Karnataka High Court
M/S Jade Garden Plot Owner'S ... vs Smt. Bhagyalakshmi on 25 October, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRP No. 88 of 2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 88 OF 2024 (IO)
BETWEEN
M/S JADE GARDEN PLOT OWNER'S ASSOCIATION
A SOCIETY REGISTERED UNDER
THE PROVISIONS OF THE
KARNATAKA SOCIETIES
REGISTRATION ACT 1960
HAVING ITS REGISTERED OFFICE
AT NO 1,
PHASE-II, JADE GARDEN,
SADAHALLI DEVANAHALLI
TALUK, BENGALURU RURAL
DISTRICT - 562 110
REPRESENTED HEREIN BY ITS
HON SECRETARY
WG CDR PRATAP
DESHPANDE
SON OF SRI VASUVERAO
Digitally MADHAVRAO DESHPANDE
signed by AGED ABOUT 66 YEARS
PRAKASH N
Location: ...PETITIONER
HIGH
COURT OF (BY SRI: PRADEEP S. SAWKAR., ADVOCATE)
KARNATAKA
AND
1. SMT. BHAGYALAKSHMI
WIFE OF LATE SRI V LASKHMANASWAMY
AGED ABOUT 65 YEARS
RESIDING AT NO 6,
2ND CROSS,
BYARAYANAPURA,
BENGALURU - 560 092
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2. SMT SARASWATHI B R
WIFE OF SRI GURUMURTHY
AGED ABOUT 63 YEARS
RESIDING AT NO 227,
NEAR BHAJANEMANDIRA
KODEGAHALLI
BENGALURU - 560 092
3. SMT GOWRAMMA
WIFE OF SRI V LAKSHMINARAYANA
AGED ABOUT 60 YEARS
RESIDING AT NO 6,
2ND CROSS
BYATARAYANAPURA
BENGALURU - 560 092
4. SMT RUKMINI DEVI
WIFE OF SRI RAMACHANDRA
AGED ABOUT 38 YEARS
RESIDING AT NO 6,
2ND CROSS
BYATARAYANAPURA
BENGALURU - 560 092
5. THYAGARAJA B R
SON OF LATE SRI B T RAMAIAH
AGED ABOUT 42 YEARS,
RESIDING AT NO 30/2, 1ST MAIN,
301/12, 1ST CROSS,
BYATARAYANAPURA
BENGALURU - 560092
6. P SATISIH PAI
SON OF LATE SRI P NARASIMHA PAI
MAJOR IN AGE
HAVING ITS ADDRESS AT
NO. 10/1,
LAKSHMINARAYANA
COMPLEX, PALACE ROAD
BENGALURU - 560052
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7. S RAGHUNATH
SON OF LATE SRI H SHANKAR
MAJOR IN AGE,
RESIDNG AT NO 306,
17TH C MAIN, 3RD BLOCK,
RAJAJINAGAR
BENGALURU - 560 010
8. B M SHARAD @ SURYA KARRIAPPA
AGED ABOUT 62 YEARS
SON OF B K MACHAYA
NO. T-701, PURVA PARK
APARTMENTS JEEVANAHALLI
MAIN ROAD COX TOWN,
BENGALURU - 560005
9. CHITRA SHARAD @ CHITRA KARIAPPA
AGED ABOUT 57 YEARS
SON OF B K MACHAYA
NO. T-701 PURVA PARK
APARTMENTS JEEVANAHALLI
MAIN ROAD COX TOWN
BENGALURU - 560005
...RESPONDENTS
(BY SRI. KUMBAR VASANT FAKEERAPPA., ADVOCATE FOR R1 TO R4;
R5 & R6 SERVED AND UNREPRESENTED;
SRI. K. CHANDAN., ADVOCATE FOR R7;
SRI. M. JAGADEESH., ADVOCATE FOR R8 AND R9)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF THE CPC, 1908 PRAYING TO CALL FOR THE RECORDS IN O.S.
NO.162 OF 2008 PENDING ON THE FILE OF III ADDL. SENIOR CIVIL
JUDGE AND JMFC, DEVANAHALLI, C/C IIND ADDL. SENIOR CIVIL
JUDGE AND JMFC, DEVANAHALLI AND ETC.
THIS CIVIL REVISION PETITION COMING ON FOR ORDERS
AND HAVING BEEN RESERVED FOR ORDERS ON 25.07.2024, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
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TABLE OF CONTENTS
A. BACKGROUND ................... 5Error! Bookmark not defined.
B. SUBMISSIONS OF PETITIONER COUNSEL 1 ............... 7
C. SUBMISSIONS OF RESPONDENT COUNSEL ............... 27
D. SUBMISSIONS OF PETITIONER COUNSEL 2 ............. 32
E. POINTS FOR CONSIDERATION ................................. 54
F. Whether the suit filed in the year 2008 questioning the
sale deed of the year 1995 was maintainable and was
within the period of limitation requiring the Trial Court to
excise powers under Rule 11 of Order 7 of the CPC to
reject the plaint on the ground that it was barred by the
law of limitation? ......................................................... 56
G. Whether the sale deed executed in pursuance of a
General Power of Attorney, executed in pursuance of an
agreement of sale in favour of Defendant No.2, which
could be said to be coupled with interest under Section
202 of the Contract Act, 1872, thereby making the sale
deed of the year 1995 valid? ........................................ 62
H. Whether a suit for partition filed in the year 2008 as
regards the property which had been alienated by way of
a registered document prior to 20.12.2004 could be
maintainable in view of the proviso to subsection (1) of
Section 6 of the Hindu Succession Act, 1956? .............. 74
I. Whether the order passed by the Trial court suffers
from any legal infirmity requiring interference at the
hands of this court? ................................................... 880
J. What Order? ............................................................. 83
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CAV ORDER
A. BACKGROUND
1. The Petitioner, who is Defendant No.25 in O.S.
No.162/2008, is before this Court seeking the
following reliefs:
a. Call for the records in O.S. No.162 of 2008 pending
on the file of III Addl. Senior Civil Judge and JMFC,
Devanahalli, c/c IInd Addl. Senior Civil Judge and
JMFC, Devanahalli.
b. Set-aside the order dated 20.1.2023 passed on I.A.
No.11 in O.S. No.162 of 2008, allow the said IA
No.11 filed by defendant No.25 and reject the plaint
in the said suit;
c. Grant such other or further reliefs as this Hon'ble
Court deems fit to grant in the circumstances of the
case; and
d. Grant cost of these proceedings, in the interest of
justice and equity.
2. The suit in O.S. No.162/2008 had been filed by
Respondent Nos.1 to 4 seeking for the following
reliefs:
a. Directing the 1st defendant to allot 1/5th share in
favour of the plaintiff in all the suit schedule
properties owned by the joint family by fixing metes
and bounds.
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b. Declare the sale agreement dated 13.02.1990
executed late B.T. Ramaiah the father of the plaintiff
and defendants NO.1 in favour of the defendant No.2
is not binding on the share of the plaintiff herein and
same is null and void.
B(A): declare that sale deed dated 24.1.1995 registered
as document NO.2621/94-95 registered document
No.2621/94-95 registered in the office of the sub-
registrar Devanahalli executed by the 3rd defendant
in favour of the 2nd defendant is not binding on the
share of the plaintiffs.
c. And direct the 1st and 2nd defendants to quit and
vacate land deliver the 1/4th share of the plaintiff in
the suit schedule properties by fixing the metes and
bounds.
d. And order for enquiry of the mesne profit under
Order 20 Rule 12 of the CPC from the date of alleged
agreement dated 13.02.1990 against the defendants
in favour of the plaintiffs.
e. And award the cost, of the suit, and pass such other
order or orders, reliefs which are deemed fit the
ends of justice in the interest of justice and equity.
3. Defendant No.25 had impleaded itself in the said suit
and thereafter filed an application under Rule 11 of
Order 7 of the Code of Civil Procedure, which came
to be dismissed by the Trial Court vide its order
dated 20.11.2023, which is under challenge in these
proceedings.
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B. SUBMISSIONS OF PETITIONER COUNSEL 1
4. Shri. S.S. Ramdas learned Senior Counsel appearing
for the Petitioner, would submit that,
4.1. The suit is completely misconceived and an
abuse of the court's process. There is no cause
of action available for the Plaintiffs to file the
suit. The Plaintiffs, who claim to be the
daughters of late B.T. Ramaiah, filed the suit
for partition subsequent to the amendment to
the Hindu Succession Act, claiming that they
have equal right, title, and interest in the
property, subject matter of the suit, and for
partition thereof.
4.2. The suit, filed in 2008, more particularly on
13.02.2008, in effect challenges the Agreement
of Sale dated 12.02.1990 registered on
13.02.1990 and the sale deed executed
in 1995.
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4.3. His submission is that a reading of the plaint
would indicate that even according to Plaintiff
the property is claimed to be joint family
properties, Plaintiff is allegedly in joint
possession, post the death of their father, late
B. T. Ramaiah, Defendant No.1, brother, is
alleged to have misused the joint family
properties and funds without the knowledge
and consent of the Plaintiffs and a demand for
partition having been made on 05.11.2007, the
same was denied by Defendant No.1, and in
that background, it is alleged that the Plaintiff's
father and Defendant No.1 did not have any
exclusive right to dispose of the property
belonging to the joint family under the
registered sale agreement dated 12.02.1990
registered on 13.02.1990, the said registered
sale agreement is not binding on the Plaintiff. A
challenge is also made to a conversion order
dated 13.12.1990 when the agricultural
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property was converted to non-agricultural
purposes without the consent of the Plaintiffs.
