18. As discussed above, the real controversy
test is the basic or cardinal test and it is the primary
duty of the court to decide whether such an
amendment is necessary to decide the real dispute
between the parties. If it is, the amendment will be
allowed; if it is not, the amendment will be refused.
On the contrary, the learned Judges of the High
Court without deciding whether such an amendment
is necessary have expressed certain opinions and
entered into a discussion on merits of the
amendment. In cases like this, the court should also
take notice of subsequent events in order to shorten
the litigation, to preserve and safeguard the rights of
both parties and to subserve the ends of justice. It is
settled by a catena of decisions of this Court that the
rule of amendment is essentially a rule of justice,
equity and good conscience and the power of
amendment should be exercised in the larger
interest of doing full and complete justice to the
parties before the court.
19. While considering whether an application
for amendment should or should not be allowed, the
court should not go into the correctness or falsity of
the case in the amendment. Likewise, it should not
record a finding on the merits of the amendment and
the merits of the amendment sought to be
incorporated by way of amendment are not to be
adjudged at the stage of allowing the prayer for
amendment. This cardinal principle has not been
followed by the High Court in the instant case."
x) LIC v. Sanjeev Builders (P) Ltd., ((2022) 16 SCC
1)
"25. The principles applicable to the
amendments of the plaint are equally applicable to
the amendments of the written statements. The
courts are more generous in allowing the
amendment of the written statement as question of
prejudice is less likely to operate in that event. The
defendant has a right to take alternative plea in
defence which, however, is subject to an exception
that by the proposed amendment other side should
not be subjected to injustice and that any admission
made in favour of the appellant is not withdrawn. All
amendments of the pleadings should be allowed
which are necessary for determination of the real
controversies in the suit provided the proposed
amendment does not alter or substitute a new
cause of action on the basis of which the original lis
was raised or defence taken. Inconsistent and
contradictory allegations in negation to the admitted
position of facts or mutually destructive allegations
of facts should not be allowed to be incorporated by
means of amendment to the pleadings. The
proposed amendment should not cause such
prejudice to the other side which cannot be
compensated by costs. No amendment should be
allowed which amounts to or relates in defeating a
legal right accruing to the opposite party on account
of lapse of time. The delay in filing the application
for amendment of the pleadings should be properly
compensated by costs and error or mistake which, if
not fraudulent, should not be made a ground for
rejecting the application for amendment of plaint or
written statement. (See South Konkan Distilleries v.
Prabhakar Gajanan Naik [South Konkan Distilleries
v. Prabhakar Gajanan Naik, (2008) 14 SCC 632] .)
26. But undoubtedly, every case and every
application for amendment has to be tested in the
applicable facts and circumstances of the case. As
the proposed amendment of the pleadings amounts
to only a different or an additional approach to the
same facts, this Court has repeatedly laid down the
principle that such an amendment would be allowed
even after the expiry of statutory period of
limitation.
27. In this behalf, in A.K. Gupta & Sons Ltd.
Vs. Damodar Valley Corporation, AIR 1967 SC 96 :
(1966) 1 SCR 796, this Court held thus:
"7. .....a new case or a new cause of action
particularly when a suit on the new case or cause of
action is barred: Weldon v. Neale [19 QBD 394].
But it is also well recognised that where the
amendment does not constitute the addition of a
new cause of action or raise a different case, but
amounts to no more than a different or additional
approach to the same facts, the amendment will be
allowed even after the expiry of the statutory period
of limitation:....."
28. In entitled, G. Nagamma & Anr. Vs.
Siromanamma & Anr., (1996) 2 SCC 25, this Court
considered the proposed amendment of the plaint
and noticing that neither the cause of action would
change nor the relief would be materially affected,
allowed the same. This Court in this case noticed
that in the appellant's suit for specific performance,
the appellant was entitled to plead even inconsistent
pleas and that in the present case, the appellants
were seeking only the alternative reliefs. It appears
that the appellants had filed a suit for specific
performance of an agreement of re-conveyance. By
the application under Order VI Rule 17 of the CPC
for amendment of the plaint, the appellants were
pleading that the transactions of execution of the
sale deed and obtaining a document for re-
conveyance were single transactions viz. mortgage
by conditional sale. They also wanted to incorporate
an alternative relief to redeem the mortgage. At the
end of the prayer, the appellant sought alternatively
to grant of a decree for redemption of the
mortgage. This amendment was permitted by this
Court.
29. In Pankaja & Anr. Vs. Yellappa (dead) by
lrs. & Ors., (2004) 6 SCC 415, this Court held that it
was in the discretion of the court to allow an
application under Order VI Rule 17 of the CPC
seeking amendment of the plaint even where the
relief sought to be added by amendment was
allegedly barred by limitation. The Court noticed
that there was no absolute rule that the amendment
in such a case should not be allowed. It was pointed
out that the court's discretion in this regard depends
on the facts and circumstances of the case and has
to be exercised on a judicial evaluation thereof. It
would be apposite to notice the observations of this
Court in this pronouncement in extenso. The
principles were laid down by this Court thus:
"12. So far as the court's jurisdiction to allow
an amendment of pleadings is concerned, there can
be no two opinions that the same is wide enough to
permit amendments even in cases where there has
been substantial delay in filing such amendment
applications. This Court in numerous cases has held
that the dominant purpose of allowing the
amendment is to minimise the litigation, therefore,
if the facts of the case so permit, it is always open
to the court to allow applications in spite of the
delay and laches in moving such amendment
application.
