India, as defined in
clause (28) of section 3 of the General Clauses Act, 1897.]
Section 33 (2) In the case of every such person the Registrar or
Sub-Registrar or Magistrate, as the case may be, if satisfied that
the power-of-attorney has been voluntarily executed by the person
purporting to be the principal, may attest the same without requiring
his personal attendance at the office or court aforesaid.
Section 33 (3) To obtain evidence as to the voluntary nature of
the execution, the Registrar or Sub-Registrar or Magistrate may
either himself go to the house of the person purporting to be the
principal, or to the jail in which he is confined, and examine him,
or issue a commission for his examination.
Section 33 (4) Any power-of-attorney mentioned in this section
may be proved by the production of it without further proof when
it purports on the face of it to have been executed before and
authenticated by the person or court hereinbefore mentioned in
that behalf.”
18. We also consider it necessary to refer to Section 34 of the
Act. It reads as follows:
“34. Enquiry before registration by registering officer.—(l) Subject
to the provisions contained in this Part and in sections 41, 43, 45,
69, 75, 77, 88 and 89, no document shall be registered under this
Act, unless the persons executing such document, or their
representatives, assigns or agents authorized as aforesaid, appear
before the registering officer within the time allowed for
presentation under sections 23, 24, 25 and 26: Provided that, if
owing to urgent necessity or unavoidable accident all such persons
do not so appear, the Registrar, in cases where the delay in
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appearing does not exceed four months, may direct that on payment
of a fine not exceeding ten times the amount of the proper
registration fee, in addition to the fine, if any, payable under section
25, the document may be registered.
(2) Appearances under sub-section (1) may be simultaneous or
at different times.
(3) 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 as to the identity 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.
(4) Any application for a direction under the proviso to sub-section
(1) may be lodged with a Sub-Registrar, who shall forthwith
forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.
19. The argument of the plaintiff that for a proper and legal
presentation of a document, the first defendant was obliged to produce
the original power of attorney, does not appear to be sound. In fact, the
matter itself is not res integra. This Court in Rajni Tandon v. Dulal
Ranjan Ghosh Dastidar and another (supra), held, inter alia, as follows:
“19. In view of the aforesaid situation, the issue that falls for our
consideration is whether a
person who executes a document under
the terms of the power of attorney, is, insofar as the registration
office is concerned, the actual executant of the document and is
entitled under Section 32(a) to present it for registration and get it
registered.
21. Section 32 deals with persons who are eligible to present
documents for registration before the proper registration office.
Section 32 specifies three categories of persons who can present
documents for registration. The use of the word “or” between
the clauses of Section 32 demonstrates that the legislature intended
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the said clauses to be read disjunctively and not conjunctively. It
is settled law that the use of the word “or” is used to signify the
disjunctive nature of a provision. In this regard reference may be
made to the decision of this Court in State of Orissa v. State of
A.P. [(2006) 9 SCC 591]
22. Clause (a) of Section 32 specifies that a document can
be presented for registration by:
(i) by the person executing the document;
(ii) any person claiming under the document presented for
registration; and
(iii) in the case the said document is a copy of a decree or
order, any person claiming under the decree or order.
Clauses (b) and (c) deal with cases where the document is
presented not by any person mentioned in (i), (ii) and (iii) above
but by their agent, representative or assign. This is so because the
use of the words “such person” in clauses (b) and (c) can be
understood to mean only persons as referred to in (i), (ii) and (iii)
above.
23. It may also be mentioned herein that the scope of clauses
(b) and (c) in Section 32 may to an extent overlap one another.
However, we do not propose to deal with the same as it is not
relevant for determination of the issue before us. It is suffice to
say that insofar as clause (c) of Section 32 is concerned the agents,
representatives or assigns of the persons referred to in (i), (ii) and
(iii) above can present the said document for registration only if
they are duly authorised by the power of attorney executed and
authenticated in the manner hereinafter mentioned.
24. The words “executed and authenticated in manner
hereinafter mentioned” in Section 32(c) would mean the procedure
specified in Section 33. This is clear from the opening words of
Section 33 which reads “for the purposes of Section 32, the
following power of attorney shall alone be recognised”. Section
32 refers to documents presented for registration by a holder of
“power of attorney” in clause (c) and it therefore follows that the
procedure specified under Section 33 would be attracted where a
document is presented by a person holding “powers of attorney”
of the persons mentioned in clause (a) of Section 32.
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
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25. The aforesaid position makes it explicitly clear that
Section 32 of the Act requires the documents sought to be
registered, to be presented, inter alia by the person executing it.
In other words, the said expression requires presence of the actual
person executing the document. The basic principle underlying
this provision of the Act is to get before the Sub-Registrar the
actual executant who, in fact, executes the document in question.
In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj
226] has laid down a similar proposition on the conjoint reading of
Section 32 and Section 33 of the Act and after referring to all the
judgments noted hereinbefore. Same view has been expressed
earlier by the Bombay High Court in Ratilal Nathubhai v.
Rasiklal Maganlal [AIR 1950 Bom 326].
26. It is important to bear in mind that one of the categories
of persons who are eligible to present documents before the
registration office in terms of Section 32 of the Act is the “person
executing” the document. The expression “person executing” used
in Section 32 of the Act, can only refer to the person who actually
signs or marks the document in token of execution, whether for
himself or on behalf of some other person. Thus, “person
executing” as used in Section 32(a) of the Act signifies the person
actually executing the document and includes a principal who
executes by means of an agent. Where a person holds a power of
attorney which authorises him to execute a document as agent
for someone else, and he executes a document under the terms
of the power of attorney, he is, so far as the registration office is
concerned, the actual executant of the document and is entitled
under Section 32(a) to present it for registration and get it
registered.
