Telangana High Court
Sri G.Rajender Kumar Died 3 Others vs G.Kalawati Bai Died 13 Ors on 26 September, 2018
*HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ CCCA.No.40 of 2002
And
TR.CCCA.No.168 of 2003
% 26-09-2018
# G.Shashikala and another
... Appellants
Vs.
$ G.Kalawati Bai and 5 others.
... Respondents
! Counsel for the appellants: Sri P.Rajeswara Rao and
Sri V.Kumar Purohit.
! Counsel for the Respondents: Sri R.Prasad
< Gist:
> Head Note:
? Cases referred:
1
Manu/DE/2279/2011
2
2013 (3) ALT 52
3
2003 (1) SCC 240
4
2010 (10) SCC 512
5
AIR 1983 CALCUTTA 337
6
AIR 1961 CALCUTTA 359
7
2016 (4) ALD 59
8
AIR 1950 ALL 524
9
AIR 1971 SC 761 = Manu/SC/0413/1970
10
AIR 1979 Bom 202 = Manu/MH/0042/1979
11 1996 (1) ALD 606
12
AIR 1982 Delhi 487
13
AIR 1984 Delhi 363
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
CCCA.No.40 of 2002
And
Tr.CCCA.No.168 of 2003
COMMON JUDGMENT :
The appeals CCCA.No.40 of 2002 and Tr.CCCA.No.168 of 2003 are filed challenging the common judgment dated 21.01.2002 in OS.No.1402 of 1992 and OS.No.432 of 1993 respectively passed by the VI Senior Civil Judge, City Civil Court, Hyderabad.
As this is a first appeal, the parties are referred to as the plaintiff and defendant only as in the suit OS.No.1402/1992 as the evidence was recorded in this suit.
OS.No.1402 of 1992 is filed seeking declaration of title and delivery of possession of major portion of the composite house bearing Door No.5-3-128, Hindi Nagar, Goshamahal, Hyderabad, which is described within the boundaries shown in the plaint schedule and also for mesne profits past and future in respect of the mulgi bearing No.5-3-128/2 and six rooms allegedly in occupation of defendant Nos.1 and 2. Defendant No.2 filed OS.No.432/1993 seeking a decree for perpetual injunction against the defendants from interfering with her possession of the mulgi bearing No.5-3-128/2, situated in Hindi Nagar, Goshamahal, Hyderabad. The schedule property in OS.No.432 of 1993 is a part of the 3 schedule of property in OS.No.1402 of 1992. The plaintiff in OS.No.1402 of 1992 is the defendant No.5 in OS.No.432 of 1993. The plaintiff in OS.No.432 of 1993 is the defendant No.2 in OS.No.1402 of 1992. The three sons of the plaintiff in OS.No.1402 of 1992 are defendant Nos.1 to 4 in OS.No.432 of 1993.
The case of the plaintiff-Kalawathi Bai in OS.No.1402 of 1992 is that the deceased defendant No.3 Ranvir Singh was the original owner and possessor of the composite house bearing Municipal No.5-3-128, Hindi Nagar, Goshamahal, Hyderabad and the same is shown as A, B, C, D, E, F in the plan enclosed to the plaint. The plaintiff purchased the Northern portion which is shown as BCDE in the plan measuring 43 sq., yards for valuable consideration from defendant No.3 under registered sale deed dated 26.05.1988 and ever since she has been in possession and enjoyment of the portion of the property. Thereafter, defendant No.3 entered in to an agreement dated 05.03.1986 to sell the remaining portions to the plaintiff but as the same could not be completed; he executed a supplemental agreement dated 21.08.1988 after taking return of the earlier agreement dated 05.03.1986. He also executed another supplemental agreement dated 30.08.1991 for the property whereby time was further extended. When defendant No.3 failed to execute a regular sale deed, the plaintiff-Kalavathi Bai got issued legal notice dated 20.07.1991 to him and then filed OS.No.179 of 4 1992 seeking specific performance of the contract of sale on the file of I Additional Judge, City Civil Court, Hyderabad. In that suit, defendant No.3-Ranveer Singh filed a written statement admitting the suit claim and offered to execute regular sale deed. Accordingly, he executed a registered sale deed in favour of the plaintiff on 27.06.1992 after receiving the balance sale consideration. The above suit was decreed on 17.07.1992. On 29.06.1992 the plaintiff and defendant issued separate notices to the tenants, Radha Krishna, Shankerjee who are in occupation, respectively of the mulgies bearing Nos.5-3-128/4 and six rooms, of the suit property, calling upon them to attorn to the plaintiff. Defendant No.1 received the notice and gave a reply dated 11.07.1992 with all false allegations. After receiving notice, the said Shankerjee attorned the tenancy to the plaintiff and executed a lease deed dated 19.09.1992 in favour of the plaintiff. The said Radha Krishna received the notice, but gave a reply seeking clarification as defendant No.1 made a claim to be the owner of the property. While so, defendant No.2 who is the wife of defendant No.1 filed OS.No.2050/1992 on the file of III Assistant Judge, City Civil Court, Hyderabad against the plaintiff and her four sons seeking permanent injunction in respect of the mulgi bearing No.5-3-128/2, renumbered as OS.No.432 of 1993 subsequent to the transfer to the Court of I Additional Judge, City Civil Court, Hyderabad and which was again transferred to the present Court. Defendant Nos.1 5 and 2 claimed that defendant No.3 had executed General Power of Attorney in favour of defendant No.1 and that defendant No.1 as General Power of Attorney, sold the property in favour of defendant No.2. The alleged General Power of Attorney in favour of defendant No.1 is false and bogus. Defendant No.1 had no right to convey title over the property in favour of defendant No.2 on the basis of the alleged General Power of Attorney. Further, the sale deeds said to have been executed by defendant No.1 in favour of defendant No.2 are invalid and are not supported by consideration. Both defendant Nos.1 and 2 brought into existence the sale deeds to defeat the right of ownership of the plaintiff over the property. Hence, the suit.
Defendant Nos.1 to 3 filed separate written statements. During the pendency of the suit, defendant No.3 died and defendant Nos.4 to 7 being his legal representatives were brought on record. Defendant Nos.4 to 6 entered appearance but did not file any additional written statement. Defendant No.7 remained ex parte. The defence of defendant Nos.1 and 2 is common. They admitted that the deceased defendant No.3 was the owner and possessor of the suit property but state that Defendant No.1 was the General Power of Attorney holder for defendant No.3 by virtue of a General Power of Attorney dated 15.10.1990. It is admitted that the plaintiff purchased composite house under the sale deed dated 26.05.1988. Defendant No.1 as General Power of Attorney 6 holder sold the entire premises except that small portion measuring 43 sq., yards to defendant No.2 under registered sale deeds dated 16.11.1990, 18.07.1991 and 16.08.1991 and ever since the dates of the sale deeds defendant No.2 has been in actual possession of the property. Defendant No.2 applied to Municipal Corporation of Hyderabad for permission to make construction and accordingly the Corporation granted the permission with sanction plan and as per the plan the four mulgies facing the road were assigned Dr.No.5- 3-128/2 to 5. On the rear side of the house towards West, there is another shop and the same is assigned Dr.No.5-3- 128/1. The plaintiff obtained the sale deed dated 27.06.1992 in collusion with defendant No.3. So, defendant No.2 filed OS.No.1110 of 1992 challenging the validity of the sale deed. It is admitted that the said Radha Krishna and Shankarjee are in occupation of the two mulgies as tenants, but the door numbers of the mugies are 5-3-128/3 and 4 respectively and not 2 and 3 as stated by the plaintiff. Another mulgi bearing No.5-3-128/5 (described as 5-3-128/4 by the plaintiff), is in occupation of the brother of defendant No.1 and is running a tent house in that shop. For the mulgi which according to the plaintiff bears the Dr.No.5-3-128/1, Door Number as 5-3- 128/2 was assigned by Municipality in the year 1992. The other rooms bearing Nos.5-3-128 and 128/1 with bath room, kitchen, toilet well and open space are in possession of defendant No.2. The alleged agreements dated 05.03.1986, 7 28.01.1988 and 30.08.1991 are false and bogus and they were created by the plaintiff. The plaintiff filed OS.No.179 of 1992 seeking specific performance in collusion with defendant No.3 and so the judgment in that suit basing on the admission made by defendant No.3, is not binding on the defendants. The General Power of Attorney executed in favour of defendant No.1 is a registered one and by virtue of that power of attorney, defendant No.1 was empowered to sell the property. The sale deeds executed by defendant No.1 in favour of defendant No.2 are valid.
