Ashir Fatima And Others vs M.Ayaz Khan And Others
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Allahabad High Court

Ashir Fatima And Others vs M.Ayaz Khan And Others on 7 March, 2025

Author: Manish Kumar

Bench: Manish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:14066
 
Court No. - 17
 

 
Case :- SECOND APPEAL No. - 425 of 1992
 

 
Appellant :- Ashir Fatima And Others
 
Respondent :- M.Ayaz Khan And Others
 
Counsel for Appellant :- Avadhesh Kumar
 
Counsel for Respondent :- D.C.Mukherjee,S.S.Rajawat
 

 
Hon'ble Manish Kumar,J.
 

1. The present second appeal has been preferred under Section 100 C.P.C. against the judgment and decree dated 25.08.1992 passed by the District Judge, Lakhimpur Kheri in Civil Appeal No. 59 of 1991, dismissing the appeal of the appellants preferred against the judgment and decree dated 06.05.1989 passed by Civil Judge, Lakhimpur Kheri in Original Suit No. 125 of 1986 whereby, the suit of the respondents for Specific Performance of Contract has been decreed.

2. Brief facts of the case are that the appellant no. 1 (now no more) was owner of the house and the appellant no. 2 (now no more and his legal heirs have been substituted) was the subsequent purchaser of the said house. The respondent nos. 1 & 2 (plaintiff in the suit) in the present appeal are persons in whose favour an agreement to sell was executed on 26.05.1986 which was registered on 30.06.1986 by the respondent no. 3. the general Power of attorney holder of the deceased appellant no. 1 and also the nephew of deceased appellant no. 1.The deceased appellant no. 1 had executed a registered general power of attorney in favour of respondent no. 3 i.e. Shakeel Ahmad on 05.05.1986 with regard to her properties.

3. After the execution of the general power of attorney, the attorney holder- Shakeel Ahmad i.e. respondent no. 3 in the present appeal had entered into an agreement to sell with respondent nos. 1 & 2 (plaintiffs in the suit) on 26.05.1986 which was registered on 30.06.1986. After execution of the agreement to sell, the respondent no. 3, the power of attorney holder, also executed a registered sale deed in favour of appellant no. 2 on 27.09.1986 for the same property.

4. When the respondent nos. 1 & 2 came to know about the execution of the sale deed by the power of attorney holder, they had preferred a suit for specific performance in which the appellant nos. 1 & 2 and respondent no. 3 in the present appeal were made defendants.

5. The suit was decreed by judgment and order dated 06.05.1989 with a direction to execute the sale deed in favour of the respondent nos. 1 & 2/ plaintiffs and cancelled the sale deed dated 27.09.1986 executed in favour of the appellant no. 2 (deceased). Against the judgment and decree dated 06.05.1989, the first appeal was preferred by the appellant nos. 1 & 2 under Section 96 C.P.C. making the plaintiffs/respondents as defendants along with the general power of attorney holder i.e. respondent no. 3 in the present second appeal. The said first appeal was also dismissed by judgment and order dated 25.08.1992 and feeling aggrieved, the present second appeal has been preferred by framing ten substantial questions of law.

6. This Court by its order dated 09.12.1992 has admitted the substantial questions of law nos. 1, 2 & 8 and stayed the execution of the judgment and decree dated 25.08.1992 passed by the District Judge. The substantial questions of law no. 1, 2 & 8 are quoted hereinbelow:-

"1. Whether the act of attorney regarding negotiation and contracting for sale could be said to be within his powers as held by the courts below on the fact when the power of attorney was for the purpose of only signing the deed on behalf of the owner because the owner of the property (landlady) on account of old age and ill health was unable to go Tehsil again and again ?

2. Whether the alleged agreement to sell could be said to be a valid deed when the same is negotiated and contracted by the attorney who had no power of negotiation and contracting of sale-deed and which was done even without the knowledge of the Principal ?

8. Whether the findings recorded by the courts below are perverse and are based on conjectures and surmises and the suit for specific performance could not have been decreed as defendant no. 3 was the bonafide purchaser for value without notice of any agreement ?"

