Umesh Sharma vs Ajay Sood And Others

Himachal Pradesh High Court

Umesh Sharma vs Ajay Sood And Others on 17 July, 2024

Author: M.S. Ramachandra Rao

Bench: M.S. Ramachandra Rao

2024:HHC:5294 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .

OSA 1 of 2018 a/w OSA 2 of 2018 Reserved on : 04.07.2024.

Date of decision: 17.07.2024 ____________________________________________________ OSA 1 of 2018.

Umesh Sharma .....Appellant.

                         Versus
Ajay Sood and others                     ...Respondents.

____________________________________________________ OSA 2 of 2018.

Umesh Sharma                                      .....Appellant.
                       Versus
Ranjana Sood and another                 ...Respondents.

____________________________________________________ Coram:

The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. The Hon'ble Mr. Justice Satyen Vaidya, Judge.

______________________________________________________ For the Appellant(s) : Mr. Suneel Chauhan, Advocate.

For the Respondent(s): Mr.K.D. Sood, Senior Advocate, with Mr. Het Ram Thakur and Mr. Rahul Gathania, Advocates, for respondent no. 1 in OSA No. 1 of 2018 and for respondent No. 2 in OSA no. 2 of 2018.

Mr. Bhupender Gupta, Senior Advocate with Mr. Ajeet Pal Singh Jaswal, Advocate, for respondent no. 2 in OSA no. 1 of 2018 and for respondent no. 1 in OSA no. 2 of 2018.

M.S. Ramachandra Rao, Chief Justice.

These two appeals arise out of the common judgment dt.21.9.2017 .

in C.S.No.58 of 2006 and C.S.No.76 of 2007.

The back ground facts

2. Smt.Ranjana Sood is the wife of Jatinder Kumar Sood. They reside at Lakhanpur, District Kathua in the State of Jammu and Kashmir.

3. She owned 138/225 share in land comprised in Khata No.36/35, Khatauni No.164,165,166 and 167, Khasra No.3,5,6 and 20 (old Khasra No.2488/155/2) measuring 2988.40 sq.m in Mauza Vikasnagar, Tehsil and District Shimla, H.P.

4. Her brother is Lalit Kumar Sood.

5. Smt.Ranjana Sood had executed a regd. General Power of Attorney Ext. PW4/1 dt.1.7.1980 in favour of her brother Lalit Kumar Sood authorising him to sell the said property. He used to reside in Shimla. He died on 23.6.2009.

6. During his lifetime, Lalit Kumar Sood had executed an agreement to sell her undivided share in the said land vide Ex.P-A/1 dt.21.9.2006 in favour of Sh.Ajay Sood, r/o Shimla in his capacity as her power of attorney holder for Rs.90,00,000/- and had received Rs.5,00,000/- in cash by way of earnest money. The sale deed had been agreed to be executed in favour of Sh.Ajay Sood before 31.12.2006. This agreement ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 3 to sell was attested by Smt.Rita Sood, wife of Lalit Kumar Sood and another person by name Renuka Sood w/o Ajay Sood, the purchaser.

.

7. Two days later , i.e on 23.9.2006, Smt.Ranjana Sood had executed another agreement to sell Ex.PW-1/A in favour of Sh.Umesh Sharma, r/o Shimla claiming to be absolute owner in possession of the 2442.38 sq.m in the same land mentioned above for Rs.70,00,000/-. Sh.Umesh Sharma gave her a cheque dt.23.9.2006 for Rs.5,00,000/- drawn on UCO Bank as advance money. This cheque was however not encashed by Smt.Ranjana Sood. The sale deed was agreed to be executed in favour of Sh.Umesh Sharma by 23.12.2006. This agreement was attested by Jatinder Kumar Sood, husband of Smt.Ranjana Sood and another person by name Deshbandhu Sood, who was the mediator.

8. Sh.Umesh Sharma got issued a telegram Ex.PW1/B on 13.10.2006 to Smt.Ranjana Sood informing the latter that he had arranged money, completed all formalities and asking her to come to Shimla in first week of Novemebr,2006 to execute the sale deed.

9. Sh.Umesh Sharma had also got issued a telegram to her brother Lalit Kumar Sood stating that she had executed an agreement of sale in respect of her land in his favour; that she has executed GPA in favour of Lalit Kumar Sood; and asking Lalit Kumar Sood not to execute any document relating to the above land.