4.4. There is a categorical averment made in the
plaint in paragraph 10 that the name of
Defendant No.2 was entered into the RTC to
show his right, title and interest, which could
not have been so done, dehors the right of the
Plaintiffs and on that basis it is alleged that the
entire transaction which took place between
B.T. Ramaiah, Defendant No.1 and Defendant
No.2 is illegal, void and not binding on the
Plaintiffs.
4.5. Defendant No.3, as Power of Attorney, has
executed a sale deed dated 24-01-1995 in
favour of Defendant No.2 without the consent
of the Plaintiffs. This sale deed is also not
binding on the Plaintiffs. The sale deed was
executed post the death of B.T. Ramaiah, who
expired on 23.01.1992, and hence, such a sale
deed is not binding on the Plaintiffs.
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4.6. The Submission of Sri. S.S. Ramdas learned
Senior Counsel, is that the above averments
would categorically and unimpeachably
establish that even the Plaintiffs have confirmed
the execution of a registered Agreement of Sale
on 12-02-1990, registered on 13.02.1990, the
execution of a Power of Attorney in favour of
Respondent No.3/Defendant No.3, Defendant
No.3 having executed a registered sale deed in
favour of Defendant No.2 on 24-01-1995.
4.7. The last transaction having occurred in the year
1995, a suit for partition could not have been
filed in the year 2008 challenging the sale deed
executed on 24.01.1995. The suit is hopelessly
barred by limitation. This aspect has not been
properly considered by the Trial Court while
considering the application under Rule 11 of
Order 7 of the CPC, filed by the Petitioner.
4.8. Apart therefrom, he submits that the Petitioner
is an association of site owners in the layout
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formed in the suit scheduled property, post the
sale deed executed on 24.01.1995, a layout
having been formed and sites have been sold to
members of the Petitioner who have
constructed houses therein and are residing
therein.
4.9. The suit is an abuse of the process of law
inasmuch as it has been filed after 13 years
after the execution and registration of the sale
deed only on account of the amendment to the
Hindu Succession Act. The Trial Court has not
referred to and applied the proviso to
Subsection (1) of Section 6 which saves any
alienation made prior to the coming into force
of the amendment to Section 6 of the Hindu
Succession Act.
4.10. The sale deed that has been executed in the
year 1995 under a registered document is
saved under proviso to Subsection (1) of
Section 6.
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4.11. The Trial Court has misconstrued the impact of
the Power of Attorney inasmuch as the entire
sale consideration has been paid, the Power of
Attorney was one coupled with interest. The
said Power of Attorney did not terminate on the
expiry of B.T. Ramaiah and as such, the usage
of the Power of Attorney for execution of sale
deed in the year 1995 being valid, ought to
have been taken into consideration by the Trial
Court in the proper perspective.
4.12. The suit being an abuse of the process of court
and only to pressurize Defendant No.5 and
others, the plaint ought to have been rejected.
4.13. In this regard he relies upon the decision of this
court in the case of M/s Metropoli Overseas
Limited -v- Sri. H.S. Deekshit and others1
more particularly para 19.5, 19.6 and 19.7
thereof which are reproduced hereunder for
easy reference:
1
CRP No.307 of 2020 | 2021:KHC:35062
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19.5 Insofar as declaration is concerned, in terms of
Article 58 of the Limitation Act, the period would
be three years from the date on which the right
to sue first accrued, the date on which the sale
deeds were registered viz., 19.07.1995 and
20.07.1995. The said period expired on
18.07.1998 and 19.07.1998. Hence the suit is
exfacie barred by the law of limitation.
19.6 Applying the benefit of Article 60 of the Act, the
plaintiffs could have filed a suit three years after
attaining majority. This also has not been done
by the plaintiffs. Even assuming that Article 109
of the Limitation Act would have to be taken into
consideration, the relief of partition dehors the
relief of declaration, even the said period of 12
years expired on 18.07.2007 and 19.07.2007.
Thus, even on this count the suit having been
filed in the year 2020 is exfacie barred by the
law of limitation.
19.7 The above facts are clearly apparent from the
face of records and reading of the plaint. The
dates are categorically mentioned in the plaint
and it is only the application of the relevant
provision of law which is to be made. Thus, in
terms of the decision of the Apex Court in
Sopan Sudhdeo Sable's and Raghwendra
Sharan Singh's case [supra], a Court would
have necessary jurisdiction to reject a plaint
under Order 7 Rule 11 of the CPC on the ground
that the plaint is exfacie barred by limitation so
as to nip frivolous litigation at the bud, prevent
abuse of the process of Court and also dismiss
bogus and irresponsible litigation.
4.14. By relying on M/s Metropoli Overseas
Limited's case, he submits that a suit for
declaration is required to be filed in terms of
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Article 58 of Part III of the Schedule to the
Limitation Act, 1963 which provides for three
years. The methodology of calculation of
limitation is from the date on which the right to
sue had first accrued. In the present case, the
agreement of sale was executed in the year
1990, the sale deed was executed on
24.01.1995 and as such, the suit was to be
filed within a period of three years therefrom
i.e. on or before 23.01.1998.
4.15. He relies upon the decision of the Hon'ble Apex
Court in Dahiben vs Arvindbhai Kalyanji
Bhanusali2 more particularly para nos 23.13
and 23.14 thereof which are reproduced
hereunder for easy reference:
23.13. If on a meaningful reading of the plaint, it is
found that the suit is manifestly vexatious and without
any merit, and does not disclose a right to sue, the
court would be justified in exercising the power under
Order 7 Rule 11 CPC.
2
(2020) 7 SCC 366 | 2020 INSC 450
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23.14. The power under Order 7 Rule 11 CPC may be
exercised by the court at any stage of the suit, either
before registering the plaint, or after issuing summons
to the defendant, or before conclusion of the trial, as
held by this Court in the judgment of Saleem Bhai v.
State of Maharashtra, (2003) 1 SCC 557. The plea that
once issues are framed, the matter must necessarily
go to trial was repelled by this Court in Azhar Hussain
v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in
Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba,
1998 SCC OnLine Guj 281 : (1998) 2 GLH 823.
4.16. By relying on Dahiben's case, he submits that
it is the duty of the Court to reject a plaint if
the suit is manifestly vexatious and such
powers can be exercised at any stage of the
suit.
4.17. He relies upon the decision of the Hon'ble Apex
Court in ELDECO Housing and Industries
Ltd. -v- Ashok Vidyarthi and others3 more
particularly para nos 23.2 to 23.15 thereof,
which are reproduced hereunder for easy
reference:
23.2. The remedy under Order 7 Rule 11 is an
independent and special remedy, wherein the court is
empowered to summarily dismiss a suit at the
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threshold, without proceeding to record evidence,
and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be
terminated on any of the grounds contained in this
provision.
23.3. The underlying object of Order 7 Rule 11(a) is
that if in a suit, no cause of action is disclosed, or the
suit is barred by limitation under Rule 11(d), the
court would not permit the plaintiff to unnecessarily
protract the proceedings in the suit. In such a case, it
would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi 1986 Supp
SCC 315, this Court held that the whole purpose of
conferment of powers under this provision is to
ensure that a litigation which is meaningless, and
bound to prove abortive, should not be permitted to
waste judicial time of the court, in the following
words :
"12. ... The whole purpose of conferment of such
powers is to ensure that a litigation which is
meaningless, and bound to prove abortive should not
be permitted to occupy the time of the court, and
exercise the mind of the respondent. The sword of
Damocles need not be kept hanging over his head
unnecessarily without point or purpose. Even in an
ordinary civil litigation, the court readily exercises the
power to reject a plaint, if it does not disclose any
cause of action."
23.5. The power conferred on the court to terminate
a civil action is, however, a drastic one, and the
conditions enumerated in Order 7 Rule 11 are
required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the
court to determine whether the plaint discloses a
cause of action by scrutinising the averments in the
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plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V.
Sea Success I, (2004) 9 SCC 512] , read in
conjunction with the documents relied upon, or
whether the suit is barred by any law.
xx xx xx
23.9. In exercise of power under this provision, the
court would determine if the assertions made in the
plaint are contrary to statutory law, or judicial dicta,
for deciding whether a case for rejecting the plaint at
the threshold is made out.
23.10. At this stage, the pleas taken by the
defendant in the written statement and application
for rejection of the plaint on the merits, would be
irrelevant, and cannot be adverted to, or taken into
consideration.
[Sopan Sukhdeo Sable v. Charity Commr., (2004) 3
SCC 137]
23.11. The test for exercising the power under Order
7 Rule 11 is that if the averments made in the plaint
are taken in entirety, in conjunction with the
documents relied upon, would the same result in a
decree being passed. This test was laid down in
Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea
Success I [Liverpool & London S.P. & I Assn. Ltd. v.
M.V. Sea Success I, (2004) 9 SCC 512] which reads
as : (SCC p. 562, para 139)
"139. Whether a plaint discloses a cause of action or
not is essentially a question of fact. But whether it
does or does not must be found out from reading the
plaint itself. For the said purpose, the averments
made in the plaint in their entirety must be held to
be correct. The test is as to whether if the averments
made in the plaint are taken to be correct in their
entirety, a decree would be passed."
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23.12. In Hardesh Ores (P) Ltd. v. Hede & Co.
[Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC
614] the Court further held that it is not permissible
to cull out a sentence or a passage, and to read it in
isolation. It is the substance, and not merely the
form, which has to be looked into. The plaint has to
be construed as it stands, without addition or
subtraction of words. If the allegations in the plaint
prima facie show a cause of action, the court cannot
embark upon an enquiry whether the allegations are
true in fact. D. Ramachandran v. R.V.Janakiraman,
(1999) 3 SCC 267; See also Vijay Pratap Singh v.
