Qamar Mehdi Died Per Lrs 3 Others vs Mirza Asraf Hussain Baig, ...
2022 Latest Caselaw 4840 Tel

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           HONOURABLE SRI JUSTICE P. NAVEEN RAO
                           AND
          HONOURABLE SRI JUSTICE J. SREENIVAS RAO.


                       CCCA.No. 108 OF 2014.

JUDGMENT :            { Per the Hon'ble Sri Justice J. Sreenivas Rao }


      Challenging the judgment and decree dated 24-06-2014 passed


in O.S.No. 516 of 2009 by the II-Additional Chief Judge, City Civil


Court, Hyderabad, dismissing the suit filed by the plaintiffs seeking


the relief of declaration that the sale deed executed by the defendant


No.1 in favour of defendant No.2 dated 17-10-2008 as null and void


and not enforceable and for recovery of possession of the suit


schedule property and seeking injunction restraining defendant No.2


from alienating the suit schedule property, the plaintiffs filed this


appeal.


2.    For the sake of convenience, hereinafter the parties will be


referred to as plaintiffs and defendants, as they were arrayed before


the trial court.
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3.   Originally, the sole plaintiff No.1, has filed O.S.No.516 of 2009


and during the pendency of the said suit she died. As per orders dated


15-03-2012 passed in I.A.No.224 of 2011 the legal representatives of


the deceased plaintiff No.1, who are plaintiff Nos.2 to 4 were


impleaded as legal representatives of the deceased plaintiff No.1,


vis-a-vis, plaintiff No.2 is the husband and plaintiffs 3 and 4 are the


son and daughter.


4.   The plaintiffs averred in the plaint as follows :


     4.1   The plaintiff No.1 is the absolute owner of the property


bearing Municipal No.16-8-677 (CIB.No.175 "A" Class), New Malakpet,


Hyderabad having purchased the same under a registered sale deed


bearing document No.2332/1973, dated 27-9-1973, admeasuring 144


sq.yards consisting of groundfloor portion of one bed room tenement


of 400 sq.ft from Lateefunnisa Begum for a valuable consideration. The


plaintiff averred that she is a doctor by profession and on 29-4-1974
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she has executed a General Power of Attorney in favour of defendant


No.1, who is no other than her brother, vide document bearing


No.125/1974 with powers to alienate the said property. The General


Power of Attorney executed by her in favour of defendant No.1 is in


respect of the property bearing Municipal No.16-8-677 of New


Malakpet, Hyderabad comprised of a groundfloor portion of one bed


room tenement admeasuring 400 sq.ft.


     4.2   The plaintiff further stated that she abandoned her


decision to sell the property and she requested defendant No.1 to


make construction of a duplex house so that she can settle in


Hyderabad in her own house after retirement and accordingly obtained


permission from the Municipal Corporation, Hyderabad, vide permit


No.99/93 in file No.677/8/16/98, dated 28-1-1998 after spending huge


amounts. It is also stated that at the request of defendant No.1, she


sent Rs.1,20,000 US dollars, which would amount to more than
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Rs.50,00,000=00 for the purpose of construction of the house in proof


of which there is correspondence between the plaintiff and defendant


No.1 and thus she sent the said sum for construction of the house


consisting of ground plus three upper floors admeasuring 3,750 sq.ft.


      4.3   The plaintiff No.1 further stated that she has not given any


powers to defendant No.1 to sell the property vis-a-vis to sell the


house consisting of ground plus three upper floors, admeasuring


3,750 sq.mts., but the General Power of Attorney was given only to the


old portion, which was demolished by the plaintiff and in view of


same, the powers granted to the defendant No.1 was to sell


the property are lapsed. The plaintiff No.1 further averred that she


has no intention to sell the property to third parties, she has executed


a   registered   will   deed   dated       12-12-1997   bearing   document


No.101/1997 stating that the property should not be alienated to third


parties and the defendant No.1 and his wife, who are the beneficiaries
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under the will were also present at the time of registration of the will


deed and they and the husband of the plaintiff attested the registered


will deed.


