AMAR NATH (DEAD) THROUGH L.R. versus GIAN CHAND AND ORS. on 28 January 2022

AMAR NATH (DEAD) THROUGH L.R.

v.

GIAN CHAND AND ORS.

(Civil Appeal No. 5797 of 2009)

JANAUARY 28, 2022

[K. M. JOSEPH AND PAMIDIGHANTAM SRI

NARASIMHA, JJ.]

Deeds and Documents – Power of attorney – When notcancelled – Plaintiff entered into an oral agreement for the sale ofhis property for Rs. 55,000/- with the first defendant – It wasplaintiff’s case that the first defendant couldn’t arrange the moneyand asked for further time – Plaintiff bonafide executed a specialpower of attorney dtd. 28.01.87 in favour of the second defendantfor selling the property for Rs. 55,000/- – As per the plaintiff, as thenegotiation fell through in view of the first defendant not beingable to arrange the money, the second defendant surrendered theoriginal power of attorney to the plaintiff on 02.02.87 – However,as per plaintiff, the second defendant applied for the copy of thepower of attorney, and fraudulently in collusion with the firstdefendant executed the sale deed on 28.04.87 for Rs.30,000/- –Plaintiff filed suit inter alia for declaration by way of permanentinjunction that he is the owner in possession of the property andthe mutation showing the sale in favour of the first defendant bythe second defendant was null and void – Trial Court declined therelief of declaration by way of permanent injunction – AppellateCourt found that the case of the plaintiff that the power of attorneywas cancelled was unsustainable and that there was a valid saledeed and endorsement – High Court set aside the findings of thecourts below and decreed the suit by declaring the plaintiff as theowner in possession of the land and mutation showing the sale infavour of the first defendant was declared null and void – On appeal,held: The production of original power of attorney before theRegistering Authority was unnecessary for effecting registration ofthe sale deed – Further, the plaintiff admitted that he did not get thepower of attorney cancelled at the Sub-Registrar Office – Even,more importantly, he admitted to not having sent any notice ofcancellation – The only evidence consists of a statement of plaintiffthat the first defendant was aware of the cancellation and the

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Astatement of PW6, who had said that the first defendant was alsothere on 02.02.87, when on two papers a line was drawn to signifythe cancellation – Furthermore, the Trial Court and also the appellatecourt relied upon the DX (letter dated 02.06.87) sent by the plaintiffhimself, which appears to undermine the evidence about thecancellation on 02.02.1987 – High Court should not have, at anyBrate, disturbed the said finding in a Second Appeal – The case ofthe plaintiff that power of attorney stood cancelled, in the mannerdone on 02.02.1987 cannot be accepted – First defendant, who isthe third party, could not be attributed any knowledge of thesurrender or the alleged cancellation on 02.02.1987 – ImpugnedCJudgment set aside – Contract Act, 1872 – ss.201, 202, 207, 208 –Registration Act, 1908 – ss.18, 18 A, 32-35.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 When a person empowers another to execute adocument and the power of attorney, acting on the power,Dexecutes the document, the power of attorney holder can presentthe document for registration under Section 32(a). Section 32(a)of the Registration Act deals with the person executing adocument and also the person claiming under the same. It alsoprovides for persons claiming under a decree or an order beingEentitled to present a document. Section 32(b) speaks about therepresentative or assignee of ‘such a person’. The word such aperson in Section 32(b) is intended to refer to the persons coveredby Section 32(a). Finally, Section 32(c) provides for the agent of‘such a person’ which necessarily means the persons who areencompassed by Section 32(a). Besides agent of the personFcovered by Section 32(a), Section 32(c) also takes in the agent ofthe representative or assignee. Now the words representativeor assignee are to be found in Section 32(b). Thus, Section 32(c)deals with agents of the persons covered by Section 32(a) andagents of the representative or assignee falling under SectionG32(b). It is in respect of such an agent that there must be dueauthorisation by a power of attorney, which in turn, is to beexecuted and authenticated in the manner provided for in Section33. However, the person, who has actually signed the documentor executed the document for the purpose of Section 32(a) doesnot require a power of attorney to present the document. It mayH

be open to the principal, who has entered obligations under thedocument, to present the document. Section 32(c) must alone beread with Section 33 of the Act. Thus, when Section 32(c) of theRegistration Act declares that a document, whether it iscompulsorily or optionally registrable, is to be presented, interalia, by the agent of such a person, representative or assignee,duly authorised by power of attorney, it must be executed andauthenticated in the manner and hereinafter mentionedimmediately in the next following section. Section 33 by its veryheading provides for power of attorney recognisable for thepurpose of Section 32. Section 32(a) cannot be read with Section33 of the Act. In other words, in a situation, if a document isexecuted by a person, it will be open to such a person to presentthe document for registration through his agent. The agency canbe limited to authorising the agent for presenting the documentfor it is such a power of attorney, which is referred to in Section32(c). It is in regard to a power of attorney holder, who isauthorised to present the document for registration to whomSection 33 would apply. In the facts of this case, the seconddefendant was armed with the power of attorney dated 28.01.1987and if it was not cancelled and he had executed the sale deed on28.04.1987, he would be well within his rights to present thedocument for registration under Section 32(a) of the Act.Presentation is not a matter of form. Without a valid presentationof the document, the registration would be illegal. However, inthe facts, the IInd defendant having presented the sale deed asexecutant, the presentation and registration cannot bequestioned. For reasons indicated, Section 32(c) read with Section33 and Section 34(2)(c) are interrelated and they would have noapplication in regard to the document presented for registrationby a power of attorney holder who is also the executant of thedocument. In other words, there is really no need for theproduction of the original power of attorney, when the documentis presented for registration by the person standing in the shoesof the second defendant in this case as he would be covered bythe provisions of Section 32(a) as he has executed the documentthough on the strength of the power of attorney. To make it evenfurther clear, the inquiry contemplated under the RegistrationAct, cannot extend to question as to whether the person who AB

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Aexecuted the document in his capacity of the power of attorneyholder of the principal, was indeed having a valid power of attorneyor not to execute the document or not. [Paras 20, 21, 25][303-D-H; 304-A-E; 305-B; 306-D-F]

1.2 On an analysis of the provisions, the argument of theBPlaintiff that the non-production of the original power of attorneyby the Respondent No. 2, was fatal to a valid registration beingeffected is rejected. The understanding of the Courts regardingSection 18A is also erroneous. Section 18A was enacted only toensure that the copying process is hastened, as noticed from theObjects and Reasons. The Trial Court was right when it held thatCSection 18A is concerned only with the document which ispresented for registration. The Trial Court clearly erred relyingupon Section 18(A) to hold that certified copy however beingproduced of the power of attorney was in conformity with Section18A and the High Court was equally in error to hold that SectionD18A 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 executethe power of attorney, empowering the Respondent No. 2 to sellthe property and it is further not in dispute that the RespondentENo. 2 has executed the sale deed in favour of the Appellant, theonly question which arises is whether the power of attorney wascancelled before the execution of the sale deed on 28.04.1987.Undoubtedly, the further question would be whether thecancellation was effected in a valid and legal manner and finally,whether it was made known to not only to the Respondent No. 2Fbut also to the Appellant. Section 201 of the Contract Act, dealingwith termination of agency, declares that an agency can beterminated by the principal revoking the authority of the agent.An exception to the power of principal to revoke the agency isfound in Section 202 of the Contract Act, which provides thatGwhere an agent has himself an interest in the property which formsthe subject of the agency, in the absence of an express contract,the agency cannot be terminated to the prejudice of the agent’sinterest. In such cases, the agency would be clearly irrevocable.Section 207 of the Contract Act declares that revocation may beexpress or may be implied in the conduct of that principal orH

agent, respectively. Section 208 deals with the time whentermination of the agent’s agency takes effect. [Para 52][317-B-E]

1.4 It is no doubt true that the case of the plaintiff is thatthe second defendant was bereft of the authority to transfer theproperty as on 28.04.1987 in view of the fact that the seconddefendant had surrendered the power of attorney dated 28.01.1987on 02.02.1987 and the plaintiff had produced the document. Thesecond defendant has denied the case of surrender before theexecution of sale deed. According to him, the power of attorneyhad been misplaced. It is, accordingly, he applied for the certifiedcopy of the same and went ahead with the execution andregistration 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 originalpower of attorney was with the second defendant even at thetime of the registration of the sale deed. It has already been heldthat the production of original power of attorney before theRegistering Authority was unnecessary for effecting registrationof the sale deed. [Para 54][318-D-F]

1.5 Exhibit-DX may help to resolve the controversy. Thisis a letter dated 02.06.1987 which was admittedly, got scribedand dispatched by the plaintiff to the second defendant. [Para55][318-G]

1.6 Contrary to the case of the plaintiff that the power ofattorney stood cancelled on 02.02.1987, after it was surrenderedto him on that day, it is that the plaintiff writes to the seconddefendant about having spoken to the second defendant regardingthe land in question at Mehre and also gave him the power ofattorney. There is no mention about the power of attorney havingbeen surrendered on 02.02.1987 or about the so-calledcancellation of the same. The further stand of the plaintiff was byway of asking the second defendant to inform the plaintiff at theearliest, if he could talk to anyone or had talked to anyone. Themeaning of the of latter portion is made clear when he says thatthe 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 A