13. But the question for our consideration is
whether in cases where the delay has extinguished
the right of the party by virtue of expiry of the
period of limitation prescribed in law, can the court
in the exercise of its discretion take away the right
accrued to another party by allowing such belated
amendments.
14. The law in this regard is also quite clear
and consistent that there is no absolute rule that in
every case where a relief is barred because of
limitation an amendment should not be allowed.
Discretion in such cases depends on the facts and
circumstances of the case. The jurisdiction to allow
or not allow an amendment being discretionary, the
same will have to be exercised on a judicious
evaluation of the facts and circumstances in which
the amendment is sought. If the granting of an
amendment really subserves the ultimate cause of
justice and avoids further litigation the same should
be allowed.
30.There can be no straitjacket formula for
allowing or disallowing an amendment of pleadings.
Each case depends on the factual background of
that case.
xxx xxx xxx
16. This view of this Court has, since, been
followed by a three-Judge Bench of this Court in the
case of T.N. Alloy Foundry Co. Ltd. Vs. T.N.
Electricity Board. [(2004) 3 SCC 392]. Therefore, an
application for amendment of the pleading should
not be disallowed merely because it is opposed on
the ground that the same is barred by limitation, on
the contrary, application will have to be considered
bearing in mind the discretion that is vested with
the court in allowing or disallowing such amendment
in the interest of justice.
xxx xxx xxx
18. We think that the course adopted by
this Court in Ragu Thilak D. John case [(2001) 2
SCC 472] applies appropriately to the facts of this
case. The courts below have proceeded on an
assumption that the amendment sought for by the
appellants is ipso facto barred by the law of
limitation and amounts to introduction of different
relief than what the appellant had asked for in the
original plaint. We do not agree with the courts
below that the amendment sought for by the
appellant introduces a different relief so as to bar
the grant of prayer for amendment, necessary
factual basis has already been laid down in the
plaint in regard to the title which, of course, was
denied by the respondent in his written statement
which will be an issue to be decided in a trial.
Therefore, in the facts of this case, it will be
incorrect to come to the conclusion that by the
amendment the appellant will be introducing a
different relief."
31. From the above, therefore, one of the
cardinal principles of law in allowing or rejecting an
application for amendment of the pleading is that
the courts generally, as a rule, decline to allow
amendments, if a fresh suit on the amended claim
would be barred by limitation on the date of filing of
the application. But that would be a factor to be
taken into account in the exercise of the discretion
as to whether the amendment should be ordered,
and does not affect the power of the court to order
it, if that is required in the interest of justice.
71. Our final conclusions may be summed up
thus:
70. Our final conclusions may be summed up
thus:
(i) Order II Rule 2 CPC operates as a bar
against a subsequent suit if the requisite conditions
for application thereof are satisfied and the field of
amendment of pleadings falls far beyond its
purview.
The plea of amendment being barred under
Order II Rule 2 CPC is, thus, misconceived and
hence negatived.
(ii) All amendments are to be allowed which
are necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the
latter part of Order VI Rule 17 of the CPC..
(iii) The prayer for amendment is to be
allowed
(i) if the amendment is required for effective
and proper adjudication of the controversy between
the parties, and
(ii) to avoid multiplicity of proceedings,
provided
(a) the amendment does not result in injustice
to the other side,
(b) by the amendment, the parties seeking
amendment does not seek to withdraw any clear
admission made by the party which confers a right
on the other side and
(c) the amendment does not raise a time
barred claim, resulting in divesting of the other side
of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally
required to be allowed unless
(i) by the amendment, a time barred claim is
sought to be introduced, in which case the fact that
the claim would be time barred becomes a relevant
factor for consideration,
(ii) the amendment changes the nature of the
suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a
valid defence.
(v) In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the
court to pin-pointedly consider the dispute and
would aid in rendering a more satisfactory decision,
the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to
introduce an additional or a new approach without
introducing a time barred cause of action, the
amendment is liable to be allowed even after expiry
of limitation.
(viii) Amendment may be justifiably allowed
where it is intended to rectify the absence of
material particulars in the plaint.
(ix) Delay in applying for amendment alone is
not a ground to disallow the prayer. Where the
aspect of delay is arguable, the prayer for
amendment could be allowed and the issue of
limitation framed separately for decision.
(x) Where the amendment changes the nature
of the suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the
plaint, the amendment must be disallowed. Where,
however, the amendment sought is only with
respect to the relief in the plaint, and is predicated
on facts which are already pleaded in the plaint,
ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before
commencement of trial, the court is required to be
liberal in its approach. The court is required to bear
in mind the fact that the opposite party would have
a chance to meet the case set up in amendment. As
such, where the amendment does not result in
irreparable prejudice to the opposite party, or divest
the opposite party of an advantage which it had
secured as a result of an admission by the party
seeking amendment, the amendment is required to
be allowed. Equally, where the amendment is
necessary for the court to effectively adjudicate on
the main issues in controversy between the parties,
the amendment should be allowed. (See Vijay Gupta
v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine
Del 1897)"
25. For all these grounds urged, learned Senior
Counsel for the appellant / plaintiff prays to allow the
appeal and thereby to set aside the judgment and decree
dated 07.02.2020 passed by the Trial Court in
O.S.No.2653/2006 on the file of the Senior Civil Judge &
JMFC, Anekal, Bengaluru Rural District.
26. Per contra, the learned counsel for the
respondents / defendants contend that the suit filed by the
appellant / plaintiff is baseless, time-barred, and intended
to harass the purchasers. They assert that late Y.