10. Sh.Umesh Sharma also sent to Smt.Ranjana Sood a legal notice Ex.PW1/4 dt. 27.10.2006 alleging that she had not replied to his telegram .

dt.13.10.2006; that Sh.Umesh Sharma had information that her brother and power of attorney holder Lalit Kumar Sood was negotiating with other parties for the sale of the property; that this action on his and her part is illegal and unwarranted; that she should not deal with any other person with regard to the property; and asking her to come to Shimla and (Rural), Shimla.

r to execute the sale deed on 6.11.2006 in the office of the Sub Registrar

11. Smt.Ranjana Sood sent a reply Ex.PW1/H dt.3.11.2006 to the said legal notice denying execution of the agreement ExPW-1/A on 23.9.2006 and also receipt of Rs.5,00,000/- as advance from Sh.Umesh Sharma.

In that notice she admitted that he had approached her for sale of the land, but at that time she was not fully acquainted with the latest position with respect to the status of the land and value etc., that he should contact her brother, who was her duly constituted attorney and he has been given the authority to deal with the land .

It was alleged that Sh.Umesh Sharma did not get in touch with her brother Lalit Kumar Sood, that her brother had already executed an agreement to sell in favour of Sh.Ajay Sood to sell the land prior to Sh.Umesh Sharma approaching her for purchase of the land.

It was stated that she had not entered into any legal and valid agreement to sell with Sh.Umesh Sharma. It was alleged that at the time .

of his visit , Sh.Umesh Sharma had brought a format of an agreement having blank spaces with him and made her and her husband sign the said format on the pretext that in case Sh.Umesh Sharma negotiates with her brother and if any deal is struck, he may require the terms of approval of formal agreement from her.

She stated that signatures on the format of a draft having blank spaces were appended bonafide on representations of Sh.Umesh Sharma that a formal agreement shall be entered into with her power of attorney when the deal is finalised.

It was contended that with an ulterior motive in order to take undue advantage of the signatures of Smt.Ranjana Sood, obtained on a blank format by misrepresentation by Sh.Umesh Sharma, he had forged , manipulated and fabricated some document without the knowledge and consent of Smt.Ranjana Sood and the notice was got issued.

It was alleged that she had never settled the terms of the sale of her land with Sh.Umesh Sharma and was not bound by his illegal and malafide acts which amount to forgery and cheating entailing criminal liability. She stated that she is not obliged to come to Shimla on 6.11.2006 and execute the sale deed in his favour.

12. Sh.Umesh Sharma filed the suit C.S.No.58/2006 on 17.11.2006 on .

the original side of the High Court for specific performance of agreement to sell Ex.PW-1/A dt.23.9.2006 against Smt.Ranjana Sood.

13. He contended that she had executed the said agreement in his favour agreeing to sell the property for Rs.70,00,000/- and he had given her an advance of Rs.5,00,000/- by cheque on that day; that the sale deed was to be executed by her before 23.12.2006; that he had sent telegram to her and to her brother and also the legal notice Ex.PW1/4 dt.27.10.2006 to which she had sent a reply on Ex.PW1/H dt.7.11.2006 with false allegations.

14. He stated that he waited in the office of the Sub-Registrar after purchasing stamp papers for Rs.5,60,000/- on 6.11.2006, but she had not come there to execute the sale deed.

15. He stated that he was always ready and willing to execute the perform his part of the contract by paying balance of sale consideration and spending money for the purchase of stamp papers required for execution and registration of the sale deed, but Smt.Ranjana Sood was avoiding execution of the sale deed without any just excuse.

16. On 26.11.2007, Ajay Sood filed C.S.No.76/2007 also on the .

original side of the High Court against Smt.Ranjana Sood , her brother Lalit Kumar Sood and Sh.Umesh Sharma seeking specific performance of agreement to sell Ex.PA/1 dt.21.9.2006 executed by Lalit Kumar Sood, acting as Power of Attorney Holder of Smt.Ranjana Sood.

17. He contended that the said agreement was executed by Lalit Kumar Sood, acting as Power of Attorney Holder of Smt.Ranjana Sood to purchase her undivided share of the above land for Rs.90,00,000/-, that he had paid Rs.5,00,000/- in cash to him as advance, and that sale deed was to be executed before 31.12.2006. He contended that he had been ready and willing to have the sale deed executed and registered in her favour.

