Gujarat High Court
Harish Ambalal Choksi vs Narendra Ambalal Choksi on 8 December, 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 86 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/APPEAL FROM ORDER NO. 86 of 2022
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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HARISH AMBALAL CHOKSI
Versus
NARENDRA AMBALAL CHOKSI
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Appearance:
MR MG NAGARKAR(496) for the Appellant(s) No. 1,3,4,5
for the Respondent(s) No. 4.1,4.2,4.3,4.4
DECEASED LITIGANT for the Respondent(s) No. 4
MR HASIT DAVE(1321) for the Respondent(s) No. 1,2,3,5,6
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 08/12/2022
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the order dated 10.01.2022 passed by the learned 2 nd Additional Senior Civil Judge, Vadodara (hereinafter be referred to as "the Trial Court") below Exhibit 5 in Special Civil Suit No. 54 of 2019, the appellants have preferred the present appeal under Order XLIII Rule 1 read with Section 104 of the Civil Procedure Code, 1908.
2. Brief facts of the present case are in nutshell as under:-
2.1 The original plaintiffs filed present suit being Special Civil Suit No.54 of 2019 for declaration, cancellation of registered sale deed bearing No. 2863 dated 23.03.2018 and permanent injunction against original defendants before Civil Court (Senior Division) at Vadodara and prayed for various reliefs in suit along with injunction application below Exhibit 5 under order 39 Rule-1 and 2 read with Section 151 of Civil Procedure Code.Page 2 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022 2.2 It is the case of original plaintiffs that plaintiffs No.1 to 3 are real brothers and plaintiffs No.4 to 6 are the respective wives of original plaintiffs No.1 to 3, original defendant No.1 is the real brother of original plaintiffs No.1 to 3, original defendant No.2 is the wife of original defendant No.1, original defendants No.3 and 4 are the sons of original defendants No.1 and 2 and original defendant No.5 is the wife of original defendant No.3. 2.3 It is the case of the original plaintiffs that they purchased suit property on 19.09.1991 by way of registered sale deed bearing No.13813 in the joint names of original plaintiffs No.1 to 3 and original defendant No.1 and similarly in the same subject property of sub-plot No.1, 1% floor of the said suit property was purchased by original plaintiffs No.4 to 6 and original defendant No.2 by way of registered sale deed bearing No.13805 dated 19.09.1991. Thus, by virtue of above two registered sale deeds, original plaintiffs along with original defendant No.1 and 2 became joint owners of the sub-plot No.1 being suit property and the said fact came to be recorded in the city survey record accordingly.
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C/AO/86/2022 JUDGMENT DATED: 08/12/2022 2.4 That original plaintiffs decided to construct commercial four storied Jeweller's Showroom and office on the suit property to be known as "Narayan Jewellers" for the expansion of their jewellery business. That for the said purpose and for the development of the suit property for showroom and office purpose, they constructed new showroom and offices. That the plaintiffs along with defendant No.2 have executed Power of Attorney on 06.04.1995 in favour of defendant No.1 and the same was executed before Executive Magistrate. That till date the said power of attorney dated 06.04.1995 has not been revoked and/or cancelled by the plaintiffs and defendant No.2, the same is still in force and the sale deed dated 23.03.2018 registered bearing No. 2863 and the said suit cannot be proceeded with against original defendant No.1 and 3 and therefore, the impugned order below Exhibit 5 passed by learned Additional Senior Civil Judge, Vadodara requires to be quashed and set aside. That by virtue of said power of attorney, defendant No.1 cannot execute registered sale deed in favour of defendant No.3 and, therefore, the cause of action arose for the plaintiffs to Page 4 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 challenge the same.
2.5 It is contended that in or around November 2013, the said showroom known as "Narayan Jewellers" constructed on the land of sub-plot No.1 for the jewellery business came to be closed down and since 2014 till date, the said showroom is in closed condition.
2.6 It is the case of original plaintiffs that plaintiff No.5 received a notice dated 02.01.2019 issued by City Survey Office under Section 135(D) of the Bombay Land Revenue Code inviting objection for the suit property in respect of recording of change of ownership of the suit property in the City Survey Record. That upon receipt of such notice from the City Survey Office, original plaintiffs inquired and found that original defendant No.1 had executed registered sale deed in favour of defendant No.3 in respect of suit property and thereafter, plaintiffs obtained copy of said sale deed executed from the office of concerned office and thereafter, plaintiffs realized and found that defendant No.1 had executed so called sale deed in favour of his son defendant Page 5 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 No.3 on the strength of said power of attorney dated 06.04.1995 and defendant No.1 had illegally sold and conveyed suit property to defendant No.3 by exceeding the power given by the plaintiffs in favour of defendant No.1. Hence, the plaintiffs filed the said suit along with application at Exhibit 5 seeking the reliefs as mentioned hereinabove.
2.7 It is submitted that the Trial Court after hearing learned advocates appearing for both the sides, allowed injunction application below Exhibit 5 vide order dated 10.01.2022 and thereby, directed defendant No.3 that till disposal of the main suit, defendant No.3 should not deal with or transact with any one in any manner and thus, allow injunction application in favour of original plaintiffs.
3. Feeling aggrieved and dissatisfied by the impugned order dated 10.01.2022 passed by the Trial Court below Exhibit 5 in Special Civil Suit No. 54 of 2019, the appellants have preferred present appeal.
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4. Heard Mr.Anshin Desai, learned senior counsel for Mr.M. G. Nagarkar, learned counsel appearing for the appellants and Mr.Mihir Thakore, learned senior counsel for Mr.Hasit Dave, learned counsel appearing for the respondents.