Subbarao, father of the appellant and defendant No.1,
bequeathed the suit property in Survey No. 50/4,
measuring 6 acres 16 guntas, to both daughters through a
Will dated February 15, 1973. Following his demise, the
appellant and defendant No.1 became absolute owners,
with each inheriting 3 acres. The respondents emphasize
that the appellant voluntarily executed a registered General
Power of Attorney (GPA) in favour of Smt. S.
Nagarathnamma (defendant No.5) on January 20, 1995,
authorizing her to sell the appellant's 3-acre share.
27. Learned counsel for Respondents contend that,
additionally, the appellant executed a notarized General
Power of Attorney in favour of defendant No.6 / Nazeer
Ahmed, on September 13, 1995, granting him authority
over her undivided share in the property. The same day,
defendant No.1 also executed a GPA in favour of Nazeer
Ahmed. The respondents contend that these power of
attorney documents were executed willingly and were not
fraudulent, as alleged by the appellant. The appellant and
defendant No.1 also executed separate agreements to sell
their respective shares--the appellant / plaintiff agreed to
sell her share to R.K. Govindaraj for Rs.39,00,000/- and
defendant No.1 agreed to sell her share to R. Ashok Kumar
for the same amount. The buyers paid advance amounts,
and additional consideration was received over time.
28. The Learned counsel for respondents further
contend that the agreement holders nominated N.R.
Ramesh to purchase the land on their behalf through a
Deed of Nomination dated September 15, 1996.
Subsequently, on September 21, 2002, defendant No.6,
acting as the power of attorney holder, executed sale
deeds--one for 2 acres in favour of defendant No.8 and
another for 2 acres in favour of deceased defendant No.7.
The transactions were duly recorded, and the buyers took
possession of the property.
29. The learned counsel for respondents argue that
the appellant's claim regarding the fraudulent nature of the
GPA executed in favour of defendant No.6, is baseless.
They emphasize that the GPA was notarized, properly
stamped, and falls under the presumption of validity under
Section 85 of the Indian Evidence Act. It is contended that
the appellant failed to provide any substantial evidence to
rebut this presumption, and her argument about differences
in the notary seal and treasury stamp does not hold merit.
In support of his contention, the Learned counsel for
Respondents have relied on a judgment in the case of
Jugraj Singh v. Jaswant Singh, ((1970) 2 SCC 386)),
the relevant portion of the judgment is extracted thus:
"8. The short question in this case is whether
Mr Chawla possessed such a power of attorney for
executing the document and for presentation of it for
registration. Now, if we were to take into account the
first power of attorney which was executed in his
favour on May 30, 1963, we would be forced to say
that it did not comply with the requirements of the
law and was ineffective to clothe Mr. Chawla with the
authority to execute the sale deed or to present it for
registration. That power of attorney was not
authenticated as required by Section 33 of the Indian
Registration Act which in the case of an Indian
residing abroad, requires that the document should
be authenticated by a Notary Public. The document
only bore the signature of a witness without anything
to show that he was a Notary Public. In any event
there was no authentication by the Notary Public (if
he was one) in the manner which the law would
consider adequate. The second power of attorney
however does show that it was executed before a
proper Notary Public who complied with the laws of
California and authenticated the document as
required by that law. We are satisfied that that
power of attorney is also duly authenticated in
accordance with our laws. The only complaint is that
the Notary Public did not say in his endorsement that
Mr Chawla had been identified to his satisfaction. But
that flows from the fact that he endorsed on the
document that it had been subscribed and sworn
before him. There is a presumption of regularity of
official acts and we are satisfied that he must have
satisfied himself in the discharge of his duties that
the person who was executing it was the proper
person. This makes the second power of attorney
valid and effective both under Section 85 of the
Indian Evidence Act and Section 33 of the Indian
Registration Act.
This extract is taken from National and
Grindlays Bank Ltd. v. World Science News, 1976
SCC OnLine Del 8 : ILR (1976) 1 Del 559 : PLR
(1976) 78 Del 71 : (1976) 12 DLT 69 : AIR 1976 Del
263 at page 561
8. At the time of hearing, Mr. Mahinder Narain,
learned counsel for the appellant, produced before
me the original Power of Attorney. This document
shows that it is a power of attorney in favour of John
Herbert Keeble executed on behalf of the appellant-
Bank. It also bears the seal of the appellant-Bank as
well as necessary authentication of due execution by
the aforesaid Notary Public. It also bears the seal of
the Notary Public. The authentication by the
aforesaid Notary Public reads as under:--
"I JOHNMARTYN DIMOND, of the City of
London Notary Public duly admitted and sworn
practising in the said City Do hereby Certify and
Attest that I was this day present at the registered
Office of NATIONAL AND GRINDLAYS BANK LIMITED
situate at No. 26 Bishopsgate in the said City with
the Right Honourable EDWARD FRANCIS BARON
TWINING, G.C.M.G.M.B.E.,
a Director and
HENRY DOUGLAS CAYLEY
The Deputy General Manager of the said Bank
and did see the seal of the said Bank affixed to or
impressed on the foregoing Power of Attorney and
that the Seal so affixed is the genuine Seal of the
said Bank.
And that the signatures "Twining" and "H.D.
Cayley"
severally and respectively subscribed at food of
the foregoing power of Attorney are of the respective
proper handwriting of the said the High Honourable
EDWARD FRANCIS BARON TWINING G.C.M.G.M.B.E.
and HENRY DOUGLAS CAYLEY
In witness whereof I have hereunto set my
hand and affixed my Seal of Office in London this
seventh day of November. One thousand nine
hundred and sixty-two.
