Gujarat High Court
Naranbhai Jadavbhai Lalakiya vs Mohanbhai Ambabhai Patel Since Decd. ... on 10 August, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/CA/8169/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR JOINING PARTY) NO. 8169 of 2015
In SECOND APPEAL NO. 183 of 2014
With
CIVIL APPLICATION NO. 8249 of 2015
In
SECOND APPEAL NO. 183 of 2014
==========================================================
NARANBHAI JADAVBHAI LALAKIYA....Applicant(s)
Versus
MOHANBHAI AMBABHAI PATEL SINCE DECD. THRO HIS HEIRS &
7....Respondent(s)
==========================================================
Appearance:
MR HRIDAY BUCH, ADVOCATE for the Applicant(s) No. 1
MR. PRANAV TRIVEDI, AGP for Respondent Nos. 3-5
MR CHETAN K PANDYA, ADVOCATE for the Respondent(s) No. 6 - 8
==========================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 10/08/2015
COMMON ORAL ORDER
1. These Civil Applications arise in pending Second Appeal No. 183 of 2014.
Brief facts are as under.
2. Applicants are the Original Plaintiffs of Regular Civil Suit No. 665 of 1994. The suit pertains to the land bearing Survey No.11 paiki Page 1 of 14 HC-NIC Page 1 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER admeasuring 8 acres of village Vavdi, Taluka and District Rajkot. In the suit, the Plaintiffs have prayed for a declaration that the registered sale deed dated 25.2.1965 of the suit land in favour of the Defendants be declared as illegal and fraudulent and that the Defendants have no right, title and interest in such land. They also prayed for permanent injunction against the Defendants dispossessing the Plaintiffs of the suit land. Pending the suit, the Plaintiffs executed an irrevocable Power of Attorney ("PoA") dated 25.2.1995 in favour of one Naranbhai Jadavbhai Lalakiya. Under such PoA the Plaintiffs authorised the attorney to prosecute all proceedings and litigations with respect to the suit land for and on behalf of the Plaintiffs. Reference to detailed terms of the PoA would be made later on.
3. By judgment and decree dated 19.11.2011, the trial court dismissed the suit. The Appeal filed by the PoA for and on behalf of the Plaintiffs also came to be dismissed by judgment dated 31.5.2014. The Plaintiffs through their PoA filed the present Second Appeal which came to be 'Admitted' on 25.3.2015. On the same day, the learned Single Judge granted interim relief directing the parties to maintain status quo till final hearing of the Appeal. Following observations were made:
"3 I have heard learned Advocates appearing for Page 2 of 14 HC-NIC Page 2 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER the respective parties at length. I have also perused the judgments of the Courts below as well as the documentary evidence placed before the court and the depositions of the witnesses.
4 The brief facts arise from the record that the appellants received a notice under Section 135(d) of the Bombay Land Revenue Code in the year 1991 with regard to the disputed property since the respondents have requested the authority to mutate their names in the revenue record pursuant to a sale deed executed by the father of applicants/appellants as well as one of the appellants. The request made by the respondent was opposed by the appellants. However, the Mamlatdar mutated the names of respondents. The said decision was challenged by the present applicants/appellants by way of filing an appeal before the concerned Deputy Collector. The Deputy Collector allowed the appeal preferred by the present applicants/appellants and entered their names. This order in favour of applicants has become final.
5 Having come to know, the appellants/plaintiffs filed a suit, being Civil Suit No 665 of 1994, before the learned Senior Civil Judge at Rajkot and prayed to pass a decree to declare that sale deed dated 25.2.1965 is not a valid one. It was further prayed that the possession of the appellants shall not be disturbed. The said suit was dismissed. During the pendency of the suit, the parties were directed to maintain status quo. The said decision came to be challenged by the original plaintiffs by way of filing an appeal, being Regular Civil Appeal No.100 of 2011, before the learned Additional District Judge, Rajkot, which came to dismissed.
