Delhi District Court
Anil Kumar vs Sangam Supari Co on 8 July, 2024
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
SENIOR CIVIL JUDGE, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
RCA No. 20/2017
CNR No. DLCT030008242017
In the matter of:-
1. Sh. Anil Kumar,
S/o Sh. Mithan Lal,
R/o D-17, Kamla Nagar,
Delhi-110007.
2. Sh. Rajender Kumar,
Through his Attorney Sh. Anil Kumar,
S/o Sh. Mithan Lal,
R/o D-17, Kamla Nagar,
Delhi-110007.
3. Sh. Virender Kumar,
Through his Attorney Sh. Anil Kumar,
S/o Sh. Mithan Lal,
R/o D-17, Kamla Nagar,
Delhi-110007.
Also at : Flat No. 1604,
Abrol Vastu Park,
A-WIng, Evershine Nagar,
Malad, West Mumbai,
Maharashtra-400064.
4. Sh. Devender Kumar,
S/o Sh. Mithan Lal,
R/o A-47, Kamla Nagar,
Delhi-110007.
5. Ms. Sangeeta Mittal,
Through her Attorney Sh. Anil Kumar,
S/o Sh. Mithan Lal,
R/o D-17, Kamla Nagar,
Delhi-110007.
Also at : B-1691,
RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 1 of 19
Shastri Nagar,
Delhi-110052.
6. Smt. Saroj Garg,
Through her Attorney Sh. Anil Kumar,
W/o Prem Garg,
R/o 128, Hastsal Road,
Uttam Nagar, Delhi-110059.
7. Smt. Shashi Bansal,
Through her Attorney Sh. Anil Kumar,
W/o Pawan Kumar,
R/o 60, Galib Apartments,
Parwana Road,
Pitampura, Delhi-1100034.
8. Smt. Suman Singhal,
Through her Attorney Sh. Anil Kumar,
W/o Sh. Anil Singhal,
R/o 261, Gali No.4,
Rishi Nagar, Rani Bagh,
Delhi-110034. ...Appellants
VERSUS
1. M/s Sangam Supari Co.,
Partnership Firm Through its partner Sh. Kishan Lal,
At D-17, Kamla Nagar,
Delhi-110007.
2. Sh. Kishan Lal Bilani,
S/o Sh. Gori Mal Bilani,
R/o E-42, Kamla Nagar,
Delhi-110007.
3. Sh. Sri Chand Kimtani,
S/o Sh. Tola Mal Kimtani,
R/o QD-34, Pitampura,
Delhi-1100034.
4. Sh. Ashok Kumar,
RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 2 of 19
S/o Sh. Raghubir Singh,
R/o 32, Old Market,
Timarpur, Delhi-110054.
5. Sh. Narender Singh,
S/o Sh. Raghubir Singh,
R/o 32, Old Market,
Timarpur, Delhi-110054.
6. Sh. Mahesh Kumar,
S/o Sh. Madan Lal,
R/o 506Z, Timarpur,
Delhi-110054.
7. Sh. Fateh Singh Rajawat,
S/o Sh. Ganga Dhar Rajawat,
R/o L-91, Raghubir Nagar,
Delhi-110027. ...Respondents
Date of Institution : 07.02.2017
Reserved for Judgment : 05.04.2024
Date of Decision : 08.07.2024
JUDGMENT
1. The present appeal impugns the judgment and decree dated 22.11.2016 passed by the learned Ld. Civil Judge- 02, Central, whereby the suit filed by the original plaintiff Sh. Mithan Lal (since deceased) was dismissed. The present appeal has been filed by the appellants who are his legal representatives. Sh. Mithan Lal (since deceased) was the plaintiff and the respondents were the defendants therein. For the sake of convenience, parties shall be referred to by their nomenclature in the main suit.