      4.4    The plaintiff further stated that earlier defendant No.1


volunteered not to act as power of attorney of the plaintiff and the


property was left in lurch for four years i.e., from 2003 to 2008 and


the plaintiff came to India and she got the property cleaned and


appointed her nephews by name Momin Ali and Shakir Ali to lock after


the property and at the same time she also cancelled the will deed


dated 12-12-1997. At the same time, she was informed that one Jabbar


was   interested   in   purchasing       the   property   for   a   sum   of


Rs.82,00,000=00 but the plaintiff refused to sell the property. But


without her knowledge, the defendant No.1 sold the suit schedule


property to his brother-in-law i.e., defendant No.2 for a sum of


Rs.31,32,000=00 by creating the sale deed, dated 18-10-1998.
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     4.5   The plaintiff No.1 further averred that the suit schedule


property is costing more than Rs.one crore and the defendant No.1


having made the plaintiff No.1 to spend Rs.50,00,000=00 for


construction, he cannot sell the property for a mere sum of


Rs.30,00,000=00 and odd which amounts to breach of trust and


misappropriation and the transaction is a fraudulent one. She further


averred that defendant No.1 was not legally entitled to enter into sale


transaction in favour of defendant No.2 under the General Power of


Attorney and he is not entitled to receive the sale consideration.


Defendant No.1 is not entitled to sell the suit schedule property under


the General Power of Attorney executed by her, as the three storied


building was not in existence at the time of executing the General


Power of Attorney on 29-4-1974 and the General Power of Attorney


executed for the old structure was already demolished by raising new


construction. The defendant No.1 created false documents to deprive
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the plaintiff No.1 of her property deliberately with dishonest intention


to cause wrongful loss to her and to have a wrongful gain for himself


and defendant No.2.


     4.6   Plaintiff No.1 further averred that when she filed suit in


O.S.No.4144 of 2008 on the file of the Court of XIX Junior Civil Judge,


City Civil Court, Hyderabad for perpetual injunction restraining him


from alienating the property, on his filing counter in the injunction


petition, she came to know about defendant No.1 selling the schedule


property to defendant No.2 under the registered sale deed and when


she questioned the defendant No.1, then the defendant No.1


threatened her and her husband to eliminate. Though defendant No.1


was not authorised to sell the suit schedule property but he is in


collusion with defendant No.2 created a false sale deed by playing


fraud on the plaintiff No.1 causing her heavy loss and hence, the sale


deed is not a valid document. At the request of defendant No.1, she
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paid a sum of Rs.20,000/- for regularization of the third floor under


B.P.S. scheme. Though defendant No.1 executed the sale deed in favour


of defendant No.2 in respect of the suit schedule property, the


defendant No.1 is still in occupation of the property and leased the


upper floor and collecting the rents from the tenants. Therefore, the


sale deed executed by defendant No.1 in favour of defendant No.2


does not confer any right to defendant No.2 in respect of the suit


schedule property, as the said document is void, sham and brought


into existence for the purpose of depriving of her legitimate right over


the property.


     4.7   The plaintiff No.1 further stated that the defendants, who


are in illegal possession of the suit schedule property are liable to be


evicted from the suit schedule property, as they have no right, title and


interest in the said property and hence, the sale deed executed by


defendant No.1 in favour of defendant No.2, dated 18-1-2008 is liable
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to be cancelled.. Hence, the plaintiff filed the suit seeking the relief of


declaration that the sale deed dated 18-10-2008 bearing document


No.5711/2008 executed by defendant No.1 in favour of defendant No.2


is illegal, null and void and not binding on the plaintiffs and for


recovery of possession of the suit schedule property and for injunction


restraining defendant No.2 from alienating the suit schedule property


to third parties and prayed to pass decree accordingly.


5.   Defendants 1 and 2 filed their written statement and denied the


averments made in the plaint.