6 I have also considered that the sale deed in question is of 25.2.1965, which is registered on 25.1.1966 i.e. after a period of 11 months. However, neither the defendants nor the office of the Registrar has produced the original copy of the sale deed Page 3 of 14 HC-NIC Page 3 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER before the trial court. I have also considered the fact that the appellants have participated in the proceedings issued under the provisions of the Urban Land Ceiling Act, 1977. I have also considered the fact that the respondents came for mutating their names in revenue record after 26 years from the execution of the disputed sale deed, and after seven years from the date of death of their father who expired in 1984. I have also gone through the sale deed of 1965, which does not find any thumb impression or signatures of the executors. Considering this aspect, I am of the opinion that the present application requires consideration. Hence, the following order is passed.
"Application is accepted. The parties are hereby directed to maintain status quo till the final hearing of the appeal. Rule made absolute accordingly"
7 Request made by Mr. Kavina to permit the respondents to develop the property/transfer the property subject to decision of Appeal is hereby rejected."
When this Appeal was thus pending before the High Court along with the interim relief granted, the Plaintiffs moved Civil Application No. 8249 of 2015 and sought permission to withdraw the Second Appeal on the ground that the settlement had been arrived at between the Plaintiffs and the Defendants. They requested that the judgment and decree challenging the Second Appeal be confirmed. Along with such application they produced a withdrawal purshis executed by them which according to them was arrived through amicable settlement between the parties. Page 4 of 14 HC-NIC Page 4 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER
4. The PoA however desired to oppose this prayer for which he filed Civil Application No. 8169 of 2015 and prayed that he may be permitted to be impleaded as Appellant in the Second Appeal or may be shown as a sole Appellant. In such application he placed heavy reliance on the said PoA. He contended that the Plaintiffs have not questioned the validity of such PoA nor the same has been declared invalid or illegal by any competent authority or court. He contended that giving of power was coupled with the Plaintiffs' accepting full consideration. Such PoA could not have been cancelled. He further averred that on the basis of such PoA he has prosecuted the proceedings before various judicial fora such as the civil courts, before the revenue authorities and even police authorities.
5. Appearing on behalf of the PoA, learned Counsel Shri Anshin Desai raised following contentions:
(i) That the PoA is coupled with consideration. The same cannot be cancelled or revoked. In any case before filing application for withdrawal of the Second Appeal no such declaration had been obtained.
(iii) The Plaintiffs have not questioned either the execution of PoA or having received full consideration under such document.
They have also not questioned the validity of such document Page 5 of 14 HC-NIC Page 5 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER before any court of law. Until such PoA is declared as invalid by any judicial forum the Plaintiffs have no independent right to withdraw the Second Appeal.
(iv) Counsel drew my attention to the documents on record to suggest that all along in the civil suit the Plaintiffs had averred that the sale deed of 1965 was bogus and invalid. They now cannot turn around and contend that the land was already sold under such document and the sale deed is valid.
6. Counsel relied on following decisions:
(i) In case of Sneh Gupta v. Devi Sarup and ors. reported in (2009) 6 SCC 194 in which it was observed that a suit cannot be withdrawn by a party after it acquires a privilege.
(ii) In case of Seth Loon Karan Sethiya v. Ivan E. John and ors. reported in AIR 1969 SC 73, where the owner of a property had assigned his rights in favour of the Bank for consideration. It was held that under such document the Bank could execute the decree.
(iii) In case of Syed Abdul Khader v. Rami Reddy and ors.
reported in (1079) 2 SCC 601, in which it was observed that though ordinarily a PoA would be construed strictly, the court would nevertheless for determining the nature of the authority given under such deed refer to its terms and purpose for granting Page 6 of 14 HC-NIC Page 6 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER the power.
(iv) In case of Her Highness Maharani Shantadevi v. Savjibhai H. Patel and Ors. reported in 1998 (2) G.L.H. 70 in which Division Bench of this Court held that when a PoA is coupled with interest it cannot be terminated even by death of the person giving the power. He pointed out that the decision of this court in the said case was carried in appeal before the Supreme Court and the Supreme Court in case of Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel & Ors. reported in 2001 (2) G.L.H. 140 reversed the judgment but on other grounds and did not upset the decision of the High Court on this issue.