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2. Brief facts relevant to the present adjudication are that the wife of the plaintiff purchased the plot bearing No. D- 17, Kamla Nagar, Delhi, which was subsequently transferred in favour of the plaintiff vide registered sale deed executed in the year 1952, as the plaintiff has been the head of the hindu undivided family and was carrying on the business of flour mill in the capacity of Karta of he aforesaid HUF. That one and half storeyed building was constructed on the aforesaid plot between the period 1952-54 by the HUF and the plaintiff along-with the other members of the HUF had been residing in he said property continuously since then and are assessed for the purpose of house tax by MCD and electricity and water connection also got installed in their name. That due to the sudden and untimely death of he son of the plaintiff on 03.07.1986, the plaintiff had become mentally retarded and he is not capable of managing his own affairs as well as of the aforesaid property and thus, he same were being managed by Sh. Devender Kumar, son of he plaintiff, who is full conversant with the facts of the present case and is competent to sign, verify and file the present suit on behalf of the plaintiff.
3. It is further averred that the defendant No. 7 had visiting relations with the family of the plaintiff being the colleague of the son of he plaintiff, working in Union Bank of India at Chawri Bazar, Delhi and had the knowledge regarding the mental retardation of the plaintiff. That the defendant No. 4, was brother-in-law of defendant No. 7 and defendant No. 6 was a friend of defendant No. 4. That defendant No. 5 was the brother of defendant No. 4. That defendant No. 4 to 6 are notorious person of the locality. That all the aforesaid defendants with mala RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 4 of 19 fide intention and for ulterior motives, entered into a criminal conspiracy to cheat and grab the property of the HUF of the plaintiff and in furtherance of the common intention, the defendants obtained the signatures of plaintiff on some blank papers and also got a power of attorney dated 08.12.1986, registered in the office of the Registrar, at Ghaziabad U.P. in favour of defendants No. 4 and 6 on 09.12.1986, on the pretext that hey would get the entire ground floor vacated from all the tenants. That later on when the son of the plaintiff came to know about the fraud being played by the defendants No. 4 to 7 with the plaintiff, the said power of attorney was got cancelled by the registered deed dated 20.12.86. That the defendant No. 4 and 6 were intimated accordingly in respect of the aforesaid cancellation deed and were directed not to act as an attorney and to abstain themselves from their such criminal acts. That the defendants No. 2 and 3 in active collusion and with mala fide intention, in conspiracy with defendant No. 4 to 7, the defendant No. 4 and 6 executed a sale deed in favour of the defendant No. 1, through defendants No. 2 and 3 as the alleged partner of the defendant No.1, in respect of the portion of the property shown in red colour in the site plan i.e. property bearing municipal No. D- 17, Kamla Nagar, Delhi.
4. It is further averred that the defendants No. 2 and 3 had full knowledge that the defendant No. 4 and 6 did not have any authority to execute the aforesaid sale deed and the same was got executed only with mala fide intention and for ulterior motives, with a view to grab the property of the plaintiff jointly by all the defendants. That the aforesaid sale deed executed by the defendant No. 4 and 6 in favour of the defendant No.1, RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 5 of 19 through defendant No. 2 and 3 is null and void, ab-initio. That the defendant No. 2 and 3 have no concern with the property and are claiming falsely to be the owner of the said portion of the property on the basis of the alleged sale deed dated 09.01.87. That the defendant No. 2 and 3 on behalf of defendant No. 1, are now threatening to alienate the property in favour of some other person. That the plaintiff had requested a number of times to the defendants No. 2 and 3, not to commit such illegal acts but the defendants turned a deaf ear to the requests of the plaintiff and his sons and the plaintiff had the apprehension that the defendant No. 2 and 3 might alienate the property in favour of some other person. Hence the present suit. The plaintiff had sought the following relief in the suit:
"In the above circumstances, it is, therefore, respect fully prayed that a decree in favour of the plaintiff and against the defendant, may kindly be passed, declaring the sale deed åt.9.1.87, registered at the office of sub. Registrar, Delhi on 9.1.87, vide Registration No.148 in Addl. Book No.1, Volume No. 4683 page No.116 to 122 in favour of the defendant No.1, through defendant No.2 & 3 by the defendant No.4 & 6 is ab- initio mull and void.