     5.1   Inter alia contending that originally the plaintiff No.1 was


the owner of the property bearing Municipal Nol.16-8-677 (CIB.No.175


"A" class) situated at New Malakpet, Hyderabad but she has already


sold the said property to defendant No.2 through defendant No.1, who


is no other than her General Power of Attorney. Since the defendant


No.1 sold the suit schedule property to defendant No.2 with the
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consent of the plaintiff No.1, the defendant No.2 became the absolute


owner and possessor of the suit schedule property. The plaintiff No.1


appointed defendant No.1, who is her own brother, as her General


Power of Attorney under registered document No.125/1974 delegating


the powers to alienate the suit schedule property and the said general


power of attorney is still subsisting. For the reasons best known, later


she has filed a suit for permanent injunction against the defendants 1


and 2 in O.S.No. 4144 of 2008 on the file of the Court of XIX Junior


Civil Judge, City Civil Court, Hyderabad restraining the defendants


from causing interference in her alleged possession in respect of the


suit schedule property, wherein the defendants have filed their written


statement stating that defendant No.1 as per the instructions of the


plaintiff has sold the suit schedule property to defendant No.2 under a


registered sale deed, dated 17-10-2008 and he was inducted in


possession of the property and the plaintiff No.1 is not entitle to any
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relief in the said suit and she is not in possession of the suit schedule


property.


     5.2    The defendants further stated that as per the GPA only the


1st defendant has made an application and obtained the construction


permission No.99/33 in file No.677/8/16/98 dated 28-1-1998 for


construction of the suit house in the suit schedule property and


defendant No.1 as per the request of the plaintiff carried on the


construction of the suit house with his own funds on the assurance


that she will repay the same to him and he further contended that he


spent about Rs.18,00,000-00 to Rs.20,00,000-00 for the purpose of


construction, which is still payable by the plaintiff and when the


defendant No.1 demanded the plaintiff for payment of the same, she


told him that she will repay the said amount to him out of the sale


consideration received for the suit house. The defendants denied that
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the plaintiff has sent a sum of Rs.1,20,000 US Dollars to defendant


No.1 for the said purpose to meet the cost of construction.


      5.3   Defendants denied that the plaintiff came to know about


the execution of the sale deed in favour of defendant No.2, when she


filed the suit in O.S.No.4144 of 2008 on the file of XIX Junior Civil


Judge, City Civil Court, Hyderabad. The defendants further stated that


the GPA executed by her in favour of defendant No.1 is still in force


and under the said GPA with her consent, defendant No.1 sold the suit


schedule property to defendant No.2 under a registered sale deed and


accordingly, defendant No.2 under a registered sale deed and


accordingly, defendant No.2 is in in possession of the suit property


and the plaintiff is not entitled to any relief as claimed in the suit and


prayed to dismiss the same with costs.


6.    On the pleadings of both parties, the trial court framed the


following issues for trial :
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           1.

whether the plaintiff is entitled for declaration that the sale deed dated 18-10-2008 executed by the first defendant in favour of second defendant is illegal, null and void and is not binding on the plaintiff ?

2. whether the plaintiff is entitled for recovery of possession of the plaint schedule property as prayed for ?

3. whether the plaintiff is entitled for perpetual injunction restraining the second defendant from alienating, mortgaging or leasing the plaint schedule property as prayed for ?

4. To what relief ?

7. To substantiate their case, the plaintiffs examined PW-2 and

Exs.A-1 to A-10 were marked. On behalf of the defendants, DWs 1 and

2 were examined and no document was marked on their behalf.