Dukh Haran Nath Singh, AIR 1962 SC 941].
23.13. If on a meaningful reading of the plaint, it is
found that the suit is manifestly vexatious and
without any merit, and does not disclose a right to
sue, the court would be justified in exercising the
power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may
be exercised by the court at any stage of the suit,
either before registering the plaint, or after issuing
summons to the defendant, or before conclusion of
the trial, as held by this Court in the judgment of
Saleem Bhai v. State of Maharashtra, (2003) 1 SCC
557. The plea that once issues are framed, the
matter must necessarily go to trial was repelled by
this Court in Azhar Hussain v. Rajiv Gandhi, 1986
Supp SCC 315. Followed in Manvendrasinhji
Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC
OnLine Guj 281 : (1998) 2 GLH 823.
23.15. The provision of Order 7 Rule 11 is
mandatory in nature. It states that the plaint "shall"
be rejected if any of the grounds specified in clauses
(a) to
(e) are made out. If the court finds that the plaint
does not disclose a cause of action, or that the suit is
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barred by any law, the court has no option, but to
reject the plaint."
4.18. By relying on the ELDECO Housing and
Industries Ltd's case, he submits that the
Hon'ble Apex Court in the said Judgment has
categorically laid down the methodology of
exercise of powers under Rule 11 of Order 7 of
the CPC and on that basis, he submits that the
Court ought to summarily reject the plaint
which would satisfy any of the grounds
contained under Rule 11 of Order 7 of the CPC,
where the intention is to nip frivolous suits at
the bud. Such powers are to be exercised
mandatorily since the word used in Rule 11 of
Order 7 is "shall". Thus, he submits that in the
present case, the requirements of Rule 11 of
Order 7 being satisfied, the Trial Court was
bound to reject the plaint.
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4.19. He Relies upon the decision of the Hon'ble Apex
Court in P. Shesha Reddy (D) rep. by His LR
-cum Irrevocable GPA Holder Assignee
Kotamreddy Kodandarami Reddy -v- State
of Karnataka and other4 more particularly
para nos. 18 and 19 thereof, which are
reproduced hereunder for easy reference:
18. No doubt, the learned Single Judge was right in
holding that on account of the death of the original
contractor, it amounted to termination of the agency.
However, learned Single Judge could not have read
Section 201 of the Indian Contract Act in isolation by
ignoring Section 202 of the Indian Contract Act. The
learned Single Judge failed to take into consideration
that on account of the assignment deed, an interest
accrued in the said contract in favour of the appellant.
Indisputably, the said contract was the subject matter
of the agency and as such in the absence of an
express provision to the contrary, the appellant was
entitled to continue with the said agency.
19. The learned trial Judge rightly construing this
position, allowed the application of the appellant. In a
jurisdiction under Article 227 of the Constitution of
India, the learned Single Judge could not have
interfered with the order of the trial Court, unless he
found the view taken by the learned trial Judge was
perverse or impossible.
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4.20. By relying on P. Shesha Reddy's case, he
submits that when a right is created in favour
of the agent by way of a document, Section
202 of the Contract Act would recognise such
agency to be one coupled with interest which
agency would not be terminated by the person
issuing the power of attorney.
4.21. He relies on the decision of this court in
Mohammed @ Podiya -v- Assistant
Commissioner5 more particularly para nos. 4,
5 and 6 thereof which are reproduced
hereunder for easy reference:
4. A power-of-attorney is an authority whereby one
is authorised to act for another. Power-of-attorney
is ordinarily construed strictly and general powers
are interpreted in the light of the special powers,
although they may include incidental powers
necessary for carrying out the authority granted.
Where a general power is given followed by specific
powers, the generality of powers will have to be
read in the light of the specific powers granted. In
the present case, the first four clauses in the
power-of-attorney appear to be ordinary clauses of
agency. The fifth clause enables the fourth
respondent to construct buildings in the properly in
5
ILR 1993 KAR 2306
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question and effect other improvements. Clause 8
empowers the fourth respondent to apply for
conversion of land for non-agricultural purposes.
Clause 10 empowers the fourth respondent to
occupy for himself or let on lease any building in
existence or thereafter to come into existence in
the said property. Clause 11 empowers the fourth
respondent to mortgage the said property and
Clause 12 permits the fourth respondent to sell the
property for a price not less than of Rs. 75,000
mentioned in the certificate issued under Section 55
of the Act. The fourth respondent paid a sum of
Rs.65,000 as deposit and on sale of the property in
question he would be entitled to deduct the said
sum of Rs.65,000 already paid towards the sale
price and the balance thereof shall be paid. This
power-of-attorney is an irrevocable one and also
contains a provision or clause that petitioner would
not demand for any accounts. Thus, the fourth
respondent has not only been empowered to do
certain acts as an agent, he has also been
conferred with power to occupy the lands himself or
lease any building already existing in the lands or
thereafter come into existence and to construct
buildings on the property and make other
improvements with the power of sale subject to
certain conditions. All said and done this power-of-
attorney can by no stretch of imagination be stated
to be a simple case of creating agency.
5. Section 202 of the Contract Act provides that
where the agent has himself an interest in the
property which forms the subject matter of the
agency, the agency cannot in the absence of any
express condition be terminated to the prejudice of
such interest. The principle is that when an
agreement is entered into on a sufficient
authorisation whereby an authority is given for the
purpose of giving some benefit to the donee of the
authority such an authority is irrevocable. An
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authority coupled with interest is not determined by
death, insanity or bankruptcy of the principal where
the agent made advances to the principal and is
authorised to sell at best price and recoup advances
made by him, the agency is one coupled with
interest and is irrevocable. Where all the rights and
liabilities under a contract were made over by a
power-of-attorney, such power is an agency
coupled with interest.
6. In the instant case, the authority is not only
irrevocable, it is a security with other proprietary
interests or part of security conferring powers on the
fourth respondent towards performance of obligations.
The fourth respondent is empowered to put up
constructions on the property or lease the property as
he thinks fit. Nothing is stated as to the consideration
that may pass to him in the event of leasing that
property or cost of construction or other obligations or
rights the petitioner would have in that regard.
Further, when the property is liable to be sold at an
upset price of Rs. 75,000 or more, a substantial sum of
Rs. 65,000 which is almost equivalent to the
consideration thereof is stated to be deposited with the
petitioner and the power-of-attorney not being
revocable, question of refund thereof may not arise in
which event the said sum of Rs. 65,OOC will remain
with the petitioner and the property with the fourth
respondent. In that event there is definite transfer of
proprietary interest in the property. Indeed, in
BOWSTEAD ON AGENCY this position is considered and
such power is referred to as "power coupled with
interest" and is regarded as a property disposition
rather than as the conferring of authority. The clause
relating to irrevocability is introduced in the power-of-
attorney as an authority which is conferred on him as a
protection of agency coupled with interest. In that
event, the power-of-attorney in question must be
construed as one assigning the rights of the petitioner
arising out of the certificate issued under Section 55 of
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the Act to the fourth respondent. The learned Counsel
for the petitioner, however, urged relying upon a
Decision of the Andhra Pradesh High Court reported in
AIR 1985 AP 13, that the power-of-attorney is not a
document transferring any interest in the property. But
a careful perusal of the Decision itself would make the
observations made thereof non-applicable to the facts
of the case on hand. In the present case, the
interpretation of the recitals in the power-of-attorney
turns on its own facts. It is further submitted that it is
only a drafting error and creates no interest in the
property as such and referred to certain Decisions
reported in AIR 1938 LAHORE 712, , and . But none of
these Decisions have any application to the present
facts of the case or the principles laid down therein can
have any application to the present case. In the
circumstances, we have no choice but to confirm the
order made by the Tribunal, though for different
reasons. In the result, this Petition is dismissed. Rule
discharged.
4.22. By relying on Mohammed @ Podiya's case,
he submits that when the power of attorney
conferred power for sale, the said power of
attorney is to be read in conjunction with the
agreement of sale. The power to sell under the
power of attorney creates an agency coupled
with interest and the agent having an interest
in the property, the power of attorney cannot
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be determined by death, insanity or bankruptcy
of the principal, such agency being one coupled
with interest.
4.23. He relies upon the decision of Hon'ble Apex
Court in Bharat Nidhi Ltd. -v- Takhatmal
(dead) by His LRs6 more particularly para
nos. 4, 5 and 6 thereof, which are reproduced
hereunder for easy reference:
4. The question whether a document amounts to
an equitable assignment or not is primarily one of
construction but we may mention a few decisions
which throw light on the matter. In Jagabhai
Lallubhai v. Ruslamji Naserwanji the Bombay High
Court held that an agreement to finance the
borrower and a power of attorney of even date to
receive the monies due to the borrower under
certain contracts had the effect of an equitable
assignment of the funds. In Seth Loonkaran
Sethiya v. State Bank of Jaipur this court held that
a power of attorney authorising a lender to
execute a decree then passed in favour of the
borrower or which ' might be passed in his favour
in a pending appeal and to credit to the borrower's
account the monies realised in execution of the
decree amounted to an equitable assignment of
the funds.
5. In the last case the court held that there was no
transfer of the decree, or of the claim which was
the subject-matter of the pending appeal as the
6
Civil Appeal No.133/1965
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borrower continued to be the owner and the lender
was merely authorised to act as his agent.
