TaxTMI 
TaxTMI 
2022 (2) TMI 935
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....e executed a special power of attorney in favour of the IInd Defendant for selling the property for the amount of Rs. 55,000/-. As the negotiation fell through in view of the first Defendant not being able to arrange the money, the second Defendant to whom the power of attorney was executed, surrendered the original to the Plaintiff, and the Plaintiff told the first Defendant that the same stood cancelled. The second Defendant is alleged to be a deed writer and a clever person. He applied for the copy of the power of attorney, and fraudulently in collusion with the first Defendant, executed the sale deed on 28.04.1987 for Rs. 30,000/-. The second Defendant, according to the Plaintiff, could not execute the sale deed in the absence of the original power of attorney, and the sub registrar was supposed to verify the aspect from the second Defendant Under Sections 32, 33 and 34 of the Registration Act. The sale deed was without authority. The second Defendant 'was not competent to transfer the possession'. The special power of attorney is deemed to have been cancelled in the eye of law since it was handed over to the Plaintiff. When the Plaintiff came from his service and enqui....
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....stered special Power of Attorney from him and then, execute the sale deed and get it registered after receiving the remaining amount of consideration of Rs. 20,000/-. The consideration of the sale deed being Rs. 55,000/- is stoutly denied. It is his further case that the remaining consideration was handed over to the Plaintiff and the power of attorney was handed over to the Plaintiff. However, the case that the power of attorney was handed over before execution of sale deed is denied. He denied acquaintance with the government officer much less the sub registrar. There is no prohibition of law for executing a sale deed on the basis of the copy of the registered power of attorney, when the original could not be traced and the Plaintiff insisted for the money showing that he has a great need. Legally and factually, it is pleaded 'that no registered deed to cancelled orally.' It requires another registered deed to cancel it. 5. The Trial Court framed the following issues, inter alia: I. Whether sale in question is without consideration and void as alleged; II. Whether the Plaintiff is entitled to the relief of declaration and permanent injunction; ....
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....ay Rs. 30,000/- to the Plaintiff is relied upon and it was inexplicable as why it was executed, if on 02.02.1987, the special power of attorney given to the second Defendant was cancelled. The power of attorney was found subsisting. The mere writing of a word 'cancelled' on the original power of attorney (P2) did not mean that the power of attorney had been cancelled, till notice was given to the second Defendant. The Ist Defendant was not bound by any agreement between Plaintiff and the second Defendant. As per Section 18A, sale deed should accompany true copy of the power of attorney and the original is not required. P1-agreement binds the Plaintiff and the second Defendant having been proved by the scribe and witnesses. P1 and P2 must be read together. Plaintiff agreed with the second Defendant to sell the land for consideration not less that Rs. 55,000/-. No ground was given to set aside the sale. The sale was found effected for Rs. 30,000/- and was not a void transaction. In answering issue No. 3, it was found however that the Plaintiff was entitled to the rendition of the account from the second Defendant. The second Defendant was in fact found liable to pay Rs. 55000....
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.... of rendition of accounts as held by the court below? 9. Thereafter, the Court proceeded to discuss the evidence and records the following findings: Defendant No. 2 was not competent to execute the sale deed. Power of attorney dated 28.1.1987 was cancelled on 02.02.1987. Therefore, no reliance could be placed on Exhibit-DX dated 02.06.1987. The evidence of PW4-Sub-Registrar, is referred to wherein he has admitted that it was not clear from the endorsement on the sale deed as to by whom Defendant No. 2 was identified to be the power of attorney. It is further found that it is evident from the language of Section 18 of the Registration Act that it was necessary for the Registering Authority to see the true copy of the special power of attorney. In view of the cancellation of the original power of attorney which was cancelled on 02.02.1987, the same could not be relied upon by the Registering Authority for the purpose of execution of the sale deed. The evidence of PW6 is relied upon to find that at time of the cancellation of the power of attorney, Defendant No. 1 was present. This implied that Defendant No. 1 was aware of the cancellation. In the written statement, it is ....
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....le deed nor recovery of possession. The Appellant relied on judgment of this Court in Anathula Sudhakar v. T. Buchi Reddy (dead) by LRs and Ors. (2008) 4 SCC 594 and Madhukar Vishwanath v. Madhao and Ors. (1999) 9 SCC 446, in this regard. THE SUBMISSIONS OF THE PLAINTIFF 11. The High Court was justified in interfering Under Section 100 of the Code of Civil Procedure. The High Court rightly found it necessary that the First Appellate Court should have discussed the evidence after formulating the points for determination Under Order XLI Rule 31 of Code of Civil Procedure. It is further contended that there was fraud and collusion and to the knowledge of both the Defendants, the power of attorney stood withdrawn. Non-consideration of relevant evidence justified the High Court in interfering Under Section 100 of the Code of Civil Procedure. Construction of a document of title or of a document which was foundation of a right, raised a question of law. In cases of extreme perversity, the High Court can interfere Under Section 100. Referring to Sections 32, 33 and 34 of the Registration Act, it is contended that improper presentation of a document is not a mere defect. The provision....
