Madhya Pradesh High Court
Dharmendra Gautam vs Smt.Shashikanti Bhargava on 4 April, 2025
1 FA-56-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
FIRST APPEAL No. 56 of 2010
DHARMENDRA GAUTAM
Versus
SMT. SHASHIKANTI BHARGAVA & OTHERS
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Appearance:
Shri Santosh Agrawal - Advocate for the appellant.
Shri Sameer Kumar Shrivastava - Advocate for the respondent no.1.
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Whether approved for reporting: Yes/No.
Reserved for order on: 24/03/2025
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JUDGMENT
(Passed on 04/04/2025)
The appellant has filed this appeal under Section 96 of
the Code of Civil Procedure challenging the judgment and
decree dated, 13.01.2010 passed by First Additional District
Judge, Gwalior in Civil Suit No. 42-A/2008 whereby, the suit
for declaration of title and permanent injunction with a
further declaration that the sale-deed dated 20.11.2003
executed by defendant no.1 in favour of defendant no.2 & 3
be declared as null and void, has been decreed by learned
Trial Court.
[2]. For convenience, the respondent no.1 is referred as
"plaintiff" and the appellant & respondents no.2 to 4 are
referred to as "defendants" as per their respective status in
the civil suit.
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[3]. As per the case pleaded in the plaint, the land bearing
Survey No.35 ad-measuring 0.365 hectare situated at village
Ohadpur, Tehsil and District Gwalior (M.P.) was initially
owned by one Tikaram. Out of aforesaid land, piece of land
measuring 0.014 hectare (30 x 50 = 1500 sq. ft.) was
purchased by plaintiff vide registered sale-deed dated
25.09.1996 (Exhibit P/11). It is pleaded that the sale-deed
was executed by defendant no.1 - Laxman Singh on the
strength of the power of attorney executed by Tikaran in
favour of Laxman which has been brought on record as
Exhibit P/4. It is pleaded in the plaint that pursuant to the
sale-deed, the plaintiff was placed in possession of the plot
and she constructed a boundary wall surrounding the plot.
Later on, plot purchased by plaintiff was re-numbered as Plot
No.8. It is also pleaded that on 15.06.2007 when the plaintiff
visited her plot, she found that the defendant no.1 was
showing her plot to defendant no.2 & 3. On inquiry,
defendant no.2 & 3 informed her that defendant no.1 has sold
the plot to them by separate sale-deeds executed on
20.11.2003 (Ex. P/8 & P/9). The plaintiff thereafter made
inquiry in the Office of Deputy Registrar wherein, she found
that on the strength of power of attorney executed by
Tikaram, the defendant no.1 has sold her plot to defendant
no.2 & 3. She has also pleaded that Tikaram expired on
30.03.2000 and resultantly the defendant no.1 was not
competent to execute the sale-deed in favour of defendant
no.2 & 3 on the basis of power of attorney executed by
3 FA-56-2010
Tikaram. She thus prayed for the relief of declaration of her
title, declaration that the sale-deeds dated 20.11.2003
executed by defendant no.1 in favour of defendant no.2 & 3
be declared null and void and a decree of permanent
injunction.
[4]. The defendant no.1 remained ex-parte before the Trial
Court. Defendant no.2 & 3 filed a common written statement
denying the plaint averments. It was denied that the suit land
was sold to plaintiff on 25.09.1996. The factum of death of
Tikaram on 30.03.2000 was also denied for want of
knowledge. The defendants also pleaded that the plaintiff is
not in possession of suit plot and on the contrary, they are in
possession. The defendants further pleaded that out of Survey
No.35 owned by Tikaram, defendant no.2 purchased the plot
measuring 20x55 which is numbered as Plot No.8 while the
defendant no.3 purchased Plot of 20x55 being part of Plot
No.7 & 8.
[5]. Learned Trial Court after taking evidence of both the
sides, has passed the impugned judgment and decree holding
that the plaintiff is the owner in possession of suit plot, the
sale-deeds executed by defendant no.1 in favour of defendant
no.2 & 3 is null and void and the plaintiff is also entitled to a
decree of permanent injunction. A finding of fact has been
recorded that Tikaram expired on 30.03.2000.
[6]. The instant appeal has been filed by Dharmendra
Gautam, defendant no.2, only. Challenging the impugned
judgment and decree, learned counsel for the appellant
4 FA-56-2010
submitted that in the sale-deed executed in favour of plaintiff,
there is no mention of specific plot number and the identity of
the plot is also not clear. He submits that the plaintiff was
never placed in possession of the plot and, therefore, for want
of relief of possession, the suit filed by the plaintiff was not
maintainable. Pointing-out the sale-deeds marked as Ex. D/8
& D/9, it is submitted by the learned counsel for the
appellant that the plot purchased by defendant no.2 was ad-
measuring 20x55 which is supported by the map annexed
with the sale-deed whereas, the plot allegedly purchased by
the plaintiff was ad-measuring 20x50. It is submitted that as
per map annexed with the sale-deeds, there is no plot with
area 30x50 available on spot. He thus submitted that no
right, title or interest is created in favour of plaintiff on
account of sale-deed dated 25.09.1996 Exh. P/11.