(Seal)
Sd/-
JOHN MARTYN DIMOND, Notary Public."
10. The document in the present case is a
power of attorney and again on the face of it shows
to have been executed before, and authenticated by,
a notary public. In view of Section 85 of the Evidence
Act, the Court has to presume that it was so
executed and authenticated. Once the original
document is produced purporting to be a power of
attorney so executed and attested, as stated in S. 85
of the Evidence Act, the Court has to presume that it
was so executed and authenticated. The provision is
mandatory, and it is open to the Court to presume
that all the necessary requirements for the proper
execution of the power of attorney have been duly
fulfilled. There is no doubt that the section is not
exhaustive and there are different legal modes of
executing a power of attorney, but, once the power
of attorney on its face shows to have been executed
before, and authenticated by, a notary public, the
Court has to so presume that it was so executed and
authenticated. The authentication by a Notary Public
of a document, purporting to be a power of attorney
and to have been executed before him is to be
treated as the equivalent of an affidavit of identity.
The object of the section is to avoid the necessity of
such affidavit of identity. Under Section 57 sub-
section (6) of the Evidence Act, the Courts have to
taken judicial notice of the seals of Notaries Public
and when the seal is there, of which judicial notice is
taken, there is no reason why judicial notice should
not be taken of the signatures as well. What is
argued by Shri Rameshwar Dial, learned counsel for
defendants 1 to 3, is that the Notary Public in
Section 85 or Section 57 of the Evidence Act merely
means notaries appointed under the Notaries Act
1952. The argument is that where a document
purports to be a power of attorney, before the Court
can presume it to be so executed and authenticated
as is contemplated by S. 85, it should have been
authenticated by Indian Consul or Vice-Consul or the
representative of the Central Government and not by
a notary public of a foreign country. For one thing
Notaries Act 1952 was not there when Evidence Act
which was the first Act of 1872 was enacted.
Secondly, the purpose of Sections 57 and 85 is to cut
down recording of evidence. For such matters, like
the due execution of a power of attorney in the
present day of international commerce, there is no
reason to limit the word "Notary Public" in S. 85 or
Section 57 to Notaries appointed in India. The fact
that notaries public of foreign countries have been
recognised as proper authorities for due execution
and authentication for purpose of section 85 of the
Evidence Act is illustrated by the Supreme Court in
case Jugraj Singh v. Jaswant Singh, (1971) 1 SCR 38
(1). In this case the Supreme Court held that a
power of attorney executed and authenticated before
a notary public of California satisfied the test of S. 85
of the Evidence Act and S. 33 of the Indian
Registration Act. If the interpretation of notary public
is limited to notaries public appointed in this country
only, it will become impossible to carry on commerce
with foreign countries. Surely, S. 57 of the Indian
Evidence Act which enjoins upon the Courts to take
judicial notice of seals of Notary Public, such judicial
notice cannot be limited to Notaries appointed in
India only. It seems clear if the entire sub-section is
read. Once, this conclusion is reached, there is no
reason to limit the meaning of the expression
"Notaries Public" in S. 85 of the Indian Evidence Act
to Notaries appointed in India only.
11. In this view of the matter, it must be
presumed that the power of attorney in favour of
John Herbert Keeble was duly executed and
authenticated. This presumption, like other
presumptions is rebuttable, but, once, the original
power of attorney bearing the signature and seal of
the notary public is produced, which expressly
confers the power on the attorney to institute suits,
the burden immediately shifts to the defendants,
who dispute the execution of such a power of
attorney. Therefore, instead of calling upon the
defendants to give better particulars of their
objections as to the proper, institution of the suit, I
think, it is fit and proper, if issue No. 1 is divided and
the burden regarding the proper institution of the
suit by a duly authorised person, is placed on the
defendants. Issue No. 1 is accordingly divided as
under:--
1. Whether the plaint has been signed and
verified by a duly authorised person? O.P.P.
1A. Whether the suit has not been instituted by
a duly authorised person? O.P.D."
30. The learned counsel for Respondents has further
relied on a judgment in the case of Northland Traders v.
Bank of Baroda, (1994 SCC OnLine All 186), the
relevant portion of the extract is given below,
"9. There is another aspect of the matter,
Section 85 of the Evidence Act lays down as
follows:--
"85. Presumption as to powers of attorney. The
court shall presume that every document purporting
to be a power of attorney and to have been executed
before, and authenticated by a notary public, or any
Court, Judge, Magistrate, Indian Consul or Vice
Consul or representative of the Central Government
was so executed and authenticated."
10. Under the aforesaid provisions, it would
also be presumed that the person executing the
power of attorney on behalf of a corporate body was
competent to do so. In the present case Sri M.K.
Bose had executed the power of attorney in favour of
K.N. Pandey which was duly authenticated by a
notary public as mentioned in Section 85. The Court
is, therefore, bound to presume that the power of
attorney was duly executed and authenticated. This
presumption, however, is a rebuttable presumption
and it was open to the defendants to challenge the
authority of the attorney or to prove that the power
of attorney was invalid or that the person acting on
the basis of such power of attorney was not duly
authorised. No such evidence has come from the
side of the defendants. On the contrary PW. 1 K.N.
Pandey had deposed that (sic) the Senior Branch
Manager and was authorised to sign and verify the
plaint and to file the suit. There being no evidence in
rebuttal the court below was, therefore, justified in
holding that K.N. Pandey was authorised to sign and
verify the plaint.