5. Mr.Desai, learned senior counsel for Mr.Nagarkar, learned counsel appearing for the appellants has submitted the same facts which are narrated in the memo of appeal. He has submitted that the suit is filed for declaration and cancellation of registered sale deed dated 23.03.2018 registered with the office of Sub Registrar, Vadodara. He has submitted that the suit in question is based on power of attorney dated 05.04.1995 executed by the original plaintiffs in favour of original defendant no.1, however, till date, the same is neither challenged nor revoked. Mr.Desai, learned senior counsel has further submitted that the relief sought in the application at Exhibit 5 is the same relief as sought in the plaint. Learned senior counsel has submitted that the respondents herein have no prima-facie case as there is registered document executed between the parties. He has submitted that it cannot be said that non-grant of relief Page 7 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 cannot be said to be compensated in terms of money and no condition for irreparable loss is pointed out by the respondents herein to obtain the injunction as prayed for. He has submitted that the respondents herein are not able to establish any of the above considerations to grant injunction. He has submitted that the impugned order has caused irreparable loss to the appellant
- Harish Choksi as he is unable to utilise property which he purchased by registered sale deed. He has submitted that the Trial Court has erred in granting interim injunction restraining appellants from dealing with the property. According to learned senior counsel, in the present case, the disputed facts are yet to be adjudicated in a trial and therefore, under such circumstances interim relief ought not to have been granted. It is submitted that the power of attorney dated 05.04.1995 executed in favour of appellant No. 1 i.e Harish Ambalal Choksi' is never challenged and, therefore, no presumption against such power of attorney can be drawn under the Evidence Act. Mr.Desai, learned senior counsel has submitted that the clause No. 5 of the power of attorney dated 05.04.1995 suggests that the powers to undertake the procedure for sale in reference to the Income Tax Page 8 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 Authority and clause No. 6 suggests that the appellant is empowered to fully utilize the power. According to Mr.Desai, learned senior counsel, the power of attorney suggests that all acts and agents being appellant No.1 i.e. Harish Ambalal Choksi is empowered to fully utilize the power of attorney especially when there is no challenge to the same and no declaration sought to be declared the same as null and void. He has submitted that the business in the name and style of "Narayan Jewellers Pvt Ltd" closed in the year 2013 pursuant to the disputes between the parties and the excessive expenses on the part of three brothers and their family members and after closer of business, a settlement has been arrived at between the parties and as per the settlement, Harish Ambalal Choksi was entitled to Rs.16.50 Crore from other three brothers. He has submitted that to prove their case, the appellants have produced the entire accounts in the suit proceedings by way of additional affidavit at Exhibit 49 along with the list of documents at exhibit
50. He has submitted that Harishbhai Choksi is in possession of the property, which is continued till date and he has acquired right in the property by virtue of settlement with three brothers Page 9 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 and other three brothers are enjoying other properties, however, the property which is given to Harishbhai Choksi is subject matter. He has submitted that one Dhananjay Choksi purchased the subject property for consideration of Rs.1.60 Crore and a sale deed dated 23.03.2018 executed by Harishbhai Choksi on the basis of the power of attorney dated 05.04.1995 and said Dhananjay Choksi is a bona fide purchaser of the property in question. Mr.Desai, learned senior counsel has submitted that since the registered sale executed in favour of Dhananjay Choksi is not void, therefore, no cause of action to restrain Dhananjay Choksi from enjoying the the suit property and in any case, the sale in favour of Dhananjay Choksi cannot be said to be null and void.
5.1 Mr.Desai, learned senior counsel has submitted that the appellants being under threat of illegally dispossessed from the property in question which is also subject matter of this litigation, who preferred Regular Civil Suit No.36 of 2019 before the 10 th Additional Chief Judicial Magistrate, First Class, Vadodara seeking mandatory injunction against the respondents herein and Page 10 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 learned 10th Additional Chief Judicial Magistrate vide order dated 04.04.2022 passed below application at Exhibit 5 restraining the respondents and their agents from entering into the premises till final disposal of Regular Civil Suit No.36 of 2019. According to Mr.Desai, the respondents herein by one or the other means are interested in seeing that the appellants are unable to utilize the property and they want to restrain the appellants from enjoying the property in any manner. According to Mr.Desai, the respondents are creating hurdles to the appellants in utilizing the property by restraining the electricity company in granting the electricity connection. He has submitted that there is no any direction of any Courts or Authority to restrain the appellants from using the subject property. He has submitted that the appellants had approached the Madhya Gujarat Vij Company by making application along with the impugned order to the grant of electricity connection on the property in question to them, however, the respondents have filed misleading application objecting to the grant of electricity connection to the appellants in the property and, therefore, the appellants have not given electricity connection. According to Mr.Desai, learned senior Page 11 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 counsel, the appellants preferred Special Civil Application No.21075 of 2022 before this Court seeking directions against the electricity company to grant of electricity connection to the appellants and this Court vide order dated 19.10.2022 issued notice in the said petition and it was kept open for the electricity company to consider the application made by the appellants in the month of February 2022. According to Mr.Desai, learned senior counsel, the respondents are intentionally and interestingly harassing the appellants by one or the other means. He has submitted that all the parties before this Court are the legal heirs of late Shri Ambalal Chaturbhai Choksi, who started the business in the name and style of M/s.Choksi Ambalal Chaturbhai and deceased Ambalal had four sons namely Narendra Chokshi - respondent no.1, Ramakanth Choksi, respondent no.2, Ashwin Choksi, respondent no.3 and Harish Choksi, appellant no.1 and after the death of Ambalal, the business was handled by the aforesaid four brothers. He has submitted that all the four brothers have purchased different properties in their joint names and/or in the names of the family members, the details of which are as under:- Page 12 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022
(i) Shop admeasuring 171 square feet located at Choksi Bazar (Madvi), Vadodara, which came to be purchased on 08.08.1969 vide registered sale deed No.3785.
(ii) Shop No.15, Avanti Chamber, R.C. Dutt Road, Vadodarar, which came to be purchased on 13.10.1988 vide registered sale deed No.12585.
(iii) Shop No.16, Avanti Chamber, R.C. Dutt Road, Vadodarar, which came to be purchased on 13.10.1988 vide registered sale deed No.12584.
(iv) Commercial Building i.e. Narayan Plaza admeasuring 2000 square meter at Jani Sheri, Vadodara (present property was purchased in six part out of which first part was purchased on 25.06.1990 vide registered sale deed no.7718 and rest five parts were purchased on 04.08.1999 vide registered sale deed nos.4183, 4184, 4185, 4186, 4187.
5.2 Mr.Desai, learned senior counsel appearing for the appellants has submitted that all owners of the Commercial Building located at R. C. Dutt Road, Alkapuri in Navrang Cooperative Housing Society, Sub Plot No.1 admeasuring 279.11 square meter executed power of attorney in the name of Harishbhai Choksi in the year 1995. According to Mr.Desai, learned senior counsel, the business i.e. Narayan Jewellers was converted into a Private Limited Company in the name and style of "Narayan Jewellers Private Limited" in the year 1999 wherein all four brothers were the directors having equal share and for Page 13 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 accounting purpose and other business purpose, the said property was leased to Narayan Jewellers Private Limited by all four brothers and their wives. He has submitted that between 2007 and 2011, Harishbhai Choksi was suffering from cancer and he was taking treatment for a long period. It is submitted by Mr.Desai, learned senior counsel that in the year 2011, four brothers decided to partition of the properties amongst them by executing sale deeds in favour of their respective sons and consideration of sale shall be transferred from the business account to the account of purchasers (sons) and such purchasers shall issue cheques in the name of four brothers. It is also submitted by Mr.Desai, learned senior counsel that as a part of family arrangement, it was decided between the parties that (1) the property situated at Choksi Bazar (Madvi), Vadodara was transferred in the name of Ketan Narendrabhai Choksi and Jatin Narendrabhai Choksi by way of sale deed No.7690 and the amount received by the brothers as sale consideration deposited in the accounts of the firm (2) the property being shop no.15 and 16 situated at Avanti Chamber, R. C. Dutt Road, Vadodara sold to Ravi Ramakant Choksi and Tosha W/o. Ravi Ramakant Choksi by Page 14 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 sale deeds No.7688 and 7689 and the amount received by the brothers as sale consideration deposited in the accounts of the firm (3) the property situated at Commercial Building i.e. Narayan Plaza, Jani Sheri, Vadodara which came to be purchased in different parts was transferred in the name of Rekhaben Ashwinbhai Choksi and Maunik Ashwinbhai Choksi by way of sale deed No.7855 and the amount received by the brothers as sale consideration deposited in the accounts of the firm. He has submitted that no any transfer or transaction of the property was done in favour of Harishbhai Choksi, appellant no.1 herein or his legal heirs till 2018 and the said facts pointed out to this Court during the course of arguments, which was not disputed by the respondents. He has submitted that all brothers were given their share from the joint family property except appellant no.1 Harishbhai Choksi and later on in 2018, when the appellant - Harishbhai Choksi brought this fact to other brothers, they had informed the appellant to execute sale deed for the property in question in favour of his son Dhananjay Choksi, appellant no.3 herein by utilizing power of attorney executed in the year 1995. He has submitted that the respondents after getting their share Page 15 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 from the joint family properties are now seeking to take share from the property which appellant - Harishbhai Choksi is entitled to get as family settlement. Mr.Desai, learned senior counsel has submitted that in view of the settled legal position appeal being continuation of the original proceedings, this Court may allow the same.