28. In the facts of the present case, it is quite clear that
Indra Kumar Halani, was given the full authority by Nandlal Tantia
under the power of attorney to transfer the suit property and to
execute the necessary document. It is an accepted position that
the said document had been executed by Indra Kumar Halani in
the name and on behalf of Nandlal Tantia thereof. Therefore, for
the purposes of registration office under Section 32(a) of the Act
Indra Kumar Halani is clearly the “person executing” the
document. Therefore, it follows that the said sale deed which
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was executed and authenticated by Indra Kumar Halani could be
presented for registration by him. We are of the considered view
that Indra Kumar Halani acted in the aforesaid manner mandated
under Section 32(a) of the Act.
29. The object of registration is designed to guard against
fraud by obtaining a contemporaneous publication and an
unimpeachable record of each document. The instant case is one
where no allegation of fraud has been raised. In view thereof the
duty cast on the registering officer under Section 32 of the Act
was only to satisfy himself that the document was executed by
the person by whom it purports to have been signed. The Registrar
upon being so satisfied and upon being presented with a document
to be registered had to proceed with the registration of the same.”
20. In other words, when a person empowers another to execute
a document and the power of attorney, acting on the power, executes
the document, the power of attorney holder can present the document
for registration under Section 32(a). Section 32(a) of the Registration
Act deals with the person executing a document and also the person
claiming under the same. It also provides for persons claiming under a
decree or an order being entitled to present a document. Section 32(b)
speaks about the representative or assignee of ‘such a person’. The
word such a person in Section 32(b) is intended to refer to the persons
covered by Section 32(a). Finally, Section 32(c) provides for the
agent
of ‘such a person’ which necessarily means the persons who are
encompassed by Section 32(a). Besides agent of the person covered by
Section 32(a), Section 32(c) also takes in the agent of the representative
or assignee. Now the words representative or assignee are to be found
in Section 32(b). Thus, Section 32(c) deals with agents of the persons
covered by Section 32(a) and agents of the representative or assignee
falling under Section 32(b). It is in respect of such an agent that there
must be due authorisation by a power of attorney, which in turn, is to be
executed and authenticated in the manner provided for in Section 33.
However, the person, who has actually signed the document or executed
the document for the purpose of Section 32(a) does not require a power
of attorney to present the document. It may be open to the principal,
who has entered obligations under the document, to present the document.
Section 32(c) must alone be read with Section 33 of the Act. Thus,
when Section 32(c) of the Registration Act declares that a document,
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whether it is compulsorily or optionally registrable, is to be presented,
inter alia, by the agent of such a person, representative or assignee,
duly authorised by power of attorney, it must be executed and
authenticated in the manner and hereinafter mentioned immediately in
the next following section. Section 33 by its very heading provides for
power of attorney recognisable for the purpose of Section 32. Section
32(a) cannot be read with Section 33 of the Act. In other words, in a
situation, if a document is executed by a person, it will be open to such a
person to present the document for registration through his agent. The
agency can be limited to authorising the agent for presenting the document
for it is such a power of attorney, which is referred to in Section 32(c).
It is in regard to a power of attorney holder, who is authorised to present
the document for registration to whom Section 33 would apply. In the
facts of this case, the second defendant was armed with the power of
attorney dated 28.01.1987 and if it was not cancelled and he had executed
the sale deed on 28.04.1987, he would be well within his rights to present
the document for registration under Section 32(a) of the Act.
21. It is no doubt true that presentation is not a matter of form.
Without a valid presentation of the document, the registration would be
illegal. In this regard, the observations of the Privy Council in judgment
reported in
Jambu Prasad v. Muhammad Aftab Ali Khan and others8
may be noticed.
“Para 8. It was decided, and as their Lordships considered
correctly, by Sir John Stanley, C.J. and Sir George Knox, J. in
1966 in Ishri Prasad v. Baijnath 28A. 707 : 3 A.L.J. 743 : A.W.N.
(1906) 195 that the terms of Sections 32 and 33 of Act III of 1877
are imperative, and that a presentation of a document for
registration by an agent, in that case the agent of a vendee of
Immovable property, who has not been duly authorised in
accordance with those sections, does not give to the Registering
Officer the indispensable foundation of his authority to register
the document. As those learned Judges said:
His (the Sub-Registrar’s) jurisdiction only comes into force if and
when a document is presented to him in accordance with law.
8 AIR 1914 PC 16
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Para 11. One object of Sections 32, 33, 34 and 35 of Act III of
1877 was to make it difficult for persons to commit frauds by
means of registration under the Act.”
However, in the facts, the IInd defendant having presented the
sale deed as executant, the presentation and registration cannot be
questioned.
22. Section 34 provides for the inquiry to be done by the Registering
Office before he orders registration. It declares that no document shall
be registered under the Act unless the persons executing such document
or their representatives, assigns or agents authorised as aforesaid, appear
before the Registering Authority before the time, allowed for presentation
under Sections 23, 24, 25 and 26. This is, however, subject to Sections
41, 43, 45, 69, 75, 77, 83 and 89. Appearances under Section 34(1) may
be simultaneous or at different times. Section 34(3)(a) enjoins upon the
Registering Officer to enquire whether or not such document was
executed by the persons by whom it purports to have been executed.