11. In the case of City Bank, N.K. New Delhi v.
J.K. Jute Mills Company Ltd., Kanpur reported in AIR
1982 Delhi 487, where the facts were somewhat
similar to the case at hand a power of attorney was
executed by two officers of the Bank in favour of one
Mr. Williams who executed a power of attorney in
favour of one N.K. Bahl who was the Assistant
Branch Manager of the Bank. On the basis of the
powers conferred on him by the power of attorney
which was duly authenticated by a notary public, the
said Mr. Bahi had filed the suit. An argument was
raised that no presumption could be raised that the
concerned officers were competent to execute the
power of attorney on behalf of the appellant Bank.
Relying upon certain decisions of the Delhi High
Court in the cases of National Grindlays Bank v.
Radio Electronics Corporation Pvt. Ltd. reported in
1978 Rajdhani LR 217 and the case of Bank of India
v. Ajayab Singh Pritam Singh, reported in AIR 1979
NOC 199. It was held that authentication of the
power of attorney by a notary public raised a legal
presumption that the same has been duly executed
and the person or persons who had executed had the
authority to do so. It was further held that the
presumption was rebuttable and the other party was
entitled to disprove such resumption. The Court had
held that the consistent view was that under Section
85 of the Evidence Act would also be presumed that
a person executing powers of attorney on behalf of a
corporate body was competent to do so. In view of
what has been stated above, the argument of the
learned counsel for the applicants that it has not
been proved that Mihir Kumar Bose was competent
to execute the power of attorney in favour of K.N.
Pandey cannot be legally sustained. The validity of
the same could be presumed under the provisions of
Section 85 of the Evidence Act and it could further
be presumed that M.K. Bose was competent to
execute the power of attorney. It was open to the
defendants to disprove the said presumption but no
evidence has been led by the defendants to this
effect."
31. Regarding the cancellation of the GPA executed in
favour of defendant No.5 (Nagarathnamma), the
respondents assert that the appellant did not comply with
the legal requirements under Section 206 of the Indian
Contract Act. The appellant issued a notice of cancellation
on October 11, 2002, but failed to serve it on defendant
No.5, as no proof of acknowledgment or postal receipt was
produced. Furthermore, the appellant did not issue any
public notice regarding the cancellation, making it
ineffective against third parties. On October 17, 2002, the
appellant executed a registered cancellation deed, but it
was registered under Book IV, which does not notify third
parties during encumbrance searches. Consequently,
defendant No.5 and purchasers remained unaware of the
cancellation.
32. The learned counsel for respondents highlight that
on December 28, 2005, defendant No.1 and defendant No.5
acting as GPA holder for the appellant, executed consent
deeds confirming the sales executed on September 21,
2002, in favour of defendants No.7 and 8. The property's
mutation records were updated based on these
transactions, establishing defendants No.7 and 8 as the
lawful owners. Defendant No.1 did not challenge these
transactions, making the sale of her 2-acre share legally
valid and binding.
33. The learned counsel for respondents argue that
the appellant filed the suit in the year 2006, four years after
the execution of sale deeds, making it barred under the
Limitation Act. The appellant's claim of fraud lacks
supporting evidence, and the Trial Court rightfully dismissed
her suit. They also emphasize that the appellant had
already entered into agreements to sell her share of the
land to third parties and had received substantial
consideration, demonstrating that her suit is filed with
ulterior motives. It is the further contention of the learned
counsel for respondents that the appellant's claim that
Home Land Developers and Urban Space were behind the
alleged fraudulent power of attorney, stating that she failed
to provide any pleadings or evidence to substantiate this
claim, is baseless.
34. The learned counsel for respondents further
contend that defendants No.9 to 12, who entered into
agreements with the appellant in 2007, cannot claim any
rights over the suit property. Since they are agreement
holders and not registered owners, their claims have no
legal standing. Hence it is contented that the Trial court has
rightly held that their agreements do not affect the validity
of the previous transactions.
35. In support of their contentions, Learned counsel
for Respondents have relied on a judgment in the case of
Satish Kumar Gupta v. State of Haryana, ((2017) 4
SCC 760), the relevant portion of the extract is given
below,
"19. The other part of the impugned order
permitting additional evidence and remanding the
case for fresh decision is uncalled for. No case was
made out for permitting additional evidence on
settled principles under Order 41 Rule 27 CPC. The
provision is reproduced below:
"27. Production of additional evidence in
appellate court.--(1) The parties to an appeal shall
not be entitled to produce additional evidence,
whether oral or documentary, in the appellate court.
But if--
(a) the court from whose decree the appeal is
preferred has refused to admit evidence which ought
to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise
of due diligence, be produced by him at the time
when the decree appealed against was passed, or
(b) the appellate court requires any document
to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other
substantial cause,
The appellate court may allow such evidence or
document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed to
be produced by an appellate court, the court shall
record the reason for its admission."
20. It is clear that neither the trial court has
refused to receive the evidence nor it could be said
that the evidence sought to be adduced was not
available despite the exercise of due diligence nor it
could be held to be necessary to pronounce the
judgment. Additional evidence cannot be permitted
to fill in the lacunae or to patch up the weak points in
the case [N. Kamalam v. Ayyasamy, (2001) 7 SCC
503, pp. 514-16, para 19] . There was no ground for
remand in these circumstances."