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....: 18-A. Documents for registration to be accompanied by a true copy.-Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document presented to him for registration unless such document is accompanied by a true copy thereof. 13. The argument of the first Defendant, based on Section 18A, is as follows: Section 18A contemplates the production of the certified copy of the power of attorney and therefore the production of the certified copy of the power of attorney along with the original of the sale deed, was fully justified. The High Court, in the impugned judgment, has referred to Section 18 (apparently Section 18A) and held that it is evident from the said provision that it was necessary for the Registering Authority to see the true copy of the special power of attorney. IMPACT OF SECTION 18A 14. What Section 18A contemplates is the production of a true copy of a document, which is sought to be got registered. The document, which is sought to be registered in this case was the sale deed executed by the second Defendant in favour of the first Defendant. We are not called upon to decide the case that the true ....
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....able for purposes of Section 32 (1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognised, namely: (a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides; (b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate; (c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed before and authenticated by Notary Public, or any court, Judge, Magistrate, Indian Consul or vice-consul, or representative of the Central Government: PROVIDED that the following persons shall not be required to attend at any registration-office or court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely- (i) persons who by reason of bodily infirmity are unable without risk ....
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....orts to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. (4) Any application for a direction under the proviso to Sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this Section applies to copies of decrees or orders. 19. The argument of the Plaintiff that for a proper and legal presentation of a document, the first Defendant was obliged to produce the original power of attorney, does not appear to be sound. In fact, the matter itself is not res integra. This Court in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and Anr. (supra), held, inter alia, as follows: 19. In view of the aforesaid situation, the issue that falls for our consideration is whether a person who executes a document under the terms of the power of attorney, is, insofar as the registration office is concerned, the actual executant of the document ....
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....ney" in Clause (c) and it therefore follows that the procedure specified Under Section 33 would be attracted where a document is presented by a person holding "powers of attorney" of the persons mentioned in Clause (a) of Section 32. 25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326]. 26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in term....
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....registration Under Section 32(a). Section 32(a) of the Registration Act deals with the person executing a document and also the person claiming under the same. It also provides for persons claiming under a decree or an order being entitled to present a document. Section 32(b) speaks about the representative or assignee of 'such a person'. The word such a person in Section 32(b) is intended to refer to the persons covered by Section 32(a). Finally, Section 32(c) provides for the agent of 'such a person' which necessarily means the persons who are encompassed by Section 32(a). Besides agent of the person covered by Section 32(a), Section 32(c) also takes in the agent of the representative or assignee. Now the words representative or assignee are to be found in Section 32(b). Thus, Section 32(c) deals with agents of the persons covered by Section 32(a) and agents of the representative or assignee falling Under Section 32(b). It is in respect of such an agent that there must be due authorisation by a power of attorney, which in turn, is to be executed and authenticated in the manner provided for in Section 33. However, the person, who has actually signed the document or....
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....dispensable foundation of his authority to register the document. As those learned Judges said: His (the Sub-Registrar's) jurisdiction only comes into force if and when a document is presented to him in accordance with law. Para 11. One object of Sections 32, 33, 34 and 35 of Act III of 1877 was to make it difficult for persons to commit frauds by means of registration under the Act. However, in the facts, the IInd Defendant having presented the sale deed as executant, the presentation and registration cannot be questioned. 22. Section 34 provides for the inquiry to be done by the Registering Office before he orders registration. It declares that no document shall be registered under the Act unless the persons executing such document or their representatives, assigns or agents authorised as aforesaid, appear before the Registering Authority before the time, allowed for presentation Under Sections 23, 24, 25 and 26. This is, however, subject to Sections 41, 43, 45, 69, 75, 77, 83 and 89. Appearances Under Section 34(1) may be simultaneous or at different times. Section 34(3)(a) enjoins upon the Registering Officer to enquire whether or not such document w....