Section 34(3)(b) further makes it his duty to satisfy himself as to the
identity of a person’s appearing before him and alleging that they have
executed the document. It must be understood and read along with Section
32(a). Section 32(a) mandates presentation of the document for
registration by some person executing or claiming under the same, inter
alia. In respect of a person who presents the document, who claims to
have executed the document, not only
is he entitled to present the
document for registration, in the inquiry under Section 34(3)(a) and 3(b),
the duty of the Registering Officer extends only to enquire and find that
such person is the person who has executed the document he has
presented and further be satisfied about the identity of the person. When
it comes to Section 34(3)(c), the Registering Officer is duty-bound in
respect of any person appearing as a representative, assign or agent to
satisfy himself of a right of such a person to so appear. Section 34(3)(c)
is relatable to persons covered by Section 32(b) and 32(c) of the Act.
We have already found that the word ‘agent’ is to be understood as a
person who is authorised to present the document for registration. Such
an agent would fall under Section 32(c). Thus, in regard to persons falling
in Section 34(3)(c), it would, indeed, be incumbent on the agent, inter
alia, to produce the power of attorney as such.
23. Section 33(4) of the Act must be read with Section 4 of the
Power of Attorney Act, 1882. Section 33(4) reads as follows:
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“33(4) Any power-of-attorney mentioned in this section may be
proved by the production of it without further proof when it purports
on the face of it to have been executed before and authenticated
by the person or Court hereinbefore mentioned in that behalf.”
24. Sections 4(a) and (b) of the Power of Attorney Act, 1882
reads as follows:
“4. Deposit of original instruments creating powers-of-attorney.
— (a) An instrument creating a power-of-attorney, its execution
being verified by affidavit, statutory declaration or other sufficient
evidence, may, with the affidavit or declaration, if any, be deposited
in the High Court 9 [or District Court] within the local limits of
whose jurisdiction the instrument may be.
(b) A separate file of instruments so deposited shall be kept; and
any person May search that file, and inspect every instrument so
deposited; and a certified copy thereof shall be delivered out to
him on request.”
25. For reasons, which we have indicated, Section 32(c) read
with Section 33 and Section 34(2)(c) are inter-related and they would
have no application in regard to the document presented for registration
by a power of attorney holder who is also the executant of the document.
In other words, there is really no need for the production of the original
power of attorney, when the document is presented for registration by
the person standing in the shoes of the second defendant in this case as
he would be
covered by the provisions of Section 32(a) as he has executed
the document though on the strength of the power of attorney. To make
it even further clear, the inquiry contemplated under the Registration
Act, cannot extend to question as to whether the person who executed
the document in his capacity of the power of attorney holder of the
principal, was indeed having a valid power of attorney or not to execute
the document or not.
26. Section 35 of the Registration Act provides for the procedure
on admission or denial of execution. The person, who has executed the
document is to be asked whether he accepts the execution of the
document. Section 35(2) reads as follows:
“35(2) The registering officer may, in order to satisfy himself that
the persons appearing before him are the persons they represent
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themselves to be, or for any other purpose contemplated by this
Act, examine any one present in his office.”
 27. This provision gives authority to the Registering Authority to
satisfy himself that the persons appearing before him are the persons
they represent to be or for any other purpose contemplated under the
Act. Towards this end, Registering Officer can examine anyone present
in his Office. Section 35(3) reads as follows:
“(3) (a) If any person by whom the document purports to be
executed denies its execution, or
(b) if any such person appears to the registering officer to be a
minor, an idiot or a lunatic, or
(c) if any person by whom the document purports to be executed
is dead, and his representative or assign denies its execution, the
registering officer shall refuse to register the document as to the
person so denying, appearing or dead: Provided that, where such
officer is a Registrar, he shall follow the procedure prescribed in
Part XII: 50 [Provided further that the 51 [State Government] may,
by notification in the 52 [Official Gazette], declare that any Sub-
Registrar named in the notification shall, in respect of documents
the execution of which is denied, be deemed to be a Registrar for
the purposes of this sub-section and of Part XII.]”
28. Thus, the aforesaid provision deals with situations in which
the Registering Authority refuses the registration. If the registering
Authority is satisfied about the identity of the person and that he
admits
the execution of the document, it may not be a part of the Registrar’s
duty to enquire further. The registration by itself will not bring the curtains
down on questions relating to title to the property. The very purport of
the Law of Registration is to usher in and maintain a transparent system
of maintaining documents relating to property rights. It puts the world on
notice about certain transactions which are compulsorily registrable
Section 17 interalia. The law also makes available facility of registering
documents at the option of the person (Section 18).
29. Section 57 of the Act provides for keeping Books No. 1 and 2
and the Index relating to Book No.1 open for inspection to any person
applying to inspect the same. Book No.1, it must be noticed, as provided
in Section 51, is a register of non-testamentary documents relating to
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS. [K. M. JOSEPH, J.]
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immovable property. Book No.2 is a record of reasons for refusal to
register.
30. Section 58 of the Act deals with the procedure on admitting a
document to registration.
“58. Particulars to be endorsed on documents admitted to
registration. —(l) On every document admitted to registration,
other than a copy of a decree or order, or a copy sent to a
registering officer under section 89, there shall be endorsed from
time to time the following particulars, namely: —
(a) the signature and addition of every person admitting the
execution of the document, and, if such execution has been
admitted by the representative, assign or agent of any person,
the signature and addition of such representative, assign or
agent;
(b) the signature and addition of every person examined in
reference to such document under any of the provisions of this
Act; and
(c) any payment of money or delivery of goods made in the
presence of the registering officer in reference to the execution
of the document, and any admission of receipt of consideration,
in whole or in part, made in his presence in reference to such
execution.
(2) If any person admitting the execution of a document refuses
to endorse the same, the registering officer shall nevertheless
register it, but shall at the same time endorse a note of such refusal.
