Daya Shanker (Since Decaesed) And ... vs Rajendra Kumar And 12 Ors.
2016 Latest Caselaw 3193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- SECOND APPEAL No. - 374 of 2016
 
Appellant :- 	Daya Shanker (Since Deceased) And 14 Ors.
 
Respondent :- 	Rajendra Kumar And 12 Ors.
 
Counsel for Appellant :- 	C.K. Parekh
 
Counsel for Respondent :- Vinod Kumar Dwivedi,Rahul Pandey
 

 
Hon'ble Pramod Kumar Srivastava, J.

1. Heard learned counsel for the parties and perused the records.

2. It is admitted case between the parties that plaintiff no.-1 had executed a registered general power of attorney (GPA) dated 9.2.1988 of his property in favour of defendant no.-1 Jitendra Kumar (son of Laxman Prasad). Then defendant no.-1 had executed sale-deed of disputed property on the basis of said power of attorney in favour of defendants no. 2, 3 and 4. Admittedly, defendants no. 2 and 3 are sons of Laxman Prasad and real brother of defendant no.-1 Jitendra Kumar. It is also admitted that defendant no.-4 Sharda Dutt is real father-in-law of defendant no.-1 Jitendra Kumar. It is also admitted that on the basis of power of attorney, the sale-deed was executed on 3.8.1991, but it was not registered that day, and its registration proceeding was performed and completed on 26.2.1992. It is proved from the evidences, although it was not admitted by defendants, that plaintiff has sent registered notice dated 3.10.1991 to defendant no.-1 for cancellation of registered power of attorney, which was served on him.

3. Plaintiffs had filed suit for cancellation of sale-deed dated 3.8.1991 executed by defendant no.-1 (the power of attorney holder) in favour of defendants no. 2, 3 and 4 on the ground that this was executed without authority and without any consideration, as a result of conspiracy committed by defendant no.-1 with his brothers defendants no. 2 and 3 and father-in-law defendant no.-4. This ground was also taken that this sale-deed was executed without any bona fide or good faith, and was got executed for prejudicing the rights of plaintiff and defendant no.-5 over disputed property.

4. After affording opportunity of hearing to parties and accepting their evidences, the Court of Civil Judge (Senior Division), Fatehpur had passed judgment dated 7.2.2009, by which original suit was decreed and sale-deed dated 3.8.1991, registered on 26.2.1992, was cancelled. In this judgment, trial court had given finding to the effect that plaintiff had sent first notice of cancellation of sale-deed by post under certificate of posting dated 8.7.1991 and held that sending of this notice under certificate of posting is proof of its service on defendant no.-1. Trial court had also given finding that after service of notice of cancellation of power of attorney, the sale-deed in question was executed, therefore it is liable to be cancelled, as defendant no.-1 had no right to execute sale-deed after such knowledge of power of attorney.

5. Against the judgment of trial court, Civil Appeal No.-10/2009 was preferred, which was heard and allowed by the judgment dated 7.11.2015 of Additional District Judge, Court No.-9, Fatehpur. In this judgment, first appellate court had held that registered document can be cancelled in accordance with law by registered deed only. It was also held that service of notice under certificate of posting dated 8.7.1991 and registered notice dated 9.10.1991 is legally not proved. First appellate court also held that in power of attorney, plaintiff no.-1 had authorized power of attorney holder defendant no.-1 to execute sale-deed, gift deed, mortgage deed or other transfer deed of disputed property and got it registered and received payment. With these findings first appellate court had held that till execution of sale-deed in question, the power of attorney executed by plaintiff no.-1 in favour of defendant no.-1 was not cancelled, and the power of attorney holder (defendant no.-1) had executed sale-deed in question under authority obtained from the owner of property that is plaintiff no.-1. Therefore, said grounds for cancellation of sale-deed are not proved. On the basis of these findings, first appellate court had allowed the appeal and dismissed the original suit.

6. Aggrieved by the impugned judgment of first appellate court, present second appeal has been preferred by plaintiffs of the original suit.

7. Learned counsel for the appellant contended that the cancellation of authority under power of attorney by notice under certificate of posti9ng dated 8.7.1991 and by registered post dated 9.10.1991 is proved; therefore, after knowledge of such notice the defendant no.-1 had no right to execute sale-deed, and the said sale-deed was unauthorizedly executed by him which is liable to be cancelled. He further contended that defendant no.-1 is real brother of defendants no. 2 and 3 and is son-in-law of defendant no. 4. He had connived with these defendants and executed sale-deed in question without any payment of consideration because it is not proved that what happened to alleged consideration, therefore the judgment of trial court was correct and appeal should be admitted for being allowed.

8. These contentions of learned counsel for the appellants were refuted by learned counsel for the respondents, who contended that first appellate court had rightly discussed legal provisions including provisions of Sections 32, 33 of Indian Registration Act and held that any document for the value of more than 100/- rupees cannot be cancelled under Section 17(1) of this Act by registered notice. Such registration can be cancelled only by the registered deed. He further contended that trial court had erroneously considered the service of notice allegedly sent on 8.7.1991, because this notice is not proved, nor was available on record before the court. He further submitted that other grounds mentioned in plaint for cancellation of sale-deed were not proved. It was burden of plaintiff to prove those grounds, which he failed to do so, therefore there is no error in judgment of lower appellate court. He further contended that dispute relates to finding of fact that could be decided on the basis of evidences and no substantial question of law arises in this matter; therefore, this appeal should be dismissed.