18. He claimed that he came to know that she, knowingly or unwittingly, had entered into an agreement of sale Ex.PW-1/A with Sh.Umesh Sharma for Rs.70,00,000/- on 23.9.2006 after the agreement of sale Ex.PA/1 had been entered into by her on 21.9.2006 through her Power of Attorney holder Lalit Kumar Sood in his ( Sh.Ajay Sood) favour; that Ex.PW-1/A dt.23.9.2006 is a false, fictitious document manipulated with a view to get out of the agreement of sale with Sh.Ajay ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 8 Sood; and that no sale consideration had been received by her from Sh.Umesh Sharma.

.

19. He also contended that she could not have executed any agreement of sale Ex.PW-1/A dt.23.9.2006 in favour of Sh.Umesh Sharma when her power of attorney holder had already executed agreement to sell Ex.PA/1 dt.21.9.2006 with Sh.Ajay Sood and had received Rs.5,00,000/-

towards sale consideration. He also stated that when he ( Sh.Ajay Sood) had offered to purchase the property for Rs.90,00,000/-, it is unimaginable that she would have sold the property for Rs.70,00,000/-

in favour of Sh.Umesh Sharma.

20. He stated that he gave a legal notice Ex.PB/1 dt.27.12.2006 to Smt. Ranjana Sood stating that he was ready and willing to get executed sale deed and register it, that he had come to know of the agreement entered into by Smt.Ranjana Sood with Sh.Umesh Sharma for Rs.70,00,000/-, and that the said agreement is neither legal nor valid and not binding on him. He also sought details of suit filed by Sh.Umesh Sharma so that he can contest it and protect his interests.

Replication filed by Sh. Umesh Sharma to the written statement filed by Ajay Kumar Sood.

21. Shri Umesh Sharma contended that Smt. Ranjana Sood had entered into an agreement to sell Ex.PW-1/A dt.23.9.2006 with him and the agreement to sell Ex.PA-1 dt. 21.09.2006 between Shri Ajay Kumar ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 9 Sood and Lalit Kumar Sood, brother of Smt. Ranjana Sood, is false, frivolous and only a sham transaction with the intention to defeat the .

rights of Shri Umesh Sharma inasmuch as till 23.09.2006 i.e. on the date when Smt. Ranjana Sood entered into an agreement with Shri Umesh Kumar Sharma, no agreement was there between Sh. Lalit Kumar Sood and Sh. Ajay Kumar Sood. He contended that it was only an afterthought and the agreement to sell dt. 21.09.2006 was manipulated by the

22. to defendants in order to defeat his rights.

No written statement was filed by Smt. Ranjana Sood in CS no.

76/2007 and therefore, she was set ex parte on 13.03.2009 in the said suit.

Written statement of Umesh Sharma in CS No.76 of 2007

23. Shri Umesh Sharma (3rd defendant) filed his written statement contending that the suit no. CS 76/207 was collusive, frivolous and was a counter-blast to the suit filed by him against Smt. Ranjan Sood.

24. He denied that Shri Lalit Kumar Sood was General Power attorney holder of Smt. Ranjana Sood for sale and purchase of the land in dispute.

25. According to him she had already agreed to sell the land to him through an agreement to sell dt. 23.09.2006 on which date, there was no agreement between Shri Ajay Sood with Smt. Ranjana Sood or Sh. Lalit Kumar Sood. He reiterated his pleadings in CS 58 of 2006.

Replication by Ajay Sood

26. Replication was filed by Shri Ajay Sood to the written statement .

filed by Sh. Umesh Sharma.

27. He denied that the suit CS no. 76/2007 filed by him was a collusive suit or was filed as a counter-blast to the suit filed by Shri Umesh Sharma against Smt. Ranjana Sood.

28. He reiterated that the alleged agreement to sell Ex. PW-1/A entered into by Smt. Ranjana Sood in favour of Shri Umesh Sharma is false, fictitious, collusive and was executed only to defeat his rights.

29. He contended that Smt. Ranjana Sood ought not to have entered into the alleged agreement to sell Ex. PW-1/A with Sh. Umesh Sharma on 23.09.2006 when she was aware that her brother had General Power of Attorney and had executed the agreement to sell Ex.P-A/1 on 21.09.2006 with him.