8. After considering the pleadings of the respective parties and

also the oral and documentary evidence placed on record, the court

below dismissed the suit by assigning cogent and clinching findings on

all the issues by holding that there is no dispute that the deceased

plaintiff No.1 had executed General Power of Attorney, dated 29-4-

1974 under Ex.A-2 in favour of defendant No.1 with all rights including

to sell the suit schedule property and that the plaintiff has admitted

that in pursuance of Ex.A-2, the defendant No.1 has obtained

permission and demolished the old structure and he made new

construction consisting of ground floor and three upper floors after

obtaining necessary permission from the municipal corporation and

the court below further held that the plaintiffs have failed to establish

that plaintiff No.1 sent a sum of Rs.50,00,000-00 towards construction

cost and that PW-2 has not filed any acknowledgement/receipt to

prove the said payment transaction. The entire recitals mentioned

under Ex.A-2 clearly enunciates that the first defendant is having

power of alienation and sell the suit schedule property and in

pursuance of the said GPA the first defendant executed sale deed

dated 18-10-2008 in favour of defendant No.2 and further held that in

the event defendant No.1 has not remitted/paid the sale consideration

in favour of the plaintiffs, they are liberty to file a suit for recovery of

the sale consideration by filing appropriate proceedings. But, on the

ground not receiving the sale consideration from the defendant No.1,

the plaintiffs are not entitled to seek the relief of declaration, declaring

the sale deed executed by the defendant No.1 in favour of defendant

No.2 dated 17-10-2008 is null and void and not enforceable and

recovery of possession of the suit schedule property. The court below

further held that the plaintiffs are not entitled to seek the relief of

injunction restraining the second defendant from alienating the suit

schedule property in favour of third parties.

9. Aggrieved by judgment and decree dated 24-06-2014 passed in

O.S.No. 516 of 2009 by the II-Additional Chief Judge, City Civil Court,

Hyderabad, the plaintiffs filed this appeal.

10. The learned counsel for the plaintiffs vehemently contended that

the plaintiff No.1 has not given any power to alienate the suit schedule

property, the General Power of Attorney executed in favour of the

defendant No.1, who is none other than her brother, to safe guard the

suit schedule property and further contended that Ex.A2 executed in

favour of defendant No.1 is only in respect of old structure. When once

the old structure was demolished and new construction was made and

basing on the Ex.A-2 the defendant No.1 is not entitled to alienate the

said property in favour of defendant No.2 and Ex.A-2 has not

conferred any right upon the defendant No.1 to alienate the suit

schedule property. He further contended that the plaintiff No.1 has

executed Ex.A-4 will deed, dated 07-12-2012 under which it was

expressly mentioned that the suit schedule property should not be

sold to third parties and the defendant No.1 and his wife are the

witnesses to the said document and they are well aware of the

intention of the plaintiff No.1 that the plaintiff No.1 is not interested

to sell the suit schedule property and by virtue of Ex.A-4 the earlier

GPA Ex.A-2 stands revoked. He also contended that without any prior

permission or consent of the plaintiff No.1, the first defendant is not

having any right to alienate/execute the sale deed Ex.A-1 and the same

is not binding upon her. In spite of the same the defendant No.1

without the knowledge of the plaintiff No.1 sold the suit schedule

property to the defendant No.2, who is none other than his brother- in-

law with nominal amount and the alleged sale consideration is

collusive in nature with an intention to defeat and defraud the rights

of the plaintiff No.1 and lastly contended that there is no recital under

GPA/Ex.A2 that defendant No.1 is having power to receive the sale

consideration from the purchaser/Defendant No.2 and the entire

transaction between the defendant No.1 and defendant No.2 is

collusive one.

11. In support of his contention, the learned counsel for the

plaintiffs relied upon the following decisions of the Hon'ble Supreme

Court. They are :

i) In DEB RATAN BISWAS AND ORS. V/s. ANAND MOYI DEVI AND ORS1.,

wherein it was held at para No.12 as hereunder:

1 ) MANU/SC/0420/2011 > 2011 (102) AIC-129, AIR 2011 SC-1653

12. The High Court has also held that if Dr. Sanjeev Kumar Mishra was not willing to sign the compromise petition his unwillingness should have been mentioned in the compromise petition. This also is a strange reasoning. It is well-settled that even after execution of a power of attorney the principal can act independently and does not have to take the consent of the attorney. The attorney is after all only an agent of the principal.

