Amar Nath (Dead) through L.R. vs Gian Chand and Ors.

Allowing the appeal, the Court

HELD: 1.1 When a person empowers another to execute a document and the power of attorney, acting on the power, executes the document, the power of attorney holder can present the document for 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 executed the document for the purpose of Section 32(a) does not require a power of attorney to present the document. It may ORS.

be open to the principal, who has entered obligations under the document, to present the document. Section 32(c) must alone be read with Section 33 of the Act. Thus, when Section 32(c) of the Registration Act declares that a document, whether it is compulsorily or optionally registrable, is to be presented, inter alia, by the agent of such a person, representative or assignee, duly authorised by power of attorney, it must be executed and authenticated in the manner and hereinafter mentioned immediately in the next following section. Section 33 by its very heading provides for power of attorney recognisable for the purpose of Section 32. Section 32(a) cannot be read with Section

33 of the Act. In other words, in a situation, if a document is executed by a person, it will be open to such a person to present the document for registration through his agent. The agency can be limited to authorising the agent for presenting the document for it is such a power of attorney, which is referred to in Section 32(c). It is in regard to a power of attorney holder, who is authorised to present the document for registration to whom Section 33 would apply. In the facts of this case, the second defendant was armed with the power of attorney dated 28.01.1987 and if it was not cancelled and he had executed the sale deed on 28.04.1987, he would be well within his rights to present the document for registration under Section 32(a) of the Act. Presentation is not a matter of form. Without a valid presentation of the document, the registration would be illegal. However, in the facts, the IInd defendant having presented the sale deed as executant, the presentation and registration cannot be questioned. For reasons 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. [Paras 20, 21, 25][303-DH; 304-A-E; 305-B; 306-D-F]

1.2 On an analysis of the provisions, the argument of the Plaintiff that the non-production of the original power of attorney by the Respondent No. 2, was fatal to a valid registration being effected is rejected. The understanding of the Courts regarding Section 18A is also erroneous. Section 18A was enacted only to ensure that the copying process is hastened, as noticed from the Objects and Reasons. The Trial Court was right when it held that Section 18A is concerned only with the document which is presented for registration. The Trial Court clearly erred relying upon Section 18(A) to hold that certified copy however being produced of the power of attorney was in conformity with Section 18A and the High Court was equally in error to hold that Section 18A contemplated production of true copy of the power of attorney. [Para 32][309-C-D]

1.3 Since, it is not disputed that the plaintiff did execute the power of attorney, empowering the Respondent No. 2 to sell the property and it is further not in dispute that the Respondent No. 2 has executed the sale deed in favour of the Appellant, 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 Respondent No. 2 but also to the Appellant. 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 terminated to the prejudice of the agent’s interest. In such cases, the agency would be clearly irrevocable. Section 207 of the Contract Act declares that revocation may be express or may be implied in the conduct of that principal or ORS.

agent, respectively. Section 208 deals with the time when termination of the agent’s agency takes effect. [Para 52][317-BE]

1.4 It is no doubt true that the case of the plaintiff is that the second defendant was bereft of the authority to transfer the property as on 28.04.1987 in view of the fact that the second defendant had surrendered the power of attorney dated 28.01.1987 on 02.02.1987 and the plaintiff had produced the document. The second defendant has denied the case of surrender before the execution of sale deed. According to him, the power of attorney had been misplaced. It is, accordingly, 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. It has already been held that the production of original power of attorney before the Registering Authority was unnecessary for effecting registration of the sale deed. [Para 54][318-D-F]

1.5 Exhibit-DX may help to resolve the controversy. This is a letter dated 02.06.1987 which was admittedly, got scribed and dispatched by the plaintiff to the second defendant. [Para 55][318-G]

1.6 Contrary to the case of the plaintiff that the power of attorney stood cancelled on 02.02.1987, after it was surrendered to him on that day, it is that the plaintiff writes to the second defendant about having spoken to the second defendant regarding the land in question at Mehre and also gave him the power of attorney. There is no mention about the power of attorney having been surrendered on 02.02.1987 or about the so-called cancellation 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. 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 between the plaintiff and the second defendant would be fatal to the plaintiff’s case that the plaintiff had cancelled the power of attorney. [Paras 57, 58][320-E-H; 321-A-B]