36. The Learned counsel for Respondents has also
relied on a judgment in the case of Kathoom Bivi Ammal
v. Arulappa Nadar, (1968 SCC OnLine Mad 164), the
relevant portion of the extract of which is given below:
2. The trial Court held that the first defendant
had cancelled the power-of-attorney executed by her
in favour of the fourth defendant on 2nd September,
1958, and that, therefore, the mortgage executed by
the fourth defendant in favour of the appellant was
not valid. But it gave a decree against the fourth
defendant for the sum due on the mortgage. The
lower appellate Court also held that the power-of-
attorney was validly cancelled though there seems to
be some confusion in its mind with regard to this
point as seen from its discussion in paragraphs 9 and
10 of its judgment. However, on the ground that
under Section 208 of the Indian Contract Act, the
termination of the authority of an agent does not
take effect, so far as regards third persons, before it
becomes known to them. The cancellation would not
bind them and consequently the mortgage deed
executed by the fourth defendant in favour of the
appellant was valid. But it gave only a charge decree
for the mortgage amount. The appellant has,
therefore, filed a memorandum of cross-objections
and wants a decree for possession of the mortgaged
property to be granted in his favour. As both the
Courts below have held that the power-of-attorney
executed by the first defendant in favour of the
fourth defendant has been validly cancelled by her
even before the fourth defendant executed the
mortgage in favour of the appellant, the only
question that arises is whether under Section 208 of
the Indian Contract Act, such cancellation will have
the effect of making the mortgage executed by the
fourth defendant void as against the first defendant.
Section 208 of the Indian Contract Act is as follows:
"208. The termination of the authority of an agent
does not, so far as regards the agent, take effect
before it becomes known to him, or so far as regards
third persons, before it becomes known to them".
4. This illustration is apposite to the facts of
this case. In Mulla on Indian Contract Act, Students'
Edition, Eighth Edition, page 226, the case of
Trueman v. Loder, (1840) 11 Ad & El 589, is referred
to. That was a case where A traded as B's agent with
B's authority. All parties with whom A made
contracts in that business were held to have a right
to hold B liable to them until B gives notice to the
world that A's authority is revoked; and it makes no
difference if in a particular case the agent intended
to keep the contract on his own account. It is argued
on behalf of the appellant that it is very
unreasonable to expect that the first defendant
should inform the whole world that she had cancelled
the power-of-attorney given to the fourth defendant,
and that she cannot be expected to approach every
body with whom the fourth defendant was likely to
enter into contract and inform them of the
cancellation. I do not think that such considerations
have any relevance in the face of the clear words of
the section. The policy of the law, apparently in the
interests of trade and commerce, is that the agent's
action should bind the principal, even though the
principal might have cancelled the agent's authority
unless the third persons with whom the agent enters
into contracts knew of the termination of the agency.
On this point, therefore, the conclusion of the lower
appellate Court is correct, and it should be held that
the mortgage executed by the fourth defendant in
favour of the appellant is valid and binding on the
first defendant.
37. Learned counsel for respondents assert that the
appellant's suit is a deliberate attempt to blackmail the
genuine purchasers, as she had initially entered into sale
agreements, received consideration, and later attempted to
backtrack by filing this suit. They argue that the sale deeds
and consent deeds executed in favour of defendants No.7
and 8 were legally valid and binding. The trial court
correctly ruled that the appellant failed to establish her case
and that defendants No.7 and 8 had legally acquired the
suit property. The learned counsel for respondents,
therefore, urge this Court to dismiss the present appeal in
R.F.A. No. 1759/2020 with costs, as the appellant's claims
are meritless, time-barred, and legally unsustainable.
38. In the context of the contentions raised by the
learned counsel for the respective parties and on a
deliberation of the facts stated above, the issues that now
arise for consideration in the present appeal are:
1. Whether the General Power of Attorney (GPA)
executed by the Appellant / Plaintiff in favour of
Respondent No.6 (Nazeer Ahmed) and Respondent
No.5 (Smt. Nagarathnamma) was validly executed,
duly authenticated as per law, and conferred legal
authority to transfer the Appellant's share in the
property?
2. Whether the termination of the General Power
of Attorney (GPA) by the Appellant (Plaintiff) was valid
and legally effective under Section 208 of the Indian
Contract Act, 1872, and whether proper notice of
termination was given to the concerned parties,
thereby affecting the validity of subsequent
transactions executed under the revoked GPA?
39. It is to be noticed that the documents marked as
Ex.D.7 and Ex.D.8, which are General Powers of Attorney,
were presumed to be validly executed and authenticated
under Section 85 of the Indian Evidence Act, 1872. As per
the statutory mandate, every document purporting to be a
power of attorney, if executed before and authenticated by
a Notary Public or other competent authority, is required to
be presumed by the Court as duly executed and
authenticated. In the present case, both Ex.D.7 and Ex.D.8
bear notarization and thus attract the statutory
presumption of validity. If at all the Notary had
authenticated the GPA in the absence of the plaintiff, she
ought to have informed the same to the Principal District
Judge, Bengaluru having immediate control over the
Notary. Further, she could have given a complaint to the
jurisdictional police for the act of fraud committed by the
Notary along with Defendant No.6. However, no conclusive
rebuttal of this presumption was furnished by the appellant.
As held in the case of Prem Singh v. Birbal (2006) 5
SCC 353 and reiterated in the case of Jamila Begum v.
Shami Mohd. (2019) 2 SCC 727, a registered document
carries a presumption of valid execution, and the burden
lies on the person challenging it to establish otherwise. The
appellant's assertions were found to be unsubstantiated by
cogent or compelling evidence, and hence, the presumption
stood unrebutted.