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Acancelled the power of attorney by writing the word ‘cancelled’on 02.02.1987, upon it being surrendered by the seconddefendant, cannot be accepted. The letter sent by the seconddefendant to the plaintiff on 16.06.1987 indicates that the seconddefendant tells the plaintiff that the plaintiff may have come toknow that as power of attorney he had made the sale deed of theBproperty. No doubt, he says that the plaintiff might have been‘astonished to know’ regarding the sale. The second defendantfurther writes to the plaintiff that he has done this job in faith offriendship and for betterment. He admits that he could not go tothe plaintiff as his brother was ill and, later on, his wife fell ill. HeCadmits to having spent some amount from the money paid. Thiscorrespondence between the plaintiff and the second defendantwould be fatal to the plaintiff’s case that the plaintiff had cancelledthe power of attorney. [Paras 57, 58][320-E-H; 321-A-B]

1.7 The plaintiff, in his deposition, has stated that he hadDcancelled the power of attorney at Mehre and there itself wasthe Office of the Sub-Registrar located. He has admitted that hedid not get the power of attorney cancelled at the Sub-RegistrarOffice. Even, more importantly, he has admitted to not havingsent any notice of cancellation. The only evidence consists of astatement of PW1 that the first defendant was aware of theEcancellation and the statement of PW6, who had said that thefirst defendant was also there on 02.02.1987, when on two papersa line was drawn to signify the cancellation. The Trial Court andalso the appellate court have relied upon the DX sent by theplaintiff himself, which appears to undermine the evidence aboutFthe cancellation on 02.02.1987. The High Court should not have,at any rate, disturbed the said finding in a Second Appeal. In suchcircumstances, the conclusion is inevitable that the case of theplaintiff that power of attorney stood cancelled, in the mannerdone 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 isGthe third party, could be attributed any knowledge of the surrenderor the alleged cancellation on 02.02.1987, even assuming for amoment that this Court could lend credence to the plaintiff’sversion in this regard that the second defendant surrendered H

the power of attorney. This Court need not pronounce on thequestion whether the power of attorney being registered, it couldbe cancelled only by a registered power of attorney. This is saidas even in the absence of a registered cancellation of the powerof attorney, there must be cancellation and it must further bebrought to the notice of the third party at any rate as alreadynoticed. Such a cancellation is not made out. In this regard it ishighly significant to notice the case actually set up in the plaint.In the plaint what is averred by the plaintiff is that when thenegotiations fell through the second defendant surrendered theoriginal power of attorney to the plaintiff which is still in possessionof the plaintiff and the plaintiff told the defendant no. 1 that thesame stand cancelled and he shall not execute any sale deed onbehalf of the plaintiff. [It is not even clear whether it should beunderstood as the plaintiff told the second defendant that samestand cancelled and he shall not execute any sale deed on behalfof the plaintiff.] It is further averred that “even defendant no. 2was not competent to transfer the possession, rather the specialpower of attorney deemed to cancelled in the eyes of law since itwas handed over to the plaintiff”. Therefore, the case set up bythe plaintiff was that on the second defendant handing over thepower of attorney to the plaintiff, the special power of attorneywas deemed to have been cancelled in the eye of law. There is nowhisper in the plaint about the plaintiff having cancelled it in themanner 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 Courthas entered the finding that the P-1 stood proved and that thesecond defendant is bound by it. The Appellate Court has notdisturbed the finding. In other words, proceeding on the basisthat the second defendant had a duty to not sell the propertybelow Rs.55,000/-, in terms of P-1, the breach of duty to not sellbelow Rs.55,000/-, when the second defendant sold the propertyfor Rs.30,000/-, cannot invalidate the sale or render it null andvoid. A perusal of the power of attorney will make it clear thatany restriction on the price is conspicuous by its absence in thepower of attorney. The impugned Judgment is set aside. [Paras59-63][321-B-H; 322-A-E]

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ARajni Tandon v. Dulal Ranjan Ghosh Dastidar andAnother (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; MadhukarBVishwanath 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 HoCHnaung AIR 1922 PC 359; Jambu Prasad v.Muhammad Aftab Ali Khan and others AIR 1914 PC16; 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.D

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

Case Law Refrence

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5797of 2009.F

From the Judgment and Order dated 31.07.2008 of the High Courtof Himachal Pradesh at Shimla in R.S.A. No. 27 of 1997.

Rajesh Gupta, Harpreet Singh for M/s K J John and Co., Advs.Gfor the Appellant.

V. Giri, Sr. Adv., Sanchar Anand, Anant Kumar Vatsya, Shiv Kumar,Sameer Singh, Devendra Singh, Advs. for the Respondents.

AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND ANDORS.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. By the impugned judgment the High Court in a second appealhas reversed the concurrent findings rendered in a suit filed by the firstrespondent and the appellant who is the second defendant in the suit hasfiled the present appeal. The second respondent who is the seconddefendant in the suit though served has chosen not to appear. The partiesshall be referred to by their status in the Trial Court.

THE SUIT

2. The plaint schedule property hereinafter referred to as the‘property’ consists of 2 Kanals, 10 Marlas and odd land belonged to theplaintiff and was in his possession. He was serving as a junior engineer.He entered into an oral agreement for the sale of the property for aconsideration of Rs. 55,000/-. It is the plaintiff’s case that when theplaintiff came on leave, the first defendant could not arrange the moneyand asked for further time. The plaintiff bonafide executed a specialpower of attorney in favour of the II[nd] defendant for selling the propertyfor the amount of Rs. 55,000/-. As the negotiation fell through in view ofthe first defendant not being able to arrange the money, the seconddefendant to whom the power of attorney was executed, surrenderedthe original to the plaintiff, and the plaintiff told the first defendant thatthe same stood cancelled. The second defendant is alleged to be a deedwriter and a clever person. He applied for the copy of the power ofattorney, and fraudulently in collusion with the first defendant, executedthe 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 absenceof the original power of attorney, and the sub registrar was supposed toverify the aspect from the second defendant under Sections 32, 33 and34 of the Registration Act. The sale deed was without authority. Thesecond defendant ‘was not competent to transfer the possession’. Thespecial power of attorney is deemed to have been cancelled in the eyeof law since it was handed over to the plaintiff. When the plaintiff camefrom his service and enquired with the officials of the revenue staff orthe consolidation authority, and got the copies, then he came to knowabout the sale and that the mutation has been sanctioned. It is on thiscase that the plaintiff filed a suit for declaration by way of permanentinjunction that he is the owner in possession of that property and the A

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Amutation showing the sale in favour of the first defendant, by the seconddefendant, was null and void, and that the second defendant was nothaving any authority to sell the land owned by the plaintiff, and hencethe defendant be restrained from interfering with the ownership andpossession of the plaintiff. It was further prayed that in case it wasproved that the second defendant was an agent of plaintiff then in thatBcase, the suit for rendition of accounts be decreed.

3. The first defendant (appellant) in his written statement interalia pleaded that he while admitting that the plaintiff is a junior engineer,his actual place of posting was not known to him. It is also admitted thatthe first defendant entered into an agreement orally to get the propertyCpurchased for Rs.30,000/- and not Rs.55,000/-. It is denied that the firstdefendant could not arrange for the money. The plaintiff receivedRs.10,000/- as part price. The remaining Rs.20,000/- was paid at thetime of registration. The negotiation of the sale did not fall through. Seconddefendant never surrendered the original power of attorney. The plaintiffDgot the power of attorney after the sale deed was executed by the seconddefendant. The sum of Rs.20,000/- was given in the presence of the subregistrar. The first defendant was a bonafide purchaser. The sale deedwas effected in a legal manner and after verification by the sub registrar.The second defendant was competent to execute the sale deed.

E4. The second defendant also filed a written statement. Hecontended that there was an agreement between the plaintiff and thefirst defendant independently without the intervention of the seconddefendant for the sum of Rs.30,000/- out of which the plaintiff washimself given Rs.10,000/- as earnest money from the first defendant.The remaining Rs.20,000/- was to be received on the registration of theFsale deed as at the time of sale, it could not be effected immediately.The plaintiff had to join his duty and therefore wanted the seconddefendant to have a registered special Power of Attorney from him andthen, execute the sale deed and get it registered after receiving theremaining amount of consideration of Rs.20,000/. The consideration ofGthe sale deed being Rs.55,000/- is stoutly denied. It is his further casethat the remaining consideration was handed over to the plaintiff and thepower of attorney was handed over to the plaintiff. However, the casethat the power of attorney was handed over before execution of saledeed is denied. He denied acquaintance with the government officermuch less the sub registrar. There is no prohibition of law for executingH

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 themoney showing that he has a great need. Legally and factually, it ispleaded ‘that no registered deed to cancelled orally.’ It requires anotherregistered deed to cancel it.