Defendant No.3-Ranveer Singh in his written statement denied that he had appointed defendant No.1 as his General Power of Attorney holder to sell the suit property. He alleged that defendant No.1 had no right to sell the property in favour of defendant No.2 by executing the sale deeds. He further alleged that the three sale deeds are collusive and void. He alleged that defendant No.2 being a householder has no capacity to pay Rs.2,70,000/- towards the sale consideration under the sale deeds. He admitted that truth of the agreements of sale dated 05.03.1986, 28.01.1988 and 30.08.1991. He further admitted that he had sold the entire house in favour of the plaintiff under sale deeds dated 26.05.1988 and 27.06.1992. He stated that by the date of the sale deed dated 27.06.1992, the said Radha Krishna, Shankerji and defendant No.1 were in occupation of the mulgies bearing Nos.5-3-128/2, 5-3-128/3 and 5-3-128/4 8 with six rooms, W.C. etc., on monthly rent of Rs.250/- Rs.250/- and Rs.1000/- respectively and that they were paying the rents to defendant No.3. He alleged that the sale deeds in favour of defendant No.2 are fictitious and were brought into existence. He admitted that he had inducted defendant No.1 into physical possession of the mulgi bearing No.5-3-128/1 in part performance of the agreement of sale dated 05.03.1986.
On the basis of the above pleadings, the following issues were framed:
(1) whether the 3rd defendant appointed the 1st defendant as his General Power of Attorney and whether the sale deeds executed by the 1st defendant in favour of the 2nd defendant as General Power of Attorney are valid?
(2) Whether the sale deed dated 27.06.1992 executed by the 3rd defendant in favour of the plaintiff is true, valid and binding on the defendant Nos.1 and 2?
(3) Whether the plaintiff is entitled to the declaration of his title to the suit property? (4) Whether the plaintiff is entitled for possession of the suit schedule property after evicting the defendants 1 and 2?
(5) Whether the plaintiff is entitled to past damages at the rate of Rs.3,000/- per month from the defendants 1 and 2 as claimed?
(6) Whether the plaintiff is entitled to past damages from, the defendants 1 and 2 as claimed? (7) Whether the plaintiff is entitled to future damages from the defendants 1 and 2 as claimed? (8) To what relief ?
In the second suit OS.No.432/1993 the case of the plaintiff (defendant No.2 in the suit OS.No.1402/92) is that 9 she purchased the suit schedule property namely mulgi bearing No.5-3-128/2 under a registered sale deed dated 18.07.1991 and ever since the plaintiff has been in possession and enjoyment of the property. On 14.06.1992 the defendants with the help of anti-social elements tried to dispossess the plaintiff of the suit property, but however the plaintiff with the help of well wishers could resist their attempts. The plaintiff lodged a complaint with the Police, but the Police did not take any action. On the other hand, the Police at the instance of the defendants locked the suit premises and kept the key with them. The defendants tried to break open the lock of the premises and occupy it.
Defendant Nos.1 to 4 and 5 filed separate written statements. The defendants 1 to 4 filed additional written statement and their defence is common. They denied that the plaintiff purchased the suit mulgi under registered sale deed dated 18.07.1991. That sale deed is false and bogus and further defendant No.1 who executed that sale deed had no right to sell the property and the alleged General Power of Attorney on the basis of which he executed the sale deeds itself is false. The plaintiff did not mention the boundaries of the suit mulgi correctly. The plaintiff is not at all in physical possession of the suit mulgi. It is also denied that on 14.06.1992 the defendants tried to dispossess the plaintiff of the suit mulgi. The suit mulgi is not at all locked by police as alleged by the plaintiff and it is used for running Cycle Taxi. 10 In fact on 13.06.1992, when the defendant Nos.1 to 4 along with their family members went to Yadagiri Gutta and when their parents are out of station, the husband of the plaintiff along with his brother G.Laxman Singh in the early hours of 14.06.1992 tresspassed into mulgi bearing No.5-3-128/1 and committed theft of the property, namely, empty oil barrels, empty gunny bags, weighing scale, empty tin box, ration shop display boards, lorry tyres etc. By then the mulgi was under
the lock and key of the defendant No.4. G.Premchand husband of defendant No.5 and father of defendant Nos.1 to 4 being the head of the family lodged complaint with Shahanayat Gund Police on 14.06.1992 alleged house breaking and theft and on the basis of that complaint the Police registered case against the husband of the plaintiff and his younger brother G.Laxman. It is defendant No.5 that purchased the property and not the plaintiff. The plaintiff was not all in possession of the suit property as on the date of filing of the suit.
On the basis of the above pleadings the following issues were framed.
(1) Whether the suit schedule property boundaries are correct?
(2) Whether there is proper identity of the suit property ?
(3) Whether the plaintiff was in possession of the suit schedule property by the date of the suit? (4) Whether the plaintiff is entitled to the permanent injunction as prayed for ? (5) To what relief.11
The trail in both the suits commenced separately. In O.S.No.432/93 the plaintiff examined herself as P.W.1 and got marked 23 documents. The plaintiff in O.S.No.1402 of 1992 examined her General Power of Attorney Holder and son as P.W.1 and another son as P.W.2. When both the suits were being heard, the plaintiff in OS.No.1402 of 1992 filed I.A.No.230 of 2001 for clubbing both the suits and that petition was allowed and consequently OS.No.432 of 1993 was clubbed with OS.No.1402 of 1992. By an order dated 31.08.2001 on the docket in OS.No.1402 of 1992, the lower Court directed that PW.1 in OS.No.432 of 1993 and who is defendant No.2 in OS.No.1402 of 1992 shall be treated as DW.1 and Exs.A.1 to A.15 which are already marked are to be corrected as Exs.B.1 to B.15. After that, joint trail has been held for both the suits by recording the evidence in OS.No.1402 of 1992 and treating the same as evidence in OS.No.432 of 1993.
While discussing Issue No.1 in the suit, the lower Court in its impugned judgment noted the following:
The issue involved two factual and legal questions, namely, (1) whether the General Power of Attorney under Ex.B.125 dated 15.10.1990 was duly executed and registered in accordance with law and if so, it is true and valid; (2) whether the first defendant as General Power of Attorney Holder validly executed the sale deeds under Ex.B.127 dated 12 16.11.1990, Ex.B.128 dated 18.07.1991 and Ex.B.129 dated 16.08.1991 and if so, they were registered validly in accordance with the provisions of the Registration Act, 1908 and the Andhra Pradesh Rules under the Registration Act 1998 (for short the Rules). The evidential burden squarely lies on defendant Nos.1 and 2 to prove the execution of the General Power of Attorney under Ex.B.125 and the sale deeds under Exs.B.127 to B.129.
As regards the first question, the admissibility of the General Power of Attorney under Ex.B.125 was in dispute. Ex.B.16 is the certified copy of Ex.B.125. It is pertinent to mention that in OS.No.432 of 1993, the defendants in that suit filed IA.No.466 of 1995 seeking judicial determination of the admissibility of the General Power of Attorney and the three sale deeds and after hearing both sides, the lower Court by order dated 18.04.2001 held that since the documents were already admitted in evidence in OS.No.911 of 1995 by the Court of III Junior Civil Judge, City Civil Court, Hyderabad, there was no question of considering their admissibility again. Aggrieved thereby; the defendants filed Civil Revision Petition No.2357 of 2001 in this Court and this Court by dated 08.06.2001 (Ex.A.105) disposed off the Revision Petition holding that the documents had to be admitted only subject to the objections raised regarding their admissibility and that if the admissibility is negatived, the documents have to be proved in accordance with law. Thereafter, the plaintiff in 13 OS.No.1402 of 1992 who is defendant No.5 in OS.No.432 of 1993 filed IA.No.344 of 2001 seeking to frame four additional issues regarding the admissibility of the General Power of Attorney and the three sale deeds. By an order dated 03.09.2001, the lower Court held that four additional issues are to be framed as objections as to the admissibility of the documents with reference to the provisions of the Stamp Act and Registration Act and these objections were decided to be considered while deciding the first issue in the suit. The objections are:
(1) Whether the alleged General Power of Attorney dated 15.10.1990 is insufficiently stamped and hit by section 35 of the Stamp Act and thereby inadmissible under Order 13 Rules 3, 4 and 6 of CPC ?
(2) Whether the alleged General Power of attorney dated 15.10.1990 is not authenticated by the Registrar as required under Sections 32, 33, 34, 35 of Registration Act and Rules and hit under Sections 17 and 49 of Registration Rules and Act read with Order 13 Rules, 3, 4 and 6 of CPC and therefore General Power of Attorney is inadmissible ?