State Amendments Tamil Nadu: In section 58, —
(i) in sub-section (1), after item (a), the following item shall be
inserted,
namely:— “(aa) in the case of a document for sale of
property, the signature and addition of every person admitting
the claim under such document, and, if such claim has been
admitted by the representative, assign or agent of any person,
the signature and addition of such representative, assign or
agent;”;
(ii) in sub-section (2), after the expression “execution of a
document”, the expression “and in the case of a document for
sale of property, any person admitting the execution of such
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document, or any person admitting the claim under that
document” shall be inserted. [Vide Tamil Nadu Act 28 of
2000].”
31. Section 71 provides for reasons for refusal to register to be
recorded. Section 72 provides for an appeal to the Registrar against an
Order of the Sub-Registrar refusing to register. Section 77 contemplates
a Suit against refusal by the Registrar within 30 days of his Order.
32. On an analysis of the provisions, we have no hesitation in
rejecting the argument of the plaintiff that the non-production of the
original power of attorney by the second defendant, was fatal to a valid
registration being effected. The understanding of the Courts regarding
Section 18A is also erroneous. Section 18A was enacted only to ensure
that the copying process is hastened, as noticed from the Objects and
Reasons. The Trial Court was right when it held that Section 18A is
concerned only with the document which is presented for registration.
The Trial Court clearly erred relying upon Section 18(A) to hold that
certified copy however being produced of the power of attorney was in
conformity with Section 18A and the High Court was equally in error to
hold that Section 18A contemplated production of true copy of the power
of attorney.
33. Admittedly, the plaintiff was the owner in possession of the
property. It cannot be disputed that plaintiff entered into an agreement
with the first defendant to sell the property. What is disputed is the price.
On the one
hand, the plaintiff contends that the price was fixed at
Rs.55,000/-. The defendants dispute the said version. According to them,
the property was conveyed by the second defendant acting as the power
of attorney holder on behalf of the plaintiff in favour of the first defendant
for a total consideration of Rs.30,000/-. The execution of power of
attorney dated 28.01.1987, by the plaintiff in favour of the second
defendant is not in dispute. It is worthwhile to notice the contents of the
power of attorney:
“Special Power Of Attorney
 Stamp Paper Value Rs.5/- No. 1
I, Gian Chand age 35 years S/o Bhagwan Dass S/o Jawahar
is R/o Village Dhangota, Tappa Dhatwal, Tehsil- Barsar who is
owner in possession of land in Tika Barsar Tappa Panjgran Tehsil
Barsar comprising Khasra No. 361 measuring 2k-lOm.
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS. [K. M. JOSEPH, J.]
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I an owner in possession of land. I want to sell this land through
sale deed because I cannot, due to service, effect this task.
Therefore, through his statement on behalf of me, appoint Sh.
Yash Pal Singh S/o Sh Gian Singh R/o Bath Patialan, Tappa
Dhatwal, Tehsil Barsar, District Hamirpur, as my Special Power
of Attorney and I authorize him that he may sell the above said
land to whoever he wants to, and at whatever price, prepare sale
deed and produce before Sub Registrar, give statement, receive
requisite amount. Thereafter above mentioned land may got
mutated in the name of Vendee, got attested. I will accept whatever
is done by the attorney.
Therefore, being conscious and knowing I write the Special Power
of Attorney for proof.
Albad
Sh. Gian Chand
Sd/-’’
34. The said power of attorney is dated 28.01.1987. The second
defendant has executed the sale deed in favour of the first defendant on
the strength of the power of attorney dated 28.01.1987 on 28.04.1987.
The contention of the plaintiff, however, is that the original power of
attorney was surrendered by the second defendant to the plaintiff on
02.02.1987. It is the further case of the plaintiff that on 02.02.1987, he
cancelled the power of attorney, which was within the knowledge of the
first and the second Defendant. The further case of the plaintiff is based
on P1 dated 31.01.1987, which is described as an agreement. It is
profitable to refer to the same:
“AGREEMENT
I, Yash Pal Singh son of Gian Singh, am a resident of village Balh
PatialanTappa Dhatwal, Tehsil — Barsar, District — Hamirpur
and I have been appointed vide registered Special Power of
Attorney dated 28/01/1987 in respect of sale of land bearing
Khasara No. 361 situated in Tikka Barsar by Gian Chand son of
Bhagwan Dass resident of village — Dhangota Tappa Dhatwal,
Tehsil — Barsar. I on behalf of Gian Chand made a deal to sell
the aforesaid land measuring 2 Kanal 10 Marla to Amar Nath son
of Bhakshi Ram of Mehre for 55,000/-(Rupees Fifty Five
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Thousand). Amar Nath did not have the total consideration amount
to pay and he wanted a week’s time to arrange the money. For
this reason, Gian Chand appointed me as a Special Power of
Attorney because Gian Chand had urgently to go to Kinnaur.
Therefore, 1, now, would be able to sell this land only for 55,000/
-(Rupees Fifty Five Thousand) otherwise I would be unable to
sell. Therefore I write this agreement so that it can be used when
required.
Writer
Yashpal Singh
Witness
Sd/-
       Sd/-
               Sd/-
Nikka Ram
Dev Raj
S/o Shri Setu Ram
  S/o Shri Chhangnia
 Ram
V+P.O. - Ghangot, Tehsil — Barsar V+P.O. — Ghangot, Tehsil
— Barsar District — Hamirpur District — Hamirpur 30/01/1987"
35. According to the plaintiff, on the basis of the agreement to sell
the property for Rs.55,000/-, the second defendant, who has given the
power of attorney on 28.01.1987, was empowered to sell the property
for a price of Rs.55,000/- only. It is thereafter that on 02.02.1987, on
account of the default of the first defendant to raise the amount of
Rs.55,000/-, the second defendant allegedly surrendered the power of
attorney to the plaintiff. The power of attorney was cancelled.