5. The Trial Court framed the following issues, inter alia:-

I. Whether sale in question is without consideration and void asalleged;

II. Whether the plaintiff is entitled to the relief of declaration andpermanent injunction;

III. Whether the plaintiff is entitled to the rendition of accountfrom defendant No.2 in the alternative;

IV. Whether the plaintiff is estopped from filing the present suitby his act and conduct;

V. Whether the suit is not properly valued for Court fee andjurisdiction;

6. The evidence consisted of oral evidence on behalf of the plaintifftendered through eight witnesses. The documentary evidence on behalfof the plaintiff consisted of P1 to P11. The first defendant was examinedas DW1. The second defendant was examined as DW4. DW2 andDW3 were two other witnesses examined on behalf of the defendant.DX which will assume considerable significance was also adduced apartfrom D1 and D2. The Trial Court, interalia, while answering issues no. 1and 2 was alerted about the provisions of Section 33 and 34 of theRegistration Act apart from Section 18A. Section 18A was found todeal with the document presented for registration. It went on to findinter alia that the reading of Section 58,59 and 60 of the Registration Actleads to the conclusion that the registration of the document is a solemnact. The endorsement of the registration raised a presumption that theexecutants or their duly authorised agents appeared before the Registrar.It is for the other side to prove that the document was not presented forregistration, once it is proved that the document had been presented.The execution was proved before the sub registrar. The sub registrarhas given evidence as PW4 and proved the sale for a consideration ofRs.30,000/. The sale was also proved by the marginal witnesses. Section18 A of the Registration Act makes it clear that the sale deed must be A

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Aaccompanied with a true copy of the power of attorney. That seconddefendant was having a certified copy of the special power of attorney.The Trial Court did not accept the plaintiff’s case that the seconddefendant was not his power of attorney at the time of the sale. It reliedupon DX-letter dated 02.06.1987 written by the plaintiff. The Trial Courtdid not attach any weight to the alleged cancellation of the power ofBattorney especially when the second defendant was having a certifiedcopy of the special power of attorney, which was a registered power ofattorney. The cancellation also required registration. Exhibit PW 5A dated02.07.1987 by which the second defendant agreed to pay Rs.30,000/- tothe plaintiff is relied upon and it was inexplicable as why it was executed,Cif on 02.02.1987, the special power of attorney given to the seconddefendant 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, tillnotice was given to the second defendant. The I[st ]defendant was notbound by any agreement between plaintiff and the second defendant.DAs per Section 18A, sale deed should accompany true copy of the powerof attorney and the original is not required. P1-agreement binds the plaintiffand the second defendant having been proved by the scribe and witnesses.P1 and P2 must be read together. Plaintiff agreed with the seconddefendant to sell the land for consideration not less that Rs.55,000/-. NoEground was given to set aside the sale. The sale was found effected forRs.30,000/- and was not a void transaction. In answering issue no. 3, itwas found however that the plaintiff was entitled to the rendition of theaccount from the second defendant. The second defendant was in factfound liable to pay Rs.55000/- based on P1 agreement. It was foundthat the P1 agreement controlled the power of attorney. The agent couldFnot act against the interest of the principal. The court fee of Rs.19.50was found correctly fixed. The Trial Court proceeded to decline therelief of declaration by way of permanent injunction as the plaintiff wasnot the owner in possession but the Suit for rendition of accounts fromthe second defendant was decreed.GFINDINGS OF THE FIRST APPELLATE COURT

7. The plaintiff authorised the second defendant by power ofattorney dated 28.01.1997 to sell the property for Rs.55,000/-. The Courtfound that the case of the plaintiff, that the power of attorney wascancelled was unsustainable, having regard to the evidence of DW4,H

wherein he has deposed that he has received DX-letter also. The plaintiffhas admitted sending DX. The Court proceeded to find that there was avalid sale deed and endorsement (PW4A). It was found that the saledeed was executed.

FINDINGS OF THE HIGH COURT

8. The following questions of law were framed:

“1. Whether in view of the admitted position that defendant No.2who was the petition writer, and in whose favour power of attorneyhad been executed by the appellant for executing the sale deedfor a consideration of Rs. 55,000/- to the knowledge of respondentNo.1, it had to be assumed that the sale deed Ex.PW-3/A wasfraudulently executed for Rs. 30,000/- when the Power of attorneyhad been cancelled and revoked and returned by the appellantand the document Ex.PW-5/A was duly proved?

2. Whether the court below has misconstrued the basic documentof title Ex.PW-5/A, PW-3/A, P-1, P-2 and wrong inference havebeen drawn from facts proved on record?

3. Whether on the material on record it was established that therewas non-compliance of mandatory provisions of section 18A, 59and 61 of Registration Act and the findings that registered powerof attorney could only be executed by registered document issustainable in law?

4. Whether the sale deed Ex.PW-3/A conferred any valid title ondefendant No.1 and the plaintiff was entitled to the relief ofinjunction and declaration?

5. Whether in the facts and circumstances of the case, thepresumption raised stood rebutted and the plaintiff was entitled tothe relief of injunction and declaration instead of the alternativerelief of rendition of accounts as held by the court below?”

9. Thereafter, the Court proceeded to discuss the evidence andrecords 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 A

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Aadmitted that it was not clear from the endorsement on the sale deed asto 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 ofthe Registration Act that it was necessary for the Registering Authorityto see the true copy of the special power of attorney. In view of thecancellation of the original power of attorney which was cancelled onB02.02.1987, the same could not be relied upon by the Registering Authorityfor the purpose of execution of the sale deed. The evidence of PW6 isrelied 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 wasaware of the cancellation. In the written statement, it is noted that theCstand of second defendant was that the power of attorney had beenmisplaced. The High Court proceeded to set aside the findings of thecourts below and decreed the suit by declaring the plaintiff as the ownerin possession of the land and the mutation showing the sale in favour ofthe First Defendant was declared null and void.

DTHE SUBMISSIONS OF THE I[st] DEFENDANT/APPELLANT

10. The High Court has clearly erred in exercising jurisdictionunder Section 100 of the Code of Civil Procedure, 1908 (hereinafterreferred to as ‘the CPC’, for short). The substantial questions of lawEwere purely factual. The terms of the power of attorney would showthat the case of the plaintiff that the consideration was settled atRs.55,000/-, was incorrect. It is further contended that it is an admittedfact that Defendant No.1 was put in possession on the execution of thesale deed and Defendant No.1 has been found by trial court to be inFpossession. The power of attorney which was registered, could havebeen cancelled only by a registered document. In this regard, we drewsupport from the judgment of the Allahabad High Court inDaya Shanker& Ors. v. Rajendra Kumar & Ors.1. He also sought support fromjudgment of the Madras High Court (Madurai Bench) dated 11.12.2019in Second Appeal No. (MD) 652 of 2015. The first defendant wouldGcontend that the registration of a document brings it in public domain andthe registered document must be cancelled by the same means. It cannotbe permitted to be cancelled in secrecy. He relied onRatilal Nathubhai& Anr. v. Rasiklal Maganlal & Ors.2Sections 32(a) of the Registration 1 (2016) 118 ALR 62H2 AIR 1950 Bom. 326

1 (2016) 118 ALR 62H2 AIR 1950 Bom. 326

Act, 1908 (hereinafter referred to as ‘the Act’, for short) contemplatesa situation where a power of attorney holder is authorised to execute asale deed. In this case, under the power of attorney executed by theplaintiff, the second defendant was competent to execute the sale deedand he could, therefore, present it for registration. In this regard, hedrew support from the judgment of this Court in Rajni Tandon v. DulalRanjan Ghosh Dastidar and Another3(2009) 14 SCC 782. Theappellant also points to the relief sought in the plaint and the court fees tobe paid being Rs.19.50, which was the court fees paid for injunctionsimplicitor only. The plaintiff never sought cancellation of the sale deednor recovery of possession. The appellant relied on judgment of thisCourt in Anathula Sudhakar v. T. Buchi Reddy (dead) by LRs &Ors.4and Madhukar Vishwanath v. Madhao & Ors.5, in this regard.

THE SUBMISSIONS OF THE PLAINTIFF

11. The High Court was justified in interfering under Section 100of the CPC. The High Court rightly found it necessary that the FirstAppellate Court should have discussed the evidence after formulatingthe points for determination under Order XLI Rule 31 of CPC. It isfurther contended that there was fraud and collusion and to the knowledgeof both the defendants, the power of attorney stood withdrawn. Non-consideration of relevant evidence justified the High Court in interferingunder Section 100 of the CPC. Construction of a document of title or ofa document which was foundation of a right, raised a question of law. Incases of extreme perversity, the High Court can interfere under Section100. Referring to Sections 32, 33 and 34 of the Registration Act, it iscontended that improper presentation of a document is not a mere defect.The provisions are intended to prevent forgery and procurement ofconveyance by fraud or undue influence. Reliance was placed onjudgment of Privy Council in Jambu Parshad v. Muhammad NawabAftab Ali Khan & Anr.6 and Ma Shwe Mya v. Maung Ho Hnaung7. Itis further contended that Section 33(4) clearly contemplates the originalpower of attorney being produced at the time of presentation of the saledeed. The original power of attorney was not produced in this case bythe second defendant. The original power of attorney was with the plaintiff 3 (2009) 14 SCC 782

4 (2008) 4 SCC 594

5 (1999) 9 SCC 446

6 AIR 1914 PC 16

7 AIR 1922 PC 359

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Aand he has produced the same which was marked as Exhibit-P2. It wassurrendered by the second defendant. The evidence of PW6 is reliedupon. The case of the first Defendant that he was a bonafide purchaser,was a false pretence. After the cancellation of the power of attorney,the entire procedure of making an application by the second defendantfor a copy, its preparation and receipt, shows fraud and collusion betweenBthe Defendants and the Sub-Registrar (PW4) and officials of theRegistering Authority. The plaintiff took us through the deposition todemonstrate the falsity of the Defendant’s case. There was an oralagreement between the plaintiff and the first defendant to sell andpurchase, respectively, the property at Rs.55,000/-. The plaintiff wasCnot paid Rs.10,000/- as claimed by the first defendant. Finding that thefirst defendant will not be able to raise Rs.55,000/-, the second defendantsurrendered the power of attorney on 02.02.1987. The plaintiff has notreceived any amount from the first defendant or the second defendant.There is no equity in the case of first defendant. To do complete justice,the impugned judgment must be upheld.DANALYSIS

A BRIEF SURVEY OF THE REGISTRATION ACT.