5.3 In support of his submissions, Mr.Desai, learned senior counsel appearing for the appellants has relied upon the following decisions:-
(1) Mehul Mahendra Thakkar Vs. Meena Mehul Thakkar reported in (2009) 14 SCC 48;
(2) Union of India Vs. Ambalal Sarabhai Enterprises Ltd and others reported in 2010 (3) GLR 2531;
(3) Lord Sai Ma Pvt. Ltd. Mumbai and others Vs. Hotel Goaradias Pvt. Ltd. reported in AIR Online 2021 Bom 5788;
(4) Kashi Math Samsthan and another Vs. Srimad Sudhindra Thirtha Swamy and another reported in AIR 2010 SC 296;
(5) Ambalal Sarabhai Enterprise Ltd Vs. K. S. Infraspace LLP and others reported in AIR 2020 SC 307;Page 16 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022 (6) Chandrakant Kantilal Jhaveri Vs. Madhuriben Gautambhai and another reported 2011 (1) GLR 270; (7) Mrs. Umadevi Nambiar Vs. Thamarasseri Roman Catholic Diocese Rep by its procurator Devssia's son Rev. Father Joseph Kappil reported in (2022) 7 SCC 90;
6. Mr.Thakore, learned senior counsel for Mr.Hasit Dave, learned counsel appearing for the respondents submitted that the appellants - defendants are challenging the order dated 10.01.2022 passed by the learned Civil Judge below Exhibit 5 whereby the learned Civil Judge allowed the injunction application filed by the plaintiffs and directed the defendant no.3 not to deal with or transact with any one in any manner the suit property. He has submitted that Ambalal Chaturbhai Choksi, the father of plaintiff no.1 to 3 and defendant no.1 was doing the business of gold and silver ornaments in the name and style of "Ambalal Chaturbhai Choksi, situated at Mandvi area, Vadodara City and thereafter he started a family business in Alkapuri area in the name and style of "Narayan Jewellers". He has submitted that the plaintiff no.1 to 3 and defendant no.1 had jointly purchased property on the ground floor and the open land Page 17 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 adjacent to it, terrace above the first floor and right to construct further upon it of Sub Plot No.1, Navrang Cooperative Housing Society of revenue survey no.549/2 situated at R. C. Dutt Road, Alkapuri, Vadodara by registered sale deed no.13813 dated 19.09.1991 for a consideration of Rs.4,50,000/- and the plaintiff no.4 to 6 and defendant no.2 had jointly purchased the said property on the ground floor by way of registered sale deed no.13805 dated 19.09.1991, the property card of which dated 05.12.1991 is showing the name of plaintiffs, defendant no.1 and defendant no.2. He has submitted that the plaintiffs and defendants decided to put up commercial four storied jeweller's showroom and the office to be known as "Narayan Jewellers" for the expansion of their jewellery business on main road of vital Commercial Zone (Alkapuri), for which, the plaintiffs and defendant no.2 executed a general power of attorney dated 06.04.1995 in favour of defendant no.1, whereby they have given a general power for administrative purpose so that the defendant no.1 can execute necessary documents before the concerned authorities for getting necessary permissions for development and construction in the suit property on behalf of Page 18 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 the plaintiffs and defendant no.2. He has submitted that it would become evident from the power of attorney that the power of attorney was given with specific clauses which were for obtaining necessary permission and approval and there was no power of sale conferred on the power of attorney holder Harish Choksi. He has submitted that on the basis of the power of attorney, during the period from 1995 to 1997, defendant no.1 got permission for construction from the concerned authorities and constructed the four storied building on the main road of vital Commercial Zone (Alkapuri) and the business in the name and style of "Narayan Jewellers" and the said firm was converted into a private limited company namely "Narayan Jewellers Pvt Ltd.". He has submitted that the property is continued to be of the ownership of the plaintiffs and defendants no.1 and 2 and Narayan Jewellers Pvt Ltd as per the understanding was paying rent for the use and occupation of the premises. Mr.Thakore, learned senior counsel has submitted that the property was jointly owned by four brothers and their wives and they were in equal share and the business was running in the name and style of "Narayan Jewellers Pvt Ltd where the four brothers and their family was Page 19 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 equal share. According to Mr.Thakore, learned senior counsel, since the dispute was started between the plaintiffs and defendants, the Narayan Jewellers Pvt Ltd was completely stopped by November 2013. He has submitted that in January 2019, the plaintiffs came to know that defendant no.1 misused the power of attorney dated 06.04.1995 given in his favour by the plaintiffs and defendant no.2 and executed a registered sale deed no.2863 dated 23.03.2018 in favour of defendant no.3 (son of defendants no.1 and 2 for a consideration of Rs.1,70,00,000 /- in respect to the suit property even though the market value of the suit property at the relevant point of time was approximately Rs.20,00,00,000/-. He has submitted that the defendant no.4 and defendant no. 5 are witnesses in the said registered sale deed dated 23.03.2018 and now, the market value of the suit property at present is Rs.17,00,00,000/-. He has submitted that the sale consideration, shown to be paid for the said purposes, does not exist at all and nothing has been paid to the brothers as directors of the Narayan Jewellers Pvt. Ltd. and the same are completely bogus transactions.