Even after executing a power of attorney the principal can act on his own.

12. The learned counsel for the plaintiffs relied on the decision of

the High Court of Andhra Pradesh in AZAM KHAO V/s. S. SATTAR2,

wherein it was held at para No.5 as follows :

5. Mr. Mazhar Hussain, the learned counsel for the petitioner relies upon a decision of a learned single Judge of Calcutta High Court reported in Exekiel v. Carew and Co., AIR 1938 Cal 423, support of his contention that the language of the nature employed in the power of attorney concerned herein does not automatically put an end to the power of attorney on the return of the Principal to India and that in any event, the power revives as and when the Principal against goes out of India. But it may be noticed that in the very Calcutta decision, the learned Judge refers to the statement of Law in Halsbury's Laws of England, 2nd Edition Volume 1, P. 314 which is to the same effect as the decision in Danby v. Coutts & Co. (1885) 29 Ch D 500 (supra), which saying that the statement of law in Danby. Coutts & Co. (supra) is too wide, the learned Judge observed as follows:---

"I am willing to concede that the authority of the attorney could not have been exercised during the periods that David was in Calcutta or

2 ) MANU/AP/0112/1978 > AIR 1978 AP-442

possibly in India, but I see nothing in the document to support the contention that the authority of the attorney terminated absolutely upon the return of the donor and that from that date the document was a ineffective as if it had been expressly revoked."

From the above observation it is clear that during Principal's presence in India, the power of attorney is not empowered to act for him. May be if the Principal again goes out of India, the power may revive. But when the matter was considered by the lower Court, it was not suggested that at the time of the institution of the suit, the plaintiff in this case had again gone out of India. Mr. Mazhar Hussain, however, argues that this aspect was never put in issue in the Court below and that this aspect was raised only at the time of argument in the Court below, and therefore the plaintiff may be given an opportunity to prove that he was not in India on the date of suit. There is no material not to accept this assertion of the learned counsel. In this view of the matter, the case is remitted to the Court below for investigating into the limited question, viz., whether on the date of institution of the suit, the plaintiff was in India or not. If it is held that the plaintiff was in India on that date, the suit will have to be dismissed. But if it is proved that the plaintiff was not in India on the date of institution of the suit, then the suit may be held maintainable. The Court below may send notices to the parties again and dispose of the said question according to law. The parties may be allowed to lead evidence on the said question. The C. R. P. is allowed accordingly, No costs.

13. The learned counsel for the plaintiffs further relied on the

decisions of the High Court of Madras (Madurai Bench) in G.

MUNIRATNAM AND ORS. V/s. THE DISTRICT COLLECTOR, TUTICORIN

AND ORS3, wherein it was held at para Nos.8 and 19 are as hereunder :

8.The genesis for the above three suits are i)The power of attorney deed dated 15.07.2010 executed by G.Muniratnam (the first revision petitioner) in favour of Tmt.Sumathi ( Power Agent) and the settlement deed dated 25.10.2010 executed by the first revision petitioner in favour of his minor daughter Sakthi Maheshwari (the second revision petitioner) and ii)two sale deeds dated 18.05.2011 and 23.05.2011 executed by the Power Agent in respect of the properties already settled by the principal in the name of his minor daughter. The registration of these two sale deeds happen to be cancelled by the District Registrar nullifying the alienation.

19.The points for consideration before this Court are (i)whether the principal can deal with the property after executing power of attorney and appointing an agent to act on his behalf; (ii)whether the settlement of the property in favour of the second revision petitioner impliedly revokes the power of attorney executed in favour of Tmt.Sumathi and (iii)under what circumstances, the Court can interfere in the pending trial under Article 227 to reject the plaint or strike off the plaint.

23.In Deb Ratan Biswas vs. Anand Moyi Devi, reported in AIR 2011 SC 1653, the Hon'ble Supreme Court has held as under ''It is well settled that even after execution of a power of attorney the principal can act independently and does not have to take the consent of the attorney. The attorney is after all only an agent of the principal. Even after executing a power of attorney the principal can act on his own.''