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.... be kept; and any person May search that file, and inspect every instrument so deposited; and a certified copy thereof shall be delivered out to him on request. 25. For reasons, which we have indicated, Section 32(c) read with Section 33 and Section 34(2)(c) are interrelated and they would have no application in regard to the document presented for registration by a power of attorney holder who is also the executant of the document. In other words, there is really no need for the production of the original power of attorney, when the document is presented for registration by the person standing in the shoes of the second Defendant in this case as he would be covered by the provisions of Section 32(a) as he has executed the document though on the strength of the power of attorney. To make it even further clear, the inquiry contemplated under the Registration Act, cannot extend to question as to whether the person who executed the document in his capacity of the power of attorney holder of the principal, was indeed having a valid power of attorney or not to execute the document or not. 26. Section 35 of the Registration Act provides for the procedure on admission or denial of e....
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....vides for keeping Books No. 1 and 2 and the Index relating to Book No. 1 open for inspection to any person applying to inspect the same. Book No. 1, it must be noticed, as provided in Section 51, is a register of non-testamentary documents relating to immovable property. Book No. 2 is a record of reasons for refusal to register. 30. Section 58 of the Act deals with the procedure on admitting a document to registration. 58. Particulars to be endorsed on documents admitted to registration.--(1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer Under Section 89, there shall be endorsed from time to time the following particulars, namely: (a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent; (b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and (c) any payment of money or delivery of goods made in the pres....
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....t Plaintiff entered into an agreement with the first Defendant to sell the property. What is disputed is the price. On the one hand, the Plaintiff contends that the price was fixed at Rs. 55,000/-. The Defendants dispute the said version. According to them, the property was conveyed by the second Defendant acting as the power of attorney holder on behalf of the Plaintiff in favour of the first Defendant for a total consideration of Rs. 30,000/-. The execution of power of attorney dated 28.01.1987, by the Plaintiff in favour of the second Defendant is not in dispute. It is worthwhile to notice the contents of the power of attorney: Special Power Of Attorney Stamp Paper Value Rs. 5/- No. 1 I, Gian Chand age 35 years S/o. Bhagwan Dass S/o. Jawahar is R/o. Village Dhangota, Tappa Dhatwal, Tehsil-Barsar who is owner in possession of land in Tika Barsar Tappa Panjgran Tehsil Barsar comprising Khasra No. 361 measuring 2k-10m. I an owner in possession of land. I want to sell this land through sale deed because I cannot, due to service, effect this task. Therefore, through his statement on behalf of me, appoint Sh. Yash Pal Singh S/o. Sh. Gian Singh R/o. Bath Pati....
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....got, Tehsil--Barsar V+P.O.--Ghangot, Tehsil--Barsar District--Hamirpur District--Hamirpur 30/01/1987 35. According to the Plaintiff, on the basis of the agreement to sell the property for Rs. 55,000/-, the second Defendant, who has given the power of attorney on 28.01.1987, was empowered to sell the property for a price of Rs. 55,000/- only. It is thereafter that on 02.02.1987, on account of the default of the first Defendant to raise the amount of Rs. 55,000/-, the second Defendant allegedly surrendered the power of attorney to the Plaintiff. The power of attorney was cancelled. A LOOK AT THE EVIDENCE 36. PW1, who is the Plaintiff, has, inter alia, deposed as follows: P1 agreement was written and given to PW1 by the second Defendant. It was read over to him in his presence and the second Defendant accepted its correctness and signed it. It was told that the property will not be sold for less than rupees fifty-five thousand. He has executed the Special Power of Attorney in favour of the second Defendant. Later, the purchaser (not clear) told him that he would get the registry done after the 2nd or 7th of February. PW1 came to Mehre on 02.02.1987 but the purchaser ....
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....ng the document, he had with him copy of the Special Power of Attorney. 39. PW4 is posted as the Sub-Registrar at Barsar since 1982. He knew the second Defendant, who is a Deed Writer. He had received Exhibit-P4-application. He recognises the handwriting of the second Defendant. He had written for the Office Report. P-5 was certified by him. It is not necessary to enclose Special Power of Attorney with the sale deed but it is for their satisfaction that the power of attorney is given. He was got identified by Bakshi Ram and is also known to him. He deposed that he did not know of any requirement of a production of the original power of attorney Under Sections 34 and 35 of the Registration Act and the Manual. He has denied fabrication of the document in collusion with the second Defendant. In his cross-examination, PW4 has stated that on his asking, it was apprised that the second Defendant is Plaintiff's class fellow. The original of P-4 was written by the second Defendant. It was after due diligence/inquiry that he has ordered for the release of copy of the document. He has further stated that second Defendant has himself verified/certified and identified as special power o....