It is further prayed that a decree of permanent injunction in favour of the plaintiff and against the defendant No. 1 to 2 and their assignees, representati ven nominees, Lrs. or any other partner of the defendant No.1 may kindly be passed restraining the defendants No.1 to 3, their assignees, representatives, nominees, Lrs or any other partner of the defendant No.1, alienating or parting with the possession of the portion in the property shown in red colour and described in the impugned Sale Deed in the attached site plan on the basis of the aforesaid impugned Sale Deed by executing any sale Deed, gift deed, or any other document for transferring the said property, in the interest of justice equity and good conscience.
Any other relief or order which this Hon'ble court may deem fit and proper in the circumstances of the case, may kindly be passed in favour of the plaintiff and against the defendants."
5. The defendants No. 1 to 3 had filed their joint written statement stating that the suit has not been properly RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 6 of 19 valued for the purpose of court fee and jurisdiction. That the plaintiffs should have paid the appropriate court fee on the market value of the property. That this court has no jurisdiction as the value of the property is more than 50 lacs. That the suit has not been instituted by the proper person, and hence, the plaint is liable to be rejected or returned. That the plaint is not signed by the plaintiff but the same has been filed by his son who is not a proper person for signing the plaint. That there is no valid and legal plaint before the Court and even the alleged plaintiff i.e. Sh. Mithan Lal was never allowed to file his suit before his death. That, admittedly, the plaintiff is out of possession of the suit property and the possession of the same has not been demanded by the plaintiff, hence, suit is liable to be dismissed under the provision of section 34 of Specific Relief Act. That the suit of the plaintiff is mischievous and has been filed with intent to misuse the process of the court and to abuse the process of justice. That the plaintiff has already filed many civil suits and criminal cases in different courts against defendants. That the plaintiff had not been shown as a mentally retarded or unsound men in all the other suits. That the suit of the plaintiff is bad for the miss- joinder of the parties. That the plaintiff has made Sh. Fateh Singh Rajawat as defendant No. 4 in the case who has absolutely no connection either with the plaintiff or with other defendants or in the execution of alleged power of attorneys by Sh. Mithan Lal or the sale deeds. That the defendant No. 4 is not even a witness in all these documents and he has been wrongly joined as defendant in the case by the plaintiff.
6. It is further averred that no cause of action arose in favour of the plaintiff to file the present suit against all the RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 7 of 19 answering defendants. That the plaintiff in his complete senses and in good sound and disposable mind good physique, executed the general and special power of attorney in favour of the defendants Sh. Mahesh Kumar Gupta and Sh. Ashok Kumar, before Sub- Registrar Ghaziabad, UP and authorized them to sell or transfer the properties in favour of any purchaser and has also received consideration amount from his attorneys and as such no cause of action arose in his favour to file the suit. That the plaintiff was not a mentally deranged person, nor has been ever declared as mentally deranged person from any court hospital or nursing home Doctors, or from any Govt. Medical psychiatric nor ever remained admitted as indoor patient in any Govt. Mental Hospital or Aslum, hence he has no right to file the suit. That the plaintiff had mischievously and with calculated moves filed the present suit through his so-called next friend. That the plaintiff till date has not placed on record any medical evidence showing that he is mentally deranged person from the date of death of his son. That the plaintiff admittedly appeared before Sub Registrar, Ghaziabad and executed two cancellation deeds cancelling his so called so far power of attorneys executed in favour of Sh. Mahesh Kumar Gupta, hence the plaintiff cannot at this stage contend to be a mentally deranged person.
7. It is further averred that the plaintiff till date has not served any legal notice about alleged cancellation of power of attorneys on the defendants hence the plaintiff is bound by their acts and could not come before the Court for declaratory relief that the sale deed executed on his behalf is void and ab-initio. That the plaintiff has received consideration for the sale transaction executed by his attorneys and has himself put RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 8 of 19 defendant No. 1 into possession of the property in dispute and made him rightful owner of the property, hence he has no right to file the present suit.