40. These findings were in line with the trial court's
conclusion, where it was held that the plaintiff had neither
produced the notary for examination nor initiated action for
alleged misconduct, nor did she provide any expert
evidence to support her claim of forgery. The Trial Court
rightly upheld the presumption of regularity under Section
85 of the Indian Evidence Act and observed that the
plaintiff's vague and general denial lacked specificity and
was not supported by pleadings of fraud or fabrication.
41. Under Section 101 of the Indian Evidence Act, the
burden of proof initially rested with the plaintiff who alleged
that Ex.D.7 was not executed by her and was a product of
fraud. Since the legal right claimed by the appellant was
based on the non-execution or fraudulent nature of the
GPA, the burden was required to be discharged by her
through tangible evidence. No expert evidence, handwriting
comparison, or other probative material was produced to
establish her claim. In the case of Rattan Singh v. Nirmal
Gill, (2020 SCC OnLine SC 936), it was held that in the
absence of credible proof of forgery or fraud, and in light of
supporting evidence adduced by the defendants, the
balance tilts in favour of the defendants. Likewise, in the
present case, the failure of the appellant to discharge her
burden under Section 101 of the Indian Evidence Act
rendered the challenge to the GPA, unsustainable.
42. The Trial Court also found that the plaintiff had
herself executed a separate registered GPA (Ex.P.19) in
favour of Respondent No.5 and had entered into a sale
agreement (Ex.D.2) for consideration--facts that were
deliberately suppressed in the plaint. This act of
suppression, the court observed, was sufficient to discredit
the appellant's claim and demonstrated her intent to sell
the property, thereby undermining her denial of execution
of the GPA.
43. Additionally, under Section 106 of the Evidence
Act, the burden to prove facts within the special knowledge
of a person rests on that person. Since Defendant No.6 was
the power of attorney holder and derived his authority
under Ex.D.7, the obligation to establish its proper
execution was cast upon him. However, the initial benefit of
presumption under Section 85 of the Indian Evidence Act
enabled the document to stand on its own unless dislodged
by counter-evidence. The plaintiff's inability to produce
even prima facie proof of non-execution meant that the
statutory burden on defendants did not intensify. The
testimony of attesting witnesses and other circumstantial
proof further corroborated the validity of the impugned
documents. The trial court took note that no credible
evidence was led to discredit these witnesses or the
transaction, and held that the defendants' version stood
established.
44. While cross-examining the witnesses DW-1 and
DW-3, for the first time, the plaintiff had posed questions to
the said witnesses in respect of two firms by name Home
Land Developers and Urban Space. According to the
plaintiff, these two firms were behind the back in creating
Exhibit D7. However, there is no whisper in the plaint in
respect of the above two firms. Even in the evidence, the
plaintiff had not stated anything in respect of the above two
firms having created the GPA as per Exhibit D7 to knock of
the suit schedule property. It is also to be noticed that
Exhibit P7, the GPA, has not been authenticated by the
Sub-Registrar as per Section 33 of the Registration Act.
45. In respect of Ex.D.8, which was allegedly executed
by Defendant No.1, it was found that she had neither
denied its execution in her written statement nor stepped
into the witness box to dispute it. Consequently, under
Section 114(g) of the Indian Evidence Act, an adverse
inference was justifiably drawn against her. The principle
laid down in the case of Sidhartha Vashist @ Manu
Sharma v. State (NCT of Delhi) ((2010) SCC Online SC
480)) was applicable, wherein it was held that if a party
fails to rebut an allegation within their knowledge, the court
is entitled to presume the correctness of the opposite
party's version. In the present case, by failing to dispute
Ex.D.8, Defendant No.1 allowed the document to acquire
evidentiary strength. The Trial court observed that Ex.D.8
and Ex.D.7 were executed on the same day, before the
same notary, and the non-denial of one GPA by Defendant
No.1 significantly weakened the appellant's challenge to the
other.
46. Exhibits P7 and P8 are the sale deeds dated
21.09.2002 executed by Defendant No.6 as an agent of the
plaintiff and defendant No.1 in favour of Defendant Nos.7
and 8. Defendant No.6 being the agent of the plaintiff, had
signed the documents and presented them before the Sub-
Registrar. Such a power of attorney can be authenticated
by the Notary. The plaintiff has failed to give any
explanation as to why she executed GPA as per Exhibit P19
in favour of Defendant No.5 though she executed an
agreement of sale as per Exhibit D2. The plaintiff has not
denied the execution of Exhibit D2 though she had the
knowledge as on the date of filing the suit, as the existence
of agreement of sale had been clearly mentioned in the sale
deeds marked as Exhibits P7 and P8 produced by the
plaintiff herself at the time of filing the suit. However,
plaintiff had authorised Defendant No.5 to sell the suit
schedule property to any person inclusive of the agreement
holder. The said circumstance clearly gives room for doubt
that the plaintiff had suppressed some material facts.
Further, the plaintiff has not at all narrated the
circumstances as to why she chose Defendant No.6, a
totally stranger to her to act as her GPA.