A LOOK AT THE EVIDENCE
36. PW1, who is the plaintiff, has, inter alia, deposed as follows:
P1 agreement was written and given to PW1 by the second
defendant. It was read over to him in his presence and the second
defendant accepted its correctness and signed it. It was told that
the property will
not be sold for less than rupees fifty-five thousand.
He has executed the Special Power of Attorney in favour of the
second defendant. Later, the purchaser (not clear) told him that
he would get the registry done after the 2nd or 7th of February.
PW1 came to Mehre on 02.02.1987 but the purchaser (not clear),
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS. [K. M. JOSEPH, J.]
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it is stated, could not arrange for money. On the same day, the
second defendant returned the power of attorney and the power
of attorney was cut and was cancelled on that date by writing the
word ‘cancelled’ by PW1 on asking by the second defendant.
The power of attorney was in his possession. Defendant No.2
applied in court for obtaining the power of attorney and obtained
a copy on the same day. PW1 did not know of the registry, which
was made and it was made/executed by deceit and he did not get
any money. He tried to contact the second defendant and he told
him that he was in need of money and he had sold the land. After
that, he caused P3-Lawyer’s Legal Notice. Defendant No.1 was
aware of the cancellation of the power of attorney and that the
property was in his possession. In cross-examination, he has
admitted to DX being scribed by his friend at his instance and it
being duly signed by him. Where he had written Power of Attorney
-cancelled, it is signed by him. He cancelled Power of Attorney at
Mehre. He admits that there itself, the Office of the Sub-Registrar
was situated. He did not cancel the power of attorney through the
Sub-Registrar Office. PW1 further admits that he did not send
any notice of cancellation. He remained on leave from 26.01.1987
to 02.02.1987. He denied Defendant No.1 had given any money
to his wife. There was no talk regarding money. He denies them
having received Rs.10,000/-. He had
purchased a land for
Rs.15,000/- in 1982. He learnt about sale of the land on 02.06.1987.
He did not send any notice on 02.06.1987. Defendant No.1 was
not present when they decided that the land will not be sold for
less than Rs.55,000/-. Even P1 was not scribed in the presence of
Defendant No.1. When the Power Attorney was cancelled the
Defendants and one Nikka Ram were present. He then says Nikka
Ram is a resident of Ghangot and he did not know him. He denies
the suggestion that Nikka Ram is the brother of Ram Das, whose
son, he admits has married his sister. The property is banjar.
37. PW2 is one Kishori Lal, who has produced the summoned
record, of which, P-4 is a copy. He has stated that he knows the Second
Defendant and he can recognise his handwriting.
38. PW3 is one Ram Lal, working as a Deed Writer at Barsar.
He has scribed the sale deed (P-3/A). The second defendant is his
nephew. At the time of scribing the document, he had with him copy of
the Special Power of Attorney.
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39. PW4 is posted as the Sub-Registrar at Barsar since 1982. He
knew the second defendant, who is a Deed Writer. He had received
Exhibit-P4-application. He recognises the handwriting of the second
defendant. He had written for the Office Report. P-5 was certified by
him. It is not necessary to enclose Special Power of Attorney with the
sale deed but it is for their satisfaction that the power of attorney is
given. He was got identified by Bakshi Ram and is also known to him.
He deposed that he did not know of any requirement of a production of
the original power of attorney under Sections 34 and 35 of the Registration
Act and the Manual. He has denied fabrication of the document in
collusion with the second defendant. In his cross-examination, PW4 has
stated that on his asking, it was apprised that the second defendant is
plaintiff’s class fellow. The original of P-4 was written by the second
defendant. It was after due diligence/inquiry that he has ordered for the
release of copy of the document. He has further stated that second
defendant has himself verified/certified and identified as special power
of attorney. Rs.20,000/- were given in his presence to him and
Rs.10,000/- were confirmed to have been received earlier at home.
40. PW-5 is one Vikram Kumar. He has stated that the second
defendant has confirmed to have received Rs.30,000/-. The agreement
was made at his shop at 03.00 p.m. He and one Kartar Singh had signed.
41. PW6 is one Dev Raj. He
claims to be witness to P-1, which
has been signed by him. It was scribed/written by Nikka Ram and the
second defendant was the person who got it written. It was read over to
the second defendant, who had thereafter signed. The land was authorised
to be sold for Rs.55,000/- and there was no authority to sell it for lesser
value. On 02.02.1987, it was expressed in his presence that the land
could not be sold at the price and you take back the power of attorney.
Then, on two papers, the line was drawn. At that time, first defendant
was also there. In his cross-examination, he has deposed that earlier to
his examination, he had deposed two times. He denied having deposed
as witness in many cases. He does not have any relation of marriage-
death with the plaintiff nor was he from his village. He says on that day
(it must be on 02.02.1987), he had come to Mehre for purchasing oil. P-
1 was written at the place where all the Deed Writers sit at the Tehsil.
He cannot give detail as to who had met him on 30.01.1987 and
02.02.1987. The talk on 02.02.1987 was on the courtyard of the Tehsil
where the Deed Writers sat. On 02.02.1987, he had gone there, for
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS. [K. M. JOSEPH, J.]
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photograph and for making certificate. Mehre is 6-7 kilometres from
Ghangot and Buhdi is 5 kilometres away. He claims that while oil is
available at Buhdi, there was no photographer available. The suggestion
that he has deposed as witness in every case, is denied.
42. PW-7, one Kartar Singh, the other witness, has deposed that
the second defendant has confirmed payment of Rs.30,000/-.