8. The defendants No. 4 to 7 also filed their joint written statement stating that the suit of plaintiff is mischievous and has been filed with intent to misuse the process of the Court. That the plaintiff had already filed five different civil suits in different Courts against defendants No. 4 and 6, and 7. That the suit of the plaintiff was bad for mis-joinder of the parties. That the plaintiff has made Sh. Fateh Singh Rajavat as defendant No. 4 in the case who has absolutely no connection either with the plaintiff or with other defendants or in the execution of alleged power of attorneys by the plaintiff or in the sale deed. That the defendant No. 4 was not even a witness in all these documents and has been wrongly joined as defendant in the present suit. That no cause of action arose in favour of the plaintiff to file the present suit against all the answering defendants. That the plaintiff in his complete senses and in good sound and disposable mind and good physique, executed the general and special power of attorneys in favour of defendant Sh. Mahesh Kumar Gupta and Sh. Ashok Kumar, before Sub Registrar and that too irrevocable power of attorneys and authorized them to sell or transfer the properties in favour of any purchaser and also received consideration amount.
9. It is further averred that the plaintiff was not a mentally deranged person, nor has been ever declared as mentally deranged person from any Court or from any two Govt. medical doctors, or psychiatrist nor ever remained admitted as an indoor patient in any Govt. Mental Hospital or Asylum, and RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 9 of 19 hence, he has no right to file the suit through his next friend Sh. Devinder Kumar. That the plaintiff had mischieveiously and with calculated moves filed the present suit through his so called next friend. That the plaintiff till date has not placed on record any medical evidence showing that he was mentally deranged person from the date of death of his son till date of filing of the suit. That the plaintiff admittedly appeared before Sub Registrar and executed two cancellation deeds cancelling his so called power of attorneys executed in favour of Sh. Mahesh Kumar Gupta, hence the plaintiff cannot contend to be a mentally deranged person. That the plaintiff till date has not served any legal notice about cancellation of power of attorneys on the defendants hence the plaintiff is bound by their acts. That the plaintiff had received consideration for the sale transaction executed by his attorneys and has himself put defendant No. 1 into possession of the property in dispute and made him rightful owner of the property, hence he has no right to file the present suit.
10. The followings issues were framed in the suit by Ld. Trial Court:
"1. Whether the plaintiff has valued the suit properly or not? OPP
2. Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ?OPP
4. Relief."
11. The plaintiff examined Sh. Anil Kumar Mittal, son of the plaintiff as PW-1 who tendered his evidence by way of affidavit Ex. PW1/A. PW1 relied upon the documents i.e. (i) medical documents Ex.PW1/1 (colly.), (ii) cancellation deed RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 10 of 19 dated 28.12.1986 Ex.PW1/2, (iii) certified copy of the sale deed dated 24.12.1986 Ex. PW1/6, (iv) copy of the letter dated 29.12.1986 written by Sh. Davinder Kumar to Sh. Mahesh Kumar Mark A, and the photocopies of UPC receipts Mark B and C. PW1 was cross-examined by Ld. counsel for the defendants No. 1 to 3.
12. The plaintiff examined Sh. Amar Lal Aggarwal as PW-2 who tendered his evidence by way of affidavit Ex.PW2/A. PW2 also relied upon the documents already relied by PW-1. PW2 was cross-examined by Ld. counsel for the defendants No. 1 to 3.
13. The plaintiff examined Dr. P.K. Sondhi as PW3. PW3 was a summoned witness and he relied upon the prescription dated 20.11.1986 Ex. PW3/1 issued by him. As per Ex. PW3/1 Sh. Mithan Lal was suffering from mental disorder, loss of memory. PW3 deposed that when the person suffers from mental disorder and loss of memory, he is not able to take his own decision and the same was the condition of deceased Sh. Mithan Lal. PW3 was cross-examined Ld. counsel for the defendants No. 1 to 3.