(3) Whether the Registrar recognised the alleged general Power of Attorney Holder G.Rajendar Kumar at the time of execution of three Sale Deeds as required under Section 34 (3) (c) read with Rule 53 of Registration Act and Rules and if not, hit by Section 17 and 49 of Registration Act, read with Order 13 rules 14 3,4 and 6 of CPC and makes the documents inadmissible.
(4) Whether the acts of the alleged General Power of Attorney holder were not ratified by the Principals, if so what is the effect on the three sale deeds and the General Power of Attorney under the provisions of Contract Act read with section 17 and 49 of Registration Act red with Order 13 Rules, 3,4 and 6 of CPC?
The parties went to trial to decide all the issues and also the objections as framed above on the documents. On behalf of the plaintiff, PWs-1 to 5 were examined and Exs.A.1 to A.121 were marked. On behalf of the defendants, DWs.1 to 8 were examined and Exs.B.1 to B.132 were marked. Exs.X.1 to X.111 were marked.
After the trial, the suit OS.No.1402 of 1992 was decreed and the title of the plaintiff over the plaint schedule property was upheld. The defendant Nos.1 and 2 were directed to deliver vacant possession. The other suit OS.No.432 of 1993 which was filed for injunction was dismissed. Therefore, the present appeals were filed.
As the comprehensive suit is OS.No.1402 of 1992, the same was argued at the beginning. Both these cases have a very long history. The parties were at logger heads for a period of time. A large number of cases, counter cases etc., were filed. Even the arguments advanced were very vehement in this Court.
15
This Court has heard Sri P.Rajeswara Rao, Sri V.Kumar Purohit, learned counsels for the appellants and Sri R.Prasad, learned counsel for the respondents.
A lot of arguments were also advanced on maters which are not covered by pleadings or evidence including the fact that the second witness was also an advocate and that he should not have appeared in the matter etc. At this stage, learned counsel for the appellants conceded that no objection was taken in the lower Court about this but he wanted to make his submissions on the point as according to him it is important. This Court is not inclined to go into the matter about PW.2 giving evidence and also filing vakalath in the case as counsel for plaintiff who is his mother, as no objection was raised in the lower Court or in the grounds of appeal. The Delhi High Court in Baker Oil Tools (India) Pvt. Ltd. and Ors. v. Baker Hughes Ltd. and Others1 negatived such a plea in para 47 of the judgment as no foundation was laid in the trail Court.
The essential points that fall for consideration and on which the learned counsel for the appellants very strongly argued were that:
(1) the capacity of the witnesses to depose in the matter as PWs.1 and 2. The argument is that the plaintiff did not enter the witness box and the witnesses who were examined were 1 Manu/DE/2279/2011 16 General Power of Attorney holders and as such the case was not proved by the plaintiff.
(2) the second limb of the submission is that the sale deed in favour of the plaintiff is much latter than the sale deed of the contesting defendant No.1 and hence it does not convey any title.
(3) the argument on which great deal of stress was laid is also that Ranveer Singh/defendant No.3 in the suit executed a registered General Power of Attorney in favour of defendant No.1. With this registered General Power of Attorney, defendant No.1 conveyed the suit schedule property to defendant No.2 under three sale deeds, which are earlier in point of time to the sale deed executed by Ranveer Singh in favour of the plaintiffs. Therefore, the contention is that the plaintiff has no title to the property. It is also argued that the General Power of Attorney of the three sale deeds executed pursuant to the General Power of Attorney are valid documents and that the agreements of sale which the plaintiff realize are created documents.
In reply to this, the essential contention of the respondent is that the agreement of sale on the basis of which the plaintiff executed sale deed is earlier in point of time and that therefore, plaintiff has better title as her sale deed relates back to the earliest agreement of sale (1986). 17
It is also submitted that a substantial part of the argument raised by the appellants is not covered by the pleadings or even the cross-examination of the witnesses. The learned counsel submitted that the material aspects of the plaintiff's case were not touched upon in the cross- examination and as such arguments cannot be advanced now. He also submitted that the documentary evidence and the admissions of Ranveer Singh make it clear that the agreements of sale in favour of the plaintiffs are anterior in point of time and are also valid. Learned counsel also argued that the finding of the Court on the authentication of the General Power of Attorney and the sale deeds is correct. He therefore, prayed that he appeal should be dismissed.
This Court therefore is of the opinion that after hearing both the parties, the following questions/points essentially arise for consideration in these appeals. (1) Whether the General Power of Attorney-Ex.B.125 is validly authenticated and whether the registered sale deeds Ex.B.127 to 129 are executed with the said General Power of Attorney and as per the Registration Act, 1908. (2) Whether the sale deed dated 27.06.1992 (Ex.A.10) and the agreements of sale of the said property convey title to the plaintiff or whether the three sale deeds in favour of the defendant No.2 (Exs.B.127 to 129 executed by Ex.B.125/Ex.B.16 are valid.
18(3) Consequently, whether the plaintiff is the owner of the property or the defendant is the owner.
As mentioned earlier, both the learned counsels argued very vehemently on the issue of title.
The facts which are not in dispute are that deceased defendant No.3-Ranveer Singh is the original owner of the property. Both the parties are claiming title through him. While the plaintiff states that defendant No.3 executed Ex.A.10 sale deed in her favour directly, defendant No.2 who claims title to the same property states that defendant No.1 is the General Power of Attorney holder of defendant No.3 and that defendant No.1 executed three sale deeds in her favour as the agent of defendant No.3. A fact which is also clear from the record is that defendant No.3 died in July, 1995 and by then the trial did not begin in this matter. Therefore, his oral evidence is not recorded in the suit.
From an examination of the oral and documentary evidence along with the pleadings, the following facts emerge:
(1) The deceased Ranveer Singh filed a written statement in the present suit as defendant No.3. He admitted that he executed the agreements of sale in favour of the plaintiff and also the sale deed. He denied the power of attorney said to have been executed in favour of defendant No.1. 19 (2) A specific performance suit OS.No.179 of 1992 was filed.
Ranveer Singh appeared in that and filed a written statement admitting the agreements of sale and admitting the claim for specific performance. (Exs.A.18, A.19 and A.20 are the plaint, written statement and judgment respectively). (3) He executed Ex.A.10 sale deed on 27.06.1992. (4) In RCC.No.595 of 1992 he filed a counter admitting the case of the plaintiff (Ex.A.43).
(5) He gave evidence in RC.No.247 of 1993, and his deposition was marked as Ex.A.50 wherein he admitted the suit transaction in favour of plaintiff.
(6) He got issued notices of attornment of tenancy (Exs.A.21- Ex.A.23).
(7) In Ex.A.85-CC of the written statement in OS.No.911 of 1995 and in Ex.A.101-copy of the written statement in OS.No.2427 of 1992, he admitted the present suit transaction. He denied the General Power of Attorney in favour of defendant No.1.
Therefore, an examination of the facts and figures shows that defendant No.3 admitted the transaction in favour of the plaintiff in OS.No.1402 of 1992 and denied the General Power of Attorney in favour of defendant No.1. Consequently he also denied the sale deeds in favour of defendant No.2. 20
The question, therefore, that falls for consideration is whether there are agreements of sale in favour of Kalavati Bai/the plaintiff and whether there is a valid sale deed in her favour. It is also an admitted fact that the defendants do not have an agreement of sale. The registered General Power of Attorney is dated 15.10.1990. Sale deeds were executed purportedly with the General Power of Attorney on 16.11.1990, 18.07.1991 and 16.08.1991 and these documents are marked as Exs.B.20 to 22 (certified copies) and Exs.B.127 to B.129 (original sale deeds). The sale deed in favour of the plaintiff is subsequent to these documents dated 27.06.1992.
Submissions of the learned counsels:
Learned counsel for the appellants argued that by the date of execution of the sale deed dated 27.06.1992 (Ex.A.10) defendant No.3 did not have any title to convey. Whatever title defendant No.3 had was already conveyed under Exs.B.20 to 22/Exs.B.127 to 129. The learned counsel also pointed out that there is no evidence to show that the General Power of Attorney in favour of defendant No.1 was cancelled. His argument, therefore, is that under Ex.A.10, there was no title to convey to the plaintiff. Therefore, he argues that the plaintiff is not entitled for a declaration as prayed for.