[7]. Regarding the death of Tikaram on 30.03.2000, learned
counsel for the appellant submits that he never had the
knowledge of death of Tikaram on 30.03.2000. They are the
bona-fide purchaser of suit plot and has paid sale
consideration. Therefore, by virtue of Section 3 of Power of
Attorney Act 1882, the sale-deed executed by the power-
attorney holder i.e. defendant no.1 in his favour is legal and
valid.
[8]. In support of his contention, learned counsel for the
appellant relied upon the judgment rendered by Culcutta
High Court in the case of Messrs Arihant International &
Anr. Vs. The Commissioner of Panihati Municipality &
5 FA-56-2010
Ors. reported in 1993 (Supreme) (Cal) 415.
[9]. On the other hand, leaned counsel for the plaintiff
vehemently argued that after the death of Tikaram on
30.03.2000, the defendant no.1 ceased to be the agent of
Tikaram and had no authority to execute the sale-deed in
favour of defendant no.2 & 3.
[10]. He placed reliance upon the judgment rendered in the
case of Mt. Radhabai Vs. Mangia and others reported in AIR
1934 Nag 274, Prahlad & Ors. Vs. Laddevi and Ors.
reported in AIR 2007 Raj 166 and R. Sandhyarani Vs. M.
Mylarappa reported in (2008) 1 Kant LJ 524.
[11]. He further submits that since the sale-deeds executed in
favour of defendant no.2 & 3 were without authority, they
have no locus to challenge the sale-deed executed in plaintiff's
favour on 25.09.1996. Referring to the recital made in the
sale-deed as also various paragraphs of plaintiff's statement,
learned counsel for the plaintiff submits that she was placed
in possession of the plot upon execution of the sale-deed. It is
further submitted that she constructed the boundary wall
surrounding the plot which is also established by the
statement of Rama S/o Hantu Ram (PW-2) who has carried-
out the construction work of boundary wall. He, thus, prayed
for dismissal of the appeal.
[12]. Considered the arguments of both sides and perused the
record.
[13]. In order to substantiate the fact that Tikaram had
expired on 30.03.2000, plaintiff has placed on record his
6 FA-56-2010
death Certificate as Exhibit P/10 which is issued by
Municipal Corporation, Gwalior. A perusal of this document
shows that Tikaram had expired on 30.03.2000. The
defendants have not brought on record any evidence in
rebuttal to show that Tikaram was alive on the date of
execution of their sale-deeds. They have in fact denied the
factum of his death only for want of knowledge. The
defendants have thus failed to lead cogent evidence to
establish that Tikaram was alive on the date of execution of
their sale-deeds. Thus, it has to be accepted that Tikaram
expired on 30.03.2000.
[14]. Now the effect of death of Tikaram on the authority given
by him to defendant no.1 is to be looked into.
[15]. The learned counsel for appellant has argued that the
defendants were never informed about the death of Tikaram
and they are the bona-fide purchaser of the suit plot for value.
He placed heavy reliance upon the provisions of Section 3 of
Power of Attorney Act, 1882. Apart from the provisions of
Section 3, provisions of Section 2 of the Act of 1882 are
equally relevant and, therefore, Section 2 & 3 of the Act of
1882 are reproduced hereunder for ready reference:
"2. Execution under power-of-attorney.--The
donee of a power-of-attorney may, if he thinks fit,
execute or do any 4*** instrument or thing in and
with his own name and signature, and his own
seal, where sealing is required, by the authority of
the donor of the power; and every 4*** instrument
and thing so executed and done, shall be as
effectual in law as if it had been executed or done
by the donee of the power in the name, and with
the signature and seal, of the donor thereof.
7 FA-56-2010
This section applies to powers-of-attorney created
by instruments executed either before or after this
Act comes into force
3. Payment by attorney under power, without
notice of death, etc., good.--Any person making
or doing any payment or act in good faith, in
pursuance of a power-of-attorney, shall not be
liable in respect of the payment or act by reason
that, before the payment or act, the donor of the
power had died or become 5*** of unsound mind,
6*** or insolvent, or had revoked the power, if the
fact of death, 7*** unsoundness of mind, 8***
insolvency or revocation was not, at the time of the
payment or act, known to the person making or
doing the same.
But this section shall not affect any right against
the payee of any person interested in any money
so paid; and that person shall have the like remedy
against the payee as he would have had against
the payer, if the payment had not been made by
him.
This section applies only to payments and acts
made or done after this Act comes into force."
