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TMI Blog1978 (11) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... lamadugu village from the Government of Nizam, the patta having been granted in the name of the plaintiff. At about the time of police action in 1948 when the local conditions in Hyderabad City and State were disturbed, the plaintiff, his father Kazim Yar Jung and his step brother Mustafa found it difficult to even approach their lands and the plaintiff was then contemplating to shift to Pakistan with others. Defendant No. 1 Rami Reddy who was a police Patel approached the plaintiff and represented that he would manage the affairs of the plaintiff, his brother and father, out that is he was not keeping well a nominal Power of Attorney would have to be granted to defendant no. 34 Uppara Sattayya whereupon the plaintiff, his father and brother jointly executed a Power of Attorney, Ext. P-1 dated 10th April 1949 in favour of defendant no. 34 which was further supplemented by the deed Ext. P-2 dated 20th April 1949. The plaintiff alleged that in October 1949 he came to know that defendants nos. 1 and 34 were perpetrating fraud when on 25th October 1949 the plaintiff and his brother Mustafa published a notice in the newspapers and the Gazette cancelling the Power of Attorney granted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd accordingly it was held that the plaintiff was entitled to recover possession of the aforementioned pieces of land. The trial Court accordingly dismissed the suit except for the aforementioned pieces of land in respect of which a decree for possession and mesne profits was granted in favour of the plaintiff. Two appeals came to be filed to the High Court. Appeal bearing A. S. 252/60 was preferred by original defendants 8, 9 and 11 to the extent decree was made against them by the trial Court. Appeal bearing A.S. 283/60 was preferred by the plaintiff to the extent the suit was dismissed. Both the appeals came to be disposed of by a Division Bench of the Andhra Pradesh High Court by a common judgment rendered on 17th August 1966 by which A.S. 252/60 preferred by original defendants 8. 9 and 11 was allowed and the decree made against them in favour of the plaintiff was set aside, and A.S. 283/6 preferred by the plaintiff was dismissed. As a consequence the entire suit of the plaintiff came to be dismissed with costs in one set. The plaintiff thereupon approached the High Court for a certificate and on a certificate under Article 133(1) (a) being granted, the plaintiff lodged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereby he acted as a rubber stamp and such an act of the attorney would not bind the principal, and in that event the purchaser did not acquire any title to the land. It was also contended that the High Court was in error in admitting the three sale deeds by granting CMP. 2762/61 purporting to act under Order 41, rule 27, Civil Procedure Code, and if they are excluded from consideration, in the absence of sale deeds the decree of the trial Court against original defendants 8, 9 and 11 will have to be restored. On behalf of the contesting respondents it was urged that the plaintiff being benamidar, cannot maintain the suit on the allegation that he is the full and absolute owner of the properties. The first contention of the appellant is that it was impermissible in law for three persons to jointly grant a Power of Attorney in favour of defendant 34. Barring the ipse dixit of the learned counsel nothing was shown to us to make such a joint power impermissible in law. The relation between the donor of the power and the donor of the power is one of principal and agent and the expression 'agency' is used to connote the relation which exists where one person has an au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Muktar can conduct the cases (Parvi) of all sorts, question and answer, admit or deny, either orally or writing on our behalf in all departments, civil and criminal courts, in the High Court, in the judicial committee, in the Revenue Departments of the Districts, namely, in the offices of the IInd, IIIrd, and Ist Taluqdars, the Tahsil Offices etc and purchased or sell (sic) of lands and that he is authorised to appoint any pleader or special Muktar when occasioned (sic) and to stop or to take or file any copies in any suit or to file any suit or file any written statements with his own signature to fetch any loan for our business or lands or to pay the debts from out of the income of the estate or to purchase or sell the lands and to execute the sale deeds and get registered under his signature etc ... The last sentence is that all the acts of the said Muktar shall be deemed to be acts done and effected by us which we hereby accept and approve . Subsequently on 20th April 1949 a supplementary Power of Attorney in addition to Ext. P-l was executed by the aforementioned three donors of Power in favour of defendant no. 34 in which it is specifically stated that they affirm ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the surrounding circumstances for ascertaining the intention of the parties (vide Modi Co. v. Union of India).( [1968] 2 S.C.R. 565.) Exhibit P-l being a Power of Attorney granted by three co-principals in favour of one agent, the expression on our behalf would hardly be decisive of the scope of authority conferred by the deed. The circumstances in which such Power of Attorney came to the executed and the fact that three different persons though near relations but having no joint property or venture joined in executing a Power of Attorney and the purpose and object for which it was executed when taken into consideration would throw light on the true, nature of the authority conferred by the deed. In this connection it is an admitted position that the Power of Attorney was executed in April 1949 and that too, in the State of Hyderabad, the erstwhile Nizam's State. In the wake of police action in the fall of 1943 and thereafter there were unusually disturbed conditions in Hyderabad State. Plaintiff himself has stated in plaint para 1 that the conditions in Hyderabad were disturbed. that like himself, his father and brother found it difficult to make contact with their pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly invalid and defective in form and that the supplementary document Ext. P-2 does not render in valid. The defect pointed out is that when Ext. P-1 was offered for registration the Sub-Registrar has nowhere noted in his endorsement that the donors of the power who executed the Power of Attorney Ext. P-1 were identified to him by someone known to him or they were personally known to him. Undoubtedly the Sub-Registrar in order to be satisfied that there is no impersonation may require some person known to him to identify those who admit execution before him but in case the persons who have executed the deed before him are known to him the failure to endorse that fact on the deed does not render the deed invalid. In any event if those who executed the deed admit having executed the deed, the fact that the Sub-Registrar failed to endorse the fact of the persons being known to him would not render the deed invalid. A General Power of Attorney is not a compulsorily registrable document. No rule or regulation was pointed out to us in support of the submission that it was obligatory for the Sub-Registrar to make the endorsement that those who have executed the deed were either personally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the submission that the authority was only to manage the property. The submission is not borne out by the contents of Exts. P-l and P-2. Incidentally in this connection it was urged that the power to purchase and sell land and to execute documents and to offer them for registration does not include the power to sell agricultural land. This has only to be mentioned to be rejected because the expression 'lands' would include both agricultural and non-agricultural land. The next contention is that even if the Court were to accept that the authority conferred by the Power of Attorney encompasses the authority to sell land, the power to sell land was hedged in with a pre condition 1 or with a pre- requisite that the land could be sold either for Financing litigation or if for that purpose a loan was borrowed, to repay the loan. Sustenance is sought to be drawn for this submission from the following few lines in Ext. P-1: . .. and purchase or sell (sic) of lands and that he is authorised to appoint any pleader or special Muktar when occasioned (sic) and to stop or to take or file any copies in any suit or to the any suit or file any written statements with his own si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the dispute was granted by the Nizam when the father of the plaintiff was a Minister in the Nizam's Government. Patta evidencing the grant was taken in favour of the plaintiff who was then a minor. The father of the plaintiff really believed that he was the owner of the land and in fact on 20th October 1949 he wrote to Tahsildar, Medak; that his son was a benamidar and that the lands may, therefore, be transferred in his name. Thus, the father of the plaintiff acted as if he was the owner of the land but when a contention on; behalf of the respondents that the plaintiff was a benamidar would be presently examined, it would be painted out that the plain tiff we the real owner and was not a benamdar. That is the true legal. position. the fact, however, remains hat the father of the plaintiff who must be a man of considerable influence being a Minister in the Government of Nizam, must have acted as if he was the owner of the land. Undoubtedly, the agreement Ext. D-18 for sale of land was entered into between the father of the plaintiff and defendant no. l and pursuant to this agreement defendant no. 34 executed a sale deed in favour of defendant no. 31, but it may be noticed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the rescue of the transferee. Section 41 of the Transfer of Property Act provides that where, with the consent, express or implied, of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it. Section 41 codifies what was once treated as a principle in equity which the Judicial Committee had recognised in Ram- coomar v. Macqueen,.( 1872) I.A. 11 Bengal L.R. 46.) wherein the Judicial Committee observed as under: It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as any substance in the case put forth by the plaintiff that the sale already completed by defendant 34 in favour of defendant 1 pursuant to the agreement, Ext. D-18 executed by the father of the plaintiff in favour of defendant 1 was not acceptable to him or was not binding on him he would not invite him to purchase other lands. The conduct of the plaintiff belies his suspicion, and the allegation of fraud and want of authority is clearly an after thought. Viewed from any angle, the contention of the plaintiff is without merits and must be rejected. It was next contended that the High Court was in error in granting MP. 2762/61 permitting the heirs of defendants 8, 9 and 11 to produce the sale deeds which they did not produce in the trial Court and after relying on the same, reversing the decree of the trial Court. The High Court has given cogent reasons for granting CMP. 2762/61. Order 41, Rule 27, C.P.C. enables the appellate Court to admit additional evidence in the circumstances or situation therein mentioned one such being where the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of defendant 1, he wrote to the Tahsildar, Medak on 20th October 1949 that his son was a benamidar and that the lands may therefore be transferred in his name. However, after making these observations the High Court has not chosen to non-suit the plaintiff on the ground that he n was a benamidar- Undoubtedly, Kazim Yar Jung was holding a high office in Nizam's Government It is rational to believe that he may have influenced the decision of the Nizam to grant the land and that he may not have taken the patta in his own name. The patta may, therefore, have been grant ed in favour of his minor son, the plaintiff. Does that make the plain tiff a benemidar Section 82 of the Indian Trusts Act, 1882, provides that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. Now, there is no evidence to show that the patta was for consideration. It is said that there was a grant of land and it is not clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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