43. PW-8 is Nikka Ram. He admits that P-1 contained his
signatures and it was written by him at the instance of second defendant.
It was signed by the second defendant and also by one Dev Raj, who is
examined as PW6. In cross-examination he has deposed that P-1 was
written at Mehre and there are Deed Writers at Mehre. He had come to
Mehre in connection with his work. Dev Raj has also come there with
him. He also admitted that he has deposed as witness in two other cases.
44. DW1 is the first defendant/appellant. He had purchased the
property vide PW3/A. The deed for sale was settled for Rs.30,000/-
with the plaintiff. At the time of agreement, Rs.10,000/- was paid to the
plaintiff in the presence of Roshanlal and the IInd defendant. At the time
of registration, Rs.20,000/- was paid to the second defendant before the
Sub-Registrar. There was neither any agreement for the sale of land for
Rs.55,000/- nor had he agreed to such an amount. He was in possession
of the property. He states in cross-examination that original registered
power of
attorney was seen at the time of registry. The power of attorney
would have been presented before the Sub-Registrar. The sale agreement
was done at the shop of Roshan Lal. There was no written agreement.
He has denied the claim that he had not paid Rs.10,000/-.
45. DW2 is Roshan Lal. He is the witness to the sale deed. He
deposed that the sale was for Rs.30,000/- and that he and Bakshi Ram
had signed. Rs.10,000/- was earlier paid. But it was not paid in his
presence and Rs.20,000/- was given at the time of registration and
Rs.10,000/- had already been paid as advance.
46. DW3 has been examined to establish that the possession of
the property was with the first defendant. He has deposed on the said
lines. He has denied the possession of the plaintiff over the property. He
also, however, says that he does not know, who is in possession of the
disputed land (it is found from the translation that the last five words are
undecipherable).
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47. DW4 is the second defendant. He deposed that he knew the
plaintiff as student. He was appointed as the power of attorney holder,
at time plaintiff was at Kinnaur. Plaintiff had posted a letter to him.
Plaintiff received Rs.10,000/- from the first defendant at the shop of
Roshan Lal. For the purpose of the sale deed, he had scribed the sale
deed for a total consideration of Rs.30,000/-. He admits to having received
Rs.20,000/- from the first defendant before the Sub-Registrar. He denies,
however, having paid the balance amount to the plaintiff. He also delivered
possession of the land to the first defendant in furtherance of the sale.
He has sold the land with the consent of the plaintiff. In cross-examination,
he, inter alia, stated that he received a registered letter from the plaintiff.
He does not know whether the original of DX is with him. The original
power of attorney was not available with him, when the sale was
registered. It was misplaced. He claims that P2 was not the same power
of attorney, which was given to him but cancelled and cuttings thereon,
is (not clear) in my hand. He denies having returned P2 (power of
attorney) back to the plaintiff and that he was left with no authority to
sell the land. He denies having signed P1 agreement. He had entered
into the oral agreement with the first defendant for the sale of land and
had received Rs.10,000/- but there was no written agreement. The
application for getting certified copy of the power
of attorney was given
on the date when the sale was to be registered because the power of
attorney had been misplaced. He is a Deed Writer since 1980. At the
time when Rs.10,000/- was received, the first defendant and Roshan
Lal were present. It is wrong to say that on 16.08.1987, he had written
a letter. His license was cancelled by the Deputy Commissioner. He
states that it is wrong that he was accused of creating a fake document.
He has paid Rs.20,000/- but he did not remember as to when he paid
Rs.20,000/-. He has stated to have been paid the amount to the plaintiff’s
wife at her residence. The disputed land was fenced with wires and
angle iron later by the first defendant. He has denied that he has not paid
any money to the plaintiff and the suggestion that he was paid Rs.55,000/
- by the first defendant. He has denied having been given Rs.10,000/- by
the first defendant. He denies as wrong that he had got the sale registered
before the receipt of DX. He has further denied plaintiff being in
possession.
48. In our view, the High Court has overstepped its limits by
reappreciating the evidence, a task which must be left to the First
Appellate Court. It is true that the First Appellate Court did not fully
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS. [K. M. JOSEPH, J.]
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conform to the requirements of Order XL1 Rule 31 of the CPC. The
property is banjar land. Quite clearly, the plaintiff wanted to sell the land.
He has admittedly executed the Power of Attorney in favour of the
second defendant. A perusal of the power of attorney, which is dated
28.01.1987, would reveal the following:
Plaintiff has described himself as the owner of possession of the
land. He wanted to sell the land through sale deed. Thereafter, it was
stated that he could not, due to service, effect this task. Therefore, he
appointed the second defendant as the special power of attorney and
authorised him that he may sell the above land to whosoever he wanted
to and at whatever price, prepare the sale deed, produce before the
Sub-Registrar, receive requisite amount, thereafter, the above-mentioned
may be got mutated in the name of the vendee. The plaintiff has declared
that he will accept, whatever is done by the attorney.
49.  According to the first defendant, he entered into the agreement
with the plaintiff. He has paid Rs.10,000/- as advance. According to the
plaintiff also, there was an agreement with the first defendant to sell the
land. The consideration, however, was Rs.55,000/-.
50. If, we now look into P-1, which is the alleged agreement,
which was executed by the Power of Attorney, we may reconstruct the
case of the plaintiff. Plaintiff had to leave the place in keeping with the
exigencies of the service.