47. Exhibit P20 is the certified copy of the cancellation
of GPA. As per the document on 17.10.2002, the plaintiff
has cancelled the GPA executed by her in favour of
Defendant No.5. It is the case of the plaintiff that she gave
notice to Defendant No.5 in respect of cancellation of the
GPA as per Exhibit P19. However, plaintiff had not
produced any document before Court that she made known
to public in respect of cancellation of the GPA as per Exhibit
P20. However, Exhibit P6 is the copy of the notice dated
11.10.2002 issued by the plaintiff to Defendant No.5 to give
information in respect of cancellation of GPA. However, the
address of Defendant No.5 mentioned in the said notice and
the causetitle of the plaint, are different. Hence, the
cancellation of the GPA by the appellant / plaintiff, was
found to be ineffective by the Trial Court, under Section 208
of the Indian Contract Act, 1872, which stipulates that
termination of agency does not take effect against third
parties unless such termination is made known to them.
The evidence demonstrated that neither Respondent No.5
(Smt. Nagarathnamma) nor the purchasers had been
served with valid notice of cancellation. The registered deed
of cancellation, recorded under Book IV, did not provide
constructive notice during encumbrance searches. Hence,
the sale deeds and consent deeds executed subsequently
were shielded from invalidation. Furthermore, under Section
206 of the Indian Contract Act, it is mandatory that
reasonable notice of revocation be given to the agent. Since
no evidence of service or public notice of cancellation was
produced, the termination was not rendered effective either
in law or in fact. These observations were affirmed by the
trial court, which found that the GPA cancellation was
neither communicated nor notified, thereby making it
ineffective against third parties.
48. The Trial court also took note that the sale deeds
executed by Defendant No.6 in favour of Respondents No.7
and 8 (Ex.P.7 and Ex.P.8) were supported by prior
agreements, substantial consideration, and were registered.
No reliable evidence was presented by the plaintiff to show
that these transactions were fraudulent. The court found
that the purchasers were bona fide and had valid title and
possession, as also reflected in the updated mutation
records.
49. In view of the above discussion made considering
the oral and documentary evidence found place in the
record, it is opined that the General Power of Attorney
(GPA) executed by the Appellant (Plaintiff) in favour of
Respondent No.6 (Nazeer Ahmed) and Respondent No.5
(Smt. Nagarathnamma) was validly executed, duly
authenticated as per law, and conferred legal authority to
transfer the Appellant's share in the property. The Appellant
voluntarily executed the GPA in favour of Respondent No.5
on 20th January 1995, granting her full authority, including
the power to sell the property. Subsequently, on 13th
September 1995, the Appellant executed another notarized
GPA in favour of Respondent No.6. The Trial court rightly
presumed the validity of these documents under Section 85
of the Indian Evidence Act, 1872, which provides a legal
presumption in favour of notarized and duly executed GPAs.
The plaintiff / Appellant failed to produce substantial
evidence to rebut this presumption. Furthermore, both the
Appellant and Respondent No.1 (her sister) entered into
valid agreements to sell their respective shares to third
parties, confirming their intent to transfer ownership. Over
the years, they accepted significant portions of the sale
consideration, reinforcing the legal standing of the
transactions. The sale deeds executed based on the GPAs
were, therefore, legally valid and binding. As a result,
Issue No.1 which has been raised by this Court, is
answered in the Affirmative.
50. Further, in view of the discussion above it is
opined that the termination of the General Power of
Attorney (GPA) by the Appellant (Plaintiff) was not legally
effective under Section 208 of the Indian Contract Act,
1872, as she failed to provide proper notice of termination
to the concerned parties, thereby making the subsequent
transactions executed under the revoked GPA, valid. The
Appellant's alleged cancellation of the GPA on 11th October
2002, was not properly communicated to Respondent No.5,
and there is no proof that she received the notice. Further,
the registered cancellation deed executed on 17th October
2002, was recorded under Book IV of the Registration Act,
1908, which does not provide constructive notice to third
parties conducting due diligence before purchasing the
property. Consequently, when Respondent No.5 executed
consent deeds and sale transactions on December 28,
2005, in favour of Respondents No.7 and No.8, these
transactions remained legally valid as per Section 208 of
the Indian Contract Act, which states that an agent's
termination is ineffective against third parties who have no
knowledge of it. The mutation records were lawfully
updated, confirming the legal ownership of the purchasers.
Hence, we are of the opinion that the Trial court has rightly
held that the Appellant's claim of invalidation of the
transactions due to GPA cancellation, is unsustainable.
Accordingly, Issue No.2 which has been raised by this
Court, is answered in the Negative.
51. In view of the above findings and reasons, we are
of the opinion that the Trial court has rightly dismissed the
suit, having thoroughly evaluated the evidence, applied
settled legal principles, and drawn appropriate inferences.
The GPAs were validly executed and acted upon; the
cancellation was legally ineffective; and the purchasers
acquired valid title. Accordingly, the present appeal
preferred by the appellant / plaintiff requires to be
dismissed, as the Appellant's contentions lack merit, and
the transactions executed under the GPA remain legally
binding. No grounds for interference are made out.
Accordingly, we proceed to pass the following:
ORDER
i) The appeal in R.F.A. No. 1759/2020 preferred by the
appellant / plaintiff stands dismissed.
ii) The judgment and decree dated 07.02.2020 passed
by the Court of the Senior Civil Judge and JMFC, Anekal,
Bangalore Rural District in O.S.No.2653/2006, stands
confirmed.
iii) All pending I.A.s stand disposed of as a
consequence.
Before parting with this judgment, this Court places on
record its deep appreciation for the able research and
assistance rendered by its Research Assistants, namely
Mr.Pranav.K.B , Ms. Sushmithaa Roshini R and Mr.
Mohammed Sulaiman.
SD/-
(K.SOMASHEKAR)
JUDGE
SD/-
(VENKATESH NAIK T)
JUDGE
KS