A BRIEF SURVEY OF THE REGISTRATION ACT.

12. We must make a survey of the relevant provisions of theRegistration Act. Section 17 deals with the documents which areEcompulsorily to be registered. The consequences of a compulsorilyregistrable document not being registered are spelt out in Section 49 ofthe Act. Section 18 deals with documents, which are optionally registrable.In other words, they are documents, which do not attract the wrath ofSection 49 of the Act. In the state of Himachal Pradesh from where thisFcase arises, Section 18A has been inserted (vide Vide Himachal PradeshAct 2 of 1969, s. 3). It reads as follows:

“18-A. Documents for registration to be accompanied by atrue copy.- Notwithstanding anything contained in this Act, theregistering officer shall refuse to register any document presentedGto him for registration unless such document is accompanied by atrue copy thereof.”

13. The argument of the first defendant, based on Section 18A, isas follows:

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Section 18A contemplates the production of the certified copy ofthe power of attorney and therefore the production of the certified copyof the power of attorney along with the original of the sale deed, wasfully justified. The High Court, in the impugned judgment, has referredto Section 18 (apparently Section 18A) and held that it is evident fromthe said provision that it was necessary for the Registering Authority tosee the true copy of the special power of attorney.

IMPACT OF SECTION 18A

14. What Section 18A contemplates is the production of a truecopy 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 executedby the second defendant in favour of the first defendant. We are notcalled upon to decide the case that the true copy of the sale deed wasnot produced.

15. In fact, our view finds support from the Statement of Objects andReasons to be found in the Indian Registration (Punjab Amendment Bill),1961. Section 18A was first introduced in Punjab and it, is thereafter, that itwas also made applicable in respect of the State of Himachal Pradesh. TheStatement of Objects and Reasons to the Punjab Bill reads as follows:

“According to section 52(1)(c) of the Indian Registration Act,1908, all documents registerable under the Act, are copied in therelevant Bahis before they are returned to the executant. It takesa considerable time to copy out these documents in the relevantBahis and the delay causes considerable loss to the litigant people.

Similarly, there is no check on the writing of deeds andto give relief to the public on these two accounts. Applications underthis Act, and also on the fees charged by deed-writers. Often, peoplewith little. experience and knowledge of the laws on Stamp Registrationgive relief to the public on these two accounts.are. writing out these documents at very high rates.” This Bill seeks to

16. It is, therefore, clear that the true copy of the document presentedfor registration is to be produced under Section 18A. It is only to avoid thedelay resulting from having to copy the document, that Section 18A wasinserted.

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ATHE OTHER PROVISIONS

17. The argument of the plaintiff would appear to be that it isimperative, having regard to Sections 32 and 33 of the Act, that theoriginal power of attorney should be produced. In view of this, we considerit necessary to advert to Sections 32 and 33 of the Act, which read asBfollows:

“32. Persons to present documents for registration ‘Except in the cases mentioned in sections 31, 88 and 89 everydocument to be registered under this Act, whether such registrationbe compulsory or optional, shall be presented at the properCregistration office- (a) by some person executing or claiming under the same, or, inthe case of a copy of a decree or order, claiming under the decreeor order, or (b) by the representative or assignee of such a person, or D

(c) by the agent of such a person, representative or assign, dulyauthorised by power-of-attorney executed and authenticated inmanner hereinafter mentioned.”

33. Power-of-attorney recognisable for purposes of section 32

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(1) For the purposes of section 32, the following powers-of-attorneyshall alone be recognised, namely:- (a) if the principal at the time of executing the power-of-attorneyresides in any part of India in which this Act is for the time beingin force, a power-of-attorney executed before and authenticatedby the Registrar or Sub-Registrar within whose district or sub-district the principal resides; F

(b) if the principal at the time aforesaid resides in any part ofIndia in which this Act is not in force, a power-of-attorney executedbefore and authenticated by any Magistrate; G

(c) if the principal at the time aforesaid does not reside in India, apower-of-attorney executed before and authenticated by NotaryPublic, or any court, Judge, Magistrate, Indian Consul or vice-consul, or representative of the Central Government: PROVIDEDthat the following persons shall not be required to attend at any H

registration-office or court for the purpose of executing any suchpower-of-attorney as is mentioned in clauses (a) and (b) of thissection, namely-

(i) persons who by reason of bodily infirmity are unable withoutrisk or serious inconvenience so to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in court.

Explanation: In this sub-section “India” means India, as defined inclause (28) of section 3 of the General Clauses Act, 1897.]

Section 33 (2) In the case of every such person the Registrar orSub-Registrar or Magistrate, as the case may be, if satisfied thatthe power-of-attorney has been voluntarily executed by the personpurporting to be the principal, may attest the same without requiringhis personal attendance at the office or court aforesaid.

Section 33 (3) To obtain evidence as to the voluntary nature ofthe execution, the Registrar or Sub-Registrar or Magistrate mayeither himself go to the house of the person purporting to be theprincipal, or to the jail in which he is confined, and examine him,or issue a commission for his examination.

Section 33 (4) Any power-of-attorney mentioned in this sectionmay be proved by the production of it without further proof whenit purports on the face of it to have been executed before andauthenticated by the person or court hereinbefore mentioned inthat behalf.”

18. We also consider it necessary to refer to Section 34 of theAct. It reads as follows:

“34. Enquiry before registration by registering officer.—(l) Subjectto the provisions contained in this Part and in sections 41, 43, 45,69, 75, 77, 88 and 89, no document shall be registered under thisAct, unless the persons executing such document, or theirrepresentatives, assigns or agents authorized as aforesaid, appearbefore the registering officer within the time allowed forpresentation under sections 23, 24, 25 and 26: Provided that, ifowing to urgent necessity or unavoidable accident all such personsdo not so appear, the Registrar, in cases where the delay in A

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appearing does not exceed four months, may direct that on paymentof a fine not exceeding ten times the amount of the properregistration fee, in addition to the fine, if any, payable under section25, the document may be registered.

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(2) Appearances under sub-section (1) may be simultaneous orat different times.

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(3) The registering officer shall thereupon—

(a) enquire whether or not such document was executed bythe persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearingbefore him and alleging that they have executed the document;and C

(c) in the case of any person appearing as a representative,assign or agent, satisfy himself of the right of such person soDto appear.

(4) Any application for a direction under the proviso to sub-section(1) may be lodged with a Sub-Registrar, who shall forthwithforward it to the Registrar to whom he is subordinate.

(5) Nothing in this section applies to copies of decrees or orders.E

19. The argument of the plaintiff that for a proper and legalpresentation of a document, the first defendant was obliged to producethe original power of attorney, does not appear to be sound. In fact, thematter itself is not res integra. This Court in Rajni Tandon v. DulalRanjan Ghosh Dastidar and another(supra), held, inter alia, as follows:

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“19. In view of the aforesaid situation, the issue that falls for ourconsideration is whether a person who executes a document underthe terms of the power of attorney, is, insofar as the registrationoffice is concerned, the actual executant of the document and isentitled under Section 32(a) to present it for registration and get itGregistered.

21. Section 32 deals with persons who are eligible to presentdocuments for registration before the proper registration office.Section 32 specifies three categories of persons who can presentdocuments for registration. The use of the word “or” betweenthe clauses of Section 32 demonstrates that the legislature intended H

the said clauses to be read disjunctively and not conjunctively. Itis settled law that the use of the word “or” is used to signify thedisjunctive nature of a provision. In this regard reference may bemade to the decision of this Court in State of Orissa v. State ofA.P. [(2006) 9 SCC 591]

22. Clause (a) of Section 32 specifies that a document canbe presented for registration by:

(i) by the person executing the document;

(ii) any person claiming under the document presented forregistration; and

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

Clauses (b) and (c) deal with cases where the document ispresented not by any person mentioned in (i), (ii) and (iii) abovebut by their agent, representative or assign. This is so because theuse of the words “such person” in clauses (b) and (c) can beunderstood to mean only persons as referred to in (i), (ii) and (iii)above.

23. It may also be mentioned herein that the scope of clauses(b) and (c) in Section 32 may to an extent overlap one another.However, we do not propose to deal with the same as it is notrelevant for determination of the issue before us. It is suffice tosay that insofar as clause (c) of Section 32 is concerned the agents,representatives or assigns of the persons referred to in (i), (ii) and(iii) above can present the said document for registration only ifthey are duly authorised by the power of attorney executed andauthenticated in the manner hereinafter mentioned.

24. The words “executed and authenticated in mannerhereinafter mentioned” in Section 32(c) would mean the procedurespecified in Section 33. This is clear from the opening words ofSection 33 which reads “for the purposes of Section 32, thefollowing power of attorney shall alone be recognised”. Section32 refers to documents presented for registration by a holder of“power of attorney” in clause (c) and it therefore follows that theprocedure specified under Section 33 would be attracted where adocument is presented by a person holding “powers of attorney”of the persons mentioned in clause (a) of Section 32.