14. The defendants No. 1 to 3 examined Sh. Kishan Lal Balani as DW1 who tendered his evidence by way of affidavit Ex.DW1/A. DW1 was cross-examined by Ld. counsel for the plaintiff.
15. The Ld. Trial Court decided issue No. 1 in favour of the defendants and against the plaintiff by holding that the plaintiff was not in possession of the suit property and did not seek any consequential relief. In respect of issues No. 2 and 3, RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 11 of 19 Ld. Trial Court held that plaintiff failed to prove that he was not mentally competent to execute the power of attorney dated 08.12.1986. It was held by Ld. Trial Court that the plaintiff did not examine the author of the medical document i.e. Ex.PW1/1 and thus, it could not be read in evidence. Ld. Trial Court rejected the testimony of PW2 since the power of attorney dated 08.12.1986 was not got executed in the presence of the witness. It was also held by Ld. Trial Court that the plaintiff has failed to prove that the cancellation deed Ex. PW1/2 was brought to the knowledge of the defendants. It was also observed by Ld. Trial Court that since the plaintiff was not in possession, he ought to have sought the consequential relief of possession.
16. The impugned judgment is assailed on the grounds that the judgment is illegal, unjustified. arbitrary, perverse and based on surmises and conjectures and against the evidence on record. That the issue No.1 regarding valuation of the suit has not been properly and legally decided. That The Ld. Trial Court has decided issue No.1 against the plaintiff but failed to mention as to how the suit was not properly valued. That under law the suit for declaration can be valued at Rs. 200/- and the relief of injunction can be valued at Rs. 130/-. That it is settled law that if the valuation was not proper and the Court fees paid was insufficient, it was the legal duty of the Ld. Trial Judge to point out the defect in the valuation and to give the opportunity to the plaintiff to correct the valuation and to pay the deficiency of the court fees. That the evidence on record clearly proved that alleged power of attorney dated 08.12.1986 which was registered on 12.12.1986 at Ghaziabad was cancelled by the Registered cancellation deed Ex. PW-1/3. That this cancellation deed of Mithan Lal was a RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 12 of 19 registered document. That the registered document itself is a notice. That when the alleged sale deed dated 09.01.1987 was executed after the cancellation of the power of attorney, the said attorney was not having power and authority to sell the property. Hence, the sale of the property on 09.01.1987 was void and nullity. That the alleged power of attorney was registered at Ghaziabad but the property was situated in Delhi. That on the basis of said power of attorney registered at Ghaziabad, the said attorney was not having any legal right to transfer the immovable property situated in Delhi. That Sh. Mithan Lal was the owner in possession of the suit property when the suit was filed.
17. I heard the arguments advanced and perused the record.
18. It is not disputed that the power of attorney dated 08.12.1986 was executed by the plaintiff in favour of defendant No. 4 and defendant No. 6. It is the case of the plaintiff that when the power of attorney dated 08.12.1986 was executed, the plaintiff was not mentally sound and thus, was not competent to execute the said power of attorney. In support of this claim, the plaintiff relied upon Ex. PW1/1 (colly.) which are the medical prescriptions. The plaintiff examined PW3 who has written the prescription dated 20.11.1986. However, PW3 was a general physician and not a psychiatrist. The same was admitted by him during the cross examination. Therefore, the opinion of PW3 about the mental condition of the plaintiff should not be given much value. Similar can be said for the other medical prescriptions Ex. PW1/1 (colly.). The plaintiff has also examined PW2 in support of his case. However, the testimony of PW2 also does not in any way proves that at the time when the power of RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 13 of 19 attorney dated 08.12.1986 was executed, the plaintiff was in such a mental state that he did not know the consequences of his acts. In fact, it was categorically deposed that the plaintiff was doing his daily chores on his own and that he was never admitted in any of the hospitals nor he knew that the plaintiff was being treated for mental illness. Further, the witness was not present at the time of the executed of Ex. PW1/2. Moreover, Ld. Predecessor had examined the plaintiff in the open Court on 08.09.1988 to determine the mental state of plaintiff and the Ld. Predecessor, after the said examination, was of the view that the plaintiff was in a fit state of mind. Therefore, in the absence of any cogent evidence, the plaintiff has not been able to establish that the power of attorney dated 08.12.1986 was void due his incapacity. It is pertinent to mention that the power of attorney was not produced before the Court during the trial nor production of the same was sought by the plaintiff during the trial from the defendants.
