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 ... Authentication of power of attorney before a Notary Public - Presumption of regularity of official acts - Relation back by ratification - Validity of presentation for registration under a subsequently ratified power of attorney - Effect of defective power of attorney on registration - Maintainability of a declaratory suit without prayer for cancellation or injunctionAuthentication of power of attorney before a Notary Public - Presumption of regularity of official acts - Validity of the second power of attorney executed before a Notary Public and its sufficiency under the Indian Evidence Act and the Indian Registration Act - HELD THAT: - The Court held that the second power of attorney, executed before and subscribed by a Notary Public in California and bearing the Notary's endorsement that the instrument was subscribed and sworn before him, satisfied the requirements of authentication under the applicable law. Although the endorsement did not state expressly that the Notary had identified the principal to his satisfaction, the presumption of regularity of official acts operates to treat the Notary as having discharged his duties in identifying the executing party. Consequently the second power of attorney was valid both for evidentiary purposes under the presumption created by the Evidence Act and for recognition under the Registration Act where the principal resided abroad.The second power of attorney was duly authenticated and valid for execution and presentation of the sale deed.Relation back by ratification - Validity of presentation for registration under a subsequently ratified power of attorney - Whether the subsequent ratification in the second power of attorney cured the defect in the earlier presentation and registration made under an ineffective power of attorney - HELD THAT: - The Court applied the established principle that ratification by a disclosed principal relates back to the date of the original act, placing the agent in the same position as if he had authority ab initio. The second power of attorney expressly ratified the earlier defective instrument and stated that the acts of the agent (including presentation for registration) were to be treated as the principal's acts. On that basis the Court held that the ratification related back and cured the illegality of the earlier presentation and registration, so that the sale and its registration must be treated as valid.The subsequent ratification validated the earlier transaction and its registration by relation back.Effect of defective power of attorney on registration - Maintainability of a declaratory suit without prayer for cancellation or injunction - Whether the appellants were entitled to the declaratory relief sought and whether their suit could succeed in the circumstances - HELD THAT: - Having held the sale and registration valid, the Court further observed that the plaint sought only a declaration that the defendants were not owners and had no right to redeem under the Collector's order, without seeking cancellation of the Collector's order or injunctive relief. The Court noted that the plaintiffs could and should have sought appropriate reliefs such as setting aside the Collector's order; a purely declaratory decree in the circumstances would be insufficient and could be denied under the principles governing specific relief. The Court also criticised the framing of the suit for failure to join the principal (Vernon Seth Chotia) who was at least a proper party and regarded the suit as unmeritorious and a tactic to delay redemption by technical objections.The declaratory relief claimed was not maintainable and the suit was rightly dismissed; the plaintiffs failed to obtain the reliefs they sought.Final Conclusion: The appeal is dismissed. The second power of attorney was held to be duly authenticated and valid; its express ratification related back and cured the earlier defect in presentation and registration, rendering the sale and registration effective. The plaintiffs were not entitled to the declaration sought and the suit was dismissed as without merit; costs were awarded against the appellants. 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.