There was an agreement to sell in favour of
the first defendant. The property was agreed to be sold for Rs.55,000/-
. First Defendant was unable to raise the amount. Therefore, the
agreement dated 30.01.1987, was entered into and it refers to the power
of attorney dated 28.01.1987. The power of attorney is, undoubtedly,
registered. If the plaintiff’s case is believed, P-1 agreement is executed
by the second defendant, which recites that he has been appointed as
the power of attorney. It is further recited that the second defendant, on
behalf of the plaintiff, has made a deal to sell the property for Rs.55,000/
-. It is stated still further that the first defendant did not have the total
amount of consideration. He wanted a weeks’ time to arrange the money.
For this reason, it is finally stated that the plaintiff had appointed him as
the power of attorney because the plaintiff had to urgently go to Kinnaur.
Finally, it is stated in P-1 that therefore, he would now be able to sell the
land only for Rs.55,000/-, otherwise, he would be unable to sell.
51. As far as Exhibit-P-1 is concerned, even PW1-the plaintiff
has deposed that first defendant was not present when they decided
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that land will not be sold for less than Rs.55,000/-. He further has deposed
that P1 agreement was not scribed in the presence of the first defendant.
In fact, even PW6 has not spoken about the presence of the first
defendant at the time of making of Exhibit-P-1. What PW6 has spoken
is about the presence of the first defendant also on 02.02.1987, when
the power of attorney was purportedly cancelled.
52. Since, it is not disputed that the plaintiff did execute the power
of attorney, empowering the second defendant to sell the property and it
is further not in dispute that the second defendant has executed the sale
deed in favour of the first defendant, the only question which arises is
whether the power of attorney was cancelled before the execution of
the sale deed on 28.04.1987. Undoubtedly, the further question would be
whether the cancellation was effected in a valid and legal manner and
finally, whether it was made known to not only to the second defendant
but also to the first defendant. Section 201 of the Contract Act, dealing
with termination of agency, declares that an agency can be terminated
by the principal revoking the authority of the agent. An exception to the
power of principal to revoke the agency is found in Section 202 of the
Contract Act, which provides that where an agent has himself an interest
in the property which forms the subject of the agency, in the absence of
an express contract, the agency cannot be terminated to the prejudice
of
the agent’s interest. In such cases, the agency would be clearly
irrevocable. Section 207 of the Contract Act declares that revocation
may be express or may be implied in the conduct of that principal or
agent, respectively. Section 208, which deals with the time when
termination of the agent’s agency takes effect, reads as follows:
“208. When termination of agent’s authority takes effect as to
agent, and as to third persons.—The termination of the authority
of an agent does not, so far as regards the agent, take effect
before it becomes known to him, or, so far as regards third persons,
before it becomes known to them. —The termination of the
authority of an agent does not, so far as regards the agent, take
effect before it becomes known to him, or, so far as regards third
persons, before it becomes known to them.””
53. We may notice the following view from Pollock and Mulla, The
Indian Contract and Specific Relief Acts, 14th Edition:
“Termination not to Affect Third Parties without Notice
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS. [K. M. JOSEPH, J.]
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Termination becomes effective only when it comes to the
knowledge of the affected party. Even if the agent is aware of
the revocation, it does not affect third parties who in good faith
enter into contract with the agent and in ignorance of the
revocation; they are protected; such provision is in interest of
commerce:9 Where the principal has terminated the agency, or
the agency has been terminated by happening of events, the
principal continues to be bound by the agent’s act under the
doctrine of apparent authority, until the third parties have notice
of the termination.
Time from which Termination Operates
‘Revocation by the act of the principal takes effect as to the
agent from the time when the revocation is made known to
him; and as to third persons when it is made known to them,
and not before.’”
54. It is no doubt true that the case of the plaintiff is that the second
defendant was bereft of the authority to transfer the property as on 28.04.1987
in view of the fact that the second defendant had surrendered the power of
attorney dated 28.01.1987 on 02.02.1987 and the plaintiff had produced the
document. The second defendant has denied the case of surrender before
the execution of sale deed. According to him, the power of attorney had
been misplaced. It is, accordingly, he applied for the certified copy of the
same and went ahead with the execution and registration of the sale deed.
According to the second
defendant, when sale was effected, the power of
attorney was given back. The first defendant, in fact, has set up the case
that the original power of attorney was with the second defendant even at
the time of the registration of the sale deed. We have already held that the
production of original power of attorney before the Registering Authority
was unnecessary for effecting registration of the sale deed. We take note of
the discrepancy emerging from the testimony and the case set up by the
parties.
55. However, what we would think, may help to resolve the
controversy is Exhibit-DX. This is a letter which was admittedly, got scribed
and dispatched by the plaintiff to the second defendant. It is dated 02.06.1987,
and reads as follows:
“Dear Yashpal Ji
 Ex-Dx
Namaskar
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Hoping you are well and the news is that I came here 3-4 days back
but could not come to you I was here regarding the land. I have got
registry done and I am in dire need of money. I had spoken to you
regarding land at Mehre and also gave you power of Attorney. You
please inform at the earliest if you can talk to anyone or have talked
to anyone then kindly send the money because I am in dire need of
money.
I am sending this by registered post because it is possible that You
may not receive the letter in the Court.
Thank You
You can respond on the address below:
(Dian Chand Dhiman)
Junior Engineer, IPH
Nagul Ski, District – Kinnaur”
56. PW1 has admitted, having sent the aforesaid letter. The second
defendant has sent a letter on 16.06.1987 and it reads as follows:
“Barsar
Distt. Hamirpur
16-6-1987
“Dear Babu Gian Jee,
Namaskar,
I am quite well. I wish your well-being. Further, it is stated in brief
that your registered AD letter has been received. And you may
have come to know that I as power of attorney have made the
sale deed of your land. You might have been astonished to know
regarding this, but there is no need to worry in this regard. I have
done this job in faith of friendship and for betterment. In this regard
I had talked at the shop of Kanshi Ram-Sita Ram and talked to
your brother-in-law, Shopkeeper at Sohari. I could not come to
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you with the reason because my brother was ill at Nangal and
later on my wife fell ill. And I could not send full payment to you
till today due to the reason that I had spent some amount from this
money. Therefore, I thought that until the full amount is not paid
then it would not be fair. Besides you meet me, I could not meet
then get the information from the shop of Kanshi Ram at Bus
Stand Hamirpur.