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25. The aforesaid position makes it explicitly clear thatSection 32 of the Act requires the documents sought to beregistered, to be presented, inter alia by the person executing it.In other words, the said expression requires presence of the actualperson executing the document. The basic principle underlyingthis provision of the Act is to get before the Sub-Registrar theactual executant who, in fact, executes the document in question.In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj226] has laid down a similar proposition on the conjoint reading ofSection 32 and Section 33 of the Act and after referring to all thejudgments noted hereinbefore. Same view has been expressedearlier 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 categoriesof persons who are eligible to present documents before theregistration office in terms of Section 32 of the Act is the “personexecuting” the document. The expression “person executing” usedin Section 32 of the Act, can only refer to the person who actuallysigns or marks the document in token of execution, whether forhimself or on behalf of some other person. Thus, “personexecuting” as used in Section 32(a) of the Act signifies the personactually executing the document and includes a principal whoexecutes by means of an agent. Where a person holds a power ofattorney which authorises him to execute a document as agentfor someone else, and he executes a document under the termsof the power of attorney, he is, so far as the registration office isconcerned, the actual executant of the document and is entitledunder Section 32(a) to present it for registration and get itregistered.

28. In the facts of the present case, it is quite clear thatIndra Kumar Halani, was given the full authority by Nandlal Tantiaunder the power of attorney to transfer the suit property and toexecute the necessary document. It is an accepted position thatthe said document had been executed by Indra Kumar Halani inthe name and on behalf of Nandlal Tantia thereof. Therefore, forthe purposes of registration office under Section 32(a) of the ActIndra Kumar Halani is clearly the “person executing” thedocument. Therefore, it follows that the said sale deed which was executed and authenticated by Indra Kumar Halani could bepresented for registration by him. We are of the considered viewthat Indra Kumar Halani acted in the aforesaid manner mandatedunder Section 32(a) of the Act.

29. The object of registration is designed to guard againstfraud by obtaining a contemporaneous publication and anunimpeachable record of each document. The instant case is onewhere no allegation of fraud has been raised. In view thereof theduty cast on the registering officer under Section 32 of the Actwas only to satisfy himself that the document was executed bythe person by whom it purports to have been signed. The Registrarupon being so satisfied and upon being presented with a documentto be registered had to proceed with the registration of the same.”

20. In other words, when a person empowers another to executea document and the power of attorney, acting on the power, executesthe document, the power of attorney holder can present the documentfor registration under Section 32(a). Section 32(a) of the RegistrationAct deals with the person executing a document and also the personclaiming under the same. It also provides for persons claiming under adecree or an order being entitled to present a document. Section 32(b)speaks about the representative or assignee of ‘such a person’. Theword such a person in Section 32(b) is intended to refer to the personscovered by Section 32(a). Finally, Section 32(c) provides for the agentof ‘such a person’ which necessarily means the persons who areencompassed by Section 32(a). Besides agent of the person covered bySection 32(a), Section 32(c) also takes in the agent of the representativeor assignee. Now the words representative or assignee are to be foundin Section 32(b). Thus, Section 32(c) deals with agents of the personscovered by Section 32(a) and agents of the representative or assigneefalling under Section 32(b). It is in respect of such an agent that theremust be due authorisation by a power of attorney, which in turn, is to beexecuted and authenticated in the manner provided for in Section 33.However, the person, who has actually signed the document or executedthe document for the purpose of Section 32(a) does not require a powerof attorney to present the document. It may 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, A

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Awhether 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 andauthenticated in the manner and hereinafter mentioned immediately inthe next following section. Section 33 by its very heading provides forpower of attorney recognisable for the purpose of Section 32. SectionB32(a) cannot be read with Section 33 of the Act. In other words, in asituation, if a document is executed by a person, it will be open to such aperson to present the document for registration through his agent. Theagency can be limited to authorising the agent for presenting the documentfor it is such a power of attorney, which is referred to in Section 32(c).CIt is in regard to a power of attorney holder, who is authorised to presentthe document for registration to whom Section 33 would apply. In thefacts of this case, the second defendant was armed with the power ofattorney dated 28.01.1987 and if it was not cancelled and he had executedthe sale deed on 28.04.1987, he would be well within his rights to presentthe document for registration under Section 32(a) of the Act.D21. It is no doubt true that presentation is not a matter of form.Without a valid presentation of the document, the registration would beillegal. In this regard, the observations of the Privy Council in judgmentreported in Jambu Prasad v. Muhammad Aftab Ali Khan and others8may be noticed.E

“Para 8. It was decided, and as their Lordships consideredcorrectly, by Sir John Stanley, C.J. and Sir George Knox, J. in1966 in Ishri Prasad v. Baijnath 28A. 707 : 3 A.L.J. 743 : A.W.N.(1906) 195 that the terms of Sections 32 and 33 of Act III of 1877are imperative, and that a presentation of a document forFregistration by an agent, in that case the agent of a vendee ofImmovable property, who has not been duly authorised inaccordance with those sections, does not give to the RegisteringOfficer the indispensable foundation of his authority to registerthe document. As those learned Judges said:GHis (the Sub-Registrar’s) jurisdiction only comes into force if andwhen a document is presented to him in accordance with law.

Para 11. One object of Sections 32, 33, 34 and 35 of Act III of1877 was to make it difficult for persons to commit frauds bymeans of registration under the Act.”

However, in the facts, the IInd defendant having presented thesale deed as executant, the presentation and registration cannot bequestioned.

22. Section 34 provides for the inquiry to be done by the RegisteringOffice before he orders registration. It declares that no document shallbe registered under the Act unless the persons executing such documentor their representatives, assigns or agents authorised as aforesaid, appearbefore the Registering Authority before the time, allowed for presentationunder Sections 23, 24, 25 and 26. This is, however, subject to Sections41, 43, 45, 69, 75, 77, 83 and 89. Appearances under Section 34(1) maybe simultaneous or at different times. Section 34(3)(a) enjoins upon theRegistering Officer to enquire whether or not such document wasexecuted by the persons by whom it purports to have been executed.Section 34(3)(b) further makes it his duty to satisfy himself as to theidentity of a person’s appearing before him and alleging that they haveexecuted the document. It must be understood and read along with Section32(a). Section 32(a) mandates presentation of the document forregistration by some person executing or claiming under the same, interalia. In respect of a person who presents the document, who claims tohave executed the document, not only is he entitled to present thedocument for registration, in the inquiry under Section 34(3)(a) and 3(b),the duty of the Registering Officer extends only to enquire and find thatsuch person is the person who has executed the document he haspresented and further be satisfied about the identity of the person. Whenit comes to Section 34(3)(c), the Registering Officer is duty-bound inrespect of any person appearing as a representative, assign or agent tosatisfy himself of a right of such a person to so appear. Section 34(3)(c)is relatable to persons covered by Section 32(b) and 32(c) of the Act.We have already found that the word ‘agent’ is to be understood as aperson who is authorised to present the document for registration. Suchan agent would fall under Section 32(c). Thus, in regard to persons fallingin Section 34(3)(c), it would, indeed, be incumbent on the agent, interalia, to produce the power of attorney as such.

23. Section 33(4) of the Act must be read with Section 4 of thePower of Attorney Act, 1882. Section 33(4) reads as follows:

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“33(4) Any power-of-attorney mentioned in this section may beproved by the production of it without further proof when it purportson the face of it to have been executed before and authenticatedby the person or Court hereinbefore mentioned in that behalf.”

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24. Sections 4(a) and (b) of the Power of Attorney Act, 1882Breads as follows:

“4. Deposit of original instruments creating powers-of-attorney.— (a) An instrument creating a power-of-attorney, its executionbeing verified by affidavit, statutory declaration or other sufficientevidence, may, with the affidavit or declaration, if any, be depositedCin the High Court 9 [or District Court] within the local limits ofwhose jurisdiction the instrument may be.

(b) A separate file of instruments so deposited shall be kept; andany person May search that file, and inspect every instrument sodeposited; and a certified copy thereof shall be delivered out toDhim on request.”

25. For reasons, which we have indicated, Section 32(c) readwith Section 33 and Section 34(2)(c) are inter-related and they wouldhave no application in regard to the document presented for registrationby a power of attorney holder who is also the executant of the document.EIn other words, there is really no need for the production of the originalpower of attorney, when the document is presented for registration bythe person standing in the shoes of the second defendant in this case ashe would be covered by the provisions of Section 32(a) as he has executedthe document though on the strength of the power of attorney. To makeit even further clear, the inquiry contemplated under the RegistrationFAct, cannot extend to question as to whether the person who executedthe document in his capacity of the power of attorney holder of theprincipal, was indeed having a valid power of attorney or not to executethe document or not.

26. Section 35 of the Registration Act provides for the procedureGon admission or denial of execution. The person, who has executed thedocument is to be asked whether he accepts the execution of thedocument. Section 35(2) reads as follows:

“35(2) The registering officer may, in order to satisfy himself thatthe persons appearing before him are the persons they represent H

themselves to be, or for any other purpose contemplated by thisAct, examine any one present in his office.”

27. This provision gives authority to the Registering Authority tosatisfy himself that the persons appearing before him are the personsthey represent to be or for any other purpose contemplated under theAct. Towards this end, Registering Officer can examine anyone presentin his Office. Section 35(3) reads as follows:

“(3) (a) If any person by whom the document purports to beexecuted denies its execution, or (b) if any such person appears to the registering officer to be aminor, an idiot or a lunatic, or

(c) if any person by whom the document purports to be executedis dead, and his representative or assign denies its execution, theregistering officer shall refuse to register the documentas to theperson so denying, appearing or dead: Provided that, where suchofficer is a Registrar, he shall follow the procedure prescribed inPart XII:[ 50] [Provided further that the[ 51] [State Government] may,by notification in the[ 52] [Official Gazette], declare that any Sub-Registrar named in the notification shall, in respect of documentsthe execution of which is denied, be deemed to be a Registrar forthe purposes of this sub-section and of Part XII.]”

