Khem Chand vs Uoi & Anr.
2019 Latest Caselaw 3366 Del

$~3
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 23.07.2019
+      W.P.(C) 7202/2001, CM APPLN. 10556/2012
       KHEM CHAND                                            ..... Petitioner
                           Through        Mr. T. K. Ganju, Sr. Adv. with Mr. B.
                                          Tripathi, Mr. Abhishek Bhardwaj and
                                          Mr. Ranbeer Singh, Advs.
                           versus
       UOI & ANR.                                           ..... Respondents
                           Through        Mr. Kirtiman Singh, Adv. with Ms.
                                          Rachna Srivastava and Ms. Umme
                                          Salma, Advs. for R-1
       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           J U D G M E N T (ORAL)

CM APPLN. 8324/2012

1. Vide the present application, the respondent no.1 seeks direction

thereby to dismiss the Writ Petition No. 7202/2001 as being abated due to

death of the petitioner Sh. Khem Chand.

2. The writ petition was filed by the attorney of the petitioner for the

possession of the land in question. Since no vacant land was available, to

satisfy the verified claim of the petitioner, the petitioner was offered to settle

for monetary compensation but he declined the same and asked for the

allotment of land in the alternative. The respondents had been exploring

possibilities, since no vacant land was reported to be available, a possibility

was being explored, to allot land after getting the same vacated from the

unauthorized occupation.

3. Learned counsel appearing on behalf of the applicant/respondent no.1

submits that in pursuance of the Order dated 27.03.2012 for allotment of the

alternate land to the Petitioner in Village Jaitpur, the matter was examined

afresh to explore the feasibility for the allotment of agricultural land to Sh.

Khem Chand. However, after scrutiny of old record afresh, it was noted that

Sh. Khem Chand had executed an irrevocable Power of Attorney in favour

of Sh. Hari Chand back in the year 1979. At that point of time, Sh. Khem

Chand was residing at House No. 21, B.K. Dutt Colony, Lodhi Road, New

Delhi and his brother Sh. Jagdish was residing in House No. 583 Aliganj,

Lodhi Road, New Delhi.

4. An inquiry was conducted through the Police authorities and it has

been informed that Sh. Khem Chand died back on 29.11.2003. The Assistant

Sub Inspector, Lodhi Colony, Police Station has submitted a report that Sh.

Mrinal K. Javeri as presently owner of House No. 21 B.K. Dutt Colony, who

had purchased the said house from Sh. Banshi Lal and Sh. Bansi Lal had

purchased the said house from Sh. Narender Khatri S/o Khem Chand in the

year 1996. Further informed that Sh. Narender Khatri is presently residing at

G-9/3, Block G-9, Malviya Nagar, New Delhi. Also informed that Sh. Khem

Chand died on 29.11.2003.

5. Learned counsel appearing for the applicant further submits that since,

the petitioner Sh. Khem Chand died on 29.11.2003, after filing counter

affidavit of the writ petition, therefore, the writ petition is abated and the

rejoinder filed after the death of Sh. Khem Chand, is not to be taken into

consideration.

6. Learned counsel further submits that the writ petition was filed by the

attorney and after the death of the petitioner, the attorney filed an application

No. 10556/2012 for impleadment and amendment in the writ petition.

7. The issue arises before this Court is, whether the attorney can be

impleaded in writ petition as petitioner, based on the general power of

attorney, executed by the deceased, after death of executant of attorney?

8. Learned senior counsel appearing on behalf of the Attorney submits

that as per Section 202 of the Contract Act, if maker of the attorney died and

attorney has the interest in the property, still the suit or writ petition does not

abate.

9. To strengthen his arguments, learned senior counsel has relied upon

case 188 (2012) DLT 538 whereby this Court observed as under:-

"4. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under; "Section 202. Termination of agency, where agent has an interest in subject matter.-Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency, cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

(a) A gives authority to B to sell A's land and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be- terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."

The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executants of the power of attorney."

"7. In my opinion, the respondent No. 1/plaintiff has

validly proved that the right in the suit property was transferred in his favour by means of the documents dated 16.5.1996. The witnesses to these documents deposed in favour the respondent No. 1/plaintiff and supported the execution of the documents. Learned Counsel for the appellant sought to argue that there were inconsistencies in the statement of the attesting witnesses because Sh.Munir Ahmed (PW- 3) stated that he did not know whether Sh. Kundan Lal used to put thumb impression or signatures and Sh. Shri Ram (PW-4) talked of a sale deed whereas the documents in question do not show existence of a sale deed. Learned Counsel for the appellant also argued that the brother Ram Swaroop (PW-2) stated that the property bearingNo.290 Ambedkar Basti was given in gift and not in sale and thus there was contradiction in the statement of PW-2 because the suit property was not gifted but sold."

10. Learned senior counsel has also relied upon the other judgments on

the same issues and submits that the present application filed by the

respondent no.1 deserves to be, dismissed and the application filed by the

attorney may be allowed.

11. It is not in dispute that under Section 202 of the Indian Contract Act,

if the legal representative has interest in the property through irrevocable

power of attorney even if executant of the attorney is expired.

12. This matter was partly heard on the last date of hearing and today

heard at length. There is no direct judgment cited by either parties on the

proposition that, if the writ petition is filed by the attorney on behalf of the

petitioner who expired while writ petition was pending, still the attorney

holder has the right to be impleaded as writ petitioner. However, learned

senior counsel for the attorney submits that the proportion of law cited and

Section 202 of the Contract Act is applicable on the suit as well as on the

writ petition.

13. I note, learned senior counsel has cited the case where the suit was

pending and the plaintiff or defendant dies, in that eventuality, the suit is not

abated. Moreover, Order XXII Rule (I) says, the death of a plaintiff or

defendant shall not cause the suit to abate, if the right to sue survives. It is

not in dispute that right to sue of the attorney is still there.

14. It is pertinent to mention here that there is no separate attorney, given

by the petitioner, to file the writ petition. However, in the general power of

attorney, it is stated that the attorney can file case in the Court and get the

compensation or possession of the land. Though for the purposes of the suit

and for the possession of land, the attorney has right in the property in

question, despite the fact that the executant of the attorney has expired. But

the fact remains that there is no such provision referred by the learned senior

counsel that the writ petition still survives after death of the petitioner.

15. In view of above, since the petitioner has expired on 29.11.2003,

therefore, the petition is abated on the very same day. However, the legal

heirs of the petitioner have not come forward to be brought on record. In that

eventuality, the attorney has the option to withdraw the present writ petition

and file the substantive writ petition or the suit before the competent court.

16. In view of above, I am of the considered opinion that the attorney of

the petitioner cannot be impleaded as petitioner in the present petition which

has already been abated on 29.11.2003, the date when the petitioner has

expired. Therefore, I hereby allow the present application. Consequently, the

application filed by the attorney vide CM APPLN. 10556/2012 for

impleadment as petitioner is dismissed.

17. Before passing this order, keeping in view the interest of the power of

attorney in the property by virtue of irrevocable general power of attorney, I

hereby give liberty to the attorney / writ petitioners, to file the substantive

writ petition, if so advised within two weeks from today or seek other

remedy available under the law.

18. In view of above, the writ petition is dismissed as abated.

(SURESH KUMAR KAIT) JUDGE JULY 23, 2019/ms