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....4. DW1 is the first Defendant/Appellant. He had purchased the property vide PW3/A. The deed for sale was settled for Rs. 30,000/- with the Plaintiff. At the time of agreement, Rs. 10,000/- was paid to the Plaintiff in the presence of Roshanlal and the IInd Defendant. At the time of registration, Rs. 20,000/- was paid to the second Defendant before the Sub-Registrar. There was neither any agreement for the sale of land for Rs. 55,000/- nor had he agreed to such an amount. He was in possession of the property. He states in cross-examination that original registered power of attorney was seen at the time of registry. The power of attorney would have been presented before the Sub-Registrar. The sale agreement was done at the shop of Roshan Lal. There was no written agreement. He has denied the claim that he had not paid Rs. 10,000/-. 45. DW2 is Roshan Lal. He is the witness to the sale deed. He deposed that the sale was for Rs. 30,000/- and that he and Bakshi Ram had signed. Rs. 10,000/- was earlier paid. But it was not paid in his presence and Rs. 20,000/- was given at the time of registration and Rs. 10,000/- had already been paid as advance. 46. DW3 has been examined to establ....
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....iff's wife at her residence. The disputed land was fenced with wires and angle iron later by the first Defendant. He has denied that he has not paid any money to the Plaintiff and the suggestion that he was paid Rs. 55,000/- by the first Defendant. He has denied having been given Rs. 10,000/- by the first Defendant. He denies as wrong that he had got the sale registered before the receipt of DX. He has further denied Plaintiff being in possession. 48. In our view, the High Court has overstepped its limits by reappreciating the evidence, a task which must be left to the First Appellate Court. It is true that the First Appellate Court did not fully conform to the requirements of Order XLI Rule 31 of the Code of Civil Procedure. The property is banjar land. Quite clearly, the Plaintiff wanted to sell the land. He has admittedly executed the Power of Attorney in favour of the second Defendant. A perusal of the power of attorney, which is dated 28.01.1987, would reveal the following: Plaintiff has described himself as the owner of possession of the land. He wanted to sell the land through sale deed. Thereafter, it was stated that he could not, due to service, effect this....
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....it-P-1. What PW6 has spoken is about the presence of the first Defendant also on 02.02.1987, when the power of attorney was purportedly cancelled. 52. Since, it is not disputed that the Plaintiff did execute the power of attorney, empowering the second Defendant to sell the property and it is further not in dispute that the second Defendant has executed the sale deed in favour of the first Defendant, the only question which arises is whether the power of attorney was cancelled before the execution of the sale deed on 28.04.1987. Undoubtedly, the further question would be whether the cancellation was effected in a valid and legal manner and finally, whether it was made known to not only to the second Defendant but also to the first Defendant. Section 201 of the Contract Act, dealing with termination of agency, declares that an agency can be terminated by the principal revoking the authority of the agent. An exception to the power of principal to revoke the agency is found in Section 202 of the Contract Act, which provides that where an agent has himself an interest in the property which forms the subject of the agency, in the absence of an express contract, the agency cannot be t....
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....rdingly, he applied for the certified copy of the same and went ahead with the execution and registration of the sale deed. According to the second Defendant, when sale was effected, the power of attorney was given back. The first Defendant, in fact, has set up the case that the original power of attorney was with the second Defendant even at the time of the registration of the sale deed. We have already held that the production of original power of attorney before the Registering Authority was unnecessary for effecting registration of the sale deed. We take note of the discrepancy emerging from the testimony and the case set up by the parties. 55. However, what we would think, may help to resolve the controversy is Exhibit-DX. This is a letter which was admittedly, got scribed and dispatched by the Plaintiff to the second Defendant. It is dated 02.06.1987, and reads as follows: Dear Yashpal Ji Ex-Dx Namaskar Hoping you are well and the news is that I came here 3-4 days back but could not come to you I was here regarding the land. I have got registry done and I am in dire need of money. I had spoken to you regarding land at Mehre and also gave you p....
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....cellation of the same. The further stand of the Plaintiff was by way of asking the second Defendant to inform the Plaintiff at the earliest, if he could talk to anyone or had talked to anyone. The meaning of the of latter portion is made clear when he says that the money may be sent to him because he is in dire need of money. Therefore, it means that the case of the Plaintiff that he had cancelled the power of attorney by writing the word 'cancelled' on 02.02.1987, upon it being surrendered by the second Defendant, cannot be accepted. 58. The letter sent by the second Defendant to the Plaintiff on 16.06.1987 indicates that the second Defendant tells the Plaintiff that the Plaintiff may have come to know that as power of attorney he had made the sale deed of the property. No doubt, he says that the Plaintiff might have been 'astonished to know' regarding the sale. The second Defendant further writes to the Plaintiff that he has done this job in faith of friendship and for betterment. He admits that he could not go to the Plaintiff as his brother was ill and, later on, his wife fell ill. He admits to having spent some amount from the money paid. This correspondence....