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C/AO/86/2022 JUDGMENT DATED: 08/12/2022 6.1 Mr.Thakore, learned senior counsel has submitted that the plaintiffs were not aware about the registered sale deed dated 23.03.2018 executed by the defendant no.1 in favour of the defendant no.3 with respect to the suit property and thus, even after executing the registered sale deed dated 23.03.2018 by the defendant no.1, the plaintiffs have paid property tax of Rs.4,82,000/- on 20.07.2018 and electricity bill on 27.08.2018 with respect to the suit property. He has submitted that the plaintiffs came to know about the registered sale deed having been executed when notice dated 02.01.2019 under section 135(D) of the Bombay Land Revenue Code was issued which came to received by the plaintiff no.5. It is submitted that the City Survey Superintendent and Additional Mamlatdar rejected the Mutation Entry No. 14708 (regarding sale by defendant no.1 as power of attorney) in favour of defendant no.3 for which the civil suit and criminal proceedings are pending. He has submitted that admittedly and accordingly, the entire sale is based upon fraud and such concocted and fabricated evidences. According to Mr.Thakore, pursuant to several litigation and orders passed in various judicial proceedings, it appears that the entire sale Page 21 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 transaction is based on conspiracy and pre-meditation and criminal conspiracy and in connivance with several other persons. He has submitted that on 08.01.2019, the plaintiffs have filed objections before the City Survey Officer regarding the Mutation Entry No.14708 dated 18.12.2018 with respect to registered sale deed no.2863 dated 23.03.2018. Mr.Thakore, learned senior counsel has submitted that the plaintiffs have filed written complaint dated 09.01.2019 to the Police Commissioner, Vadodara against defendant no.1, 3, 4 and 5 for the offences punishable under section 406, 409, 420, 465, 467, 468, 471 & 120 of the Indian Penal Code regarding execution of registered sale deed dated 23.03.2018 and another complaint dated 18.01.2019 also filed before the Police Inspector, Gotri Police Station, Vadodara on 18.01.2019 as defendants no.3 and 4 along with ten persons came and broken the lock and entered in the suit property. He has submitted that when the defendants came to know about the complaint filed by the plaintiffs, they gave the notice to the plaintiffs no.1, 2 and 3 alleging that the power of attorney is valid and moreover, the property sold to his son Dhananjay for an amount of Rs.1.70 lacs and the same is Page 22 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 adjusted against the alleged claim of Rs.16.50 crores from the plaintiffs. According to Mr.Thakore, learned senior counsel, under such circumstances, the plaintiffs filed the said suit seeking declaration regarding the cancellation of registered sale deed dated 23.03.2018 and permanent injunction with respect to the suit property and they have also filed application for temporary injunction restraining the defendants from affecting the rights of the plaintiffs and in any manner transfer the suit property to the third parties. Mr.Thakore, learned senior counsel has submitted that the other litigation are also pending between the parties, the details of which are as under:-
(1) Regular Civil Suit No. 36 of 2019 filed by defendant no.3 against the plaintiffs and other members of the family restraining them from dispossessing the defendant no.3 from the suit property;
(2) Special Civil Suit No. 149 of 2019 filed by Narayan Jewelers Pvt. Ltd. through plaintiff no.3 against defendant no.1 and defendant no.3 for recovery of movable property and Page 23 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 declaration, injunction or in the alternative for recovery of the price / value of the moveable property. The plaintiffs have also filed application for temporary injunction at Exhibit 5 and application for appointment of Court Commissioner at Exhibit 6.
Defendants have appeared and filed application under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure for rejection of plaint at Exh.18. They have also filed an application seeking priority of hearing of Exhibit 18 application. The learned Civil Judge vide order dated 13.05.2019, heard the Exh.6 application for appointment of Court Commissioner first. Against the said order dated 13.05.2019, the defendants have preferred Special Civil Application No. 11125 of 2019 before this Hon'ble Court, which is pending.
(3) The plaintiffs had filed Special Criminal Application No.859 of 2019 inter alia seeking a direction for registration of FIR against the defendants for the offences punishable under section 406, 409, 420, 465, 467, 468 and 471 mead with section 120 B of the Indian Penal Code and the Prevention of Corruption Act and to hand over the papers of the said case to the CID Crime Page 24 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 Branch, Vadodara and this Court vide order dated 04.02.2019 passed in Special Criminal Application No.859 of 2019 directed the police authorities to register the FIR. When the defendants came to know about the order dated 04.02.2019 passed in Special Criminal Application No.859 of 2019, they have filed Criminal Misc. Application (Recall) No.1 of 2019 in Special Criminal Application No.859 of 2019 for recalling of the order dated 04.02.2019. However, since there is a specific order regarding registration of FIR, the Court vide order dated 20.03.2019 directed the Police Officers to carry out the investigation expeditiously. This Court while rejecting the application for recalling of the order dated 04.02.2019 observed that preliminary examination of the documents indicate that there is misused of the power of attorney by one of the heirs. Being aggrieved and dissatisfied by the order dated 4.02.2019 in Special Criminal Application No.859 of 2019 and order dated 20.03.2019 in Criminal Misc. Application (Recall) No.1 of 2019, the defendants have preferred Special Leave to Appeal (Crl.) Nos. 5805-5806/2019 before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 24.02.2020 dismissed Page 25 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 the said Special Leave to Appeals.
6.2 Mr.Thakore, learned senior counsel has submitted that the Hon'ble Supreme Court with hope to secure peace amongst the members of the family referred to the matter for mediation to Shri S.N.Shelat, Senior Advocate and despite of best efforts the mediation failed. He has submitted that the order dated 10.01.2022 passed below Exhibit 5 in Special Civil Suit No.54 of 2019 by the Trial Court is legal and valid and the same is passed after considering the facts and circumstances of the present case and the Trial Court after considering the pleading and documents came to the conclusion that prima facie case and balance of convenience is in favour of the plaintiffs and there will be irreparable loss to the plaintiffs, if there is no injunction against the defendant no.3 with respect to the suit property as the plaintiffs are also joint owners and without any authority the defendant no.1 has executed the sale deed in favour of the defendant no.3. He has submitted that the Trial Court has exercised its discretion while allowing the injunction application directed to maintain status quo with respect to the suit property. Page 26 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022 He has submitted that it is well settled law that the Appellate Court may not interfere with by exercising discretion at first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating the grant or refusal of interlocutory injunctions and an appeal against exercise of discretion is said to be an appeal on principle. He has submitted that the Appellate Court will not reassess the materials and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the materials.
6.3 Mr.Thakore, learned senior counsel has submitted that the plaintiffs and defendant no.2 have not given any authority to the defendant no.1 for executing the registered sale deed by way of general power of attorney dated 06.04.1995 and by the said power of attorney, the plaintiffs and defendant no.2 have given only general power to the defendant no.1 for the administrative purpose so that defendant no.1 can execute necessary Page 27 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 documents on behalf of all before the concerned authorities for getting necessary permissions for development and construction in the suit property. He has submitted that the plaintiffs are not challenging the existence power of attorney and not going to challenge the power of attorney also. He has submitted that the plaintiffs and defendant no.2 have executed power of attorney in favour of the defendant no.1 but by way of the said power of attorney they have not given any authority to defendant no.1 for executing the registered sale deed and only given general powers to defendant no.1 for the administrative purpose so that defendant no.1 can execute necessary documents on behalf of all before the concerned authorities for getting necessary permissions for development and construction in the suit property.
6.4 Mr.Thakore, learned senior counsel has submitted that defendant no.1, by misusing the power of attorney, executed the sale deed in favour of his son for a very low consideration with respect to the suit property, which is owned by the plaintiffs and defendants and there was no express power given by the Page 28 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 plaintiffs and defendant no.2 in favour of the defendant no.1 to execute the registered sale deed and therefore the sale deed executed by the defendant no.1 is not legal and valid. He has submitted that the plaintiffs and defendants are joint owners of the suit property and therefore the plaintiffs and defendants are having equal share in the suit property and defendant no.1 has executed the sale deed without any authority of other co-owners. He has submitted that in these circumstances, prima facie the plaintiffs have a very good case on merits and there are all chances to set aside the registered sale deed and, therefore, in the interest of justice, it is required to maintain the status quo by the parties otherwise there will be irreparable loss to the plaintiffs and further multiplicity of proceedings. He has submitted that the appeal being meritless deserves to be dismissed with costs.