28. Thus, the aforesaid provision deals with situations in whichthe Registering Authority refuses the registration. If the registeringAuthority is satisfied about the identity of the person and that he admitsthe execution of the document, it may not be a part of the Registrar’sduty to enquire further. The registration by itself will not bring the curtainsdown on questions relating to title to the property. The very purport ofthe Law of Registration is to usher in and maintain a transparent systemof maintaining documents relating to property rights. It puts the world onnotice about certain transactions which are compulsorily registrableSection 17 interalia. The law also makes available facility of registeringdocuments at the option of the person (Section 18).

29. Section 57 of the Act provides for keeping Books No. 1 and 2and the Index relating to Book No.1 open for inspection to any personapplying to inspect the same. Book No.1, it must be noticed, as providedin Section 51, is a register of non-testamentary documents relating to A

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Aimmovable property. Book No.2 is a record of reasons for refusal toregister.

30. Section 58 of the Act deals with the procedure on admitting adocument to registration.

“58. Particulars to be endorsed on documents admitted toregistration. —(l) On every document admitted to registration,other than a copy of a decree or order, or a copy sent to aregistering officer under section 89, there shall be endorsed fromtime to time the following particulars, namely: —

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(a) the signature and addition of every person admitting theexecution of the document, and, if such execution has beenadmitted by the representative, assign or agent of any person,the signature and addition of such representative, assign oragent; C

(b) the signature and addition of every person examined inDreference to such document under any of the provisions of thisAct; and

(c) any payment of money or delivery of goods made in thepresence of the registering officer in reference to the executionof the document, and any admission of receipt of consideration,Ein whole or in part, made in his presence in reference to suchexecution.

(2) If any person admitting the execution of a document refusesto endorse the same, the registering officer shall neverthelessregister it, but shall at the same time endorse a note of such refusal.FState Amendments Tamil Nadu: In section 58, —

(i) in sub-section (1), after item (a), the following item shall beinserted, namely:— “(aa) in the case of a document for sale ofproperty, the signature and addition of every person admittingthe claim under such document, and, if such claim has beenGadmitted by the representative, assign or agent of any person,the signature and addition of such representative, assign oragent;”;

(ii) in sub-section (2), after the expression “execution of adocument”, the expression “and in the case of a document forsale of property, any person admitting the execution of such H

document, or any person admitting the claim under thatdocument” shall be inserted. [Vide Tamil Nadu Act 28 of2000].”

31. Section 71 provides for reasons for refusal to register to berecorded. Section 72 provides for an appeal to the Registrar against anOrder of the Sub-Registrar refusing to register. Section 77 contemplatesa Suit against refusal by the Registrar within 30 days of his Order.

32. On an analysis of the provisions, we have no hesitation inrejecting the argument of the plaintiff that the non-production of theoriginal power of attorney by the second defendant, was fatal to a validregistration being effected. The understanding of the Courts regardingSection 18A is also erroneous. Section 18A was enacted only to ensurethat the copying process is hastened, as noticed from the Objects andReasons. The Trial Court was right when it held that Section 18A isconcerned only with the document which is presented for registration.The Trial Court clearly erred relying upon Section 18(A) to hold thatcertified copy however being produced of the power of attorney was inconformity with Section 18A and the High Court was equally in error tohold that Section 18A contemplated production of true copy of the powerof attorney.

33. Admittedly, the plaintiff was the owner in possession of theproperty. It cannot be disputed that plaintiff entered into an agreementwith 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 atRs.55,000/-. The defendants dispute the said version. According to them,the property was conveyed by the second defendant acting as the powerof attorney holder on behalf of the plaintiff in favour of the first defendantfor a total consideration of Rs.30,000/-. The execution of power ofattorney dated 28.01.1987, by the plaintiff in favour of the seconddefendant is not in dispute. It is worthwhile to notice the contents of thepower 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 Jawaharis R/o Village Dhangota, Tappa Dhatwal, Tehsil- Barsar who isowner in possession of land in Tika Barsar Tappa Panjgran TehsilBarsar comprising Khasra No. 361 measuring 2k-lOm.

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SUPREME COURT REPORTS

AI an owner in possession of land. I want to sell this land throughsale 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 Patialan, TappaDhatwal, Tehsil Barsar, District Hamirpur, as my Special Powerof Attorney and I authorize him that he may sell the above saidBland to whoever he wants to, and at whatever price, prepare saledeed and produce before Sub Registrar, give statement, receiverequisite amount. Thereafter above mentioned land may gotmutated in the name of Vendee, got attested. I will accept whateveris done by the attorney.

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Therefore, being conscious and knowing I write the Special Powerof Attorney for proof.

Albad

Sh. Gian Chand

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Sd/-’’

34. The said power of attorney is dated 28.01.1987. The seconddefendant has executed the sale deed in favour of the first defendant onthe strength of the power of attorney dated 28.01.1987 on 28.04.1987.The contention of the plaintiff, however, is that the original power ofEattorney was surrendered by the second defendant to the plaintiff on02.02.1987. It is the further case of the plaintiff that on 02.02.1987, hecancelled the power of attorney, which was within the knowledge of thefirst and the second Defendant. The further case of the plaintiff is basedon P1 dated 31.01.1987, which is described as an agreement. It isFprofitable to refer to the same:

“AGREEMENT

I, Yash Pal Singh son of Gian Singh, am a resident of village BalhPatialanTappa Dhatwal, Tehsil — Barsar, District — Hamirpurand I have been appointed vide registered Special Power ofAttorney dated 28/01/1987 in respect of sale of land bearingKhasara No. 361 situated in Tikka Barsar by Gian Chand son ofBhagwan Dass resident of village — Dhangota Tappa Dhatwal,Tehsil — Barsar. I on behalf of Gian Chand made a deal to sellthe aforesaid land measuring 2 Kanal 10 Marla to Amar Nath sonof Bhakshi Ram of Mehre for 55,000/-(Rupees Fifty Five G

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Thousand). Amar Nath did not have the total consideration amountto pay and he wanted a week’s time to arrange the money. Forthis reason, Gian Chand appointed me as a Special Power ofAttorney because Gian Chand had urgently to go to Kinnaur.Therefore, 1, now, would be able to sell this land only for 55,000/-(Rupees Fifty Five Thousand) otherwise I would be unable tosell. Therefore I write this agreement so that it can be used whenrequired.

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V+P.O. - Ghangot, 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 sellthe property for Rs.55,000/-, the second defendant, who has given thepower of attorney on 28.01.1987, was empowered to sell the propertyfor a price of Rs.55,000/- only. It is thereafter that on 02.02.1987, onaccount of the default of the first defendant to raise the amount ofRs.55,000/-, the second defendant allegedly surrendered the power ofattorney to the plaintiff. The power of attorney was cancelled.

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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 seconddefendant. It was read over to him in his presence and the seconddefendant accepted its correctness and signed it. It was told thatthe property will not be sold for less than rupees fifty-five thousand.He has executed the Special Power of Attorney in favour of thesecond defendant. Later, the purchaser (not clear) told him thathe would get the registry done after the 2[nd] or 7[th] of February.PW1 came to Mehre on 02.02.1987 but the purchaser (not clear), G

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Ait is stated, could not arrange for money. On the same day, thesecond defendant returned the power of attorney and the powerof attorney was cut and was cancelled on that date by writing theword ‘cancelled’ by PW1 on asking by the second defendant.The power of attorney was in his possession. Defendant No.2applied in court for obtaining the power of attorney and obtainedBa copy on the same day. PW1 did not know of the registry, whichwas made and it was made/executed by deceit and he did not getany money. He tried to contact the second defendant and he toldhim that he was in need of money and he had sold the land. Afterthat, he caused P3-Lawyer’s Legal Notice. Defendant No.1 wasCaware of the cancellation of the power of attorney and that theproperty was in his possession. In cross-examination, he hasadmitted to DX being scribed by his friend at his instance and itbeing duly signed by him. Where he had written Power of Attorney-cancelled, it is signed by him. He cancelled Power of Attorney atMehre. He admits that there itself, the Office of the Sub-RegistrarDwas situated. He did not cancel the power of attorney through theSub-Registrar Office. PW1 further admits that he did not sendany notice of cancellation. He remained on leave from 26.01.1987to 02.02.1987. He denied Defendant No.1 had given any moneyto his wife. There was no talk regarding money. He denies themEhaving received Rs.10,000/-. He had purchased a land forRs.15,000/- in 1982. He learnt about sale of the land on 02.06.1987.He did not send any notice on 02.06.1987. Defendant No.1 wasnot present when they decided that the land will not be sold forless than Rs.55,000/-. Even P1 was not scribed in the presence ofDefendant No.1. When the Power Attorney was cancelled theFDefendants and one Nikka Ram were present. He then says NikkaRam is a resident of Ghangot and he did not know him. He deniesthe suggestion that Nikka Ram is the brother of Ram Das, whoseson, he admits has married his sister. The property is banjar.

37. PW2 is one Kishori Lal, who has produced the summonedGrecord, of which, P-4 is a copy. He has stated that he knows the SecondDefendant and he can recognise his handwriting.