In reply to this, learned counsel for the respondents argues that the conduct of the parties before and after 21 execution of Ex.A.10 have to be seen. He also argues that Ex.A.10 is a culmination of earlier agreements of sale which admittedly are before the sale deeds of the defendant. Learned counsel points out that Ex.A.10 sale deed is executed by defendant No.3 in favour of the plaintiff and it clearly mentions about the earlier agreements of sale and also the payment of instalments upto 26.06.1992. The agreement of sale is marked as Ex.A.99. Therefore, the contention of the learned counsel is that this sale deed relates back to the date of the agreement of sale and it is earlier in point of time. He also points out that a suit for specific performance OS.No.179 of 1992 was filed. Exs.A.18 is the plaint and A.19 is the written statement of Ranveer Singh, wherein he admitted the agreements of sale in favour of the plaintiff. Ex.A.20 is the decree passed in this specific performance suit and Exs.A.21 to 23 are notices of attornment of tenancy issued by deceased defendant No.3. Exs.A.24 to 26 are the notices issued to the tenants by Kalavati Bai/the plaintiff herein on 29.06.1992. Ex.A.58 is the deed of assignment of tenancy. Learned counsel for the respondents, therefore, argues that these are the actions of a person who acquired a genuine sale deed and that both the vendor Ranveer Singh and the purchaser Kalavathi acted genuinely in this case. He said that the normal course of human conduct should be taken note of in this case.22
Related to this issue of conveyance of property is the oral evidence on which a lot of arguments were advanced. On behalf of the plaintiffs, PWs.1 and 2 were examined and both these witnesses are the sons of the plaintiff and are also her General Power of Attorney holders. The General Power of Attorney given by the plaintiff in favour of the sons is marked as Ex.A.1. It is the argument of the learned counsel for the respondents that the General Power of Attorney holders cannot give evidence in this suit. The case of S.Kesari Hanuman Goud v. Anjum Jehan2 was also relied upon.
The argument of the learned counsel is that the witnesses are not competent to depose and that as the plaintiff has not entered the witness box, an adverse inference should be drawn against her. He lastly contends that as a consequence, none of the documents were marked through the witnesses can be held to be proved.
In reply thereto, learned counsel for the respondents argued that PWs.1 and 2 deposed basing on personal knowledge and not merely as General Power of Attorney holders. He states that there is virtually no cross- examination on the critical aspects of the case and that therefore, the appellants cannot submit anything about the evidence in this case. His argument is that the failure to 2 2013 (3) ALT 52 23 cross-examine comes in the way of appellants arguing about the merits.
Merits:
(1) Failure to Cross-Examine and capacity to depose:
This point is being looked into first as there is a lot of oral/documentary evidence in this case. The case law on the aspect of failure to cross-examine a witness is:
(1) Sarwan Singh v. State of Punjab3 (2) Man Kaur (Dead) by Lrs. v. Hartar Singh Sangha4 (3) Traders Syndicate v. Union of India (UOI)5 (4) A.E.G. Carapiet v. A.Y. Derderian6 Of these, the passage from A.E.G.Carapiet's case (6 supra) is being reproduced here as it contains a purple passage of judicial writing:
10. The law is clear on the subject.
Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-
examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-
examination is being made comes to give 3 2003 (1) SCC 240 4 2010 (10) SCC 512 5 AIR 1983 CALCUTTA 337 6 AIR 1961 CALCUTTA 359 24 and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.
11. On this point the most important and decisive authority is Browne v. Dunn, reported in (1893) 6 R 67. It is a decision of the House of Lords where Lord Herschell, L. C., Lord Halsbury, Lord Morris and Lord Bowen were all unanimous on this particular point Lord Chancellor Herschell, at page 70 of the report observed:
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that, imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is 25 essential to fair play and fair dealing with witnesses."
Even the case of Muddasani Venkata Narsaiah (D) v. Muddasani Sarojana7 cited by appellant clearly holds the failure to cross-examine means that the statement is not disputed.
Against this judicial backdrop, this Court notices that PW.1 began his evidence by saying that his mother is sick, bed ridden and unable to come to Court to give evidence and also asserting that he knows all the particulars of the case as he is the son. The assertion of PW.1, in his chief-examination and cross-examination, therefore, is that he is giving evidence also as a person who has knowledge of the facts and circumstances of the case. He deposed about the various aspects of the case and marked Exs.A.1 to A.77 as can be seen from his chief-examination. Even in his cross- examination, his evidence is that he is deposing about as per his personal knowledge. The cross-examination of this witness is extremely brief. Nothing much is elicited on the contentions urged by the witness. None of the material aspects deposed were touched upon in the cross-examined. The contents of the documents were not put to the witness. The extent of his personal knowledge was not actually tested in the cross-examination. Even when the witness was recalled and further documents were marked the same 7 2016 (4) ALD 59 26 situation prevailed and there is no effective cross-examination on the material aspects of the case.
PW.2 is the another son of the plaintiff, and the brother of PW.1. He is also a power of attorney holder along with his brother and others. He asserted he has personal knowledge also. In his evidence, he has marked Exs.78 to 97. He describes the various events that occurred before and after the Ex.A.10 sale deed. The filing of various cases, the agreements of sale, which culminated in the sale deed etc., are clearly elicited in the evidence. This witness was examined in-chief over a period of time. His cross-examination on 10.06.1999 is extremely brief. The witness was once again examined in-chief after he was recalled on 26.07.2001. He then filed Exs.A.102 to A.111. His cross-examination is very brief and prefunctory. Again the witness was recalled and further, chief-examination was conducted on 01.08.2001. Exs.112 to 118 were marked. His cross-examination was again very brief. The third witness examined as PW.3 is one P.Narsing Rao. This witness clearly deposes that on 30.08.1991 an agreement of sale was typed in his shop. He also deposes that all the parties to this agreement came to his shop and he attested the agreement on that day. He clearly identifies Ex.A.98 which is the agreement of sale dated 30.08.1991 and also Ex.A.57. The witness was again examined on 02.07.2001 and Exs.A.99 and A.100 were marked. Only a simple suggestion was put in the cross- 27 examination that Ex.A.99 was not executed on 03.08.1991. Other than this the material part of the examination-in-chief of this witness was not actually touched upon in the cross- examination.
The law on the subject which is reproduced above is well settled. Time and again, the Courts have held that if the witness is not cross-examined on the material parts of the case, it is deemed that the opposite party has admitted the case and has nothing to cross-examine.
In the case on hand, PW.1 deposed about important documents like the written statement and other documents in which Ranveer Singh clearly admitted that he did not execute any power of attorney in favour of defendant No.1. Various documents relied upon by PW.1 and deposed by him like Exs.A.1 to A.18, 19, 20 to 26, A.50, A.56 and A.57 etc., were not even touched upon in the cross-examination. Similarly, even in the cross-examination of PW.2 nothing much was elicited. Only point on which the learned counsel for the petitioners argued is that the witnesses cannot depose in this case as they are General Power of Attorney holders. This Court notices that both PWs.1 and 2 clearly deposed that they are not giving evidence merely as "power of attorney"
holders. Both of them asserted to the fact that they have personal knowledge of the facts. Not even a suggestion was put let alone a detailed cross-examination was focused on the 28 extent of their personal knowledge. In the opinion of this Court; the appellants/defendants failed to utilise the opportunity to test the veracity of the evidence in chief through cross-examination. Therefore, this Court holds that in line with the decisions that the failure to cross-examine a witness leads to a conclusion that the appellants cannot now question the testimony of the plaintiffs witness on the material aspects.
Next question that arises is whether the sale deed executed in favour of the plaintiff is correct. The same is marked as Ex.A.10. This sale deed Ex.A.10 is attested by PW.4. The agreements of sale starting from 07.03.1986, the extensions of agreements of sale, receipt of the sale consideration, paper publications etc., are all detailed in the sale deed. The advance paid and the balance paid before the Registrar totalling to Rs.80,300/- is clearly mentioned in page 13 and receipt of the entire sale consideration is acknowledged. The payment of Rs.80,300/- is endorsed on the reverse of page 3 of this document. Both the vendor and vendee have signed as "payer" and "payee" respectively.
PW.4, who attested the said sale deed, deposed that both about Ex.A.10 and also Ex.A.58 deed of attornment which bears his signature.