1.7 The plaintiff, in his deposition, has stated that he had cancelled the power of attorney at Mehre and there itself was the Office of the Sub-Registrar located. He has admitted that he did not get the power of attorney cancelled at the Sub-Registrar Office. Even, more importantly, he has admitted to not having sent any notice of cancellation. The only evidence consists of a statement of PW1 that the first defendant was aware of the cancellation and the statement of PW6, who had said that the first defendant was also there on 02.02.1987, when on two papers a line was drawn to signify the cancellation. The Trial Court and also the appellate court have relied upon the DX sent by the plaintiff himself, which appears to undermine the evidence about the cancellation on 02.02.1987. The High Court should not have, at any rate, disturbed the said finding in a Second Appeal. In such circumstances, the conclusion is inevitable that the case of the plaintiff that power of attorney stood cancelled, in the manner done on 02.02.1987, cannot be accepted. At any rate, it is difficult to accept the case of the plaintiff that the first defendant, who is the third party, could be attributed any knowledge of the surrender or the alleged cancellation on 02.02.1987, even assuming for a moment that this Court could lend credence to the plaintiff’s version in this regard that the second defendant surrendered ORS.

the power of attorney. This Court need not pronounce on the question whether the power of attorney being registered, it could be cancelled only by a registered power of attorney. This is said as even in the absence of a registered cancellation of the power of attorney, there must be cancellation and it must further be brought to the notice of the third party at any rate as already noticed. Such a cancellation is not made out. In this regard it is highly significant to notice the case actually set up in the plaint. In the plaint what is averred by the plaintiff is that when the negotiations fell through the second defendant surrendered the original power of attorney to the plaintiff which is still in possession of the plaintiff and the plaintiff told the defendant no. 1 that the same stand cancelled and he shall not execute any sale deed on behalf of the plaintiff. [It is not even clear whether it should be understood as the plaintiff told the second defendant that same stand cancelled and he shall not execute any sale deed on behalf of the plaintiff.] It is further averred that “even defendant no. 2 was not competent to transfer the possession, rather the special power of attorney deemed to cancelled in the eyes of law since it was handed over to the plaintiff”. Therefore, the case set up by the plaintiff was that on the second defendant handing over the power of attorney to the plaintiff, the special power of attorney was deemed to have been cancelled in the eye of law. There is no whisper in the plaint about the plaintiff having cancelled it in the manner in which he has deposed to in the evidence on 02.02.1987. As far as P-1 is concerned, it is dated 30.01.1987. The Trial Court has entered the finding that the P-1 stood proved and that the second defendant is bound by it. The Appellate Court has not disturbed the finding. In other words, proceeding on the basis that the second defendant had a duty to not sell the property below Rs.55,000/-, in terms of P-1, the breach of duty to not sell below Rs.55,000/-, when the second defendant sold the property for Rs.30,000/-, cannot invalidate the sale or render it null and void. A perusal of the power of attorney will make it clear that any restriction on the price is conspicuous by its absence in the power of attorney. The impugned Judgment is set aside. [Paras 59-63][321-B-H; 322-A-E]

Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and Another (2009) 14 SCC 782 : [2009] 11 SCR 686 – relied on.

Anathula Sudhakar v. T. Buchi Reddy (dead) by LRs & Ors. (2008) 4 SCC 594 : [2008] 5 SCR 331; Madhukar Vishwanath v. Madhao & Ors. (1999) 9 SCC 446 – referred to.

Jambu Parshad v. Muhammad Nawab Aftab Ali Khan & Anr. AIR 1914 PC 16; Ma Shwe Mya v. Maung Ho Hnaung AIR 1922 PC 359; Jambu Prasad v.

Muhammad Aftab Ali Khan and others AIR 1914 PC 16; Daya Shanker & Ors. v. Rajendra 14 Kumar & Ors. (2016) 118 ALR 62; Ratilal Nathubhai & Anr. v. Rasiklal Maganlal & Ors. AIR 1950 Bom. 326 –

referred to.

Pollock and Mulla, The Indian Contract and Specific Relief Acts, 14th Edition – referred to.

Case Law Refrence

relied on

Para 10

referred to

Para 10