Nevertheless the court held that the power of
attorney amounted to a binding equitable
assignment. An actionable claim may be
transferred under Section 130 of the Transfer of
Property Act, Where a document does not amount
to a transfer within Section 130 it may apart from
and independently of the section operate as an
equitable assignment of the actionable claim.
6. In the present case the power of attorney
authorised the appellant to receive all monies due
or to become due to Malhotra in respect of pending
or future contracts with the government
authorities. Counsel argued that there was no
engagement to pay out of specific fund and
therefore there was no assignment. We find no
substance in the contention. There can be valid
equitable assignment of future debts : see Tailby
v. Official Receiver . As and when the debt comes
into existence it passes to the assignee.
4.24. By relying on Bharat Nidhi Ltd's case, he
submits that the power of attorney authorising
the power of attorney holder to receive monies
would be an agency coupled with interest. On
the basis of the above, he submits that the
order of the Trial Court is required to be set
aside and the application filed by the Petitioner
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under Rule 11 of Order 7 of the CPC is required
to be allowed and the plaint be rejected.
C. SUBMISSIONS OF RESPONDENT COUNSEL
5. Sri. V.F. Kumbar, learned counsel for the Respondent
would submit that,
5.1. The Plaintiffs being the daughters have equal
interest in the suit schedule properties
subsequent to the expiry of their father. Post
the expiry, no sale deed could have been
executed making use of the Power of Attorney.
The Power of Attorney has come to an end on
the death of the father. On the death of the
father, the Plaintiffs have succeeded to the
estate and without making them as party, no
sale deed could have been executed.
5.2. The Trial Court has properly considered all
these aspects. The Trial Court has rightly
dismissed the application filed under Rule 11 of
Order 7 of the CPC. There is no infirmity in the
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order requiring interference at the hands of this
Court.
5.3. He relies on the decision of Hon'ble Madras High
Court in R. Kumar (Deceased) and Another
-v- S. Valliammal7 , more particularly para
nos. 7, 8 and 9 thereof, which are reproduced
hereunder for easy reference:
7. It is further stated that on the death of the
second plaintiff, he cannot represent the second
plaintiff, and therefore, he has filed the
I.A.No.1666/2012 only for the limited purpose of
impleading the legal heirs of the second plaintiff
Kumar. There are three legal heirs for the deceased
Kumar. They are sought to be impleaded as the
proposed plaintiffs 3, 4 and 5. On behalf of the
petitioner, further submission was made that it is
the well settled principle that when one of the
principals died, the Power of Attorney will get
automatically terminated. However, the learned
counsel for the petitioners referred Section 209 of
Indian Contract Act, which reads as follows:-
209. Agents duty on termination of agency by
principal's death or insanity:- When an agency
is terminated by the principal dying or
becoming of unsound mind, the agent is bound
to take, on behalf of the representatives of his
late principal, all reasonable steps for the
protection and preservation of the interests
entrusted to him.
8. In terms of Section 209, it is the duty of the
power agent to protect the interest of the principal
and the power agent should take all reasonable
7
CRP(PD) No.1564/2014
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steps for the same. Therefore, the petitioner has
filed the above application only for the limited
purpose to bring the LR's of the deceased second
plaintiff on record in the place of the deceased. The
Lower Court has not considered Section 209 of the
Act but, merely dismissed the application without
assigning any proper reason. It was only stated
that after the death of one of the principals, no new
power of attorney was given to the power agent by
the legal heirs of the deceased. Therefore, the
Lower Court dismissed the application without
assigning any proper reason.
9. In support of the contentions, the learned
counsel for the petitioner referred to the judgment
of the Hon'ble Division Bench of this Court passed
in Writ Appeal (MD) Nos.998, 999 of 2015, The
Inspector General of Registration, Pattinapakkam,
Chennai an another Vs. J.Barathan, reported in CDJ
2015 MHC 7508, the relevant portion of the
judgment in para No.47, is extracted hereunder:-
47. There is no direct reference in Section 202,
to the termination of an agency by the death
of the principal, except in the illustrations
contained thereunder. The only provision that
directly speaks about the termination of
agency due to the death of the principal
is Section 209 (apart from Section
201). Section 209 obliges an agent to protect
and preserve the interest of the principal
entrusted to him. It does not speak about the
agent's own interest. Therefore, the second
contention of the respondent does not hold
good, in the light of the provisions of Section
202 to 209 of the Indian Contract Act.
5.4. By relying on R. Kumar's case, he submits that
upon the death of the father, the Power of
Attorney executed in favour of Defendant No.3
stood automatically terminated and thereafter,
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Defendant No.3 could not have exercised any
power under the said power of attorney to
execute the sale deed in favour of Defendant
No.2.
5.5. His submission is that the Power of Attorney in
favour of Defendant No.3 is not one which is
coupled with interest. Defendant No.3 is a
complete third-party to the transaction. An
Agreement of Sale having been executed in
favour of Defendant No.2, the Power of
Attorney executed in favour of Defendant No.3,
Defendant No.3 cannot be said to have any
irrevocable interest by way of the said Power of
Attorney. The power of attorney holder and the
agreement of sale holder being two different
persons, the transactions are different and
therefore it cannot be said that the power of
attorney is irrevocable on account of it being
coupled with interest.
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5.6. His submission is that defendant No.3 is a third-
party having no interest, Section 202 of the
Indian Contract Act would not be applicable.
The Power of Attorney would automatically
terminate on the death of Defendant No.1, at
least insofar as the share of Defendant No.1 is
concerned, which has been transferred by
exercise of the rights under the Power of
Attorney, the said sale is required to be set
aside and on this ground, he submits that the
Plaintiffs are having a good case on merit, the
claim of the Petitioner cannot be negated by
rejection of the claim at this stage and
therefore, he submits that the Trial Court has
rightly appreciated the issues in the matter and
dismissed the application under Rule (11) of
Order 7 of CPC. In that background he submits
that the writ petition is required to be
dismissed.
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D. SUBMISSIONS OF PETITIONER COUNSEL 2
6. Sri. Kamalacharan, learned counsel who also appears
for the Petitioner on account of the indisposition of
Shri. S.S. Ramdas in reply submits that
6.1. The Power of Attorney and the Agreement of
Sale was executed contemporaneously to each
other, they form part of one single transaction.
The Power of Attorney was executed in
furtherance of the Agreement of Sale.
Subsequent to the compliances, Defendant
No.3, Power of Attorney holder has executed
the sale deed in favour of Defendant No.2 in
furtherance of the Agreement of Sale executed
by the father and brother of the Plaintiffs in
favour of Defendant No.2.
6.2. Thus, the manner in which the Power of
Attorney has been acted upon would indicate
that the same is one coupled with interest,
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coming within the purview of Section 202 of the
Indian Contract Act.
6.3. He again relies upon the decision in
Mohammed @ Podiya -v- Asst.
Commissioner8, this time para 4, 5 and 6
thereof, which are extracted hereunder for easy
reference:
4. A power-of-attorney is an authority whereby
one is authorised to act for another. Power-of-
attorney is ordinarily construed strictly and general
powers are interpreted in the light of the special
powers, although they may include incidental
powers necessary for carrying out the authority
granted. Where a general power is given followed
by specific powers, the generality of powers will
have to be read in the light of the specific powers
granted. In the present case, the first four clauses
in the power-of-attorney appear to be ordinary
clauses of agency. The fifth clause enables the
fourth respondent to construct buildings in the
properly in question and effect other
improvements. Clause 8 empowers the fourth
respondent to apply for conversion of land for non-
agricultural purposes. Clause 10 empowers the
fourth respondent to occupy for himself or let on
lease any building in existence or thereafter to
come into existence in the said property. Clause 11
empowers the fourth respondent to mortgage the
said property and Clause 12 permits the fourth
respondent to sell the property for a price not less
than of Rs. 75,000 mentioned in the certificate
8
ILR 1993 KAR 2306
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issued under Section 55 of the Act. The fourth
respondent paid a sum of Rs.65,000 as deposit
and on sale of the property in question he would
be entitled to deduct the said sum of Rs.65,000
already paid towards the sale price and the
balance thereof shall be paid. This power-of-
attorney is an irrevocable one and also contains a
provision or clause that petitioner would not
demand for any accounts. Thus, the fourth
respondent has not only been empowered to do
certain acts as an agent, he has also been
conferred with power to occupy the lands himself
or lease any building already existing in the lands
or thereafter come into existence and to construct
buildings on the property and make other
improvements with the power of sale subject to
certain conditions. All said and done this power-of-
attorney can by no stretch of imagination be
stated to be a simple case of creating agency.
5. Section 202 of the Contract Act provides that
where the agent has himself an interest in the
property which forms the subject matter of the
agency, the agency cannot in the absence of any
express condition be terminated to the prejudice of
such interest. The principle is that when an
agreement is entered into on a sufficient
authorisation whereby an authority is given for the
purpose of giving some benefit to the donee of the
authority such an authority is irrevocable. An
authority coupled with interest is not determined
by death, insanity or bankruptcy of the principal
where the agent made advances to the principal
and is authorised to sell at best price and recoup
advances made by him, the agency is one coupled
with interest and is irrevocable. Where all the
rights and liabilities under a contract were made
over by a power-of-attorney, such power is an
agency coupled with interest.