31.The specific case of the plaintiffs in O.S.No.374/11 and 390/11 is that the settlement deed executed by the first revision petitioner in favour of his minor daughter who is the second revision petitioner is null and void.

3 ) MANU/TN/1589/2017 > 2017 (5) CTC-311, (2017) 5 MLJ -568

As pointed out by the learned counsel for the revision petitioners, the plaintiffs in these two suits have no privity of contract with the revision petitioners on the alleged date of sale. So, they are nowhere concern with the settlement deed of the first revision petitioner. If somebody is aggrieved by that can only be Tmt.Sumathi in whose favour the power of attorney was given by Muniratnam. By settling the property in favour of the second revision petitioner, the power of attorney given in favour of Tmt.Sumathi is impliedly superseded. Being aggrieved by that, she has already approached the police and given complaint. Without pursuing the legal course, she has created documents in favour of her sons and daughter as if the power deed is in force. The most appropriate person to challenge the settlement deed can be Tmt.Sumathi, but she is not the dominant litus in O.S.Nos.374 and 390/11. The cause of action as framed by the plaintiffs in O.S.Nos.374 and 390/11 are only an illusionary cause of action. The plaintiffs do not have any privity of contract in so far as the document which they challenge and seek declaration as null and void since they trace their right through their mother Tmt.Sumathi who acted as power agent of the principal Muniratnam but on the date of said sale, the principal himself had no title over the property. The circumstances under which the settlement deed executed by Muniratnam in favour of his daughter and thereafter creation of sale deeds by Tmt.Sumathi in favour of her own kith and kin obviously make their case frivolous and vexatious.

14. The learned counsel for the plaintiffs further relied upon a

decision of the High Court of Madras in P. PERIATHAMBI AND ORS.

V/s. P. KALIAPPAN AND ORS .,

(19) It is admitted therein that the 1st defendant father had sold the Suit property in favour of the 2nd defendant under a registered Sale Deed

dated 01.01.1992. The Sale Deed was executed by the 1st defendant for himself and also on behalf of the plaintiff. Since the plaintiff was eo nominee party to the Sale Deed it was contended by the defendant in the Suit that the Suit for partition without setting aside the earlier Sale Deed dated 01.01.1992 in favour of the appellant is not maintainable.

(21) The legal position settled by this Court in the judgment relied upon by the learned counsel appearing for the appellants has no application in the present case. In the present case, there was no alienation in favour of the 2nd defendant. The Power of Attorney Deed executed by the father in favour of the 2nd defendant does not convey any right in immovable property in favour of the 2nd defendant. Though the Power of Attorney Deed is in force, the principal does not lose his right as a owner of the property to deal with the same.

15. The learned counsel for the plaintiffs lastly relied upon a decision of

the Hon'ble Supreme Court in CHURCH OF CHRIST CHARITABLE TRUST

AND EDUCATIONAL CHARITABLE SOCIETY, Represented by its Chairman V/s.

PONNIMMAN EDUCATIONAL TRUST, Represented by its

Chairperson/Managing Trustee4 ., wherein at para No.19 it was held as

follows :

4 ) (2012) 8 SUPREME COURT CASES - 706

Power of attorney

19.Next, we have to consider the power of attorney. It is settled that a power of attorney has to be strictly construed. In order to agree to sell or effect a sale by a power of attorney, the power should also expressly authorise the power to agent to execute the sale agreement/sale deed i.e.,

(a) to present the document before the Registrar; and

(b) to admit execution of the document before the Registrar.

A perusal of the power of attorney, in the present case, shows that it only authorises certain specified acts but not any act authorising entering into an agreement of sale or to execute sale deed or admit execution before the Registrar.