Rest all is fine.
Yours
-sd-
Yash Pal Singh,
Document Writer,
Barsar, Distt. Hamirpur,
H.P.”
57. It is apparent that whatever may be the state of the oral evidence
and the difficulty in arriving at the truth on an appreciation of the same, the
documents which we have adverted to, unerringly points to the following
facts. Contrary to the case of the plaintiff that the power of attorney stood
cancelled on 02.02.1987, after it was surrendered to him on that day, it is that
the plaintiff writes to the second defendant about having spoken to the second
defendant regarding the land in question at Mehre and also gave him the
power of attorney. There is no mention about the power of attorney having
been surrendered on 02.02.1987 or about the so-called cancellation of the
same. The further stand of the plaintiff was by way of asking the second
defendant to inform the plaintiff at the earliest, if he could talk to anyone or
had talked to anyone. The meaning of the of latter portion is made clear
when he says that the money may be
sent to him because he is in dire need
of money. Therefore, it means that the case of the plaintiff that he had
cancelled the power of attorney by writing the word ‘cancelled’ on 02.02.1987,
upon it being surrendered by the second defendant, cannot be accepted.
58. The letter sent by the second defendant to the plaintiff on 16.06.1987
indicates that the second defendant tells the plaintiff that the plaintiff may
have come to know that as power of attorney he had made the sale deed of
the property. No doubt, he says that the plaintiff might have been ‘astonished
to know’ regarding the sale. The second defendant further writes to the
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plaintiff that he has done this job in faith of friendship and for betterment. He
admits that he could not go to the plaintiff as his brother was ill and, later on,
his wife fell ill. He admits to having spent some amount from the money
paid. This correspondence between the plaintiff and the second defendant,
in our view, would be fatal to the plaintiff’s case that the plaintiff had cancelled
the power of attorney.
59. While on cancellation, we may notice that the plaintiff, in his
deposition, has stated that he had cancelled the power of attorney at Mehre
and there itself was the Office of the Sub-Registrar located. He has admitted
that he did not get the power of attorney cancelled at the Sub-Registrar
Office. Even, more importantly, he has admitted to not having sent any notice
of cancellation. The only evidence consists of a statement of PW1 that the
first defendant was aware of the cancellation and the statement of PW6,
who had said that the first defendant was also there on 02.02.1987, when on
two papers a line was drawn to signify the cancellation. The Trial Court and
also the appellate court have relied upon the DX sent by the plaintiff himself,
which appears to undermine the evidence about the cancellation on
02.02.1987. The High Court should not have, at any rate, disturbed the said
finding in a Second Appeal. In such circumstances, the conclusion is inevitable
that the case of the plaintiff that power of attorney stood cancelled, in the
manner
done on 02.02.1987, cannot be accepted. At any rate, we find it
difficult to accept the case of the plaintiff that the first defendant, who is the
third party, could be attributed any knowledge of the surrender or the alleged
cancellation on 02.02.1987, even assuming for a moment that we could lend
credence to the plaintiff’s version in this regard that the second defendant
surrendered the power of attorney. We need not pronounce on the question
whether the power of attorney being registered, it could be cancelled only by
a registered power of attorney. This we say as even in the absence of a
registered cancellation of the power of attorney, there must be cancellation
and it must further be brought to the notice of the third party at any rate as
already noticed. Such a cancellation is not made out.
60. In this regard it is highly significant to notice the case actually
set up in the plaint. In the plaint what is averred by the plaintiff is that
when the negotiations fell through the second defendant surrendered
the original power of attorney to the plaintiff which is still in possession
of the plaintiff and the plaintiff told the defendant no. 1 that the same
stand cancelled and he shall not execute any sale deed on behalf of the
plaintiff.
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[It is not even clear whether it should be understood as the plaintiff
told the second defendant that same stand cancelled and he shall not
execute any sale deed on behalf of the plaintiff.]
61. It is further averred that “even defendant no. 2 was not
competent to transfer the possession, rather the special power of attorney
deemed to cancelled in the eyes of law since it was handed over to the
plaintiff”. Therefore, the case set up by the plaintiff was that on the
second defendant handing over the power of attorney to the plaintiff, the
special power of attorney was deemed to have been cancelled in the
eye of law. There is no whisper in the plaint about the plaintiff having
cancelled it in the manner in which he has deposed to in the evidence on
02.02.1987.
62. As far as P-1 is concerned, it is dated 30.01.1987. The Trial Court
has entered the finding that the P-1 stood proved and that the second defendant
is bound by it. The Appellate Court has not disturbed the finding. In other
words, proceeding on the basis that the second defendant had a duty to not
sell the property below Rs.55,000/-, in terms of P-1, the breach of duty to not
sell below Rs.55,000/-, when the second defendant sold the property for
Rs.30,000/-, cannot invalidate the sale or render it null and void. A perusal of
the power of attorney will make it clear that any restriction on the price is
conspicuous by its absence in the power of attorney.
63.
The upshot of the above discussion is that the impugned Judgment
cannot be sustained. The appeal is therefore allowed and the impugned
Judgment will stand set aside. Parties to bear their respective costs.
Divya Pandey and Amarendra Kumar
Appeal allowed.
(Assisted by : Pragya Samal, LCRA)