6.5 Mr.Thakore, learned senior counsel has relied upon the following authorities:-
(1) Maharwal Khewaji Trust (Regd.) Faridkant Vs. Baldev Dass reported in (2004) 8 SCC 488;Page 29 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022 (2) Dev Prakash and another Vs. Indra and others reported in (2018) 14 SCC 292;
(3) Wander Ltd Vs. Antox India (P) Ltd reported in 1990 Supp. SCC 727;
(4) Punjalal Girdharbhai Patel Vs. Navdeep Co-Operative Bank Limited reported in 1999 (2) GLH 85;
(5) Umadevi Nambiar Vs. Thamarasseri Roman Catholic Diocese reported in (2022) 7 SCC 90;
(6) R.V.E. Venkatachalam (died) and others Vs. B. A. Devaneson and others reported in 2015 (3) L.W. 246;
7. In the case of Lord Sai Ma Pvt. Ltd. (supra), the Bombay High Court has held and observed in paragraphs no.39 and 40 as under:-
"39. It is well settled legal position that in view of provisions of Order XXXIX, Rule 1 and 2 of the Code of Civil Procedure read with Section 39 of the Specific Relief Act, the Court is empowered to grant relief of interim mandatory injunction. The Civil Court has inherent power to issue interim injunction when it considers it absolutely necessary to meet the ends of justice to do so. It is while exercising such inherent powers that the Court in exceptional circumstances of the case has jurisdiction to grant such relief. The inherent power which is vested in the Court is to maintain the status quo as of the date of the suit till the disposal of the suit. It is not to disturb the status quo as of the date of the suit. When the suit is one for possession, normally, interim mandatory injunction cannot be issued pending the final decision of the suit. In case of Metro Marins & Anr. Vs. Bonus Watch Co. Pvt. Ltd. & Ors. (supra), it is held by the Hon'ble Apex Court that the final relief cannot be granted at interim stage when the Page 30 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 suit itself is for eviction and possession of the property. Grant of mandatory injunction is not correct.
40. If the relief of interim mandatory injunction is allowed to continue, then what would remain in the suit to adjudicate between the parties. The issues are yet to be framed. The parties are yet to adduce the evidence. According to their pleadings, they will cross-examine their respective witnesses according to their legal stand. Admittedly, on the date of the suit, appellant/original defendant is in possession of the suit premises. There are triable issues involved including settlement of accounts. If these peculiar facts of the case on hand are considered, certainly, it is not a fit case to grant relief of interim mandatory injunction. The trial Court seems to have granted interim mandatory injunction in a casual manner without taking into consideration the consequences of it. The impugned order of granting interim mandatory injunction is certainly defective in the eyes of law. Having Comm.Apeal 1 & 2 - 2021 regard to the facts of the case on hand, It cannot be sustained in the eyes of law.
8. In the case of Kashi Math Samsthan (supra), the Hon'ble Supreme Court has held and observed in paragraph no.13 as under:-
"13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to ay, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. ....."Page 31 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
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9. In the case of Ambalal Sarabhai Enterprise Limited (supra), the Hon'ble Supreme Court has held and observed in paragraph no.15 as under:-
"15. Chapter VII, Section 36 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') provides for grant of preventive relief. Section 37 provides that temporary injunction in a suit shall be regulated by the Code of Civil Procedure. The grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima facie case on basis of undisputed facts. The conduct of the plaintiff will also be a very relevant consideration for purposes of injunction. The discretion at this stage has to be exercised judiciously and not arbitrarily."
10. In the case of Maharwal Khewaji Trust (Regd.) Faridkot (supra), the Hon'ble Supreme Court has held and observed in paragraph no.10 as under:-
"10. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be Page 32 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."
11. In the case of Dev Prakash and another (supra), the Hon'ble Supreme Court has held and observed in paragraph no.13 as under:-
"13. In the preponderant factual backdrop, as outlined hereinabove, we are of the view that not only the reasons endeavoured to be cited in the impugned order in justification of the direction for public auction of the suit property lack in persuasion, those are apparently speculative and illogical, to say the least. The direction for disposal of the suit property by public auction, in the facts and circumstances of the case, clearly militates against the fundamental precept of preservation of subject matter of any dispute pending adjudication in a court of law, more particularly relatable to a civil litigation, to appropriately decide on the rights of the parties for administering the reliefs to which they would be entitled eventually on the culmination of the adjudication. As it is, the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to Page 33 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. We do not wish to burden this order by the decisions of this Court on the issue except referring to the one in Maharwal Khewaji Trust (Regd.) Faridkot vs. Baldev Dass AIR 2005 SC 104, wherein it has been underlined that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property to be changed, which may include alienation or transfer thereof leading to loss or damage been cause to the party who may ultimately succeed and which would as well lead to multiplicity of proceedings. Judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse."
12. In the case of Wander Ltd and another (supra), the Hon'ble Supreme Court has held and observed in paragraph no.14 as under:-
14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle.
Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered Page 34 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :
"... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston '....... the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.'"
The appellate judgment does not seem to defer to this principle."
13. In the case of Punjalal Girdharbhai Patel (supra), this Court (Hon'ble Mr.Justice S. K. Keshote) has held and observed in paragraph no.8 as under:-
"8. It is no more res integra that the appellate court sitting under order 43 Rule 1 of Code of Civil Procedure will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where a discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating the grant or refusal of the interlocutory injunction. The appeal against the exercise of discretion is an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from one reached by the court below solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. Where the trial court has exercised its discretion reasonable and in a judicial manner, the fact that the Page 35 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 appellate [a different view may not justify interference with the trial court's exercise of discretion. The reference in this respect may have to the decision of the Hon ble Supreme Court in the case of Wander Ltd. V/s. Antox India (P) Ltd. reported in 1990 Supplementary SCC 727. I find sufficient merit and justification in the contention of the learned counsel for the plaintiff-petitioner that so far as the scope and the power of the appellate court in an appeal filed under Order 43 Rule 1 of Code of Civil Procedure against the order of the learned trial court passed on an application filed by the litigant under Order 39 Rule 1 & 2 of the Code of Civil Procedure is very limited one. So, on principle nobody can have any dispute, more so in view of the decision of the Hon ble Supreme Court in the case of Wander Ltd. V/s. Antox India (P) Ltd. (supra). The learned counsel for the plaintiff-petitioner though has raised the contention, but he has failed to show how the learned first appellate court has committed any illegality or irregularity in exercise of its jurisdiction in passing of impugned order which justifies interference of this court under Sec. 115 of the Code of Civil Procedure. Though the learned first appellate court has not very specifically said in its order impugned in this civil revision application, that order of the learned trial court is perverse, arbitrary and capricious, but, if we go by the impugned order I find that it is kept in mind and it was oblivious of the limitation of its power of judicial review in a discretionary order passed by the court of first instance under Order 39 Rule 1 & 2 of the Code of Civil Procedure. However, after hearing the learned counsel for the parties, I am satisfied that in the fact of this case, on which there is no dispute between the parties, the order of the learned trial court certainly falls in the category of a perverse or arbitrary order."