19. Plaintiff relied upon the letter Mark A and the UPC receipts Mark B and Mark C. It is pertinent to mention that all these documents are merely copies. The letter Mark A was written by the plaintiff but he was never examined to prove the same. Further, the UPC receipts Mark B and Mark C are merely copies and there original were not produced during the trial nor any witness from the postal department was called to prove the same. Therefore, Ld. Trial Court rightly rejected the documents Mark A, Mark B and Mark C from its consideration and it was rightly held by Ld. Trial Court that the plaintiff has failed to prove that the cancellation deed Ex. PW1/2 was brought to the knowledge of the defendant No. 4 and 6.
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20. There is one more ground to reject the contentions of the appellants. The power of attorney dated 08.12.1986 was alleged to be executed for consideration along-with delivery of possession. Section 202 of the Contract Act, 1872 provides that the power of attorney coupled with interest is irrevocable and cannot be revoked even upon the death of the principal. Section 202 of the Contract Act is reproduced hereunder:-
"202. Termination of agency where agent has an interest in subject-matter- 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."
In Harbans Singh v. Shanti Devi, 1977 RLR 487, the seller had executed an agreement to sell in favour of the purchaser and the general power of attorney in favour of her husband. The GPA was alleged to be irrevocable and it authorized the attorney to further sell the property in question. The seller later cancelled the agreement to sell and all other documents including the GPA. The Court of first instance held the GPA to be irrevocable which was challenged before Hon'ble Delhi High Court. The Hon'ble Delhi High Court held that the GPA was executed for a valuable consideration and the agent had an interest in the property and, therefore, the GPA was irrevocable. The observation of the the Hon'ble High Court are as under:-
"10. For the purposes of the Law of Contract, therefore, it would not be useful to restrict the meaning of the word "interest" by the narrow compass in which this world is used at times in relation to immovable property. For instance, the last sentence of section 54 of the Transfer of Property Act states that a contract for sale of itself does not create any interest in or charge on immovable property. Similarly, section 17(1)(b) of the Registration Act makes only those documents compulsorily registerable which create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 15 of 19 property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registerable. But in the context of the Contract Act, it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subject-matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the provisions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter IV of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, Section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the respondent in whose favour the appellant had executed an agreement for the sale of an immovable property had an interest in the subject-matter of the contract, namely, the shop, for the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property and the Registration Acts.
13. All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from the respondent. It was given for the purpose of effectuating security or protecting or securing the interest of the agent. For, the only purpose of the agency was to ensure and secure the performance of the contract by the appellant in favour of the respondent for whom Shri Gulati was acting as the husband and the nominee and, therefore, a representative or agent. Where the performance of the agency is not to secure the interest or the benefit of the agent then the agency is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in or lieu for advances upon the subject-matter of it.
15. The matter may be looked at from another point of view. Legally protected interest or a benefit of one party casts a corresponding obligation on the other party to the contract. If the contract of agency confers an interest or a benefit on the agent, it casts an obligation on the principal. In the present case, the appellant, as a principal was under an obligation to perform the contract of sale by the execution of a conveyance. In the words of Bowstead, "authority is normally only irrevocable when it is the security or other proprietary interest, or part of the security, or where its conferring constitutes the performance of the obligation". Such a power is referred to as a "power coupled with an interest" and should be regarded as a property disposition rather than as the conferring of authority. The Restatement (the American Restatement of the Law on Agency, Section 138) uses the phrase "power given as security"
defined as "a power to affect the legal relations of another, created in the form of an agency authority, but held for the benefit of the power holder or a third person, and given to RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 16 of 19 secure the performance of a duty or to protect a title, either legal or equitable, such power being given when the duty or title is created or given for consideration." Since the power of agency has been conferred not for the benefit of the principal but for the benefit of the agent representing a third party and not as representing the principal, the power becomes irrevocable."