In these circumstances, the learned counsel argued that plaintiff discharged the burden by filing the original of the 29 sale deed Ex.A.10 to prove the earlier agreements of sale, proving the payment of the sale consideration etc. The examination of PW.1 is also in the same lines. (2) Authentication of the General Power of Attorney/ Execution of sale deeds with General Power of Attorney:
The serious point that is urged is about the correctness of the sale deeds, which are marked as Exs.B.127 to 129, which are executed pursuant to Ex.B.125. The originals of these documents are marked as Exs.B.125, 127 to 129, while the certified copies of these deeds are marked as Exs.B.20 to
22. This Court will be referring to Exs.B.125 and B.127 to 129 only since they are the originals. The two points that are argued with regard to these sale deeds are (a) that as the power of attorney Ex.B.125 is not properly executed and authenticated, the sale deeds executed pursuant thereto namely Exs.B.127 to 129 do not convey title. It is also submitted that the procedure for registration was not followed. (b) alternatively, it is submitted that these sale deeds are not supported by consideration and that they are only created for the purpose of this transaction. The above pleas are clearly made in the plaint itself and the defendants have answered the same. The lower Court has also framed specific points for determination of these questions. Both the parties vehemently argued on the issue of "authentication";
registration etc. 30 Authentication of a Document by the Registrar: As far as authentication is concerned, the following sections of law and the Rules framed under the Registration Act, 1908 are relevant - Sections 32, 33, 34. Rule 49 (1) and (2), Rule 52 to 55 of the Rules framed by State of Andhra Pradesh under the Registration Act, 1908 (w.e.f. 01.01.1960). In addition, Section 85 of the Evidence Act also has a bearing on the issue:
32. Persons to present documents for registration.--Except in the cases mentioned in 1[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-
office,--
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. Power-of-attorney recognizable for purposes of section 32.--(l) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely:--
(a) if the principal at the time of executing the power-of-attorney resides in any part of 45 [India] in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides; (emphasis supplied)
(b) if the principal at the time aforesaid [resides in any part of India in which this Act is not in force], a power-of-
attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in India, a power-of-
attorney executed before and 31 authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government.
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:--
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.
34. Enquiry before registration by registering officer.--
(l) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26: Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.
(2) Appearances under sub-section (1) may be simultaneous or at different times.
(3) The registering officer shall thereupon--
(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document;
and
(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.
32(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.
Rule 49 (i) and (ii) of the Rules under the Registration Act, 1908
49. (i) When a Power of Attorney is executed before a Registering Officer he shall after satisfying himself of the identity of the party and obtaining when necessary his left thumb impression against his signature authenticate it in the following form: -- "No .....................of...................... 19 ...................... " Executed in my presence (at ............. x) this ................... day of ....... 19 ........ by A.B. who is personally known to me (or whose identity is proved by (signature of) CD (with addition) and (signature of) E.F.. (with addition). Seal Signature of Registering Officer Note:- To be filed in, when the-
execution takes places at a place other than registration office, e.g. a private residence:
(ii) When a Power of Attorney which has not been executed before a Registering Officer is presented to him for authentication under the proviso to Section 33 the Registering Officer shall, if he attends himself at the private residence of the principal or if the principal appears in the office behind a purdah and is examined with the help of hammamnee or mama; adopt the following form of authentication: -- "No ...................... of ............... 19 ........... " I Certify that I have satisfied myself on examining at ......
........................ this ....... day of ........... 19 ........... (signature of) A.B. (Who is purdanashin) lady with the aid of (signature of) CD. hammamnee or mama (with addition) that this power of attorney has been voluntarily executed by the said A.B. who purports to be the principal and who is personally known to me or whose identity has been proved by inspection behind the purdah by (signature of) E.F. (with addition) who is her (relationship if any to be stated) and (signature of ) G.H. (with addition) who is her (relationship if 33 any to be stated) with whom she does not observe purdah. Seal Signature of Registering Office Rules 52 to 54
52. A Power-of-Attorney may be brought to a Registering Officer (1) for authentication or (2) for registration, or (3) for both authentication and registration. In the first case he shall merely make the entry prescribed for authentication; in the second case, he shall register the power in the same manner as any other document, and in the third case, he shall first authenticate the power and then admit it to registration in the usual manner.
53. Although a Power of Attorney may be registered like any other instrument, it is not valid for registration purposes unless authenticated. When a Power of Attorney is brought to a Registering Officer by a person who does not understand the distinction between authentication and registration, the Registering Officer should explain the difference to him and give him such information as may be necessary. (emphasis supplied)
54. A Registering Officer is authorised to authenticate a Power of Attorney executed for registration purpose only. He shall refuse to authenticate a power entirely unconnected with registration. (emphasis supplied) Section 85 of the Indian Evidence Act, 1872:
85. Presumption as to powers-of-
attorney.--The Court shall presume that every document purporting to be a power-
of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, 1[Indian] Consul or Vice-Consul, or representative 2[***] of the 3[Central Government], was so executed and authenticated.
34
Thus it is clear that authentication is a distinct and separate step in the process of registration. The words used are "executed and authenticated". The distinction between registration and authentication is highlighted by Rule 53 which says a registered General Power of Attorney is not valid for registration unless it is authenticated.
It is also clear that the word "authentication" has not been defined under the Registration Act or under the Rules. There is no definition of the word "authentication" in Indian Evidence Act also.
The general definition of authentication is as follows:-
Authentication: (1) The process or action of proving or showing something to be true, genuine, or valid. (2) The process or action of verifying the identity of a user or process. (Wikipedia) As per Judicial Dictionary (third edition) of Justice L.P.Singh, P.K.Majumdar:
Authentication means: An attestation made by a proper officer by which he certifies that a record is in due form of law, and that the person who certifies it is the officer appointed so to do.
As per P.Ramanatha Aiyar's the "Law Lexicon" dictionary:
Authenticate: To give legal validity to ; to establish the genuineness of; to make an authentication i.e an attestation 35 made by a proper officer by which he certifies that the record is in due form of law, and that the person who certifies it is the officer appointed to do so.
Authentication: in the law of evidence, the act or giving legal authenticity to record, or other written instrument. An attestation made by a proper officer by which he certifies that a record is in due form of law, and that the person who certifies it is the officer appointed so to do.
Etymologically it appears to be derived from the greek word "authentikos" meaning real/genuine (wikipedia) As there is no definition of the word "authentication" in the Registration Act or under the Evidence Act, this Court had to rely upon the judgments on the subject. The first judgment which has the bearing on the issue is Wali Mohammad Chaudhari v. Jamal Uddin Chaudhari8. In this case, in para 3, while dealing with authentication under Section 85 of the Indian Evidence Act, the following was held:
"The authentication is not merely attestation, but something more. It means that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution. It is for this reason that a power of attorney bearing the authentication of a notary public or an authority mentioned in Section 85 is taken as sufficient evidence of the execution of the instrument by the person who appears to be the executant on the face of it. The presumption, no doubt, is rebuttable. But unless rebutted the presumption stands 8 AIR 1950 ALL 524 36 and the document can be admitted in evidence as a' document executed by the person alleged to have executed it without any further proof."
The next judgment is Baker Oil Tools (1 supra). The learned single Judge of the Delhi High Court in para 31 held that the authentication of a Power of Attorney by a Notary Public would necessarily mean that the Notary Public has duly satisfied himself about the competence of the person and his authority to execute such a document. The learned single Judge of the Delhi High court was dealing with Powers of Attorney, which were authenticated outside India. In para 14, the first Power of Attorney was considered and in that authentication, it is clearly noted that the two persons, who appeared before the Notary were known to him personally.
The entire certification and attestation by the Notary Public was reproduced in para 14. Similarly, in para15, another Notarial Certificate has been reproduced wherein the Notary clearly states that the person who executed the Power of Attorney personally appeared before him and is known to him to be the person who executed the Power of Attorney.
The third judgment is Jugraj Singh v. Jaswant Singh9, which has relied upon also by the respondents. This also deals with the attestation under Section 85 of the Indian Evidence Act, 1872. The Supreme Court noted the submission of the learned counsel, who relied upon Wali 9 AIR 1971 SC 761 = Manu/SC/0413/1970 37 Mohammad Chaudhari's case (7 supra). After considering the said case, the Hon'ble Supreme Court of India went into the facts of the case and noticed that the first Power of Attorney which has produced before the Supreme Court did not have any authentication whatsoever and it merely bore the signature of the witness without showing anything about his capacity or office. The second Power of Attorney, however, was executed before a Notary who complied with the laws of California State. The Supreme Court held that the fact that the Notary endorsed that: 'it has been subscribed and sworn before him'. The Hon'ble Supreme Court held that this satisfies the test of authentication, because there is a presumption of regularity of official acts and it was done by an Officer in the discharge of his duties.
The last judgment on this subject which has relevance to the issue on finding is Mohanshet Purushottam Gujar v.