14. In the case of Umadevi Nambiar (supra), the Hon'ble Supreme Court has held and observed in paragraph no.9 to 13 as under:-
"9. But we do not agree with the above submissions of the learned counsel for the respondent. It remains Page 36 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent :
(i) to grant leases under Clause 15;
(ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and
(iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22.
But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has chosen to include :
(i) an express power to lease out the property; and
(ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property.
Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale.
10. In fact the High Court rejected even the refuge sought by the respondent under Section 41 of the Transfer of Property Act which reads as follows:
"41. Transfer by ostensible owner.- Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it :
Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."Page 37 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022
11. The High Court has held and in our view rightly so, that if the respondent had exercised reasonable care as required by the proviso to Section 41, they could have easily found out that there was no power of sale.
12. Unfortunately after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act. The relevant interpretation clause in Section 3 of the Act reads as follows:
"3. Interpretation Clause.-
xxxx xxx xxxx a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I.- Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub- district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated :
Provided that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, Page 38 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.- Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.- A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."
13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent."
15. In the case of R.V.E. Venkatachalam (Died) and others (supra), the High Court of Madras has held and observed in paragraphs no.18(g) and 26 to 44 as under:-
Page 39 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022 "18(g). In so far as the Power-of-Attorney executed by the defendants 2 and 3 in favour of D1 is concerned, the trial Court has found that the Power of Attorney has not authorised D1 to sell the property. In the Power of Attorney, it is clearly stated that the power has been given to execute and register all deeds of lease, mortgage and release deeds and other deeds of agreement in respect of the properties. It is a general power of attorney and therefore, other deeds of agreement in respect of the property would include the power to sell the property also. In this regard, in the decision reported in (1997) 3 SCC 474, the Hon'ble Supreme Court has held that the document had to be read as a whole. In that case also, there was no specific clause in the Power of Attorney for sale. But the Apex Court has held that the document has to be understood in the manner in which parties themselves understood the purpose of the document. The attended circumstances have also to be taken into consideration.
26. Now, it is the case of the plaintiff that the sale agreement Ex.A2 was executed by the first defendant being the power agent of the defendants 2 and 3 in favour of the fourth defendant and that the fourth defendant assigned the sale agreement in favour of the plaintiff under the deed of assignment of sale agreement, dated 4.5.1992.
27. On the other hand, it is the case of the defendants 1 to 3 that no power was given to the first defendant to sell or encumber the suit property under the Power of Attorney Ex.A6, but power was given only to execute and register all deeds of leases, mortgage deeds and Release Deeds and other deeds of agreement on their behalf in respect of the properties, for which they hold joint rights along with the power agent and therefore, the alleged sale agreement is a forged and concocted one to grab the suit property.
28. A perusal of Ex.A6 Power of Attorney, dated 7.8.1980 reveals as under:-
"To execute and register all deeds of lease, mortgage deeds and Release deeds and other deeds of agreement on our behalf in respect of properties Page 40 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 for which we hold joint rights along with our agent.
To clear all Mortgage loans and redeem the mortgage.
To appear in any court of law for us and on our behalf and to sign any papers like Vakalath, plaints, petition etc., in our name and on our behalf in respect of our joint property at Coonoor."
29. Likewise, the contents of the power of attorney are going on. However, this Court does not find anywhere in the power of attorney, the words, #to sell or purchase or to execute the sale deed or to encumber the suit property, are mentioned.
30. A plain and whole reading of Ex.A6 does not disclose the intention of the defendants 2 and 3 that they had given power to the first defendant to sell the suit property, but they gave power with an intention to execute lease, mortgage and release deeds and other deeds of agreement in respect thereof.
31. However, the contention of the learned counsel for the plaintiff is that in the Power of Attorney, it is clearly stated that the power has been given to execute and register all deeds of lease, mortgage and release deeds and other deeds of agreement in respect of the properties. It is a general power of attorney and therefore, other deeds of agreement in respect of the property would include the power to sell the property also.
32. This Court is of considered view that unless there is specific terms in respect of the powers conferred in the power of attorney, it cannot be construed that the power agent was vested with all general powers.
33. Anyhow, at this juncture, it is pertinent to see the decisions relied on by the learned counsel for the defendants / respondents as to what are the principles laid down by the Hon'ble Apex Court and this Court.
34. The learned counsel for the respondents relied on the following judgments referring fraud, Page 41 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 authenticity of thumb impression and comparison of signatures with admitted/proved signatures.
(i) The decision in Ravjappa .v. Nilkanta Rao and others (AIR 1962 Mysore 53) is related to the presumption drawn under Section 90 of the Evidence Act. In this case, the Mysore Court held that it is for the party who asks the Court to draw the necessary presumptions under Section 90 to prove by satisfactory evidence that the document was produced from proper custody. The above judgment is not relevant to the facts of the case.
ii) In the decision in Thakur Dongar Singh .vs. Dr.Ladli Prasad Bhargava (1973 (2) SCC 263, the Hon'ble Apex Court has held as follows:-
"This is a case where the circumstances speak more eloquently than the witnesses and the tell-tale recitals in Ex.P2 are enough to stamp it as a fruadulent document. In the circumstances, we do not consider it necessary to discuss any points of law."
iii) The decision in Thiruvengadam Pillai .vs. Navaneethammal and another (2008 4 SCC 530), related to authenticity of thumb impression on sale deed.
iv) The decision in S.Gopal Reddy .vs. State of A.P (1996 (4) SCC 596) deals with Section 73 of the Evidence Act. Section 73 of the Evidence Act reads as under:-
"73. Comparison of signature, writing or seal with others admitted or proved.#In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any Page 42 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 words or figures alleged to have been written by such person."
35. The learned counsel for the respondents also relied on the judgment of this Court dated 05.06.2007 in CRP(PD) No.1566 of 2006 is the order passed in the Civil Revision Petition, which is filed against the order dated 14.09.2006 made in I.A.No.87 of 2005 in O.S.No.115 of 1994 (i.e., the present case on hand) on the file of the learned District Munsif, Nilgiris, directing the trial Court to dispose of the suit within a period of five months from the date of receipt of a copy of that order.
36. The learned counsel for the respondents further relied on the judgment reported in Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman (2012) 8 SCC 706), in support of his contention regarding the power of attorney. In the said decision, the Hon'ble Apex Court has observed as under:-
"19) ........It is settled that a power of attorney has to be strictly construed. In order to agree to sell or effect a sale by a power of attorney, the power should also expressly authorize the power to agent to execute the sale agreement/sale deed i.e., (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. A perusal of the power of attorney, in the present case, only authorizes certain specified acts but not any act authorizing entering into an agreement of sale or to execute sale deed or admit execution before the Registrar. In a recent decision of this Court in Suraj Lamp and Industries Pvt. Ltd.
vs. State of Haryana and Another (2012) 1 SCC 656, the scope of power of attorney has been explained in the following words:
"20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Page 43 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.