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6. In the instant case, the authority is not only
irrevocable, it is a security with other proprietary
interests or part of security conferring powers on
the fourth respondent towards performance of
obligations. The fourth respondent is empowered
to put up constructions on the property or lease
the property as he thinks fit. Nothing is stated as
to the consideration that may pass to him in the
event of leasing that property or cost of
construction or other obligations or rights the
petitioner would have in that regard. Further,
when the property is liable to be sold at an upset
price of Rs. 75,000 or more, a substantial sum of
Rs. 65,000 which is almost equivalent to the
consideration thereof is stated to be deposited with
the petitioner and the power-of-attorney not being
revocable, question of refund thereof may not
arise in which event the said sum of Rs. 65,OOC
will remain with the petitioner and the property
with the fourth respondent. In that event there is
definite transfer of proprietary interest in the
property. Indeed, in BOWSTEAD ON AGENCY this
position is considered and such power is referred
to as "power coupled with interest" and is regarded
as a property disposition rather than as the
conferring of authority. The clause relating to
irrevocability is introduced in the power-of-
attorney as an authority which is conferred on him
as a protection of agency coupled with interest. In
that event, the power-of-attorney in question must
be construed as one assigning the rights of the
petitioner arising out of the certificate issued
under Section 55 of the Act to the fourth
respondent. The learned Counsel for the petitioner,
however, urged relying upon a Decision of the
Andhra Pradesh High Court reported in AIR 1985
AP 13, that the power-of-attorney is not a
document transferring any interest in the property.
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But a careful perusal of the Decision itself would
make the observations made thereof non-
applicable to the facts of the case on hand. In the
present case, the interpretation of the recitals in
the power-of-attorney turns on its own facts. It is
further submitted that it is only a drafting error
and creates no interest in the property as such and
referred to certain Decisions reported in AIR 1938
LAHORE 712, , and . But none of these Decisions
have any application to the present facts of the
case or the principles laid down therein can have
any application to the present case. In the
circumstances, we have no choice but to confirm
the order made by the Tribunal, though for
different reasons. In the result, this Petition is
dismissed. Rule discharged.
6.4. By relying on Mohammed @ Podiya's case, he
submits that when the agent himself has an
interest in the property which is subject matter
of the agency, the agency cannot be terminated
in the absence of an express condition allowing
such termination.
6.5. He relies upon the decision of the Hon'ble Delhi
High Court in Sri. Harbans Singh -v- Smt.
Shanti Devi9, more particularly para nos. 6, 7,
10 and 12 thereof, which are extracted
hereunder for easy reference:
9
ILR 1977(2) Delhi 649
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(6) Shri G. S. Vohra, learned counsel for the
appellant, argued that in the context of the
circumstances, Shri Gulati fully understood the
meaning of the notice that it was intended to
cancel both the powers of attorney held by him. He
referred to the reply dated 1-3-1965 given by Shri
Gulati to the appellant stating that the appellant
had executed the power of attorney, general and
special, and that the same were irrevocable.
Learned counsel also referred to the letter written
by the appellant's lawyer to the respondent in
which it was stated that all documents in favor of
the respondent and her husband were cancelled by
the appellant. In our view, the meaning of the
notice Exhibit D-2 has to be understood only by
reading that. document. The said document cannot
be read in the light of the letter sent to the
respondent or the reply given by Shri Gulati. As
the notice is ambiguous and defective, it was not
effective in cancelling the two different powers of
attorney held by Shri Gulati from the appellant.
Even if it is assumed that the ambiguous or
defective language of the notice could be
understood in the context of the other
circumstances and the other documents to mean
that both the powers of attorney were cancelled,
the consideration of the second point would show
that in view of section 202 of the Contract Act, the
appellant had no power to cancel the same.
Section 202 of the Contract Act is as follows:-
"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."
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If the agent himself had an interest in the property
which formed the subject-matter of the agency,
then in the absence of an express contract to the
contrary these powers of attorney could not be
terminated by the appellant to the prejudice of
such interest. Firstly, let us consider the meaning
of the expression "interest" in section 202. The
word has not been defined in the Contract Act. It
has, Therefore, to be construed in the light of the
situations which arise under the various provisions
of the Contract Act. The Act deals with all kinds of
property, movable and immovable, corporeal and
incorporeal. It also deals with all kinds of rights,
proprietary, non-proprietary personal and
corporate. The word "interest" is to be applied to a
wide variety of cases under the Contract Act and
must, Therefore, be given a wide meaning to serve
these wide purposes of the Act. It is not a term of
art or a technical word. In jurisprudence, the word
"interest" simply means an advantage or a benefit.
"Interests are things which are to a man's
advantage : he has an interest in his freedom or
his reputation. His rights to these, if he has such
rights,. protect the interests, which accordingly
form the subject of his rights but are different from
them. To say he has an interest in his reputation
means that it is to his advantage to enjoy a good
name. "However, every interest of a person may
not become a right. It is only those interests which
are legally recognised and/or are legally protected
or enforced which amount to legal rights.
(Salmond on Jurisprudence, 12th Edition, pages
217-218). The German jurist jhoring viewed law as
a reconciler of conflicting interests. Roscoe found
regards human disorders and claims as interests
which exist independently of the law and which are
constantly "pressing for recognition and security."
(Philosophy of Law, Revised '' Edition, 1954). In
the American Restatement of the Law erf torts
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CRP No. 88 of 2024
(Second Edition, 1965) the word "interest" is used
to denote the object of any human desire.
(7) For the purposes of the Law of Contract,
Therefore, it would not be useful to restrict the
meaning of the word "interest" by the narrow
compass in which this world is used at times in
relation to immovable property. For instance, the
last sentence of section 54 of the Transfer of
Property Act states that a contract for sale of itself
does not create any interest in or charge on
immovable property. Similarly, section 17(1)(b) of
the Registration Act makes only those documents
compulsorily registerable which create, declare,
assign, limit or extinguish any right, title or
interest, whether vested or contingent, of the
value of one hundred rupees and upwards to or in
immovable property. Since an agreement for sale
does not create such a right, title or interest, it
may not be compulsorily registerable. But in the
context of the Contract Act, it cannot be said that
a person who is the beneficiary of an agreement of
sale has no right or interest in the subject-matter
of the sale. He has a legally enforceable right and
interest in enforcing the contract of sale by the
execution of a sale deed and in getting possession
of the property agreed to be sold under the
provisions of the Specific Relief Act. In the English
Common Law, the specific performance of
contracts was a part of the law of contract. This is
why Chapter Iv of the Contract Act deals with the
performance of contracts which includes the
performance of contracts relating to immovable
property also. In fact, section 4 of the Transfer of
Property Act says that the chapters and sections of
that Act which relate to contracts shall be taken as
part of the Indian Contract Act, 1872. Therefore,
the respondent in whose favor the appellant had
executed an agreement for the sale of an
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immovable property had an interest in the subject-
matter of the contract, namely, the shop, turn the
purposes of section 202 of the Contract Act if not
for the purposes of the Transfer of Property and
the Registration Acts.
(10) The matter may be looked at from another
point of view. Legally protected interest or a
benefit of one party casts a corresponding
obligation on the other party to the contract. If the
contract of agency confers an interest or a benefit
on the agent, it casts an obligation on the
principal. In the present case, the appellant, as a
principal, was under an obligation to perform the
contract of sale by the execution of a conveyance.
In the words of Bowstead, "authority is normally
only irrevocable when it is the security or other
proprietary interest, or part of the security, or
where its conferring constitutes the performance of
the obligation". Such a power is referred to as a
"power coupled with an interest" and should be
regarded as a property disposition rather than as
the conferring of authority. The Restatement (the
American Restatement of the Law on Agency,
section 138) uses the phrase "power given as
security" defined as "a power to affect the legal
relations of another, created in the form of an
agency authority, but held for the benefit of the
power holder or a third person, and given to
secure the performance of a duty or to protect a
title, either legal or equitable, such power being
given when the duty or title is created or given for
consideration." (OP cit, page 424). Since the
power of agency has been conferred not for the
benefit of the principal but for the benefit of the
agent representing a third party and not as
representing the principal, the power becomes
irrevocable.
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(12) There is no difference between the general
and the special powers of attorney in this respect.
Both of them are for the benefit of the respondent
and her nominee Shri Gulati. Neither of them is for
the benefit of the principal, the appellant. Shri
Vohra argued that the respondent and her
husband Shri Gulati are two different persons in
the eye of law. This may be so. But their interests
are identical. It cannot be said that Shri Gulati had
no interest in the property which is the subject-
matter of the agency. We have already stated that
interest does not mean ownership or title in the
immovable property. It means an advantage or a
benefit or a legally enforceable right. Shri Gulati
had the right to legally enforce the obligation cast
on the appellant to convey the property to the
respondent. This interest and right was of Shri
Gulati himself though it may be for the benefit of
the respondent namely, his wife. It is immaterial,
Therefore, that only the general power of attorney
was expressly made irrevocable while the special
power of attorney was not so made. It is section
202 of the Contract Act which makes them both
irrevocable.
6.6. By relying on Sri. Harbans Singh's case, he
once again submits that when the agent has an
interest in the property, forming subject matter
of the agency, such interest of the power of
attorney cannot be terminated. Such interest
cannot be narrowly read in terms of Section 54
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of the Transfer of Property Act, but would have
to be read in the context of the Indian Contract
Act and as such, the beneficiary of an
Agreement of Sale cannot be said to have no
right or interest in the subject matter of sale, it
is a legally enforceable right under the said
agreement. The enforcement in the present
matter has been provided through a power of
attorney executed in favour of a nominee of the
agreement holder, so as to protect the interest
of the agreement holder. This power of
attorney has been issued as a security to
enforce the rights of the purchaser/agreement
holder, the purchaser having made payment of
the entire sums due to the vendor.