Jayashri Vasantrao Mahagaonkar10. In para 8 of this judgment, the learned Judge of the Bombay High Court dealt with authentication and reiterated that authentication is more than mere execution of a document. He cited with approval of Wali Mohammed Chaudhari's case (7 supra), wherein it was held that the person authenticating the document must be satisfied of the identity of the person executing the document. Jugraj Singh's case (9 supra) was 10 AIR 1979 Bom 202 = Manu/MH/0042/1979 38 also considered in this judgment. After considering the defences raised in suit, the Bombay High Court clearly held as follows:
".....Section 85 contains a presumption, a presumption which may operate in favour of the party relying on a document and to the prejudice of the party alleging that the document is not a genuine one. For the purpose of such presumption to operate, particularly in the background of the facts above ascertained, the authentication must be clear, specific, more decisive and bereft of the features which I have indicated earlier. If there is the slightest doubt, then the Court must be loathe to rely on the presumption contained in S. 85 and must be equally loathe in applying such presumption in favour of the party relying on the document. In my opinion this was a case in which the Presumption under S. 85 should not have been raised in favour of the respondent."
In the case before the Bombay High Court also, the executant of the Power of Attorney had denied that he executed the document including the sale deed and stated that fraud was played on him. The said executant also died before the trial was commenced. A rubber stamp endorsement on the document was commented upon by the learned single Judge. The Court also noticed that the respondent did not take steps to prove the due execution of the Power of Attorney by calling witnesses who are associated with it. Therefore, the learned single Judge held that in the background of the facts of the case, the presumption of authentication should not have been drawn and the Court should have insisted upon authentication that was clear, specific, more decisive and bereft of the features indicated earlier. The Court also sounded a note of caution by saying 39 "if there is slightest doubt, then the Court must be loathe to rely on the presumption contained in Section 85 of the Evidence Act". This Court also notices that in the light of the facts and circumstances of the present case, that when Ranveer Singh had denied the execution of the General Power of Attorney in more than one place, the Court cannot presume the correctness of the authentication. In this case, the appellants have failed to prove that there is an authentication as required under law.
The counsel for the respondent also drew the attention of this Court to a judgment of this learned single Judge of this Court reported in Sivakoti Dasaradharam v. Sivakoti Yoganandam11, wherein the learned single Judge held that Sections 32, 33 and 34 of the Registration Act are carefully designed to prevent forgery and the procurement of conveyances or mortgages by fraud or undue influence and though it may seem somewhat technical to insist upon reliance of the provisions of the Act, it is necessary to do so. The learned single Judge held that the Power of Attorney must be authenticated by the Sub-Registrar and before doing so, he must satisfy himself of the right of the agent to appear. A form of authentication approved by the Delhi High Court in 11 1996 (1) ALD 606 40 Citibank N.A. v. Juggilal Kamiapat Jute Mills co. Ltd.,12 is reproduced here:
14. Exhibit P-42A is the original power of attorney executed by Mr. Walter R. Humphrey (executing officer) and Mr. Carl W. Desch (cashier) for First National City Bank......
15. This power of attorney has been authenticated by John R. A. Beatty, Notary Public, State of New York, and bears his seal.....
........The authentication by the aforesaid notary public reads as under :
"In the city country and State of New York, USA, on this 27th day of February, 1976, before me a notary public in and for the State and country of New York, USA, and the undersigned resident witnesses, legally qualified and personally known to me, appeared....
23. The authentication is not merely attestation but something more According to Law Lexicon by T. P. Mukherjee and K. K. Singh, authentication connotes an attestation made by an authorised officer by which he certifies that a record is in due form of law. The words "due form of law" are very important and lend support to the contention of the learned counsel for the plaintiff, namely, that under s. 85 a presumption would arise that the two officers, who executed the power of attorney on behalf of the bank, were competent to do so. The nature and manner of the authentication by the notary public also support this contention. If it was not required of the notary public to satisfy himself about the competence of these two officers to execute the power of attorney, there was no necessity for him to satisfy himself about their power to execute the power of attorney.
12 AIR 1982 Delhi 487 41 Again in Electric Construction & Equipment Company Ltd. v. Jagjit Electric Works13 it was held as follows:
(14) These cases are very different from the one before us. Here, we have a document stated to be a power of attorney purported to have been executed by the Electric Construction and Equipment Company Ltd. It states that the common seal has been affixed in the presence of a Director and Chief Accountant and it also states that these persons have been authorised by a resolution of the Board of Directors to authenticate this. However, it does not state that it was executed before a Notary Public and nor does it bear any authentication by a Notary Public regarding the manner of execution, etc. It is, Therefore, very essential to stress the two ingredients which are contained in Section 85 of the Evidence Act, viz., execution before the Notary Public and the authentication by the Notary Public. The words are "executed before, and authenticated by". Both these conditions must be satisfied. It appears that neither condition is satisfied in this case because the common seal was affixed on 27th November, 1973, and there is merely an attestation by a Notary Public on 13th December, 1973. There is no authentication at all. So, Section 85 of the Evidence Act does not apply to raise any presumption in favor of this power of attorney.
This Court also notices that the presumption in favour of Powers of Attorney particularly Powers of Attorney executed outside India under Section 85 of the Evidence Act, has been recognized by the Courts, because of the trade and commerce that is being carried on between various countries of the world and India. In order to permit Powers of Attorney which 13 AIR 1984 Delhi 363 42 are executed abroad to be received in evidence, the presumption is often held in favour of due authentication in order to facilitate cross border trade and commerce. Hon'ble Supreme Court of India in Jugraj Singh's case (9 supra) also considered this aspect and held that the second Power of Attorney is validly executed as there is a presumption in favour of official acts. Like any other presumption, this presumption of due authentication is also rebuttable presumption.
In the case on hand, the appellants have failed to prove the actual "authentication" on this document. A mere affixture of a rubber stamp or taking the 'thumb impression' of witnesses is not enough. The Sub-Registrar should identify the executant either basing on personal knowledge or on the basis of the identifying witnesses/documents of identity etc., clearly identifying the executant. Therefore, this Court holds that there is no 'authentication' of the General Power of Attorney which would enable it to be used for further registration. There is no endorsement on Ex.B.125 to show that the Registrar was satisfied with the "identity" of the excutant. Mere affixture of a rubber stamp or thumb impressions will not suffice. Identity must be actually established to the satisfaction of the Registrar and the document should contain an endorsement of such authentication.
43Duty of a Registrar when GPA holder presents a document for Registration: The next question that arises in this case is whether the three sale deeds in favour of defendant No.1 executed by defendant No.2 were properly executed by the said defendant No.2 as the General Power of Attorney holder of defendant No.3.
The rule position in this regard has already been reproduced earlier. The importance of the enquiry and of the identity of the persons is highlighted by the word "authentication" which has been used with a specific purpose and connotation in the Registration Act and the Rules. The need for the registrar to make an endorsement on the reverse of the General Power of Attorney that the same has been used for registration is further highlighted in Rules 50(i) (ii) and
(iii),51,53 and 55(1)-
50. (i) If a document is presented for registration under a special Power of Attorney the power shall be retained and filed in the office with following endorsement: -- "No. .............................................of. .....................19............" Presented with document No................of..............
19.................. of Book Volume................................ Pages ......................................... Date:
Signature of Registering Officer.
(ii) If a document is presented for registration under a General Power of Attorney, the power shall be returned with the following endorsement: -- Presented with document No ........... of ................ 19 ............. Book ............. volume ............... Date: Signature of Registering Officer
(iii) When a document is presented for registration by a person entitled to 44 present it and execution is admitted by an agent under Power of Attorney, the following endorsement shall be made on the power, which shall be retained and filed or returned, according as it is a special or a general power.
"No.................................................. of............................. 19........ "Presented in connection with document No ........of................19 .... of Book............ Volume...................
Pages............................. Dated: Signature of Registering Officer
51. The endorsements prescribed in Rules 49 and 50 shall be written in English: Provided that such Sub-Registrars as are specially authorised by the Inspector General may write the endorsement in the language commonly used in the Sub-
District.
53. Although a Power of Attorney may be registered like any other instrument, it is not valid for registration purposes unless authenticated. When a Power of Attorney is brought to a Registering Officer by a person who does not understand the distinction between authentication and registration, the Registering Officer should explain the difference to him and give him such information as may be necessary. (emphasis supllied)
55. (i) An abstract in the form printed in Appendix-lII shall be retained of each Power of Attorney authenticated by Registering Officer whether such power is General or Special, registered or not registered. The abstract shall be signed by the Registering Officer; and shall be filed in a separate file with a serial number along with other powers retained under Rule 50. The notes of interlineation, blank, erasures and alterations made by the Registering Officer on the original power shall be copied verbatim in the district.