7. Learned counsel for the appellants has submitted that the learned trial court and the appellate court had failed to consider that the appellant no. 1 had not given any power to the respondent no. 3 in the present appeal to execute the agreement to sell. The said agreement to sell was executed by respondent no. 3 in favour of the respondent nos. 1 & 2/plaintiffs without there being any consent taken from her.

8. On the other hand, learned counsel for the respondent has submitted that the appellant no. 1, at no point of time had either denied or disputed the registered power of attorney dated 05.05.1986 executed in favour of respondent no. 3 and the general power of attorney executed by the appellant no. 1 in favour of respondent no. 3 empowering the respondent no. 3 to execute agreements and to do pairvi with regard to the properties belonging to the appellant no. 1. Hence, there is no question of taking approval from the appellant no. 1.

9. It is further submitted that it is an admitted case of appellant no. 1 that the respondent no. 3 was the nephew of appellant no. 1 and appellant no. 2 was the real brother of appellant no. 1.

10. It is further submitted that the judgment and decree passed by the trial court and affirmed by the appellate court is after appreciating the evidence lead by the respective parties.

11. After hearing the learned counsel for the parties and going through the record of the case and the substantial questions of law nos. 1, 2 & 8 on which the present second appeal was admitted, the appellant no. 1 had executed a registered general power of attorney dated 05.05.1986 in favour of respondent no. 3- Shakeel Ahmad and in the lower court record, the general power of attorney was filed and marked as exhibit, wherein the appellant no. 1 had given all the rights to the respondent no. 3 including for executing a sale deed and to take/accept money/consideration and further that the power of attorney holder shall have all the rights relating to her properties and whatever act would be done by the attorney holder regarding her properties would be acceptable to her. For convenience, the mukhtarnama aam is quoted hereinbelow:-

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12. The relationship between the executant of a general power of attorney and holder of power is that of principal and agent. As per the judgment in the case of State of Rajasthan & Ors vs Basant Nahata [2005 (12) SCC 77], wherein it has been observed that "from the above exposition of law, it is settled that power of attorney is a creation of an agency by which the guarantor/donor/executant authorizes the grantee/donee/holder/attorney to do the acts specified on his behalf, which will be binding on the executant as if the acts were done by him".

13. The Hon'ble Supreme Court in the case of Bharti Cellular Limited (Now Bharti Airtel Limited) vs. Assistant Commissioner of Income Tax, Circle 57, Kolkata and Another [(2024) 8 SCC 608] has held that a legal relationship of a principal and agent exists, the following factors/aspects should be taken into consideration:-

"(i) The essential characteristic of an agent is the legal power vested with the agent to alter his principal?s legal relationship with a third party and the principal?s co-relative liability to have his relations altered.

(ii) As the agent acts on behalf of the principal, one of the prime elements of the relationship is the exercise of a degree of control by the principal over the conduct of the activities of the agent. This degree of control is less than the control exercised by the master on the servant, and is different from the rights and obligations in case of principal to principal and independent contractor relationship.

(iii) The task entrusted by the principal to the agent should result in a fiduciary relationship. The fiduciary relationship is the manifestation of consent by one person to another to act on his or her behalf and subject to his or her control, and the reciprocal consent by the other to do so.

(iv) As the business done by the agent is on the principal?s account, the agent is liable to render accounts thereof to the principal. An agent is entitled to remuneration from the principal for the work he performs for the principal."

14. When the Principal had given all its power to its agent through a general power of attorney and to act in any manner regarding her property, then any decision taken on behalf of the executant of general power of attorney by the attorney holder cannot be said to be without power.

15. The appellant no. 1 had given absolute power and any act or decision taken by the attorney holder was acceptable to her, hence the respondent no. 3 was empowered to execute the agreement to sell which did not require any prior intimation or approval from the executant of the general power of attorney, as such, the substantial questions of law nos. 1 & 2 are answered and decided accordingly.

16. As far as substantial question of law no. 8 is concerned, the learned counsel for the appellants has failed to show that there is any perverse finding which is based on no evidence or on conjectures and surmises in the judgment. The findings given in the judgment is on the basis of evidence adduced before the court, hence, the substantial question of law no. 8 also has no substance on merits.

17. In view of above, the present second appeal is devoid of merits and is accordingly dismissed.

Order Date :- 7.3.2025

Nitesh