6.7. He relies upon the decision of the Hon'ble
Gujarat High Court in Bhaganbhai Karambhai
Bharvad -v- Arogyanagar Co-Op. Housing
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Society Ltd. And Others10, more particularly
para 10 thereof which is reproduced hereunder
for easy reference:
1. In connection with the execution of the sale
deeds made in favour of the plaintiff society by
the land owners through the power of attorney
holder Jayantibhai C. Patel. Learned counsel
for the petitioner contended that the defendant
No. 2 has died when the sale deeds were
executed and therefore the sale deeds
executed by the defendants No. 1 to 5 through
the power of attorney holder are illegal at least
execution on behalf of the defendant No. 2
who had died and execution of the sale deeds
on behalf of the defendant No. 2 made in
favour of the plaintiff society is not acceptable,
and cannot be deemed to be legal and valid as
at the relevant time the defendant No. 2 was
not alive for execution of the sale deeds and
heirs and legal representatives of deceased
defendant No. 2 have not consented at all for
execution of the sale deeds on behalf of the
defendant No. 2 and hence the sale deeds
executed on behalf of the defendant No. 2 in
absence of consent of the heirs and legal
representative of the defendant No. 2 are
illegal and are not sustain-able in the eye of
law and in view of Section 201 of the Contract
Act the power of attorney has come to an end
and sought terminated at least in respect of
the defendant No. 2. In this connection,
learned counsel for the respondent-plaintiff
society has pointed out that the irrevocable
power of attorney has already been executed
by the five land owners i.e. defendants No. 1
to 5 on 2-3-1993. They have also parted with
their power in favour of the power of attorney
holder Jayantibhai C. Patel. As such, once the
defendant No. 2 had no power, there would be
no requirement of consent of the heirs and
10
ILR 2003 Guj 294
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legal representatives of the defendant No. 2
for execution of the sale deeds by the power of
attorney holder in favour of the plaintiff
society. Considering the facts and
circumstances of the case and material on
record I am of the view that the defendant No.
2 though died there was no need for the power
of attorney holder to obtain the consent from
the heirs and legal representative of the
defendant No. 2 as the presence or absence of
the defendant No. 2 makes no difference in
view of the fact that the defendant No. 2 had
already parted his power for execution of the
sale deed in favour of the power of attorney
holder. As such, there is substance in the
contention of the learned counsel for the
petitioner.
6.8. By relying on Bhaganbhai Karambhai
Bharvad's case, he submits that a sale deed
executed post the death of a person who had
executed a power of attorney, but prior to the
execution of a sale deed cannot result in the
termination of the power of attorney requiring
the sale deed to be set-aside in view of Section
202 of the Contract Act which creates an
interest in the power of attorney and post the
death of the person executing the power of
attorney, there is no requirement for the power
of attorney holder to obtain consent from the
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heirs and/or the legal representatives of the
person who had executed the power of
attorney.
6.9. He relies on the extract from the book
'Bowstead on Agency', Fifteenth Edition,
page 509 and 511, relating to Article 125
which is reproduced hereunder for easy
reference:
Article 125
WHEN AUTHORITY CANNOT BE DETERMINED
(IRREVOCABLE AUTHORITY)
(1) Where the authority of an agent is given by deed,
31 or for valuable con- sideration, 32 32 for the
purpose of effectuating any security, or o of
protecting or securing any interest of the agent, it is
irrevocable during the subsistence of such security or
interest. 33 But it is not irrevocable merely because
the agent has an interest in the exercise of it, 34 or
has a special property in, or lien for advances upon,
the subject-matter of it," the authority not being
given expressly for the purpose of securing such
interest or advances.
(2) Where a power of attorney, whenever created, is
expressed to be irrevocable and is given to secure a
proprietary interest of the donee of the power, or the
performance of an obligation owed to the donee, then,
so long as the donee has that interest, or the
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obligation remains undischarged, the power is
irrevocable.
(3) Authority expressed by this Article to be
irrevocable is not determined by the death, 37
insanity or bankruptcy of the principal, nor, where the
prin- cipal is a body corporate, by its winding up or
dissolution, and cannot be revoked by the principal
without the consent of the agent."
Comment
Irrevocability at common law. The mere fact that a
power is declared in the instrument granting it to be
irrevocable does not make it so: irrevocability requires
something further. The circumstances in which
authority is irrevocable at common law are difficult to
define. Authority is normally only irrevocable when it
is the security or other proprietary interest, or part of
the security, or where its conferring constitutes the
performance of an obligation. 41 Such a power is
referred to as a "power coupled with an interest" and
its creation should be regarded as a property
disposition rather than as the conferring of authority.
The supposed "agent" is indeed not an agent at all,
for he exercises the power in his own interest, and it
is intended that he should. The Restatement uses the
phrase "power given as security," defined as "a power
to affect the legal relations of another, created in the
form of an agency authority, but held for the benefit
of the power holder or a third per- son, and given to
secure the performance of a duty or to protect a title,
either legal or equitable, such power being given
when the duty or title is created or given for
consideration." A common example of such a power is
the power of attorney normally taken by the
mortgagee of a ship. Although the interest protected
will normally be that of the donee of the power, it has
recently been suggested that at common law a power
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can be given as security when exercise able by
another on behalf of the person entitled to the
security, for example, a receiver appointed by
debenture holders. "The receiver's power is given to
him only for the protection of the debenture holders
and why should it be revoked by circumstances that
do not affect a power given to them direct"? This
view is tentatively put forward in the wording of this
Article. It is clear however that the mere right to earn
commission is not an interest rendering a grant of
authority irrevocable; nor is an agent's lien. The fact
that the agent subsequently acquires an interest in
the property is irrelevant: to be irrevocable, the
authority must be conferred as protection of the
agent's interest.
6.10. By relying on the celebrated book 'Bowstead
on Agency', Fifteenth Edition, he submits
that where a power of attorney is stated to be
irrevocable and is given to secure a propriety
interest of the donee of the power of attorney
or the performance of an obligation owed to the
donee and so long as the donee has that
interest or the obligation remains undischarged,
the power of attorney is irrevocable. Such a
power of attorney being one coupled with
interest and such power being exercised by the
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power of attorney in his own interest, the
power of attorney cannot come to an end on
the death of the principal.
6.11. By relying on the above, he submits that there
is an interest which has been created in favour
of the Power of Attorney holder. The father and
brother have given up their right to execute the
sale deed by executing a Special Power of
Attorney which has been registered in favour of
Defendant No.3. There is no requirement for
Defendant No.3 to seek for any consent or
concurrence of the legal representatives post
the death of the father.
6.12. The Power of Attorney holder was authorised to
execute a sale deed which he has so executed.
This power of attorney would continue to
subsist even post the expiry of the father since
it is coupled with interest.
6.13. Ex-facie when a sale deed has been executed
on 12.04.1995, the Plaintiffs being the
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daughters not having any right, title or interest
in the joint family property, the said right being
conferred on them only by way of amendment
to Section 6 of the Hindu Succession Act in the
year 2004, any sale transaction which has
occurred prior to 20.12.2004 being saved by
proviso to Section 6, the suit is not
maintainable any more. There would be no
purpose served by the suit going for trial. On
this very ground, the plaint is required to be
rejected.
6.14. Alternatively, he submits that the sale having
been executed on 24.01.1995 the suit was filed
in the year 2008, after a gap of more than 13
years from the date of execution of the sale,
the suit is therefore barred by the law of
limitation, inasmuch as the limitation period to
challenge the sale is a period of 3 years. The
said sale having not been challenged within that
time the suit would have to be dismissed as it is
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barred by the law of limitation. In this regard
he relies upon the decision of this court in M/s
Metropoli Overseas Limited vs Sri. H.S.
Deekshit and others11, more particularly para
nos. 18.18, 18.19, 18.20, 18.21 and 18.22
thereof, which are reproduced hereunder for
easy reference:
18.18 It cannot be believed that the plaintiffs were
not aware of the sale deeds executed, more
so when plaintiffs and defendant No.1 are
residing in the same house. There is no
particular action taken by the Plaintiffs
against Defendant No.1 and 2 for the alleged
act of theirs, they continue to reside
together and the relationship between them
is amicable.
18.19 Articles 58, 109 and 110 of the Limitation
Act are reproduced hereunder for easy
reference:
Time from
Description of Period of
which period
suit limitation
begins to run
58 To obtain any Three years. When the right
other declaration. to sue first
accrues.
11
CRP No.307 of 2020 | 2021:KHC:35062
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109 By a Hindu Twelve years When the
governed by alienee takes
Mitakshara law to possession of
set aside his the property.
18.20 A
father's alienation
of ancestral
p
property.
e
r
110 By u a person Twelve years When the
s
excluded from a exclusion
jointa family becomes known
l
property to enforce to the plaintiff
a right to share
therein.
o
f
Article Article 58 indicates that the period of
limitation to obtain a declaration is a period
of three years from the date on which the
right to sue first accrued. This would be
applicable only insofar as the sale deeds are
concerned.
18.21 Article 109 relates to a suit filed by Hindu
governed under Mitakshara law to set-aside
the father's alienation of ancestral property.
It is stated to be 12 years from the time
when the alienee takes possession of the
property.
18.22 Article 110 relates to a suit by a person who
excluded from a joint family to enforce a
right to a share therein which is a period of
12 years calculated from the date on which
the exclusion becomes known to the plaintiff.
6.15. By relying on M/s Metropoli Overseas
Limited's case, he submits that any relief for
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declaration has to be filed within a period of
three years from the date on which the right to
sue first accrued. According to him, the right to
sue first accrued in the year 1990 when the
agreement of sale was executed. Even if the
date of sale were to be taken into
consideration, the sale having occurred in the
year 1995, right to sue accrued in the year
1995 and as such, the suit was required to be
filed within three years from that date, the
present suit having been filed in the year 2008,
is barred by law of limitation.
