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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 ..... ction of true copy of the power of attorney. 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 ₹ 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 ₹ 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. Re-appreciation of evidences - HELD THAT:- 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 conform to the requirements of Order XLI Rule 31 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 Defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 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. The proceeding on the basis that the second Defendant had a duty to not sell the property below ₹ 55,000/-, in terms of P- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el 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, inter alia, 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 wen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 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 ₹ 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 ₹ 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 ₹ 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 and Anr. AIR 1914 PC 16 and Ma Shwe Mya v. Maung Ho Hnaung AIR 1922 PC 359. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue 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 registrable 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, pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1987 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied and identified as special power of attorney. ₹ 20,000/- were given in his presence to him and ₹ 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 ₹ 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 ₹ 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ₹ 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 ₹ 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 ₹ 30,000/-. He admits to having received ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and. 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 ₹ 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 ₹ 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 ₹ 55,000/-. First Defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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-la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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