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TMI Blog2022 (2) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. (2008) 4 SCC 594 and Madhukar Vishwanath v. Madhao and Ors. (1999) 9 SCC 446, in this regard. THE SUBMISSIONS OF THE PLAINTIFF 11. The High Court was justified in interfering Under Section 100 of the Code of Civil Procedure. 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 Code of Civil Procedure. 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 Code of Civil Procedure. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Anr. (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 demon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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, whether it is compulsorily or optionally registrable, is to be presented, inter alia, by the agent of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-10m. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows: 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), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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). 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 consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code of Civil Procedure. 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 loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly, 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 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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