38. PW3 is one Ram Lal, working as a Deed Writer at Barsar.He has scribed the sale deed (P-3/A). The second defendant is hisnephew. At the time of scribing the document, he had with him copy ofHthe Special Power of Attorney.

39. PW4 is posted as the Sub-Registrar at Barsar since 1982. Heknew the second defendant, who is a Deed Writer. He had receivedExhibit-P4-application. He recognises the handwriting of the seconddefendant. He had written for the Office Report. P-5 was certified byhim. It is not necessary to enclose Special Power of Attorney with thesale deed but it is for their satisfaction that the power of attorney isgiven. 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 ofthe original power of attorney under Sections 34 and 35 of the RegistrationAct and the Manual. He has denied fabrication of the document incollusion with the second defendant. In his cross-examination, PW4 hasstated that on his asking, it was apprised that the second defendant isplaintiff’s class fellow. The original of P-4 was written by the seconddefendant. It was after due diligence/inquiry that he has ordered for therelease of copy of the document. He has further stated that seconddefendant has himself verified/certified and identified as special powerof attorney. Rs.20,000/- were given in his presence to him andRs.10,000/- were confirmed to have been received earlier at home.

40. PW-5 is one Vikram Kumar. He has stated that the seconddefendant has confirmed to have received Rs.30,000/-. The agreementwas made at his shop at 03.00 p.m. He and one Kartar Singh had signed.

41. PW6 is one Dev Raj. He claims to be witness to P-1, whichhas been signed by him. It was scribed/written by Nikka Ram and thesecond defendant was the person who got it written. It was read over tothe second defendant, who had thereafter signed. The land was authorisedto be sold for Rs.55,000/- and there was no authority to sell it for lesservalue. On 02.02.1987, it was expressed in his presence that the landcould not be sold at the price and you take back the power of attorney.Then, on two papers, the line was drawn. At that time, first defendantwas also there. In his cross-examination, he has deposed that earlier tohis examination, he had deposed two times. He denied having deposedas witness in many cases. He does not have any relation of marriage-death with the plaintiff nor was he from his village. He says on that day(it must be on 02.02.1987), he had come to Mehre for purchasing oil. P-1 was written at the place where all the Deed Writers sit at the Tehsil.He cannot give detail as to who had met him on 30.01.1987 and02.02.1987. The talk on 02.02.1987 was on the courtyard of the Tehsilwhere the Deed Writers sat. On 02.02.1987, he had gone there, for AB

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Aphotograph and for making certificate. Mehre is 6-7 kilometres fromGhangot and Buhdi is 5 kilometres away. He claims that while oil isavailable at Buhdi, there was no photographer available. The suggestionthat he has deposed as witness in every case, is denied.

42. PW-7, one Kartar Singh, the other witness, has deposed thatBthe second defendant has confirmed payment of Rs.30,000/-.

43. PW-8 is Nikka Ram. He admits that P-1 contained hissignatures and it was written by him at the instance of second defendant.It was signed by the second defendant and also by one Dev Raj, who isexamined as PW6. In cross-examination he has deposed that P-1 wasCwritten at Mehre and there are Deed Writers at Mehre. He had come toMehre in connection with his work. Dev Raj has also come there withhim. He also admitted that he has deposed as witness in two other cases.

44. DW1 is the first defendant/appellant. He had purchased theproperty vide PW3/A. The deed for sale was settled for Rs.30,000/-Dwith the plaintiff. At the time of agreement, Rs.10,000/- was paid to theplaintiff in the presence of Roshanlal and the IInd defendant. At the timeof registration, Rs.20,000/- was paid to the second defendant before theSub-Registrar. There was neither any agreement for the sale of land forRs.55,000/- nor had he agreed to such an amount. He was in possessionof the property. He states in cross-examination that original registeredEpower of attorney was seen at the time of registry. The power of attorneywould have been presented before the Sub-Registrar. The sale agreementwas 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. HeFdeposed that the sale was for Rs.30,000/- and that he and Bakshi Ramhad signed. Rs.10,000/- was earlier paid. But it was not paid in hispresence and Rs.20,000/- was given at the time of registration andRs.10,000/- had already been paid as advance.

46. DW3 has been examined to establish that the possession ofGthe property was with the first defendant. He has deposed on the saidlines. He has denied the possession of the plaintiff over the property. Healso, however, says that he does not know, who is in possession of thedisputed land (it is found from the translation that the last five words areundecipherable).

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47. DW4 is the second defendant. He deposed that he knew theplaintiff as student. He was appointed as the power of attorney holder,at time plaintiff was at Kinnaur. Plaintiff had posted a letter to him.Plaintiff received Rs.10,000/- from the first defendant at the shop ofRoshan Lal. For the purpose of the sale deed, he had scribed the saledeed for a total consideration of Rs.30,000/-. He admits to having receivedRs.20,000/- from the first defendant before the Sub-Registrar. He denies,however, having paid the balance amount to the plaintiff. He also deliveredpossession of the land to the first defendant in furtherance of the sale.He has sold the land with the consent of the plaintiff. In cross-examination,he, inter alia, stated that he received a registered letter from the plaintiff.He does not know whether the original of DX is with him. The originalpower of attorney was not available with him, when the sale wasregistered. It was misplaced. He claims that P2 was not the same powerof attorney, which was given to him but cancelled and cuttings thereon,is (not clear) in my hand. He denies having returned P2 (power ofattorney) back to the plaintiff and that he was left with no authority tosell the land. He denies having signed P1 agreement. He had enteredinto the oral agreement with the first defendant for the sale of land andhad received Rs.10,000/- but there was no written agreement. Theapplication for getting certified copy of the power of attorney was givenon the date when the sale was to be registered because the power ofattorney had been misplaced. He is a Deed Writer since 1980. At thetime when Rs.10,000/- was received, the first defendant and RoshanLal were present. It is wrong to say that on 16.08.1987, he had writtena letter. His license was cancelled by the Deputy Commissioner. Hestates that it is wrong that he was accused of creating a fake document.He has paid Rs.20,000/- but he did not remember as to when he paidRs.20,000/-. He has stated to have been paid the amount to the plaintiff’swife at her residence. The disputed land was fenced with wires andangle iron later by the first defendant. He has denied that he has not paidany 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/- bythe first defendant. He denies as wrong that he had got the sale registeredbefore the receipt of DX. He has further denied plaintiff being inpossession.

48. In our view, the High Court has overstepped its limits byreappreciating the evidence, a task which must be left to the FirstAppellate Court. It is true that the First Appellate Court did not fully AB

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Aconform to the requirements of Order XL1 Rule 31 of the CPC. Theproperty is banjar land. Quite clearly, the plaintiff wanted to sell the land.He has admittedly executed the Power of Attorney in favour of thesecond defendant. A perusal of the power of attorney, which is dated28.01.1987, would reveal the following:BPlaintiff has described himself as the owner of possession of theland. He wanted to sell the land through sale deed. Thereafter, it wasstated that he could not, due to service, effect this task. Therefore, heappointed the second defendant as the special power of attorney andauthorised him that he may sell the above land to whosoever he wantedto and at whatever price, prepare the sale deed, produce before theCSub-Registrar, receive requisite amount, thereafter, the above-mentionedmay be got mutated in the name of the vendee. The plaintiff has declaredthat he will accept, whatever is done by the attorney.

49. According to the first defendant, he entered into the agreementwith the plaintiff. He has paid Rs.10,000/- as advance. According to theDplaintiff also, there was an agreement with the first defendant to sell theland. The consideration, however, was Rs.55,000/-.

50. If, we now look into P-1, which is the alleged agreement,which was executed by the Power of Attorney, we may reconstruct thecase of the plaintiff. Plaintiff had to leave the place in keeping with theEexigencies of the service. There was an agreement to sell in favour ofthe first defendant. The property was agreed to be sold for Rs.55,000/-. First Defendant was unable to raise the amount. Therefore, theagreement dated 30.01.1987, was entered into and it refers to the powerof attorney dated 28.01.1987. The power of attorney is, undoubtedly,Fregistered. If the plaintiff’s case is believed, P-1 agreement is executedby the second defendant, which recites that he has been appointed asthe power of attorney. It is further recited that the second defendant, onbehalf of the plaintiff, has made a deal to sell the property for Rs.55,000/-. It is stated still further that the first defendant did not have the totalamount of consideration. He wanted a weeks’ time to arrange the money.GFor this reason, it is finally stated that the plaintiff had appointed him asthe power of attorney because the plaintiff had to urgently go to Kinnaur.Finally, it is stated in P-1 that therefore, he would now be able to sell theland only for Rs.55,000/-, otherwise, he would be unable to sell.

51. As far as Exhibit-P-1 is concerned, even PW1-the plaintiffHhas deposed that first defendant was not present when they decided that land will not be sold for less than Rs.55,000/-. He further has deposedthat P1 agreement was not scribed in the presence of the first defendant.In fact, even PW6 has not spoken about the presence of the firstdefendant at the time of making of Exhibit-P-1. What PW6 has spokenis about the presence of the first defendant also on 02.02.1987, whenthe power of attorney was purportedly cancelled.