7. On the other hand, Counsel Shri Sunit Shah for the Original Plaintiffs raised the following contentions:
(i) That the civil application of the PoA is not maintainable.
His prayer for being impleaded as a party or being shown as a sole Appellant cannot be granted.
(ii) The attorney was the brother of the Advocate who was representing the Plaintiffs in the said suit. The agreement is therefore champertous and not enforceable in law. The Plaintiffs have also questioned having received the consideration at the time of execution of the PoA.
Page 7 of 14 HC-NIC Page 7 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER
(iii) The Plaintiffs in any case had a right to compromise the disputes between the defendants which they have done in the present case and that therefore their request of withdrawal of the Second Appeal is required to be granted.
8. Counsel relied on following decisions:
(i) One in case of Deb Ratan Biswas & Ors. v. Most. Anand Moyi Devi & Ors. reported in 2011 SAR (Civil) 443 in which the Supreme Court observed that the principal is not bound to consult his attorney before signing a compromise petition. In the said case however the focus was not on whether the PoA was revocable or irrevocable. The ratio laid down in the said decision shall have to be understood in this background.
(ii) In case of Suraj Lamp And Industries Private Limited v.
State of Haryana and anr. reported in (2012) 1 SCC 656 in which the Supreme Court held that certain transactions of transfer of immovable properties would not be valid if effected through PoA.
9. Having thus heard learned Counsels for the parties and having perused the documents on record, the short question is in face of the execution of the PoA in favour of said Shri Naranbhai Jadavbhai Lalakiya, was it open for the Plaintiffs to act independently, compromise disputes between the Defendants and Page 8 of 14 HC-NIC Page 8 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER seek withdrawal of Second Appeal. Answer to this question must be had from the terms of the PoA itself. In this context, we may notice certain terms and conditions of the PoA at length. Under such document, which was admittedly executed by the Plaintiffs, the attorney was given right to represent the Plaintiffs before different fora such as courts, tribunals and revenue authorities. He was authorised to file proceedings before such different fora and to defend the Plaintiffs if need so arises. He was authorised to engage an Advocate, file affidavits, execute documents, give evidence, compromise disputes and even to withdraw the suits. He was also authorised to execute agreement to sale and sale deeds with respect to such lands. He had authority to represent the Plaintiffs before the Urban Land Ceiling authorities, he was authorised to lease the suit land and accept the lease rent.
10.Paragraph 8 of the PoA record that he was in possession of the land which he could cultivate and appropriate the proceeds thereof. Under paragraph 9 it was his duty to pay government taxes and land revenues and other government taxes. Paragraph 10 recorded that the current market value of the land was Rs.1,20,000/- which entire amount the Plaintiffs had received from the attorney. It was therefore recorded that if the attorney sold, transferred, leased or gifted the land, the Plaintiffs would have no further claim to Page 9 of 14 HC-NIC Page 9 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER receive any consideration. In paragraph 11 it was recorded that the Plaintiffs had become owner - possessor of the suit land. Paragraph 12 in unequivocal terms declared that the PoA was irrevocable and that the Plaintiffs would not revoke such power in future. Paragraph 14 recorded that the document contains stamp of Rs.9,600/-.
11.In clear therms thus the PoA was meant to be irrevocable and that it was coupled with consideration. As noted earlier even the Plaintiffs did not dispute either the execution or the validity of such document till the present proceedings arose in these Civil Applications. Before the trial court the Plaintiffs as well as the attorney gave their depositions. Their depositions were in tune with each other. The Plaintiffs' witnesses did not dispute the contents of the PoA or the stand that the sale deed of the year 1965 was according to the Plaintiffs and the attorney illegal and fraudulent. First Appeal was filed by the attorney for and on behalf of the Plaintiffs so was the Second Appeal. It appears that there were other parallel proceedings filed before the revenue authorities and even before the police authorities where it was the PoA who had appeared for and on behalf of the Plaintiffs.