[16]. A bare reading of Section 2 of the Act of 1882 makes it
loud and clear that the execution of an instrument by the
donee of a power of attorney, under the authority given to him
by the donor of power of attorney, is deemed, in law, to have
been executed by the donor himself. Meaning thereby, the
donee could do an act only if the donor is capable of doing
such act. The donor is certainly not capable of executing an
instrument after his death and consequently, the donee
would also cease to have power and authority to execute such
instrument after the death of donor.
[17]. The provisions of Section 3 of the Act of 1882 has been
considered by Nagpur High Court in the case of Mt.
Radhabai (supra). It was a case where the plaintiff Radhabai
8 FA-56-2010
had filed a suit for foreclosure which got dismissed on
31.03.1933. She instructed her agent to engage pleader to file
appeal. She expired on 02.07.1933 and the agent, being
unaware about her death, engaged counsel on 03.07.1933
and filed the appeal on 04.07.1933. Taking aid of Section 3 of
Act of 1882, it was argued that the appeal would be
maintainable. The Nagpur High Court has held as under:
"This S. 3 however does no more than indemnify
the holder of a power-of-attorney for actions done
by him in good faith if the determination of his
power by the death of the person granting it was
unknown to him at the time. This would operate to
indemnify Radbabai's agent, a question with which
we are in no way concerned."
[18]. Somewhat similar issue is considered by Rajasthan High
Court in the case of Prahlad (supra). After having appreciated
the provisions of Section 3 of Act of 1882, the Rajasthan High
Court held in para 9 as under:
"9. A power of attorney granted by the donor to the
donee is operative and effective only during the
lifetime of the donor. The donor and donee stand in
relationship of master and agent. Since the actions
done by the donee are deemed to be actions done
on the part of the donor, naturally such a power of
attorney cannot be operative or be effective after
the demise of the donor. Therefore, the power of
attorney granted by Mr. Jain on 28.5.1997 came to
an end on 20.10.1997 upon his demise."
[19]. Thus, Section 3 of the Act of 1882 only indemnify the
donee of power of attorney for the actions done by him in good
faith in ignorance of factum of death of donor of power of
attorney. However, the said provision would not validate an
instrument which is executed by donee without authority on
account of death of donor.
9 FA-56-2010
[20]. The learned counsel for the appellant has placed
reliance upon a judgment rendered by Calcutta High Court in
the case of Messrs Arihant International (supra). The
Calcutta High Court held in para 28 as under:
"28. It is apparent from the wordings of Section 3
of the aforesaid Act, that the previsions thereof
seek to indemnify any action taken by the agent on
the strength of the Power of Attorney without
knowledge of the death of the executant. The said
provisions do not, however, enable a person to
continue to act on the strength of such power, even
after the executant has died and the agent has
knowledge of the same,since the powers granted
under the Power of Attorney cease to be operative
on the death of the executant. The Section only
seeks to protect any action taken on the strength of
such Power of Attorney without the agent having
knowledge of the death of the principal. As pointed
out by Mr. Sinha, the provisions of Section 3 of the
aforesaid Act do not enable the doing of any act
after the death of the principal, but merely
indemnifies any action taken in the circumstances
mentioned therein."
[21]. The Calcutta High Court has interpreted Section 3 of Act
of 1882 stating that provisions thereof seeks to indemnify any
action taken by the agent on the strength of power of attorney
without knowledge of death of executants. I am unable to
agree with the interpretation of Section 3 of Act of 1882 given
by Calcutta High Court inasmuch as Section 3 only indemnify
the person and not the act done by him in good faith in
ignorance of factum of death of donor. With due respect, the
interpretation given by Calcutta High Court is not in
consonance with the specific provisions of Section 3 of the Act
of 1882.
[22]. In view of the aforesaid, discussion of facts and law, the
10 FA-56-2010
sale deed, dated 20.11.2003, having been executed by
defendant no.1 in favour of appellant after the death of
Tikaram, are held to be without authority and are thus null
and void and are not binding upon the plaintiff. The findings
of the learned Trial Court in this regard are thus upheld.
[23]. The learned counsel for the appellant submitted that the
plot purchased by the plaintiff vide sale deed Ex. P/11 does
not contain the plot number and, therefore, the same is
unidentifiable. In view of finding that the sale deed executed
in favour of appellant is null and void, he does not have locus
to make such submissions. Even otherwise, the sale deed Ex.
P/11 contains the survey number of the land and also gives
boundaries of the plot purchased by her. Thus, the suit plot is
identifiable. Further, based upon this sale deed, her name
has been mutated in revenue records as evident from Ex. P/7.
The plot in question is diverted in plaintiff's favour vide Ex.
P/1, she has been paying property tax as evident from Ex.
P/2 & P/3 which supports her title and possession over the
suit plot. Thus, the findings recorded by learned Trial Court in
this regard are also not shown to be perverse and the same
are hereby affirmed.
[24]. In view of discussion made above, the appeal is found to
be without any substance and the same is dismissed.
[25]. The appellant shall bear the cost of respondent/plaintiff
of this appeal.
(ASHISH SHROTI)
JUDGE
Vpn/-