30. He contended that no consideration was received by her from Shri Umesh Sharma and that she could not execute the agreement to sell the property in favour of Sh. Umesh Sharma as there was already an agreement to sell entered into with Sh. Ajay Sood by her brother, Lalit Kumar Sharma and Ranjana Sood had already received part of the consideration from him.

The issues

31. Both the suits were clubbed together and the following issues were .

framed:

1. Whether the plaintiff is estopped by his own acts, deeds and conduct to file and maintain the present suit, if so, its effect?

OPD

2. Whether the suit is not maintainable in its present form?

OPD

3. Whether the plaintiff has suppressed true and material facts and not approached the Court with clean hands, if so, its effect?

OPD

4. Whether the plaintiff has no legal and enforceable cause of action to file and maintain the present suit, if so, its effect? OPD

5. Whether defendant No. 1 ever executed the alleged agreement of sale dated 23.09.2006?

OPP

6. If issue No. 4 is decided in affirmative, then whether the plaintiff is entitled for a decree of specific performance, as alleged?

OPP

7. Whether the alleged agreement of sale dated 23.09.2006 is a false and fabricated document and is a result of fraud and mis-

 representation,
         if so, its effect?            OPD-1

8. Whether defendant No. 1 has ever received any consideration amount, as alleged by the plaintiff?

OPP

9. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as alleged?

OPP

10. Relief.

32. In CS 58 of 2006 Sh. Umesh Kumar Sharma examined PW1 and also three other witnesses as PWs 2 to PW4 and marked Ext. PX to .

Ext.P1/H ( 11 documents).

33. Smt. Ranjana Sood examined herself as DW-1 and her husband as DW-2 and marked as Ext. DW-1/A ( cheque) and also copy of the General Power of attorney.

34. In CS 76/2007, Sh. Ajay Kumar Sood examined himself as PW2 and three other witnesses and marked documents).

r to Ext. PW/5 to Ext. B/2-3 ( 7 The judgment of the learned Single Judge.

35. The learned Single Judge considered oral and documentary evidence on record.

36. The learned Single Judge held that the pleadings and the evidence adduced by the parties makes it clear that the General Power of Attorney executed by Smt. Ranjana Sood in favour of her brother Sh. Lalit Kumar Sood was, during his life time, not revoked by her and in that General Power of Attorney she authorized him to sell, encumber and transfer the suit land and so he was fully authorized to enter into an agreement for sale of the suit property on Ex.P-A/1 dt.21.9.2006 with Sh. Ajay Sood. He held that as authorized agent or the power of attorney holder, Sh. Lalit Kumar Sood can create indefeasible rights vis-a-vis immovable property;

that Smt. Ranjana Sood stated that during the life time of her brother she did not cancel or revoke the General Power of Attorney Ext. PW-4/1; and .

once Sh. Lalit Kumar Sood entered into an agreement to sell Ex.P-A/1 with Sh. Ajay Sood,. Smt. Ranjana Sood was disabled to execute any agreement to sell with respect to the suit land in favour of Sh.Umesh Kumar Sood during the subsistence of Ext. PW4/1.

37. The learned Single Judge also held that the agreement to sell Ex.P-

A/1 dt. 21.09.2006 was prior in time to the agreement to sell Ex.PW1/A dt.

23.09.2006, and the former would entitle Ajay Sood to get decree for specific performance in his favour more so when the cheque of Rs.5 lacs given by Sh. Umesh Sharma to Smt. Ranjana Sood was never encashed as is evident from Ext. DW-1/A.

38. He also held that Smt. Ranjana Sood had apprised both Sh. Umesh Sharma and his mediator Sh. Deshbandhu Sood that on their return to Shimla, they should meet her brother, that this evidence was not shattered in her cross-examination, and when they did not meet her brother Sh.

Lalit Kmar Sood, they are guilty of negligence.

39. He also noted that the stamp paper for drafting of the agreement to sell Ex.PW-1/A dt. 23.09.2006 was purchased by Sh. Deshbandhu Sood without having any authorization from Smt. Ranjana Sood on 01.04.2006 though the Agreement to Sell was executed much later and Sh.

Umesh Sharma and Sh. Deshbandhu Sood wanted to create this in order to entitle them to file CS 58 of 2006.

.

40. The learned Single Judge rejected the submission of the Counsel for Sh. Umesh Sharma that once Sh. Lalit Kumar Sood, the GPA holder of Smt. Ranjana Sood died, Sh. Umesh Sharma would be entitled for decree for specific performance because specific performance would be in respect of the subsequently executed agreement to sell Ex.PW-1/A dt.