12. The fact that the Plaintiffs in absence of any such PoA were always entitled to compromise the disputes between the Defendants, and in Page 10 of 14 HC-NIC Page 10 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER terms of any such compromise, seek withdrawal of the Second Appeal, and consequential confirmation of the judgment and decree of the court below is undeniable. However, when the Plaintiffs had given the irrevocable PoA coupled with consideration, in my opinion they had no independent right thereafter to compromise the disputes with the Defendants. As noted the power was focused with respect to the suit lands. It was coupled with consideration and it authorised the attorney to take all steps needed to prosecute the suit and all actions needed in connection with the suit lands.
13. Section 201 of the Contract Act pertains to termination of agency and provides inter alia that an agency can be terminated by the principal revoking his authority. Section 202 of the Contract Act however provides that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is in this context it is held that if a PoA is irrevocable and is coupled with consideration, it cannot be revoked. It was in this context that the Division Bench of this Court in case of Her Highness Maharani Shantadevi v. Savjibhai H. Patel and ors. (supra) held that the principal cannot revoke the authority given to his agent after the authority has been Page 11 of 14 HC-NIC Page 11 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER partly exercised, so far as regards such action / obligation as arise from acts already done. Likewise in case of Seth Loon Karan Sethiya v. Ivan E. John and ors. (supra) the Supreme Court held that the PoA was coupled with the interest and that therefore the same was not revocable. It was further held that the transaction entered into under the document amounts to an equitable assignment of the decree in favour of the Bank to the extent necessary to discharge appellant's debts to the Bank and that therefore it was open for the Bank to execute the decree in its own right.
14.The decision cited by Shri Sunit Shah in case of Dev Ratan Biswas & Ors. v. Most. Anand Moyi Devi & Ors. as noted earlier was not rendered in the background of the revocable PoA. It was therefore held that execution of general PoA would not divest the principal of his rights to consult his attorney before signing a compromise petition. Likewise in case of Suraj Lamp and Industries Private Limited v. State of Haryana and anr. (supra) the issue was entirely different. It was held that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance duly stamped and registered as required by law, no right, title or interest in an immovable property can be transferred. The court Page 12 of 14 HC-NIC Page 12 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER was commenting on the trend of transferring title in immovable properties through PoA and wills without payment of full stamp duties. The question of cancellation of PoA by the principal which was coupled with consideration was not an issue.
15.In view of such discussion, I am of the opinion that it is not open for the Plaintiffs to seek withdrawal of Second Appeal on the ground that the disputes have resolved between the Plaintiffs and the Defendants. Any such permission would amount to allowing the Plaintiffs to withdraw the PoA which as noted is irrevocable. If the Plaintiffs were of the opinion that such PoA was not valid it was for them to take out appropriate legal proceedings. Having not raised any dispute about the legality and validity or acceptance of consideration under the PoA right from the date of its execution in the year 1995, they cannot simply wish away the document by raising a stand nearly 30 years later contending that they had in fact not received any consideration or that in any case the PoA was not valid in law.
16. Having said that I cannot accept the request of the Applicant to be either impleaded in his own independent capacity or to be shown as a sole Appellant. It would amount to recognizing his locus in the litigation in his individual capacity. In my opinion he derives his right and interest only through the Plaintiffs. His interest cannot Page 13 of 14 HC-NIC Page 13 of 14 Created On Fri Aug 14 11:41:34 IST 2015 C/CA/8169/2015 ORDER travel beyond those of the Plaintiffs. The Second Appeal can succeed only if the Plaintiffs had any right and his attorney. The attorney can prosecute the cause on behalf of the Plaintiffs but only to the extent the Plaintiffs themselves could. Nothing more, nothing less. His prayer in the present Civil Applications in the present form cannot be granted. However, as noted earlier, since I am not inclined to allow the Plaintiffs to withdraw the Second Appeal, this issue would become one of academic interest. In the result, both the Civil Applications are dismissed.
(AKIL KURESHI, J.) JNW Page 14 of 14 HC-NIC Page 14 of 14 Created On Fri Aug 14 11:41:34 IST 2015