(ii)(a) Each Registering Officer shall maintain a register of all revocations of Powers of Attorney registered in or communicated to it. (b) When notice of a revocation is given to a Registering Officer he shall send an intimation of the same to such other officers as may be specified by the person revoking the power.45
Of these, Rules 50, 53 and 55 are very important for this case:
The cross-examination of PW.1 on 04.10.2001 clearly states as follows:
"It is true that the first defendant executed three sale deeds under the originals of Exs.B.20 to B.23 in my favour. It is true that the Sub Registrar after seeing the General Power of Attorney executed in favour of first defendant, registered the same as shown under the originals of Exs.B.20 to 23. I see Ex.B.16 certified copy of the G.P.A and it does not show affixure of seals of the office of Sub Registrar on the date on which the sales under the originals of Ex.B.19 to B.21 were registered. It is true that on Ex.B.16 there are no endorsements by the Sub Registrar on the respective dates on which the sales under Exs.B.20 to 23 were registered to the effect that the General Power of Attorney was duly verified and the Sub Registrar was satisfied about the G.P.A and then the sales were registered."
Again the cross-examination of the same witness on 23.11.2001 clearly shows that on the reverse of Ex.B.125 (original Power of Attorney), the Sub-Registrar did not endorse that he specifically identified the General Power of Attorney holder. The witness even added that the Registrar was satisfied. This testimony was given when the witness was recalled and the original General Power of Attorney and sale deeds were marked as Exs.B.125, B127 to B129.
The next witness is DW.2, who claims to be the actual General Power of Attorney Holder of Ranveer Singh. During his cross-examination on 15.10.2001 he was questioned twice 46 about the endorsements on the reverse of Ex.B.16-GPA and he clearly answered that there are no endorsements by the Registrar that he satisfied himself with the identity of the General Power of Attorney holders. However he states that the Sub Registrar made the endorsement in his office records.
Rule 50 (ii), (iii) and Rule 53 are squarely applicable to the facts of this case. This Court notices that the reverse of the General Power of Attorney (Ex.B.125) does not contain any endorsement to show that the Sub-Registrar was satisfied that the person appearing before him was in fact the General Power of Attorney holder. There is also no "authentication" as such on the General Power of Attorney (Ex.B.125). Section 34 (3) of the Registration Act, 1908 puts a special burden on the Registering Officer to enquire and satisfy himself about the execution of the General Power of Attorney and also as to the identity of the person appearing before him. Such an enquiry did not appear to have been done and there is no endorsement or any other proof to show that the same was done in this case. Rule 50 of the Registration Act, which mandates an endorsement on the General Power of Attorney was not followed in this case at all. The General Power of Attorney (Ex.B.125) does not contain any endorsement as required under Rule 50. There is a presumption of correctness that a registered document carries in its favour but when the same is called into question the registered deed must be proved like any other document. In this case 47 particularly there were lot of issues raised about the validity of the General Power of Attorney in favour of Defendant No.2, its admissibility etc. The record bears testimony to this. Ex.A.109 is a copy of an affidavit filed in another suit where the same objections were raised and are repeated here. The four questions framed by the lower Court in the present suit on these aspects also bear testimony to this. The copy of the deposition of DW.1 as DW.1 in OS.No.911 of 1995 was marked as Ex.A.88. This evidence is recorded in the year 1998 and it shows that the very same questions were posed in the cross examination, then also. Both the parties were aware of the point in controversy. But in the present suit, no attempt was made to prove these aspects despite the pointed cross-examination of the witness on the procedural aspects of registration with a General Power of Attorney and no attempt was made to summon the records of the Sub-Registrar to prove that he was satisfied with the identity of the person present etc., or that he followed the procedures, more so when DW.2 mentions that the Registrar made the endorsement in his office record. In Mohanshet Purushottam Gujar's case (10 supra), after considering the defences raised which are similar to the present case the learned single Judge held that the authentication must be clear; specific, decisive. If there is the slightest doubt; the presumption under Section 85 cannot be drawn or presumed. 48
For all of the above reasons, this Court holds that the General Power of Attorney (Ex.B.16/B.125) is not validly authenticated and the registration of the sale deeds (Exs.B.125-B 127) was not done as per the Registration Act and Rules framed thereunder. The requisite endorsements are not made on the General Power of Attorney as mandated by law.
The logic behind this is clear and is meant to warn against fraud/misuse etc. As held by the Hon'ble Supreme Court of India, the object of registration is to guard against fraud and to provide a record of the transaction.
This Court is conscious of the fact that the Rules prevalent now mandate the affixture of a photograph, fingerprints etc. This amendment was introduced in 2001 to get over the situation encountered in this case. Thus the Rule as to satisfaction of "identity" of a person can be said to have been eased to some extent due to the affixture of photographs on the documents making this part of the enquiry easier. Rule, 50 has however not been changed. Every registrar has to clearly make an endorsement on the General Power of Attorney and file the same as per Rule 55. In fact, in Courts of law, when a document is produced for verification and returned the Court office will make an endorsement that the original was produced for verification. When shop books etc., are produced the CPC itself mandates the same. 49
Order VIII Rule 17 (2) of CPC:
Original entry to be marked and returned: - The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification, and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.
Similarly, as per Order XIII Rule 4 of CPC, when a document is marked in evidence, a stamp is put on the document/exhibit. If the original is taken return and filed in another Court; the second Court will know that the particular document was marked in an earlier Court proceeding. Payment of Sale Consideration: - The other question that arose during the course of submissions was about the payment of sale consideration under the sale deeds Exs.B.125 to 127. Since this is raised in the pleadings; evidence and in the arguments, this is also being answered. The plaintiffs' case is that the sale deeds executed by defendant No.2 in favour of defendant No.1 are created for this suit and that they are not supported by consideration at all.
The appellants argued that the sale consideration was paid for these three sale deeds prior to the execution of the three sale deeds. The witness DW.1 also clearly states that prior to the execution of the three sale deeds, she paid the entire sale consideration for all the three sale deeds to the deceased defendant No.3 in the presence of defendant No.1. 50 This is the chief-examination on 19.09.2011. The witness also produces and marks document Ex.B.23 which is a receipt dated 25.08.1991 showing payment of three amounts as mentioned. This receipt was marked subject to objection while the deposition was being recorded. The witness clearly admits in his cross-examination that Ex.B.20 (the certified copy of the sale deed) does not clearly mention that the amount was paid to defendant No.3. Further cross- examination on 09.10.2001 talks of the presence of one Nageswara Rao, who is however dead.
Learned counsel for the respondent pointed out that in the chief-examination, the witness said that she has paid the sale consideration to defendant No.3 in the presence of defendant No.1, but in the further cross-examination on 09.10.2001 she says that she paid the sale consideration to defendant No.3 in the presence of Nageswara Rao, who is no more. She again states that she does not remember in whose presence she paid the sale consideration shown under Exs.B.1 and B.22. Learned counsel points out that there is further cross-examination also on the financial capacity of defendant No.2 to pay the sale consideration to defendant No.3. Both DWs.1 and 2 depose that the entire sale consideration under the three sale deeds was paid to defendant No.3 only. Learned counsel further points out the lawyer notice (Ex.A.45) that is issued for the first time on 17.10.1992 states that the General Power of Attorney 51 executed purportedly by defendant No.3 is supported by consideration and that payment was made to defendant No.3 by the husband (defendant No.1). He argues that if the agent has paid the entire sale consideration to the principal-
Ranveer Singh, the further payment of sale consideration to Ranveer Singh by defendant No.1 should not logically arise. In such case, learned counsel submits that the General Power of Attorney holders should collect the sale consideration. This Court also finds substantial strength in this argument. If the irrevocable power of attorney was obtained by paying the sale consideration to defendant No.3 by defendant No.2, then defendant No.2 should have collected the entire sale consideration for sale of the property. The admission in Ex.A.45 thus creates any amount of doubt about the payment of the sale consideration.
The evidence shows that DW.4 was examined to prove the payment of sale consideration. According to DW.4, defendant No.2 came to the Office of DW.4 and in that Office, he paid Rs.1,24,500/- to the deceased defendant No.3. This amount of Rs.1,24,500/- was paid for the execution of the first sale deed dated 16.11.1990, which is marked as Ex.B.20.This document dated 16.11.1990 states that the vendee has already paid the sale consideration to the vendor. The receipt which is marked as Ex.B.19 states that on 16.11.1990 defendant No.3 received the payment of Rs.1,24,500/-. However, DW.4 states that "prior to the date 52 of the registration", the defendant No.2 came to our Samaj Office and in that Office she paid Rs.1,24,500/-.