52. Since, it is not disputed that the plaintiff did execute the powerof attorney, empowering the second defendant to sell the property and itis further not in dispute that the second defendant has executed the saledeed in favour of the first defendant, the only question which arises iswhether the power of attorney was cancelled before the execution ofthe sale deed on 28.04.1987. Undoubtedly, the further question would bewhether the cancellation was effected in a valid and legal manner andfinally, whether it was made known to not only to the second defendantbut also to the first defendant. Section 201 of the Contract Act, dealingwith termination of agency, declares that an agency can be terminatedby the principal revoking the authority of the agent. An exception to thepower of principal to revoke the agency is found in Section 202 of theContract Act, which provides that where an agent has himself an interestin the property which forms the subject of the agency, in the absence ofan express contract, the agency cannot be terminated to the prejudice ofthe agent’s interest. In such cases, the agency would be clearlyirrevocable. Section 207 of the Contract Act declares that revocationmay be express or may be implied in the conduct of that principal oragent, respectively. Section 208, which deals with the time whentermination of the agent’s agency takes effect, reads as follows:

“208. When termination of agent’s authority takes effect as to—agent, and as to third persons.The termination of the authorityof an agent does not, so far as regards the agent, take effectbefore it becomes known to him, or, so far as regards third persons,—before it becomes known to them. The termination of theauthority of an agent does not, so far as regards the agent, takeeffect before it becomes known to him, or, so far as regards thirdpersons, before it becomes known to them.””

53. We may notice the following view from Pollock and Mulla, TheIndian Contract and Specific Relief Acts, 14[th] Edition:

“Termination not to Affect Third Parties without Notice A

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ATermination becomes effective only when it comes to theknowledge of the affected party. Even if the agent is aware ofthe revocation, it does not affect third parties who in good faithenter into contract with the agent and in ignorance of therevocation; they are protected; such provision is in interest ofcommerce:[9] Where the principal has terminated the agency, orBthe agency has been terminated by happening of events, theprincipal continues to be bound by the agent’s act under thedoctrine of apparent authority, until the third parties have noticeof the termination.

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‘Revocation by the act of the principal takes effect as to theagent from the time when the revocation is made known tohim; and as to third persons when it is made known to them,and not before.’”

D54. It is no doubt true that the case of the plaintiff is that the seconddefendant was bereft of the authority to transfer the property as on 28.04.1987in view of the fact that the second defendant had surrendered the power ofattorney dated 28.01.1987 on 02.02.1987 and the plaintiff had produced thedocument. The second defendant has denied the case of surrender beforethe execution of sale deed. According to him, the power of attorney hadEbeen misplaced. It is, accordingly, he applied for the certified copy of thesame and went ahead with the execution and registration of the sale deed.According to the second defendant, when sale was effected, the power ofattorney was given back. The first defendant, in fact, has set up the casethat the original power of attorney was with the second defendant even atFthe time of the registration of the sale deed. We have already held that theproduction of original power of attorney before the Registering Authoritywas unnecessary for effecting registration of the sale deed. We take note ofthe discrepancy emerging from the testimony and the case set up by theparties.

G55. However, what we would think, may help to resolve thecontroversy is Exhibit-DX. This is a letter which was admittedly, got scribedand dispatched by the plaintiff to the second defendant. It is dated 02.06.1987,and reads as follows:

“Dear Yashpal Ji Ex-Dx

HNamaskar

Hoping you are well and the news is that I came here 3-4 days backbut could not come to you I was here regarding the land. I have gotregistry done and I am in dire need of money. I had spoken to youregarding land at Mehre and also gave you power of Attorney. Youplease inform at the earliest if you can talk to anyone or have talkedto anyone then kindly send the money because I am in dire need ofmoney.

I am sending this by registered post because it is possible that Youmay not receive the letter in the Court.

Thank You

You can respond on the address below:

(Dian Chand Dhiman)

Junior Engineer, IPH

Nagul Ski, District – Kinnaur”

56. PW1 has admitted, having sent the aforesaid letter. The seconddefendant has sent a letter on 16.06.1987 and it reads as follows:

“Barsar

Distt. Hamirpur

16-6-1987

“Dear Babu Gian Jee,

Namaskar,

I am quite well. I wish your well-being. Further, it is stated in briefthat your registered AD letter has been received. And you mayhave come to know that I as power of attorney have made thesale deed of your land. You might have been astonished to knowregarding this, but there is no need to worry in this regard. I havedone this job in faith of friendship and for betterment. In this regardI had talked at the shop of Kanshi Ram-Sita Ram and talked toyour brother-in-law, Shopkeeper at Sohari. I could not come to A

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Ayou with the reason because my brother was ill at Nangal andlater on my wife fell ill. And I could not send full payment to youtill today due to the reason that I had spent some amount from thismoney. Therefore, I thought that until the full amount is not paidthen it would not be fair. Besides you meet me, I could not meetthen get the information from the shop of Kanshi Ram at BusBStand Hamirpur.

Rest all is fine.

Yours

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Document Writer,

Barsar, Distt. Hamirpur,

H.P.”

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57. It is apparent that whatever may be the state of the oral evidenceand the difficulty in arriving at the truth on an appreciation of the same, thedocuments which we have adverted to, unerringly points to the followingfacts. Contrary to the case of the plaintiff that the power of attorney stoodcancelled on 02.02.1987, after it was surrendered to him on that day, it is thatEthe plaintiff writes to the second defendant about having spoken to the seconddefendant regarding the land in question at Mehre and also gave him thepower of attorney. There is no mention about the power of attorney havingbeen surrendered on 02.02.1987 or about the so-called cancellation of thesame. The further stand of the plaintiff was by way of asking the secondFdefendant to inform the plaintiff at the earliest, if he could talk to anyone orhad talked to anyone. The meaning of the of latter portion is made clearwhen he says that the money may be sent to him because he is in dire needof money. Therefore, it means that the case of the plaintiff that he hadcancelled the power of attorney by writing the word ‘cancelled’ on 02.02.1987,upon it being surrendered by the second defendant, cannot be accepted.G

58. The letter sent by the second defendant to the plaintiff on 16.06.1987indicates that the second defendant tells the plaintiff that the plaintiff mayhave come to know that as power of attorney he had made the sale deed ofthe property. No doubt, he says that the plaintiff might have been ‘astonishedto know’ regarding the sale. The second defendant further writes to theH

plaintiff that he has done this job in faith of friendship and for betterment. Headmits 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 moneypaid. This correspondence between the plaintiff and the second defendant,in our view, would be fatal to the plaintiff’s case that the plaintiff had cancelledthe power of attorney.

59. While on cancellation, we may notice that the plaintiff, in hisdeposition, has stated that he had cancelled the power of attorney at Mehreand there itself was the Office of the Sub-Registrar located. He has admittedthat he did not get the power of attorney cancelled at the Sub-RegistrarOffice. Even, more importantly, he has admitted to not having sent any noticeof cancellation. The only evidence consists of a statement of PW1 that thefirst 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 ontwo papers a line was drawn to signify the cancellation. The Trial Court andalso the appellate court have relied upon the DX sent by the plaintiff himself,which appears to undermine the evidence about the cancellation on02.02.1987. The High Court should not have, at any rate, disturbed the saidfinding in a Second Appeal. In such circumstances, the conclusion is inevitablethat the case of the plaintiff that power of attorney stood cancelled, in themanner done on 02.02.1987, cannot be accepted. At any rate, we find itdifficult to accept the case of the plaintiff that the first defendant, who is thethird party, could be attributed any knowledge of the surrender or the allegedcancellation on 02.02.1987, even assuming for a moment that we could lendcredence to the plaintiff’s version in this regard that the second defendantsurrendered the power of attorney. We need not pronounce on the questionwhether the power of attorney being registered, it could be cancelled only bya registered power of attorney. This we say as even in the absence of aregistered cancellation of the power of attorney, there must be cancellationand it must further be brought to the notice of the third party at any rate asalready noticed. Such a cancellation is not made out.

60. In this regard it is highly significant to notice the case actuallyset up in the plaint. In the plaint what is averred by the plaintiff is thatwhen the negotiations fell through the second defendant surrenderedthe original power of attorney to the plaintiff which is still in possessionof the plaintiff and the plaintiff told the defendant no. 1 that the samestand cancelled and he shall not execute any sale deed on behalf of theplaintiff.

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[It is not even clear whether it should be understood as the plaintifftold the second defendant that same stand cancelled and he shall notexecute any sale deed on behalf of the plaintiff.]

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61. It is further averred that “even defendant no. 2 was notcompetent to transfer the possession, rather the special power of attorneyBdeemed to cancelled in the eyes of law since it was handed over to theplaintiff”. Therefore, the case set up by the plaintiff was that on thesecond defendant handing over the power of attorney to the plaintiff, thespecial power of attorney was deemed to have been cancelled in theeye of law. There is no whisper in the plaint about the plaintiff havingcancelled it in the manner in which he has deposed to in the evidence onC02.02.1987.

62. As far as P-1 is concerned, it is dated 30.01.1987. The Trial Courthas entered the finding that the P-1 stood proved and that the second defendantis bound by it. The Appellate Court has not disturbed the finding. In otherwords, proceeding on the basis that the second defendant had a duty to notDsell the property below Rs.55,000/-, in terms of P-1, the breach of duty to notsell below Rs.55,000/-, when the second defendant sold the property forRs.30,000/-, cannot invalidate the sale or render it null and void. A perusal ofthe power of attorney will make it clear that any restriction on the price isconspicuous by its absence in the power of attorney.

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63. The upshot of the above discussion is that the impugned Judgmentcannot be sustained. The appeal is therefore allowed and the impugnedJudgment will stand set aside. Parties to bear their respective costs.

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Divya Pandey and Amarendra Kumar(Assisted by : Pragya Samal, LCRA)

Appeal allowed.

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