21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77. this Court held: (SCC pp. 90 & 101, paras 13 & 52) "13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
***
52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.# An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."
37. In the decision above cited supra, the following principles have been derived, namely, the power of attorney is creation of an agency whereby the Page 44 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882).
38. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed and the same shall be read as if done by the donor.
39. In order to agree to sell or effect a sale by a power of attorney, the power should also expressly authorize the power to agent to execute the sale agreement/sale deed i.e., (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar.
40. A perusal of the power of attorney, in the present case, the defendants have only authorized the aforesaid specified acts but not any act authorizing to enter into an agreement of sale or to execute sale deed or admit execution before the Registrar.
41. The learned Single Judge of this Court, in another decision in Anantha Pillai vs. Rathnasabapathy Mudaliar and others (1968 (82) L.W.5) has observed as under:-
"The general principles regarding the construction of a power-of-attorney are well-settled. Powers-of- attorney must be strictly construed as giving only such authority as they confer expressly or by necessary implication. Where an act purporting to be done under the power-of-attorney is challenged as being in excess of the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument either by express terms or by necessary implication. Some of the principles governing the construction of a power-of- attorney are : (1) the operative part of the deed is controlled by the recitals; (2) where an authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the performance of the particular acts; (3) the general words do not confer general powers Page 45 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for that purpose; (4) a power-of-attorney is construed so as to include all medium powers necessary for its effective execution.
Bearing these general principles in mind the question for consideration is whether the power-of-attorney in this case authorised the first defendant to enter into an agreement to sell or authorised him to execute a sale deed. In my opinion the power granted to the first defendant to execute every type of document on behalf of Janaki Ammal will have to be understood with reference to particular acts specified in the documents itself, for which the power was granted. It must be remembered that the power was granted by a wife to a husband for managing her properties and not for liquidating the same. The apparent necessity for executing such a power was that being a woman she was not able to attend to the day-to-day requirements involved in the management of the properties and it is not as if she was not in a position to negotiate the terms of a sale or to execute a sale deed, which is not an every day occurrence. Mr. Rajagopala Iyer relied on the decision of this Court in Venkataramana Iyer v. Narasinga Rao 24 M.L.J. 180 :
I.L.R. (1915) 38 Mad. 134, and contended that the power-of-attorney in this particular case was a general power-of-attorney. For the same purpose the learned Counsel relied on the decision of this Court in Krishna Phoopathi Deo v. Raja of Vizianagaram I.L.R. (1915)38 Mad. 832 : 26 M.L.J. 185. I must point out that there is no magic in the nomenclature of a power-of-attorney being a general power-of-attorney.
The scope of the power has to be gathered from the language of the document. As was pointed out by this Court in the latter case relied on by the learned Counsel himself " Every document must be construed with reference to its particular terms, and differently worded documents afford but little assistance for correctly construing the document concerned in this case ". Therefore, even on the basis that the power-of-attorney executed by Janaki Ammal on 30th June, 1937, is a general power-of- attorney, still the question remains whether it authorised the first defendant to execute a document like Exhibit A-l. Learned Counsel relied on a decision of the Calcutta High Court in Narendra Page 46 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 Nath v. Bimala Sundari (1938) 42 C.W.N. 718, for the position that the agent's power is not limited to the physical act of signing documents relating to transactions entered into by the principals but he has also the power to enter into contracts himself on behalf of the principals and to make the necessary documents. In my opinion the question is whether any such power can be gathered from the terms of the document in question. I am clearly of the view that no such power can be gathered from the document in question. One feature I have already indicated is that the document does not confer expressly on the first defendant any power to alienate the properties either by way of sale, mortgage or otherwise. Secondly, the document is a detailed one referring to several acts to be done by the first defendant. Therefore, in the context of the detailed enumeration of the powers conferred on the first defendant to perform acts, the general words will have to be understood as enabling him to do such things as are necessary for the purpose of effectively performing those functions enumerated and conferred on the first defendant. Thirdly, the occasion for executing the power-of-attorney was that Janaki Ammal being a woman was not in a position to look after the management of her properties and affairs personally, and certainly that does not indicate any inability or disability on her part to negotiate a sale or enter into an agreement for that purpose. In this context a decision of the Patna High Court in Loknath Prosad v. Sah Wahib Hussain is instructive. In that case a pardanashin lady executed a power-of-attorney in favour of her husband for the purpose of looking after her affairs and managing her properties. The power-of-attorney in that case began by reciting that the executant being a pardanashin lady it was difficult and impossible for her to look after and take care of the whole and entire village and Court affairs and cases and to execute every kind of deed personally. It went on to appoint the husband as the general power-of- attorney with full powers and then specified in detail the powers in relation to village and Court affairs and to instruments affecting moveable and immovable properties. As to the latter powers, the language used after enumerating different kinds of deeds such as deeds of sale, mortgage and lease, etc. was "the Page 47 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 said general attorney shall either as (or through) attorney on his own behalf or personally on my behalf by his pen sign and acknowledge and get attested (these instruments) and present them before the Registrar and admit execution and get them registered." That is to say, the attorney had power to sign and consent to a deed of sale and get it attested and registered. Notwithstanding this language, the Patna High Court pointed out that the husband had no power to enter into an agreement for sale in respect of the wife's property. The learned Judges pointed out (at page 186):
If the lady had intended that her attorney Should have power to sell, mortgage and lease, nothing would have been simpler than to say so; but this is not said.
The learned Judges further pointed out: If there had been a power to sell, then by necessary implication there would have been the power to settle the terms of sale. But there is no power to sell.
If that was the decision of the Patna High Court in relation to a power-of-attorney where expressly the power was conferred on the husband to execute deeds of sale, mortgage, lease, etc. on behalf of the grantor of the power the position is a fortiori here, where there is no enumeration of any power to execute all types of documents on her behalf, which necessarily has to be understood in the context of the specified and enumerated powers conferred on the first defendant by Janaki Ammal. For these reasons, I am of the view that the power-of-attorney executed by Janaki Ammal in favour of the first defendant on 30th June, 1937 did not authorise the first defendant to execute Exhibit A-1 on behalf of Janaki Ammal and therefore the said document is not binding either on Janaki Ammal or the 2nd defendant."
42. In the decision cited supra, the following principles have been culled out:-
"The general principles regarding the construction of a power-of-attorney are well-settled. Powers -of- attorney must be strictly construed as giving only Page 48 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 such authority as they confer expressly or by necessary implication. Where an act purporting to be done under the power-of-attorney is challenged as being in excess of the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument either by express terms or by necessary implication. Some of the principles governing the construction of a power-of- attorney are : (1) the operative part of the deed is controlled by the recitals; (2) where an authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the performance of the particular acts; (3) the general words do not confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for that purpose; (4) a power-of-attorney is construed so as to include all medium powers necessary for its effective execution"
43. In the decision in Timblo Irmaos Ltd., Margo .v. Jorge Anibal Matos sequeira and another (1977 (3) SCC 474), the Hon'ble Apex Court has held that power of attorney to be read as a whole keeping in mind its purpose.