9. So far finding of trial court regarding service of notice dated 8.7.1991 under certificate of posting is concerned, it is altogether erroneous and perverse. Neither that notice nor its contents were proved. Apart from mere sending of a notice under certificate of posting may be the proof of its sending, but it cannot be proof of its service as held by trial court. The sending of information of the cancellation of authority under power of attorney by notice under certificate of posting dated 8.7.1991 is not proved. The finding of the first appellate court in this regard is found factually correct and acceptable.

10. This contention of learned counsel for the appellants is also unacceptable that burden of proof lies on defendant, who had failed to prove by suppressing evidence of defendant no.-1 Jitendra Kumar, the earlier power of attorney holder. Admittedly, the defendant no.-1 Jitendra Kumar was agent of plaintiff no.-1, who had been authorized by plaintiff to execute sale-deed or other document of transfer to anyone and receive consideration in the way he likes. The sale-deed dated 3.8.1991 executed by defendant no.-1, the power of attorney holder, is not in violation of any of the terms of power of attorney dated 9.2.1988. Since defendant no.-1 was power of attorney holder and agent of plaintiff, so burden was on plaintiff to prove that his power of attorney holder had acted against the terms of power of attorney given to him. The rights of vendees of sale-deed in question cannot be denied merely on the ground that they are near relative of power of attorney holder, especially when no act appears to have been committed against the authority given to power of attorney holder (defendant no.-1) under said registered power of attorney. The burden was not on defendants/vendees to prove that what happened to the consideration of sale-deed given by them to power of attorney holder of plaintiff. There can be no presumption that sale-deed would become illegal or void, if it is executed by power of attorney holder in favour of his near relatives. In this matter, it is immaterial as to whether defendant no.-1 had given notice of sale-deed in question to plaintiffs or not. Trial court had rightly held that it was moral duty of defendant no.-1 power of attorney holder to inform this fact to plaintiffs, but such duty was not legal. If power of attorney holder or agent of plaintiffs had not given notice of the acts performed by him under authority of power of attorney, then mere non-information cannot be the proof of act of fraud or illegality.

11. This fact is not disputed that if power of attorney holder had acted in accordance with authority under power of attorney without any knowledge of cancellation of such authority on 3.8.1981, and said sale-deed was registered on 26.2.1992, therefore it would be a valid and effective document unless it is proved that power of attorney had already been legally cancelled at the time of execution of sale-deed under its authority.

12. The only point in this matter has been as to whether registered power of attorney can be cancelled by unregistered document or by registered notice of cancellation.

13. Section 17 of Registration Act directs mandatory registration of ''non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property'. Section 49 of this Act provides that "No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered."

14. Registered power of attorney creates a legal right of GPA holder in immoveable property to transfer it, in accordance with the terms mentioned in it. This right in such immoveable property can be limited or extinguished only through the registered document, and not otherwise.

15. In present matter plaintiff no.-1 had executed a registered power of attorney (GPA) dated 9.2.1988 of his property in favour of defendant no.-1. Then defendant no.-1 had executed sale-deed of disputed property on the basis of said power of attorney in favour of defendants no. 2, 3 and 4. From the time of execution of registered GPA till now, said authority under GPA was never withdrawn, cancelled or limited by plaintiff, the executor of said GPA. Therefore the sale-deed was executed on 3.8.1991 under the authority of said GPA was a valid document which could not be cancelled by registered notice dated 3.10.1991 to defendant no.-1 for cancellation of registered power of attorney, which was served on him.

16. If the plaint case on its facts, are taken to be true, in that situation also, the sale-deed dated 3.8.1991/ registered on 26.2.1992 was a valid and legal document, creating the ownership rights of purchasers (defendants no. 2, 3 & 4) in disputed property. This finding of lower appellate court through impugned judgment is found correct that said registered GPA dated 9.2.1988 was never cancelled.

17. The only points to be determined in this appeal before this court was as to whether the plaintiff-appellant had cancelled the GPA granted by him to defendant no.-1 (GPA holder), and as to whether the sale-deed dated 3.8.1991/ registered on 26.2.1992 is liable to be cancelled. These are not the question of law, but are questions of fact that could be decided on basis of evidences, as had been done by the lower court. The impugned judgment in present case is based on appreciation of all the available evidences, and findings are apparently acceptable. Such findings cannot be interfered in second appeal.

18. On examination of the reasoning recorded by the learned first appellate court in first appeal, I am of the view that judgment in civil appeal was well reasoned, and was based on proper appreciation of entire evidences on record. No perversity or infirmity is found in finding re corded by the first appellate court to warrant interference through this appeal. No substantial question of law was involved before this Court. None of the contentions of the learned counsel for the appellant can be sustained.

19. In view of the above, this appeal is dismissed.

Order Date :- 30.5.2016

SR