23.09.2006 while there was already a prior agreement to sell Ex.P-A/1 dt.

21.09.2006 executed by the GPA holder of Smt. Ranjana Sood in favour of Sh. Ajay Kumar Sood.

41. He held that subsequently executed agreement to sell has no legal sanctity and so relief of specific performance cannot be granted to Sh.

Umesh Sharma.

42. He also held that once Sh. Lalit Kumar Sood executed an agreement to sell dt. Ex.P-A/1 dt. 21.09.2006 acting under the GPA executed by Smt. Ranjana Sood, that the said GPA was subsisting on that date, and so Smt. Ranjana Sood was legally incapacitated to execute on 23.09.2006 agreement to sell Ex.PW-1/A with Sh. Umesh Sharma. He held that Sh. Ajay Sood had superior rights vis-a-vis Sh. Umesh Sharma to obtain decree for specific performance.

43. He therefore dismissed the civil suit no. 58 of 2006 and decreed civil suit no. 76 of 2007 and directed Smt. Ranjana Sood to execute sale .

deed in favour of Sh. Ajay Kumar Sood within three months.

OSA No.1 and 2 of 2018

44. Challenging the said common judgment, OSA no. 1 of 2018 is field by Sh. Umesh Kumar Sharma challenging the judgment insofar as Civil suit no. 76/2007 was decreed. He also filed OSA no. 2 of 2018

45. to challenging the said judgment dismissing the Civil Suit no. 58 of 2006.

Sh. Suneel Kumar Chauhan, counsel for the appellant took us through the pleadings as well as oral and documentary evidence adduced in the case.

46. He contended that both the suits should not have been tried together as the subject matter of the suits were different and this had vitiated the trial and the judgment of the learned Single Judge .

47. We do not agree with the said contention since the parties are common to both the suits and the subject matter of the suits is the same land. Had the suits been tried separately, there was every possibility of inconsistent and contradictory judgments being delivered.

48. His next contention was that the learned Single Judge erred in holding that the agreement to sell Ex.P-A/1 dt. 21.09.2006 entered into by Sh. Lalit Kumar Sood , the GPA holder of Smt. Ranjana Sood with Sh.

Ajay Sood was not executed prior in time to the agreement to sell Ex.PW-

1/A dt. 23.09.2006 entered into by Sh. Umesh Sharma with Smt. Ranjana .

Sood.

49. A reading of both the agreements as well as evidence adduced by the parties shows that the agreement to sell Ex.P-A/1 dt. 21.09.2006 was executed on the said date and the evidence on record does not support the plea of Sh. Umesh Sharma that it was probably antedated to defeat his Lalit Kumar Sood.

r to rights by Smt. Ranjana Sood and Sh. Ajay Sood in collusion with Sh.

50. Smt. Ranjana Sood categorically stated in her evidence as DW-1 in CS 58 of 2006 that she had executed a power of attorney Ext. PW4/1 in favour of her brother Sh. Lalit Kumar Sood as he was residing in Shimla where the property was located and she was residing at Lakhanpur in J&K. She stated that Sh. Umesh Sharma and Sh. Deshbandhu Sood came to Lakhanpur on 23.09.2006 at 8 o'clock and stayed with her family till evening. She had stated specifically that she told them that she had already given Power of Attorney to her brother Sh. Lalit Kumar Sood and they should discuss all aspects with her brother at Shimla, but they had already got format of agreement prepared at Shimla to Lakhanpur and persuaded her to sign on the pretext that it would be difficult for them to come from Shimla again. She asserted that her brother told her on 24.09.2006 that he ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 17 had already entered into an agreement to sell Ex.P-A/1 dt. 21.09.2006 with someone though he did not disclose the name of the buyer. Her evidence is .

consistent and the appellant's counsel could not convince us that it was not truthful.

51. We may also point out that Smt. Rita Sood was examined as PW1 in CS no. 76/2007. She is widow of late Sh. Lalit Kumar Sood who, she stated had expired on 23.7.2009. She asserted that Smt. Ranjana Sood who is her sister-in-law had executed GPA in favour of her husband and she was present at the time of execution of the agreement to sell Ex.P-A/1 dt. 21.09.2006 in favour of Sh. Ajay Kumar Sood and she had signed as a witness to the said document. She also asserted that Smt. Ranjana Sood never cancelled the GPA during the life time of her husband.