21. In Prem Raj v. Babu Ram, 1991 RLR 458, the seller agreed to sell an immovable property to the purchaser and executed two power of attorneys in favour of the wife of the purchaser. The seller later cancelled the power of attorneys and filed a suit against the purchaser alleging that DDA had refused the permission to sell and, therefore, the agreement became frustrated. The seller claimed that he was entitled to forfeit the money received and the possession be restored. The Hon'ble Delhi High Court rejected the plea and held that the power of attorneys executed for a consideration creating interest in the property cannot be revoked or cancelled in view Section 202 of the Contract Act, 1872. Similar view was taken by Hon'ble Delhi High Court in Hardip Kaur Vs. Kailash & Anr., RFA No. 648/2006, dated 18.05.2012 and H.L. Malhotra v. Nanak Jai Singhani, 1986 RLR 89.
22. In the present case, even though the plaintiff has denied that the power of attorney dated 08.12.1986 was executed without any consideration. However, no evidence was led in this regard by the plaintiff. The evidence in this regard was required to be led by the plaintiff since the power of attorney dated 08.12.1986 was never produced before the Court. However, the fact that possession was handed over to the defendant No.4 and 6 was not denied by the plaintiff. PW1 categorically admitted this fact. In these circumstances, it is reasonable to infer that the power of attorney dated 08.12.1986 was executed for RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 17 of 19 consideration and thus, was irrevocable.
23. Further, the plaintiff has only sought the declaration qua the sale deeds dated 24.12.1986 and 09.01.1987 and the consequential relief of injunction without seeking the possession of the suit property. It is the admitted position that the plaintiff was not in possession of the suit property and therefore, the relief of possession was such a consequential relief which he ought to have been sought. It was held by Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors., AIR 2008 SC 2033 that if the plaintiff is not in possession of the subject property, he must seek possession of the same without which he cannot succeed in a suit for declaration and injunction. Therefore, Ld. Trial Court rightly held that the plaintiff must fail on account of his failure to seek the consequential relief of possession.
24. As far as the issue No. 1 i.e. valuation of the suit is concerned, even if the contention of the appellants is accepted, it would not be sufficient for them to have the relief of declaration and injunction in their favour. The findings of Ld. Trial Court on issues No. 2 and 3 were sufficient to dismiss the suit of the plaintiff. Since the plaintiff has sought the declaration alongwith the consequential relief of injunction, the valuation of the suit should have been according to the value of the property. However, the plaintiff has merely valued the suit @ Rs. 330/- on the assumption that a fixed court fees was to be paid on the reliefs of declaration and injunction. However, in terms of Second Proviso to section 7 (iv) (c) of Court Fees Act as applicable to Delhi (extended to Delhi by Act 31 of 1953), in case of any suit falling under section 7 (iv) (c) in respect of any RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 18 of 19 property, the valuation of the suit cannot be less than the value of the property as calculated under section 7 (v) of Court Fees Act, which is actually the market value of the property in the present case. Accordingly, the contention of the appellants that the finding returned by Ld. Trial Court was not correct, is rejected.
25. In view of reasons given above, I find no merits in the present appeal. The same is accordingly dismissed and the impugned judgment and decree dated 22.11.2016 is upheld.
The appeal file be consigned to the Record Room after due compliance.
Trial Court Record be sent back along with a copy of the judgment. Digitally signed by PRANAV PRANAV JOSHI Announced in open Court JOSHI Date:
2024.07.08 on this 08th Day of July, 2024 16:51:21 +0530 (PRANAV JOSHI) JSCC/ASCJ/GJ (CENTRAL) TIS HAZARI COURTS/DELHI RCA No. 20/2017 Anil Kumar & Ors. Vs. M/s Sangam Supari Co. & Ors. Page No. 19 of 19