6.16. His submission is that Article 109 and 110
would not be applicable and even if they were
to be made applicable, Article 109 and 110
provide for a limitation of 12 years, if the same
is taken into consideration, the sale having
occurred in the year 1995, and the suit having
been filed in the year 2008, it is well beyond
the period of limitation prescribed and as such,
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he submits that the suit being hopelessly
barred by limitation, the Trial Court ought to
have taken these facts into consideration and
rejected the plaint.
6.17. On the above grounds he submits that both on
account of the sale having been executed prior
to the coming into force of the amendment to
Section 6 of the Hindu Succession Act and the
suit being barred by the law of limitation, the
plaint is required to be rejected.
6.18. He reiterates that the writ petition is required to
be allowed, the order dismissing the application
under Rule 11 of Order VII is required to be set
aside and consequently the said application is
required to be allowed by rejecting the plaint.
7. Shri V F Kumbar, in his reply to the rejoinder
arguments of Shri. Kamalacharan, would once again
reiterate his earlier submissions and submits that the
decisions relied upon in the rejoinder are not
applicable to the present fact situation since the
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Power of Attorney holder is not the Agreement holder
and, as such the power of attorney in the present
case is not one which can be said to be coupled with
interest requiring the application of Section 202 of the
Indian Contract Act.
8. Heard Shri. S.S. Ramdass, learned Senior Counsel
and Shri. Kamalacharan learned Counsels for the
Petitioner-Defendant No.25 and Sri. V.F. Kumbar,
learned counsel for Respondent Nos.1 to 4/Plaintiffs
Sri. Chandan., learned counsel for Respondent No. 7,
who supports the case of the Petitioner; Sri M
Jagadeesh., learned counsel for Respondent No. 8
and 9, who supports the case of the Petitioner;
Respondents no 5 & R6, though served, have
remained unrepresented. Perused papers.
E. POINTS FOR CONSIDERATION
9. The points that would arise for the consideration of
this Court are:
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1) Whether the suit filed in the year 2008
questioning the sale deed of the year 1995
was maintainable and was within the
period of limitation requiring the Trial
Court to excise powers under Rule 11 of
Order 7 to reject the plaint on the ground
that it was barred by the law of limitation?
2) Whether the sale deed executed in
pursuance of a General Power of Attorney,
which was executed in pursuance of an
Agreement of Sale in favour of Defendant
No.2, could be said to be coupled with
interest under Section 202 of the Contract
Act, 1872, thereby making the sale deed of
the year 1995 valid?
3) Whether a suit for partition filed in the
year 2008 as regards the property which
had been alienated by way of a registered
document prior to 20.12.2004 could be
maintainable in view of the proviso to
Subsection (1) of Section 6 of the Hindu
Succession Act, 1956?
4) Whether the order passed by the Trial
court suffers from any legal infirmity
requiring interference at the hands of this
court?
5) What Order?
10. I answer the above points as under:
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11. ANSWER TO POINT No.1: Whether the suit filed
in the year 2008 questioning the sale deed of
the year 1995 was maintainable and was within
the period of limitation requiring the Trial Court
to excise powers under Rule 11 of Order 7 of
the CPC to reject the plaint on the ground that
it was barred by the law of limitation?
11.1. It is not in dispute that an agreement of sale
was executed on 12.02.1990 and registered on
13.02.1990, a Power of Attorney also having
been executed and registered on the same
date, a sale deed came to be executed and
registered on 24.01.1995. The suit was filed in
the year 2008.
11.2. As held by this Court in Metropoli Overseas
Limited's case, a suit for declaration, as
regards a sale deed not being binding, would
have to be filed within three years from the
date on which the cause of action first arose in
terms of Article 58 of Part 3 of the Schedule to
the Limitation Act, 1963. The suit in the present
case has been filed thirteen years after the
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execution and registration of the sale deed, and
nearly four years after the amendment to
Section 6 of the Hindu Succession Act was
made.
11.3. The right to sue first having accrued on the
date on which the sale deed came to be
executed and registered on 24.01.1995, the
suit ought to have been filed within three years
thereafter i.e. by 23.01.1998. The same not
having been done, the suit is barred by
limitation.
11.4. Insofar as the contention of the respondent that
it is not just Article 58 which would apply,
Articles 109 and 110 would also have to be
taken into consideration, which provides for a
12-year limitation period. Assuming for the
purpose of argument that Articles 109 and 110
are applicable (which they are not since they
operate in a different context and
circumstance), the sale deed having been
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executed in the year 1995, the suit ought to
have been filed by the year 2007, that is, by
23.01.2007. The suit having been filed in the
year 2008, ex-facie the suit is barred by
limitation even if Articles 109 and 110 are made
applicable, which, as held above, are not
applicable since there is a sale deed which has
been executed in favour of a third party and not
merely a member of the joint family being
excluded from the joint family.
11.5. A sale deed having been executed in favour of a
third party, and that third party being put in
possession, the third party having formed a
layout and sold the sites various fourth parties
who have in turn put up construction of their
residential houses, these third and fourth party
rights have been created twice over, once on
24.01.1995 and thereafter when sale deeds
were executed in favour of the petitioner's
members, it is not an exclusion by the joint
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family but a sale and transfer of the property to
third and fourth parties, therefore, Article 109
and 110 would not be applicable and it is Article
58 which would be applicable.
11.6. Thus, the suit being ex-facie barred by
limitation, the Trial Court ought to have taken
this into consideration and rejected the plaint
by taking into account the decisions of the
Hon'ble Apex Court which mandate such
dismissal as held by the Hon'ble Apex Court in
Dahiben's case, which requires a suit that is
manifestly vexatious and without merit to be
rejected by applying Rule 11 of Order 7 of the
CPC.
11.7. A similar view has been expressed by the
Hon'ble Apex Court in ELDECO Housing and
Industries Ltd. case, wherein it has been held
that whenever the contents of the plaint satisfy
the requirement of Rule 11 of Order 7 of CPC,
there is a duty cast on the Court to reject the
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plaint and nip frivolous suits at the bud. The
present suit apparently having been filed much
belatedly when third and fourth party rights
have been created, the plaintiffs being
daughters and completely aware of such third
and fourth party rights and the construction put
up by them, the plaint was required to be
rejected.
11.8. There are a large number of suits which are
filed and pending before the Trial Courts for
long periods of time, it is taking advantage of
the time taken for disposal of the suits that
there are also a large number of frivolous and
vexatious suits filed to harass and for lack of a
better word extort monies from the defendants.
It is high time that the Trial Courts stop acting
as mute spectators and exercise power vested
in them under Rule 11 of Order VII and
discharge their duty to such defendants and
safeguard the defendants from vexatious and
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frivolous litigation, which are an abuse of the
process of law and the court. The Trial Courts
ought to exercise the judicial powers with the
discretion that is vested in them so that the
suits cannot be used as a means and
methodology to achieve the dishonest motives
of the plaintiffs.
11.9. Towards this end, whenever it is established
that the suit comes within the mischief of Rule
11 of Order VII, the Trial Court ought to
exercise its powers under the said provision
and reject the plaint. This would firstly render
justice to the party who has been made to face
a vexatious and frivolous suit and secondly
would prevent such suits being filed. Since, it is
taking advantage of the non-exercise of powers
under Rule 11 of Order VII as also the length of
the litigation that such suits are filed. It is a
duty cast on the Trial Courts to nip the
frivolous, vexatious as also suits which are ex-
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facie barred by limitation at the bud so as to
prevent the abuse of the process of law and
court.
11.10. Hence, I answer point No. 1 by holding that a
suit filed in the year 2008 questioning the sale
deed of the year 1995 is not maintainable and
is ex-facie barred by the Limitation Act
requiring the Trial Court to mandatorily exercise
powers under Rule 11 of Order 7 of the CPC
and reject the plaint on the ground that the
plaint is ex-facie barred by the law of limitation.
12. ANSWER TO POINT NO. 2: Whether the sale
deed executed in pursuance of a General Power
of Attorney, executed in pursuance of an
agreement of sale in favour of Defendant No.2,
which could be said to be coupled with interest
under Section 202 of the Contract Act, 1872,
thereby making the sale deed of the year 1995
valid?
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12.1. Much has been contended on this aspect as
regards whether a General Power of Attorney
executed in favour of a person other than the
agreement holder can be said to be one
coupled with interest, as also as to whether the
Power of Attorney could be made use of after
the death of the person who has executed the
Power of Attorney. Both these aspects being
interrelated are considered together and
answered as under.
12.2. As afore observed, an agreement of sale came
to be executed by the father and brother of the
plaintiff in the year 1990, the agreement of sale
being executed and registered in favour of
Defendant No. 2. A Power of Attorney being
executed and registered in favour of Defendant
No.3, simultaneous with the execution and
registration of the agreement of sale in favour
of Defendant No. 2 on 12.02.1990.
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12.3. The father is stated to have expired on
23.01.1992, and on that ground, it is
contended that the Power of Attorney
automatically stood terminated with the death
of the father. This aspect would have to be
looked into in the perspective of a Power of
Attorney coupled with interest, since a Power of
Attorney which is coupled with interest would
not come to an end on the expiry of the person
who had issued the Power of Attorney but
would continue, since even the person who had
issued the Power of Attorney could not have
terminated the said Power of Attorney during
his lifetime and that the Power of Attorney
could be used by the Power of Attorney holder
to perform the acts authorised under the said
Power of Attorney.
