Punjab-Haryana High Court
Balraj Singh & Ors vs Sadhu Ram & Ors on 25 February, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.4370 of 2010(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.4370 of 2010(O&M)
Date of Decision:-25th February 2012
Balraj Singh & Ors.
......Appellants.
Versus
Sadhu Ram & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH.
Present:- Mr. Surinder Garg, Advocate for appellants.
Mr. Dinesh Goyal, Advocate for respondent nos.1 to 3.
***
JASWANT SINGH, J.
Plaintiffs/appellants are in second appeal against the concurrent findings given by both the courts below whereby his suit has been dismissed vide trial court's judgment and decree dated 08.04.2009 and the same being affirmed by the learned lower Appellate Court vide its judgment and decree dated 31.03.2010.
Brief facts for proper adjudication of the case in hand are that the plaintiffs/appellants filed suit for declaration to the effect that the sale deed no.7760 dated 13.01.2003 executed by defendant no.1 as attorney of plaintiffs in favour of his daughter in law(defendant no.2) qua the land measuring 03 Bigha 12 Biswas and another sale deed no.7761 dated 13.1.2003 executed by defendant no.1 in favour of Girdhari Lal defendant no.3 with regard to land measuring 1 Bigha 4 Biswas are illegal null and RSA No.4370 of 2010(O&M) #2# void and result of fraud played by defendants upon the plaintiff. The plaintiff in his plaint claimed that they were owners of land measuring 04 Bigha 19 Biswas as the same was purchased by them from one Shailender Singh through sale deed dated 8.6.1990. It was further averred that father of the plaintiffs was in good terms with Sadhu Ram(defendantno.1) and he was having blind faith on Sadhu Ram. Due to this reason the plaintiffs appointed Sadhu Ram as their general attorney vide registered deed no.392 of 22.6.1993 qua land measuring 8 Bigha 16 Biswas which included the suit land. However, when the plaintiffs came to know that Sadhu Ram was wasting the property they cancelled the power of attorney through a registered deed no.645 of 27.12.2002 and the cancellation was alleged to have been intimated to defendant no.1 through post. It was further alleged that notice of cancellation was also published in a local newspaper "Ajj Di Awaj" dated 6.1.2003. It was thus stated that Sadhu Ram was in full knowledge of the cancellation of the said power of attorney still with the malafide intention to usurp the property he used the said attorney to execute the sale deeds in favour of defendant nos.2 & 3 as stated above. It was further alleged that possession has not been delivered to the defendant nos.2 & 3 and it is the plaintiffs who are in possession of the same. Thus the defendants under the garb of the aforementioned sale deeds are trying to take forcible possession of the land, and, therefore, injunction was sought against the defendants.
Upon notice, defendant no.1 filed separate written statement whereby he stated that the plaintiffs were co-owners in a total land measuring 96 Bighas which included the suit land. The defendant no.1 had raised the plea that plaintiffs along with other co-sharers had entered into RSA No.4370 of 2010(O&M) #3# agreement to sell dated 4.5.1993 for land measuring 18-1/4 acres and a site plan was also prepared whereby small plots were also carved out. Vide the said agreement, Partap Singh was the purchaser and could get the land transferred in his favour or in favour of any person to the extent of 1/10 share and was also competent to execute irrevocable power of attorney in favour of such purchaser for execution of the sale deed in favour after payment of full consideration amount. It was alleged by defendant no.1 that he paid the full consideration amount on 22.6.1993 and got a receipt dated 22.6.1993(Ex.D-2) from the plaintiffs as well as general power of attorney for execution of a sale deed in favour of any person of his choice. The plaintiffs were, therefore, not to interfere in the execution of the sale deed, nor they could revoke this general power of attorney. It was, therefore, finally prayed that defendant nos.2 & 3 had validly got the property through sale deeds and the possession which was with defendant no.1 was handed over to the defendant nos.2 & 3.
Defendant nos.2 & 3 filed separate joint written statement whereby all the pleas taken by the defendant no.1 were taken and it was stated that the plaintiff were well aware that they had relinquished all their rights and interest in the suit property in the year 1993 after receiving the full consideration. Thus the defendants defended the execution of the sale deeds and sought dismissal of the suit.
Replications were filed to the written statements filed by the defendants and stand taken in the plaint was reiterated.
From the pleadings of the parties issues were framed. Both the sides led their respective evidence in support of their claims. After appreciating the evidence of both the sides, the trial Court dismissed the suit RSA No.4370 of 2010(O&M) #4# vide judgment and decree dated 08.04.2009 and the findings of the trial Court have been affirmed in appeal vide appellate court's judgment and decree dated 31.03.2010. Hence the present second appeal.
I have heard learned Counsel for parties and have gone through the record of the case very carefully with their able assistance.