52. Her evidence is corroborated by Sh. Ajay Sood who examined himself as PW-2 in CS no. 72 of 2007. He also asserted that he saw the GPA executed in favour of Sh. Lalit Kumar Sood and that the agreement to sell in his favour was executed on 21.09.2006 for a consideration of Rs.90 lacs. He also stated that his own wife and Sh. Lalit Kumar Sood's wife Rita Sood signed as witnesses to the document. He also obtained the certified copy of the GPA executed by Smt. Ranjana Sood in favour of Sh.

Lalit Kumar Sood as mark-B. ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 18

53. PW4 in CS no.76 of 2007 was the Junior Assistant working in the office of Sub-Registrar (Rural) Shimla and he had brought the register .

containing GPA executed by Smt. Ranjana Sood in favour of her brother Lalit Kumar Sood which has been registered on 01.07.1980 and attested copy of the same was marked as Ext. PW4/1.

54. Inspite of the strenuous contentions raised by the learned counsel for the appellant, we find that the evidence adduced as regards date of execution of Ext. PA/1 agreement to sell dt.21.9.2006 in favour of Sh.

Ajay Kumar Sood by Sh. Lalit Kumar Sood is consistent and that the learned Single Judge was right in believing the same. We therefore do not accept the plea of the appellant's counsel that the agreement to sell Ex.P-

A/1 dt. 21.09.2006 had been antedated to defeat rights of Sh. Umesh Sharma.

55. It appears probable that Smt.Ranjana Sharma had executed agreement to sell Ex.PW-1/A in favour of Sh. Umesh Sharma on 23.09.2006 without knowing that her brother and power of attorney holder Lalit Kumar Sharma had already executed an agreement to sell Ex.P-A/1 on 21.09.2006 in favour of Sh. Ajay Sood.

56. More importantly if Smt. Ranjana Sood was to get Rs.90 lacs from Sh. Ajay Kumar Sood under the agreement to sell Ex. PA/1 dt.

21.09.2006, and she was aware of its execution on the said date, she would ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 19 not have executed the agreement to sell Ext. PW1/A dt. 23.09.2006 in favour of Sh. Umesh Kumar Sharma for a lesser consideration of Rs. 70 .

lacs. Naturally a vendor would like to get more consideration for his property and not less consideration, and this conduct of Smt. Ranjana Sood is consistent with the fact that she was ignorant about Ext. PA/1 dt.

21.09.2006 and she came to know about it only later.

57. There is one other impediment for Sh. Umesh Kumar Sharma to succeed.

58. to Admittedly, the evidence on record indicates that Smt. Ranjana Sood had only 138/235 share in the subject land which works out to 1838 Sq. meteres according to Missal Haquiat Bandobast for the year 2002- 2003 which is marked as Ex. PW/5 in CS no.76/2007.

So she was not the absolute owner of the suit land and was only a co-owner.

59. In the agreement to sell Ex.P-A/1 dt. 21.09.2006 she was described as only co-owner and not the absolute owner.

60. But in agreement to sell Ex. PW-1/A dt. 23.09.2006 executed in favor of Sh. Umesh Sharma she is described as absolute owner in possession of the land and not as co-owner, though in the handwriting of her husband it is mentioned that her share is 46 biswas.

61. Smt. Ranjana Sood could only transfer title to her undivided share as correctly described in Ex.P-A/1 dt. 21.09.2006 and could not convey .

the absolute title to specific area as mentioned in Ex.PW-1/A dt.

23.09.2006.

62. Also the agreement Ex.PW-1/A states that it is executed at Shimla but it is admitted case of the parties that it was in fact executed at Lakhanpur in J&K. Also it is prepared on the stamp paper purchased on 01.04.2006 by Sh. Deshbandhu Sood who was the mediator and who had signed as witness in the said document. Smt. Ranjana Sood categorically stated that she had not authorized him to purchase stamp papers and Sh.

Deshbandhu Sood could not produce any such authorization.

63. A suggestion was also given to him in his cross-examination that he was aware on 21.09.2006 that Sh.Lalit Kumar Sood had executed an agreement to sell to the very land in favour of Sh. Ajay Sood as power of attorney of Smt. Ranjana Sood, and Sh. Umesh Sharma and Sh.

