2013 (4) TMI 866 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the power of attorney in question is a power coupled with interest by virtue of Section 202 of the Indian Contract Act.
2. Whether the Courts below are right in ignoring Ex.B4 which has been proved without any ambiguity through expert opinion and attesting witness.
3. Whether the plaintiff is entitled to a declaration without paying the requisite court fees for cancellation of the sale deed.

Summary:

Issue 1: Power of Attorney Coupled with Interest
The Court analyzed whether the power of attorney executed on 16.09.2002 was coupled with interest u/s 202 of the Indian Contract Act. The appellant contended that the power of attorney was irrevocable as it was executed after the sale consideration was paid and possession handed over on 14.09.2002. The Court found that the power of attorney was indeed coupled with interest, as the first plaintiff had handed over possession and original title deeds to the defendant, indicating that the power of attorney could not be canceled without notice. The Court concluded that the cancellation of the power of attorney was not properly intimated to the defendant, making the cancellation invalid.

Issue 2: Ignoring Ex.B4
The appellant argued that Ex.B4, an unregistered sale deed dated 14.09.2002, was wrongly ignored by the lower courts despite being proved through expert opinion. The Court noted that although Ex.B4 was unregistered and thus not admissible as a sale deed, it served as evidence of the transaction and payment of consideration. The expert opinion confirmed the signature of the first plaintiff on Ex.B4, proving the sale consideration was passed. The Court held that the lower courts failed to consider this crucial evidence, which indicated that the power of attorney was coupled with interest.

Issue 3: Court Fees for Cancellation of Sale Deed
The Court addressed whether the plaintiff was entitled to a declaration without paying the requisite court fees for the cancellation of the sale deed. It was found that the plaintiff had only paid a court fee of Rs. 1,000/- for the relief of declaration but failed to pay the court fees for the cancellation of the sale deed, which should be based on the value of the sale deed. The Court concluded that the plaintiff's prayer for cancellation was not sustainable as it was inadequately worded and lacked the necessary court fees.

Conclusion:
The Court allowed the Second Appeal, setting aside the judgments of the lower courts. It held that the power of attorney was coupled with interest and could not be canceled without proper notice. The suit filed by the plaintiffs was dismissed in toto, and no costs were awarded.