Learned Counsel for the plaintiffs/appellants has vehemently argued that both the Courts have misread and misinterpreted the evidence on record and thus have rendered perverse findings. It was argued that the defendant no.1 was in knowledge of the cancellation of general power of attorney and thus he was not competent to execute the impugned sale deeds in favour of respondent nos.2 & 3. It was further argued that respondent nos.2 & 3 cannot be held to be bonafide purchasers as the ingredients have not been met out by them.
Per contra learned Counsel for the defendants/respondents has defended the impugned judgments and decrees by arguing that the sale deeds are perfectly valid as respondent no.1 was competent to execute the same on the basis of general power of attorney dated 22.6.1993(Ex.D-1) after receiving the sale consideration with regard to the suit property. It was further argued that the appellant could not revoke the power of attorney and further neither of the respondents had any intimation regarding the cancellation of the said power of attorney. It was further argued that once the entire sale consideration was received by the appellants through receipt dated 22.6.1993 Ex.D-2, the appellants had lost the right to cancel the said power of attorney.
After hearing learned Counsel for both the parties, this court is of the view that the findings returned by both the courts below are liable to RSA No.4370 of 2010(O&M) #5# be affirmed and contentions raised by the learned counsel for the appellants are devoid of merit.
Before dealing with the arguments of both the sides it would be necessary to reproduce Section 202 of the Indian Contract Act:-
"Section 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."
A bare perusal of the above mentioned section would show that once the agent in whose favour the power of attorney has been executed has got the right in the suit property, the power of attorney thus executed cannot be revoked and the same partakes the character of an irrevocable power of attorney. This view is further fortified by the judgment of a coordinate Bench of this court in Jeet Kumari Vs. Girdhari Lal 2003(3) RCR Civil 391 coordinate Bench of Delhi High Court in J.C. Mehra Vs. Kusum Gupta 2006(1) RCR Civil 31. In the case in hand it is proved on record that on 22.6.1993, the date of execution of the GPA Ex.D-1, one receipt Ex.D-2 was also signed and executed by the appellants. In the said receipt there was a reference of the said power of attorney executed in favour of Sadhu Ram and Tek Chand who were authorized to alienate the suit property in any manner. The appellants had also settled the accounts with the said attorney's with regard to the said property. The document Ex.D-2 is the most vital document which has been proved on record by Sadhu Singh, DW-3. From the testimony of this witness it becomes amply clear that the RSA No.4370 of 2010(O&M) #6# document (Ex.D-2) indeed was executed. Thus, it becomes crystal clear that at the time of execution of the GPA Ex.D-1, the appellants had received the entire sale consideration from Sadhu Ram and Tek Chand and it was only thereafter the GPA was executed. It is by using this power of attorney that the sale deeds have been executed in favour of respondent nos.2 & 3. If no such money was received by the appellants, how Ex.D-2 would have come into existence and stand against the case of the appellants. Therefore, this court is left with no other conclusion other than the one that the power of attorney was executed in favour of agents after creating right/interest in their favour and thereby making this power of attorney irrevocable in view of Section202 of the Indian Contract Act.
The other argument of the learned Counsel for the appellant regarding the intimation is also of no value. Even if for a moment it is considered that Section 202 is not applicable to the present case, in the considered opinion of this court the appellants have miserably failed to prove that the intimation of the cancellation of the power of attorney was given to respondent no.1. A bare perusal of the entire record which was summoned by this court would show that no such notice by the postal receipt has been either placed or proved by the appellants. The said documents would have been the best proof against the respondents. Since the best evidence has been withheld by the appellants, adverse inference has to be drawn against them. The learned Counsel for the appellant has heavily relied upon the public notice which was got published qua the cancellation of power of attorney in a local newspaper "Ajj Di Awaj" dated 6.1.2003. This public notice notice in considered opinion of this Court is not notice in the eyes of law because the said newspaper is a local newspaper and not a RSA No.4370 of 2010(O&M) #7# widely circulated newspaper. On the asking of this Court, also the learned Counsel for the appellant has not been able to show that this newspaper has a wide circulation so as to gain any kind of mileage from this argument. It is not the case of the appellants that the newspaper cutting was also sent to the respondent no.1. If that was also the case, as stated earlier the appellants have failed to show any kind of notice or postal receipts to prove the same. It is a settled position of law that the authority of the agent is not deemed to be terminated until and unless the same is communicated to him and further it will not affect the rights of third party unless they are communicated to him as well. It was incumbent upon the appellants to give any semblance of evidence that they had informed the respondent no.1 or even the respondent nos.2 & 3 regarding the cancellation of the power of attorney either oral or by writing. Thus the evidence led by the appellants is totally unconvincing and lacks the material documents so as to return any finding in their favour. Therefore after considering all the evidence on record this Court finds that respondent no.1 was fully competent to execute the sale deeds in favour of respondent nos.2 & 3 and further in view of the facts and circumstances of the case in hand, respondent nos.2 & 3 are the bonafide purchasers of the property in question.
In view of the above, finding no question of law much less substantial question of law arises for consideration the present second appeal is hereby dismissed.
( JASWANT SINGH ) JUDGE February 25, 2012 Vinay