Deshbandhu Sood rushed to Lakhanpur J&K along with draft agreement and made her to sign it on 23.09.2006 agreement to sell in favour of Umesh Kumar Sharma.

64. His statement that at the time of execution of Ex.PW1/A dt.

23.09.2006 Smt. Ranjana Sood had assured that GPA executed by her in favour of her brother Sh. Lalit Kumar Sood will be revoked, cannot in the ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 21 circumstances, be believed because there is no revocation till his death in 2009 and on 21.9.2006, he had already executed Ex.P-A/1 in favor of .

Sh.Ajay Sood.

65. In our considered opinion the clauses in the GPA specifically permit Sh. Lalit Kumar Sood to sell property of Smt. Ranjana Sood.

Clause-6 also permits him to do all other acts to carry out the powers conferred on him, which are not also mentioned in the document as well.

66. Though the counsel for the appellant cited the judgment of the Calcutta High Court in 1912 Indian Cases 636 to contend that there must be specifically power conferred to enter into an agreement to sell of the property also, and that mere conferment of power to execute the sale deed would not be construed as authorizing the execution of the agreement to sell by the power of attorney, we do not accept the said principle in view of the judgment of the Supreme Court in Timblo Irmaos Ltd.

Margao v. Jorge Amibal Maltos Sequeira and another1

67. In the said judgment the Supreme Court observed as under:

"11. We think that perhaps the most important factor in interpreting a power of attorney is the purpose for which it is executed. It is evident that the purpose for which it is executed must appear primarily from the terms of the power of attorney itself, and, it is only if there is an unresolved problem left by the language of the document, that we need consider the manner in which the words used could be related to the facts and circumstances of the case or the nature or course of dealings. We think that the rule of construction embodied in proviso 6 1 AIR 1977 SC 734.

to Section 92 of the Evidence Act, which enables the Court to examine the facts and surrounding circumstances to which the language of the document may be related, is applicable here, because we think that the words of the document, taken by themselves, are not so clear in their meanings as the learned Judicial .

Commissioner thought they were.

12. As we have already mentioned, the learned Judicial Commissioner chose to concentrate on the single word "exploitation" torn out of its context. The word "exploitation" taken by itself, could have been used to describe and confer only such general powers as may be needed for the working or exploitation of the mine. But, the earlier parts of the document show that the main purpose of the document was to give power to Thakker Junior to represent Mr. Sequeira not only in litigation and financial affairs but "to draw up and sign" various "documents and correspondence." It is true that the powers to sell is not specifically mentioned in the document. The nature of the documents and the correspondence which Thakker Jr. could sign on behalf of Mr. Sequeira is also not clarified. Instance of particular kinds of business to be transacted by the agent in the course of "exploitation" of the mine are given, such as "acquisition of petrol, gun powder, train, transport vehicles, machines, furniture and other instruments used in mining industry. It is difficult to see how any documents even for these special purposes could be signed without a power to buy and sell on behalf of the Sequeiras, Furthermore, the power expressly includes giving of "import and export orders." Now, the conduct of a business so as to give necessary orders for purposes of exporting and importing must, we think, by a necessary implication, include the power to sell what is excavated from the mine to be exploited. Otherwise, how could iron ore be exported? It is a well-known rule of construction that powers necessary and incidental to the effective exercise of the powers conferred will be implied.

13. The learned Judicial Commissioner had, in our opinion, overlooked several well-known rules of interpretation : firstly, that, a word used in a document has to be interpreted as a part of or in the context of the whole; secondly, that , the purpose of the powers conferred by the power of attorney has to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties, and the manner in which the parties themselves understood the purpose of the document; and, thirdly that, powers which are ::: Downloaded on - 17/07/2024 20:33:06 :::CIS 23 absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be ''necessarily implied."(emphasis supplied)

68. Thus, in view of the above judgment, the purpose of the powers .

conferred by the power of attorney holder have to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties, and the manner in which the parties themselves understood the purpose of the document. Also the powers which are absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be necessarily implied.

69. Therefore, in our opinion on a construction of the terms of Ex.PW4/1, the power to authorize the execution of agreement to sell is clearly implied therein and the appellant is not correct in contending to the contrary.

70. We agree with the reasoning of the learned single Judge and hold that the appellant is not entitled to any relief in these OSAs.

71. They are accordingly dismissed. No costs.

(M.S. Ramachandra Rao) Chief Justice.

(Satyen Vaidya) Judge.

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