The evidence of DW.5 again introduces a different element. As per this witness, the sum of Rs.99,000/- was paid to defendant No.7-Mrs. Gyanubhai Thakur the purported wife of defendant No.3. This statement is made in the chief examination itself. This is contrary to the evidence of other witness and also contrary to the contents of the receipt Ex.B.23 itself wherein defendant No.3 is said to acknowledge the said sum of Rs.99,000/-.
The counsel points out that DW.1 was already examined on all these aspects including the capacity to pay the sale consideration in an earlier case and her deposition recorded in 1998 in another suit was marked as Ex.A.88. He drew the attention of this Court to the cross-examination on 09.11.1998 in Ex.A.88 and states that despite this clear cross-examination in the earlier suit no evidence is forthcoming on the payment of sale consideration in this case. The argument is that the sale deed by the husband to his wife should be looked into carefully as the said deeds are executed to defeat the plaintiffs' rights in the case. This Court also notices that despite the earlier cross-examination (Ex.A.88), no proof is filed to show the source of income for payment of a sum of Rs.2,66,000/- which is a large sum in 53 the year 1991 and the salary of the witness was only Rs.1,500/- to Rs.2,000/- in 1990 ( as per Ex.A.88 ).
The statement in the lawyers notice Ex.A.45 that defendant No.1 paid the entire sale consideration and then obtained the General Power of Attorney dated 19.10.1990 also compounds the problem.
The consolidated receipt that is produced and marked as Ex.B.23 is also doubtful. As pointed out in the evidence and on seeing the document, it is clear that stamps in Ex.B.23 bear the date 09.10.1990. The receipt is supposedly executed on 25.08.1991 and it is filed into Court on 19.03.2001 only. (cross-examination of DW.1 on 03.10.2001). The written statement of this witness in this suit does not contain a reference to this receipt nor does the suit filed by him for damages and marked as Ex.A.84 refer to this document. The General Power of Attorney holder (defendant No.1) is a witness to this receipt. The witness admitted this in his cross-examination also on 15.10.2001. Ex.A.45 legal notice (dated 17.10.1992) does not refer to this receipt and on the other hand states that the consideration was paid to defendant No.3 by defendant No.2.
It is also argued that the payment of sale consideration cannot be challenged by a third party. The case of Muddasani Venkata Narsaiah (6 supra) was also cited. 54
This Court is of the opinion that the respondents in this appeal and the plaintiffs in the suit have raised and contested the matter on the ground that the sale deeds are not genuine documents and that they are created for the suit. In strict sense of the term they are not 'third' parties to the document, but they are a party who are agitated about the conveyance of title in which they claim an interest. The pleas about the power of attorney and the sale deeds being void are raised in the plaint itself. Section 92 of the Indian Evidence Act, was also pressed into service by the learned counsel for the respondent. He pointed out that the proviso 1 to Section 92 enables him to introduce evidence to the effect that the sale deed is not supported by consideration. This submission is correct. Evidence to prove the want of consideration want of due execution; want of capacity in a contracting party, fraud; illegality to invalidate a document can definitely be introduced and considered. This is an exception to the general Rule under Sec 92 of the Evidence Act. The allegations made in para 19 (i) and (iii) of the plaint and the reply thereto in the written statement are clearly on this point. Issue No.1) in OS.No.1402 of 1992 is on the question of "validity" of the sale deed only. Therefore, in the light of the peculiar facts and circumstances of this present case, this Court is of the opinion that evidence on want of capacity of defendant No.2 to execute the deeds; want/failure of consideration; fraud/illegality can be raised. The plaintiffs have in fact 55 proved that the sale deeds (Exs.B.127-B.129) are not supported by consideration.
This Court after an examination of the entire evidence on record is of the opinion that (a) the appellants who are the defendants in the suit have failed to prove that Exs.127 to 129 sale deeds are supported by consideration. (b) The power of attorney was not proved to have been actually used for the purpose of execution of the three sale deeds Exs.B.127 to B.129. (c) The power of attorney is also not 'authenticated' as required under law and could not be used for registration. Therefore, this Court is of the opinion that no valid or proper title is conveyed under these documents. These documents are created by defendant No.2 in favour of his wife for this suit and they do not convey title to the property.
Hence, the four questions framed earlier and reproduced are dealt with and answered as follows:
(1) The power of attorney is properly stamped. It is validly stamped as per the applicable stamp duty on the date of its execution. Nothing much was actually argued about this point.
(2) The General Power of Attorney dated 15.10.1990 is not "authenticated" as required under law and as such it cannot be used for registration.
(3) The Registrar did not also carry out the necessary enquiry at the time of execution of the three sale deeds which are 56 marked as Exs.B.127 to B.129 and as such, the said documents do not convey valid title. They are not supported by consideration either. No proof is filed to show that the Ex.B.125-General Power of Attorney was used for the registration of Exs.B.127 to B.129.
(4) In view of the answer to questions 2 and 3, the question No.4 is not really necessary. The sale deeds are not executed with a valid power of attorney nor are executed for consideration. Therefore, no title is vested in defendant No.2.
The questions framed by this Court are thus answered as follows: (1) the General Power of Attorney is not "authenticated" and the sale deeds are not executed with the General Power of Attorney. (2) The plaintiff acquired title under Ex.A.10 which relates back to the date of the first agreement of sale. Exs.B.127 to B.129 do not convey any title to defendants. (3) Plaintiff is the owner of the suit schedule property. The other issues that remain for consideration are issues 5 and 6 in OS.No.1042 of 1992 which relate to the claim for damages. As there is no evidence whatsoever of the rents and or the arrears of rent this issue is decided against the plaintiffs in the suit.
Issue No.7 in OS.No.1402 of 1992 is on the future mesne profits. This Court also permits the plaintiff to file an appropriate application under Order XX Rule 12 CPC for 57 mesne profits from the date of the suit till the date of actual delivery.
The next issue dealt with by the Court is Issue No.2 in OS.No.432 of 1993. Not much arguments were advanced in this appeal about the identity of the property. The dispute is about four mulgies on the eastern side of the house. There is sufficient compliance with Order VII Rule 3 of CPC and the identity of the property is certain in this suit and there is no ambiguity. Hence, this issue is answered accordingly.
Issue No.1 in OS.No.432 of 1993 found that eastern and western boundaries are not correct, but this issue does not have much of the bearing in the present case. Issue No.3 is about an injunction. The lower Court also examined the possession of the plaintiff and also her right to claim possession of the property. The plaintiff in OS.No.432 of 1993 does not have title to the property. The plaintiffs' case is created for the purpose of this litigation. The defendants in the suit were also in possession of the property and the lower Court noticed the forceful occupation. The lower Court also noticed that the Police came and sealed the property on 14.06.1992. As the plaintiff has no right or title in the property and her possession is also not correct, there cannot be an injunction against the true owner.
58
Issue No.4, therefore, is also answered in the same lines as in the preceding para. Plaintiff is not entitled to a permanent injunction.
The ultimate conclusion by this Court is in line with the judgment and decree passed by the Court below on 21.01.2002 and the following findings which are recorded by the Court below are again reiterated for the sake of continuity as this Court agrees with the findings:
1. That the title of the plaintiff over the plaint schedule property is hereby declared;
2. That the defendants 1 and 2 are hereby directed to deliver vacant possession of the portion of the plaint schedule property in their occupation within two months from the date of this decree and judgment and in default the plaintiff is at liberty to take delivery of possession through process of this court and recover the expenses from the defendants 1 and 2;
3. That the claim of the plaintiff for Rs.15,000/- towards past mesne profits is dismissed;
4. That the future mesne profits in respect of the portion of the plaint schedule property in occupation of the defendants 1 and 2 from the date of the suit till the date of delivery of possessions hall be enquired into by an 59 advocate commissioner to be appointed on the application to be filed by the plaintiff under Order XX Rule 12 sub-
rule (1) clause (c) of CPC;
5. That the defendants 1 and 2 shall pay the costs of the suit proportionately.
Hence, both the appeals are dismissed. No order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the appeals shall stand closed.
___________________________ D.V.S.S.SOMAYAJULU, J Date: 26.09.2018 Note: L.R. copy be marked.
KLP