1970 (3) TMI 167 - SC - Indian Laws

Court dismisses appeal due to invalid power of attorney but upholds second authenticated one, stressing proper suit framing and party joinder.

The court dismissed the appeal, finding the first power of attorney invalid due to lack of proper authentication. The second power of attorney, duly ... - Issues Involved:1. Validity of the first power of attorney.2. Validity of the second power of attorney.3. Effectiveness of the second power of attorney in ratifying the first.4. Entitlement of the appellants to a declaration.5. Proper framing of the suit.Issue-wise Detailed Analysis:1. Validity of the First Power of Attorney:The appellants challenged the first power of attorney executed by Vernon Seth Chotia on September 6, 1961, on the grounds that it was not properly authenticated under the law. The court agreed, noting that the document did not comply with Section 33 of the Indian Registration Act, which requires authentication by a Notary Public for an Indian residing abroad. The document only bore the signature of a witness without anything to show that he was a Notary Public, rendering it ineffective to clothe Mr. Chawla with the authority to execute the sale deed or to present it for registration.2. Validity of the Second Power of Attorney:A fresh power of attorney was executed by Vernon Seth Chotia on March 23, 1964, which was properly authenticated by a Notary Public in California. The court found this second power of attorney to be valid and effective under both Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act. The endorsement by the Notary Public, stating that the document was subscribed and sworn before him, was deemed sufficient to presume that the Notary Public had satisfied himself about the identity of the person executing the document.3. Effectiveness of the Second Power of Attorney in Ratifying the First:The court addressed whether the second power of attorney could validate the earlier transaction of sale and registration. It was held that the second power of attorney expressly ratified the first, stating that the first power of attorney was defective and was being ratified. The principle of ratification relates back to the original act, making the second power of attorney effective from the date of the first. This cured the illegality in the presentation for registration that had taken place under the first power of attorney. The court cited the legal maxim 'Canis ratihabitio retrotrahitur at mandate priori sequiparatur,' meaning ratification is thrown back to the date of the act done.4. Entitlement of the Appellants to a Declaration:The appellants sought a declaration that the respondents were neither the owners of the land nor had any right to redeem the land. The court noted that the appellants did not ask for the cancellation of the Collector's order or any injunction, which were necessary reliefs in addition to the declaration. The suit was therefore hit by Section 42 of the Specific Relief Act, and the court was in a position to deny the declaration without these specific reliefs. The court also found the suit to be unmeritorious, as the appellants were mortgagees who were trying to retain the property by raising technical objections.5. Proper Framing of the Suit:The court observed that the appellants did not join Vernon Seth Chotia, the son of the original mortgagor, as a party to the suit. The suit could only be properly framed with all the parties before the court. Even if Vernon Seth Chotia was not a necessary party, he was at least a proper party. His presence would have clarified whether he had given the authority to execute the document and could have ratified the act of Mr. Chawla again. The suit was therefore not properly framed.Conclusion:The appeal was dismissed with costs, as the court found no merits in the appellants' case. The court also noted that the learned Judge in the High Court should have awarded costs, as costs should normally follow the event in contentious matters.