44. If the above said principles are applied to the power of attorney, the only inevitable conclusion is that D1 was not empowered to execute the sale agreement or to sell the suit property and therefore, as rightly contended by the the learned counsel for the defendants that in the Power of Attorney the first defendant was not conferred any authority to execute the sale agreement or to negotiate for selling the suit property and therefore, this Court finds that the first defendant has no authority to execute the sale agreement, even assuming for the sake of argument, it becomes invalid and non-est."
16. Having perused the materials placed on record and considered the submissions canvassed by the learned counsel Page 49 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 appearing for the respective parties and the decisions cited at the Bar, it appears that all the parties are the legal heirs of deceased Ambalal Chaturbhai Choksi. It emerges from the record that the jewelry business was started by deceased Ambalal in 1940 in the name and style of "M/s.Choksi Ambalal Chaturbhai"
and after the death of Ambalal, four brothers were running the said business. It further emerges from the record that four brothers have purchased different properties as mentioned above in the name of family members. It also appears that in 1995, the owners of commercial building situated at R. C. Dutt Road, Alkapuri in Navrang Cooperative Housing Society, Sub Plot No.1 executed a power of attorney in the name of Harishbhai Choksi and, thereafter, in 1999 the business namely Narayan Jewellers was converted into a private limited company in the name and style of Narayan Jewellers Private Limited where all four brothers were the directors having equal share. It appears from the record that between 2007 to 2011, Harishbhai Choksi was suffering from cancer and he was taking treatment for a long period and in 2011, all brothers decided to partition the properties amongst themselves by executing sale deeds in Page 50 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 favour of their respective sons and the same were done by executing the sale deeds, but no any transaction of the property in question was made in favour of Harishbhai Choksi or his legal heirs till 2018 and the respondents informed the appellant -
Harishbhai to execute the sale deed for property in question by utilizing the power of attorney executed in the year 1995. It also emerges from the record that the respondents seek share from the property which the appellant is entitled to get as family settlement and they are also creating hurdle in utilizing the property by restraining electricity company from granting electricity connection to the appellants. That the respondents approached the electricity company by filing application with regard to non-grant of electricity connection to the appellants and, therefore, the appellants are not given electricity connection. It emerges from the record that against inaction on the part of the electricity company, the appellants preferred Special Civil Application No.21075 of 2022 before this Court and this Court vide order dated 19.10.2022 issued notice and it was kept open for the electricity company to consider the application preferred by the appellants in the month of February 2022. In Page 51 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 view of the aforesaid facts, it clearly reveals that the respondents are intentionally harassing the appellants by one or the other way. It appears that the original plaintiffs filed the suit for declaration, cancellation of registered sale deed No.2863 dated 23.03.2018 which was executed by original defendant no.1 in favour of original defendant no.3 in connection with the suit property of Sub Plot No.1 of Navrang Cooperative Housing Society, R. C. Dutt Road, Alkapuri, Vadodara and permanent injunction against the original defendants along with the injunction application at Exhibit 5. Considering the facts and circumstances of the case, I am of the opinion that by granting interim relief vide order dated 10.01.2022, the Trial Court had virtually allowed the suit, even though none of the circumstances for consideration for grant of interim relief did ever exist. In view of the aforesaid facts, in my view, the Trial Court has committed an error of facts and law in passing the impugned order passed below Exhibit 5 and the said order is erroneous and against the settled principles of law. The Trial Court, while granting the interim relief, has not considered all the relevant aspects and passed the impugned order.Page 52 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022
C/AO/86/2022 JUDGMENT DATED: 08/12/2022
17. Considering the fact that the plaintiffs filed Special Criminal Application No.859 of 2019 before this Court seeking direction for registration of FIR against the defendants and this Court vide order dated 04.02.2019 directed the police authorities to register the FIR. It appears that the defendants filed Criminal Misc. Application No.1 of 2019 in Special Criminal Application No.859 of 2019 for recalling of the order dated 04.02.2019, which came to be rejected by this Court. It reveals that against the order dated 04.02.2019 passed in Special Criminal Application No.859 of 2019 and order dated 20.03.2019 passed in Criminal Misc. Application No.1 of 2019, the defendants preferred Special Leave to Appeal before the Hon'ble Supreme Court, which came to be dismissed vide order dated 24.02.2020.
18. Considering the facts of the case, it appears that the plaintiffs have tried to see that any how, the defendants - appellants herein be ruined and surrendered to the demands of the original plaintiffs. It seems that the original plaintiffs one after another initiated proceedings against the present appellants including the civil as well as criminal. It is relevant to Page 53 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 note here that in criminal proceedings though "C" summary report came to be filed by the Investigating Officer before the concerned Court, the original plaintiffs by utilizing the political pressure have restrained the Investigating Officer to submit the "C" summary report before the concerned Court and/or to withdraw "C" summary report. It also appears that in earlier round of litigation, the original plaintiffs reached upto the Hon'ble Supreme Court as they are running the business and earning the income from the business. That though the appellants are now out of business and having crunch of money, the original plaintiffs are trying to see that the appellants surrender to the original plaintiffs and even surrender their source of income to the original plaintiffs. That the plethora of evidence which is produced before this Court, is never produced before the Trial Court and while granting the interim relief in favour of the original plaintiffs, the Trial Court has no occasioned to deal with such documentary evidence which is produced before this Court. In 2012, the business in the name and style of "Narayan Jewellery" was closed, however, in 2015, the plaintiffs have produced certificate of the chartered accountant wherein Page 54 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 the amount disputed in question is shown as goods in transit. So all these facts are required to be decided by leading cogent, convincing and sufficient evidence before the Trial Court and, therefore, at this stage, the impugned order passed by the Trial Court is absolutely erroneous and against the principles of law. Considering the aforesaid facts, I am of the opinion that the present appeal deserves to be allowed and the impugned order deserves to be quashed and set aside.
19. For the foregoing reasons and in view of the aforesaid factual aspects, the present appeal from order is allowed. The impugned order passed by the Trial Court below application at Exhibit 5 is hereby quashed and set aside. It is open for the parties to approach the Trial Court and in the interest of justice, they may request the Trial Court for expeditious disposal of the suit. There shall be no order as to cost. Pending civil application shall stands disposed of accordingly.
Sd/-
(HEMANT M. PRACHCHHAK,J.) Page 55 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022 C/AO/86/2022 JUDGMENT DATED: 08/12/2022 FURTHER ORDER After pronouncement of the judgment, the learned counsel appearing for the respondents has requested to stay the implementation and operation of the judgment. However, it seems that appellant no.1 and respondents no.1 to 3 are the real brothers and they are fighting for the suit property. It also seems that one after another litigations are initiated by other three brothers against appellant no.1 and, therefore, the request made by learned counsel appearing for the respondents is not just and proper. Hence, the request is not accepted.
Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 56 of 56 Downloaded on : Sat Dec 24 02:15:51 IST 2022