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,

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

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

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

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

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.

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

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

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

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

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