16. Per Contra, the learned counsel for the defendants vehemently

contended that the plaintiff No.1 executed Ex.A-2 GPA and as per the said

GPA the defendant No.1 is having all rights powers including right to

alienate the suit schedule property and execute respective deeds including

sale deed in respect of the suit schedule property. In pursuance of the said

document only the defendant No.1 demolished the old structure and

constructed new building after obtaining necessary permission from the

municipal corporation by investing huge amount and when the defendant

No.1 requested and demanded for payment of the said amount, which was

invested by him, the plaintiff No.1 failed to return the said amount with a

malafide intention and evade payment. In such circumstances, the

defendant No.1 having left with no other option left over for him, he

alienated the suit schedule property and executed registered sale deed in

favour of the defendant No.2 under Ex.A-1 sale deed dated 18-10-2008.

Therefore, Ex.A-1 registered sale deed executed by defendant No.1 in

favour of the defendant No.2 holds good and it is valid under law.

17. The alleged will deed executed by the plaintiff No.1 was cancelled by

her own and at no point of time, the plaintiff No.1 has not cancelled GPA

executed in favour of defendant No.1 and the same is subsisting as on the

date of execution of registered sale deed Ex.A-1 by the defendant No.1 in

favour of defendant No.2.

18. The learned counsel for the defendants further contended that there

is no recital in the will deed about the execution of General Power of

Attorney in favour of defendant No.1. On the other hand, the said will

deed was cancelled by the plaintiff No.1 herself and the said will deed

cannot be taken into consideration for any purpose. If the GPA holder

played fraud for non-payment of the sale consideration, the

principal/plaintiff No.1 ought to have taken steps to recover the amount

from the defendant No.1 by filing necessary proceedings but the plaintiff

no.1 is not entitled to seek declaration and recovery of possession of the

suit schedule property. Admittedly, the defendant No.1 purchased the

property by paying value sale consideration and he is a bonafide purchaser

of the suit schedule property.

19. The learned counsel for the defendants further contended that the

court below after considering the entire oral and documentary evidence

placed on record dismissed the suit by assigning specific findings on all the

issues and there are no grounds to interfere with the judgment and decree

passed by the court below.

20, In support of his contention, the learned counsel for the defendants

relied upon judgment in RAJNI TANDON V/s. DULAL RANJAN GHOSH

DASTIDAR AND ORS 5., wherein it was held at Para No.21 as hereunder :

21. Clause (a) of Section 32 specifies that a document can be presented for registration by

(i) by the person executing the document

(ii) any person claiming under the document presented for registration and

(iii) in the case the said document is a copy of a decree or order, any person claiming under the decree or order.

21. Heard both sides.

22. In view of the submissions made by the learned counsel for the

parties, the point that emerges for consideration in this appeal is :

Whether the judgment and decree passed by the court below is sustainable in law ?

5 ) AIR 2009 SCS 5416

23. Point : The relief sought by the plaintiff No.1 in the above suit is

for declaration, declaring the sale deed executed by the defendant No.1

in favour of defendant No.2 under Ex.A-1 and recovery of possession

and for seeking injunction restraining the defendant No.2 from

alienating the suit schedule property on the sole ground that the

defendant No.1 without her consent and without her knowledge

executed Sale Deed Ex.A-1 in favour of defendant No.2, though by the

GPA Ex.A-2, no such power was delegated to the defendant No.1 to

alienate the property to third parties and by virtue of the subsequent

execution of the Will Deed/Ex.A-4, the earlier GPA executed by the

plaintiff No.1 in favour of the defendant No.1 is no more in existence

and it has become redundant. But the entire oral and documentary

evidence placed on record, clearly establishes that the plaintiff No.1

executed irrevocable GPA in favour of defendant No.1 delegating all

the powers including alienation of the suit schedule property.

