Madhya Pradesh High Court
Smt. Rabiya Khatun vs Kamlesh on 18 February, 2025
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 18th OF FEBRUARY, 2025
SECOND APPEAL No. 1580 of 2018
SMT. RABIYA KHATUN
Versus
KAMLESH AND OTHERS
Appearance:
Shri Lokesh Kumar Bhatnagar, learned counsel for the appellant.
Shri Nilesh Sharma, learned counsel for the respondent No.2.
ORDER
1. Learned counsel for the appellant is heard on the question of
admission.
2. This appeal under Section 100 of the Code of Civil Procedure has
been preferred by the plaintiff/appellant being aggrieved by the judgment
and decree passed by the Courts below whereby her claim for declaration of
title, declaration that the sale deed dated 28.04.2015 executed by defendant
No.1 in favour of defendant No.2 is null and void and not binding upon her
and for permanent injunction has been dismissed.
3. As per the plaintiff, she is the owner of the suit property by virtue
of sale deed dated 26.03.2012. On 29.04.2014 she had executed a registered
power of attorney in favour of defendant No.1 authorizing him to sell the suit
property. However on 27.02.2015 she had cancelled the said power of
attorney and had intimated the said fact to defendant No.1. Despite being
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aware of the same defendant No.1 sold the suit property to defendant No.2
by registered sale deed dated 28.04.2015 which is without any authority and
is null and void and confers no title upon defendant No.2.
4. The defence of the defendants was that defendant No.1 had not
received any information from the plaintiff as regards cancellation of the
power of attorney. He has hence legally executed the sale deed in favour of
defendant No.2 which is perfectly justified.
5. The Courts below have dismissed the plaintiff's claim by holding
that she has not proved that she had communicated the factum of cancellation
of the power of attorney to defendant No.1 hence the sale deed executed by
him in favour of defendant No.2 is legal.
6. Learned counsel for the plaintiff has submitted that the judgment
and decree passed by the Courts below are illegal and contrary to the facts of
the case. By way of evidence brought by her on record the plaintiff has
categorically proved that the factum of cancellation of the power of attorney
on 27.02.2015 was communicated to defendant No.1 expressly but despite
the same he has executed the sale deed in favour of defendant No.2 which is
null and void. The evidence in this regard has been failed to be appreciated
in proper perspective by the Courts below. The witness to the document
cancelling the power of attorney had also deposed before the Court that he
had communicated the said fact to defendant No.1. The plaintiff has also not
received any amount of sale consideration for the sale deed which itself
shows that the same was executed in favour of defendant No.2 illegally.
7. I have considered the submission of the learned counsel for the
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appellant and have perused the record.
8. The fact of execution of the power of attorney by plaintiff in
favour of defendant No.1 is not disputed. The plaintiff contends that the said
power of attorney was cancelled by her by execution of a power of attorney
cancellation deed dated 27.02.2015. The question is hence as to whether
factum of execution of such a document was communicated by plaintiff to
defendant No.1. On the record there is no written communication sent by
plaintiff to defendant No.1 who has specifically denied that any such
intimation was ever received by him from plaintiff. The plaintiff has stated
that she had called defendant No.1 at home and had told him about the
cancellation of power of attorney but admits that no written notice was given
by her to him. Though she states that she had communicated the said fact
through a mobile message but no document in that regard has been produced.
She states that she had called defendant No.1 over the telephone but no
document of such telephone call has been produced.
9. On the record are contradictory statements by plaintiff and
defendant No.1 as regards communication of the factum of cancellation of
power of attorney. In such circumstances it was for the plaintiff to prove the
said fact by adducing cogent evidence which she has failed to do. Her oral
statement and that of her witness in view of rebuttal statement of defendant
No.1 cannot be relied upon. It is also to be noted that though the power of
attorney executed in favour of defendant No.1 was being cancelled by
plaintiff, she did not take him along with her to the office of the Sub
Registrar for execution of the document which is highly unnatural. Though
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defendant No.1 admitted that he had acquired knowledge that plaintiff does
not want to sell the suit property but that by itself cannot give rise to
presumption that the factum of cancellation of power of attorney was
communicated by plaintiff to him.
10. The contention of the plaintiff is that defendant No.1 had no right
to execute any sale deed which is hence null and void. In such circumstances
the plea raised by counsel for the plaintiff as regards non-payment of sale
consideration cannot be considered the same being contradictory with each
other. In any case merely for non-payment of the sale consideration the sale
deed cannot be termed to be null and void and in that circumstance the
remedy would be to sue for recovery of the amount of sale consideration.
11. Thus in view of the aforesaid discussion, in my opinion, the
Courts below have rightly held that the plaintiff had not communicated the
factum of cancellation of power of attorney to defendant No.1 hence the sale
deed executed by him on strength of the power of attorney is legal and valid.
The judgment and decree passed by them are based upon proper appreciation
of the evidence available on record. No illegality or perversity in the same
has been pointed out. No substantial question of law arises for determination
in this appeal. Consequently affirming the judgment and decree passed by the
Courts below the appeal stands dismissed in limine.
(PRANAY VERMA)
JUDGE
ns