24. By virtue of the said GPA only, the defendant No.1 demolished

the old structure and made new construction after obtaining necessary

permission from the municipal corporation. The specific case of the

defendant No.1 that he spent entire amount for construction of the

building and in spite of several demands the Plaintiff No.1 has not

paid the said amount and as per the powers given to defendant No.1

through Ex.A-2 only he alienated the property in favour of defendant

No.2. The trial court gave specific finding that the plaintiffs failed to

produce piece of evidence that the plaintiff Nol.1 has given Rs.50,

00,000=00 to the Defendant No.1 to meet the construction cost. The

settled principles of law is that the entire burden is upon the plaintiffs

who approaches the court with particular relief to prove the case in all

respects by producing necessary evidence and then the burden shifts

upon the defendants to rebut the plaintiffs case. In this instant case,

the plaintiffs have failed to discharge their initial burden that the

Plaintiff No.1 has sent an amount of Rs.50,00,000=00 to the Defendant

No.1 to meet the construction cost and PW-2 in his evidence

specifically admitted that he has not filed any acknowledgement or

receipt to prove the above said payment. On the other hand, the

Defendant No.1 denied the allegation made by the Plaintiffs in respect

of payment of the above said amount. Hence, we are of the considered

view that the plaintiffs have not discharged their initial burden to

prove the entire case by producing any material evidence to that effect.

25. The trial court further gave specific finding that the plaintiffs are

not entitled to seek declaration to declare the sale deed/Ex.A-1 dated

18-10-2008 as null and void and for recovery of possession of the suit

schedule property, as the defendant No.2 purchased the suit schedule

property by paying valuable sale consideration and he is a bonafide

purchaser. It is the case of the plaintiffs that the defendant No.1 had

not paid sale consideration to the Plaintiff No.1, the plaintiffs are at

liberty to recover the sale consideration from the defendant No.1 by

filing appropriate proceedings but not entitled to seek the relief

sought for in the suit.

26. The decisions relied upon the counsel for the plaintiffs, referred

to supra, are not applicable to the facts and circumstances of this case.

In the instant case on hand, the entire evidence placed on record

clearly goes to show that the Plaintiff No.1 had executed General Power

of Attorney/Ex.A-2 in favour of defendant No.1 with all powers

including to sell the suit schedule property and by virtue of the same,

the defendant No.1 acted upon vis-a-vis demolishing old structure and

made new construction in the suit schedule property after obtaining

necessary permission from the competent authorities viz., GHMC. It

is the specific case of the defendant No.1 that he had invested huge

amount for demolishing the4 old structure and construction of new

building and the Plaintiff No.1 has not paid the said amount in spite of

demand made by him. In such circumstances, the defendant No.1 sold

the suit schedule property in favour of defendant No.2 through

registered sale deed under Ex.A-1 and the same is valid under law.

27. It is well-settled principle of law, as-long-as the registered GPA

executed by the principal is not cancelled or revoked, if the GPA holder

acted upon for any transaction in pursuant to the said GPA the same is

binding upon the principal unless and until the principal produces

evidence to the effect that the said transaction is contrary to the

recitals specified in the GPA or if the GPA holder/agent acted contrary

to law. In the instant case on hand, the plaintiff No.1 had executed

registered General Power of Attorney/Ex.A-2 in favour of Defendant

No.1 with all powers, which includes sale of the suit schedule property

and the same exists as on the date of execution of registered sale

deed/Ex.A-1 in favour of defendant No.2. Hence, the plaintiffs are not

entitled to seek the relief of declaration, declaring the sale deed/Ex.A-1

executed by the defendant No.1 in favour of the defendant No.2 as null

and void, when Ex.A-2/registered GPA is not cancelled or revoked, and

in view of the same, the trial court has rightly denied the relief sought

for by the plaintiffs in the suit.

28. For the foregoing reasons, we are, therefore, not inclined to

disturb the findings of the trial court and the trial court has not

committed any illegality or irregularity while dismissing the suit.

Hence, the appeal filed by the plaintiffs is devoid of merits and the

same is liable to be dismissed.

29. Thus, the appeal is accordingly dismissed without costs.

30. As a sequel, miscellaneous applications if any, pending shall

stand disposed of.

_____________________ JUSTICE P. NAVEEN RAO

_____________________ JUSTCE J. SREENIVAS RAO

22-09-2022 I S L (PD)