12.4. In order to ascertain whether the Power of
Attorney is one coupled with interest, what is
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required to be seen is that both the Agreement
of Sale and Power of Attorney were executed
on the same date, both of them are registered
in the jurisdictional Sub-Registrar's Office. It is
claimed that the Power of Attorney holder is a
nominee of the Agreement of Sale holder that is
defendant No.2, the entire consideration having
been received along with the agreement of sale
and the agreement holder having been put in
possession, the Power of Attorney holder being
mandated to execute a sale deed, has infact
executed such sale deed in favour of the
agreement holder that is Defendant No.2 and
not in favour of any third party.
12.5. The matter would have been different if the
Power of Attorney holder had executed a sale
deed in favour of a third party and not the
agreement holder.
12.6. The contemporaneous documents which have
been executed, namely the agreement of sale
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and Power of Attorney on the very same day as
regards the very same property and
subsequently the Power of Attorney having
executed a sale deed in favour of the
agreement holder indicate the connection
between the said agreement holder and Power
of Attorney holder relatable to the property
subject matter of the agreement of sale.
12.7. The Power of Attorney has been executed as a
security for the agreement holder so as to
assure the agreement holder that he can get a
sale deed executed in his favour in view of the
compliances already made. The agent that is
the Power of Attorney holder - defendant No.3
being a nominee of defendant No.2, the
exercise of rights under the Power of Attorney
is for and on behalf of the agreement holder -
defendant No.2. Thus, the agent acting for and
on behalf of defendant No.2 has an interest
which the Power of Attorney exercises for and
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on behalf of the agreement holder, which in my
considered opinion would come within the four
corners of Section 202 of the Contract Act,
satisfying the requirement laid down by the
Hon'ble Apex Court in Mohammad Podiya's
case, (supra).
12.8. As held by the Hon'ble Apex Court in Harbans
Singh's case, if an interest is created in favour
of the Power of Attorney, then the Power of
Attorney cannot be terminated. Though under
Section 54 of the Transfer of Property Act, an
agreement of sale by itself does not create any
interest, by executing and registering an
agreement of sale, handing over possession,
and a Power of Attorney being executed to
safeguard the interest of the Agreement holder,
an interest is created in favour of both the
agreement holder and his nominee, via the
Power of Attorney, thereby granting such
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powers and duties which the Power of Attorney
can exercise.
12.9. Thus, the right which has been created in
favour of the agreement of sale holder is much
beyond a mere agreement of sale and would go
beyond the purview of Section 54 of the
Transfer of Property Act and the rights which
are conferred on the Power of Attorney holder
in conjunction with the agreement of sale is one
which is coupled with interest, which aspect has
been reiterated by the Hon'ble Apex Court in
Bhaganbhai Karambhai Bharvad's case
holding that post the death of a person who
had executed a Power of Attorney, a sale deed
executed using such Power of Attorney coupled
with interest is valid and that the power of
attorney would not come to an end on the
death of the person who has executed the
power of attorney.
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12.10. As further held in Bhaganbhai Karambhai
Bharvad's case, there was no requirement of
the power of attorney holder to seek for
consent of the legal heirs of the deceased and
the powers under the Power of Attorney could
be exercised to execute a sale deed in favour of
the legal heirs of the deceased.
12.11. This view expressed by the Indian Courts also
finds mention and support in the celebrated
book by the author Bowstead on 'Agency',
wherein the author has categorically stated that
when a Power of Attorney is given to secure a
proprietary interest or donee of the Power of
Attorney or the performance of an obligation
owed to the donee, the said Power of Attorney
is irrevocable.
12.12. The Calcutta High Court way back in the year
1916-17 vide its Judgment in Sital Prosad and
others -v- Raja Brijnarain Roy and
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another12 has categorically held that where
there are two or more principals who executed
a Power of Attorney in favour of an agent, the
death of one of the Principal does not terminate
the authority of the agent. The Hon'ble Calcutta
High Court went on to hold that when two
principals appoint an agent to take charge of
some matter in which they are jointly
interested, the death of one of them cannot
amount to termination of the authority of the
agent, not merely as regards the deceased but
also as regards the surviving principal and in
such cases, the true intention of the parties to
the contract would have to be ascertained. It is
further held that so long as the paramount
object of the Power of Attorney continues to be
capable of realisation, the power also retains its
vitality to adopt the contrary view mainly to
defeat the ends of justice.
12
1916 SCC Oline Cal 212
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12.13. Applying the said principle to the present case,
the Power of Attorney having been executed by
the father and brother for sale of the property
and as aforesaid the said power having been
vested with defendant No.3, a right to sell the
property, same being coupled with interest
since there was an agreement of sale executed
in favour of defendant No.2, the death of the
father cannot be said to put an end to the
Power of Attorney since the object of the Power
of Attorney to secure the rights of defendant
No.2-purchaser would continue to be capable of
being achieved which was indeed achieved by
defendant No.3 executing a sale deed in favour
of defendant No.2.
12.14. The Division Bench of the Hon'ble Madras High
Court has also considered this aspect in detail
in its Judgment in K.A. Meeran Mohideen -
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vs- Sheik Amjad and Others13. The Hon'ble
Division Bench after considering various aspects
has distinguished between a Power of Attorney
coupled with interest and one which is not
coupled with interest. Insofar as a Power of
Attorney coupled with interest, the Hon'ble
Madras High Court has categorically come to a
conclusion that death of one of the principals
will not result in the termination of the power of
attorney even with reference to his interest,
that is to say that the Power of Attorney issued
by a person who has subsequently expired
would also continue to be in operation and
existence. Insofar as Power of Attorney not
coupled with interest is concerned, the Hon'ble
Madras High Court has dealt with it separately
which would not be of relevance to the present
matter.
13
S.A. No.1391/2002
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12.15. Thus, looked at from any angle, the Registered
Power of Attorney, though executed in favour of
Defendant No.3, but having been executed in
furtherance of the registered agreement of sale,
executed in favour of Defendant No.2 is one
coupled with interest, since the powers under
the Power of Attorney were to and infact has
been exercised by Defendant No.3 to execute a
sale deed in favour of the agreement holder -
Defendant No. 2.
12.16. Hence, I answer point No.2 by holding that a
sale deed executed in pursuance of a general
Power of Attorney, in pursuance of an
agreement of sale, though in favour of another
person, such person is not a third party he
being a nominee of the Agreement holder, the
same is one coupled with interest under Section
202 of the Indian Contract Act, 1872, making it
irrevocable and even though the power under
the Power of Attorney has been exercised post
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the death of the donee, the donee himself
during his lifetime not being capable of
cancelling or revoking the Power of Attorney,
the exercise of the powers granted under the
Power of Attorney post the death of the donee
would also be valid.
13. ANSWER TO POINT No.3: Whether a suit for
partition filed in the year 2008 as regards the
property which had been alienated by way of a
registered document prior to 20.12.2004 could
be maintainable in view of the proviso to
Subsection (1) of Section 6 of the Hindu
Succession Act, 1956?
13.1. Section 6 of the Hindu Succession Act is
reproduced hereunder for easy reference:
6. Devolution of interest in coparcenary
property.―(1) On and from the commencement of
the Hindu Succession (Amendment) Act, 2005 (39
of 2005), in a Joint Hindu family governed by the
Mitakshara law, the daughter of a coparcener
shall,―
(a) by birth become a coparcener in her own right
the same manner as the son;
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(b) have the same rights in the coparcenery
property as she would have had if she had been a
son;
(c) be subject to the same liabilities in respect of
the said coparcenery property as that of a son, and
any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a
daughter of a coparcener:
Provided that nothing contained in this sub-section
shall affect or invalidate any disposition or
alienation including any partition or testamentary
disposition of property which had taken place
before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes
entitled by virtue of sub-section (1) shall be held by
her with the incidents of coparcenary ownership
and shall be regarded, notwithstanding anything
contained in this Act or any other law for the time
being in force, as property capable of being
disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of
the Hindu Succession (Amendment) Act, 2005 (39
of 2005), his interest in the property of a Joint
Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as
the case may be, under this Act and not by
survivorship, and the coparcenery property shall be
deemed to have been divided as if a partition had
taken place and,―
(a) the daughter is allotted the same share as is
allotted to a son;
(b) the share of the pre-deceased son or a pre-
deceased daughter, as they would have got had
they been alive at the time of partition, shall be
allotted to the surviving child of such pre-deceased
son or of such pre-deceased daughter; and
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(c) the share of the pre-deceased child of a pre-
deceased son or of a pre-deceased daughter, as
such child would have got had he or she been alive
at the time of the partition, shall be allotted to the
child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the
case may be.
Explanation.―For the purposes of this sub-section,
the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that
would have been allotted to him if a partition of the
property had taken place immediately before his
death, irrespective of whether he was entitled to
claim partition or not.
(4) After the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of 2005),
no court shall recognise any right to proceed
against a son, grandson or great-grandson for the
recovery of any debt due from his father,
grandfather or great-grandfather solely on the
ground of the pious obligation under the Hindu law,
of such son, grandson or great-grandson to
discharge any such debt:
Provided that in the case of any debt contracted
before the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), nothing
contained in this sub-section shall affect―
(a) the right of any creditor to proceed against the
son, grandson or great-grandson, as the case may
be; or
(b) any alienation made in respect of or in
satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of
pious obligation in the same manner and to the
same extent as it would have been enforceable as if
the Hindu Succession (Amendment) Act, 2005 (39
of 2005) had not been enacted.
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Explanation.―For the purposes of clause (a), the
expression "son", "grandson" or "great-grandson"
shall be deemed to refer to the son, grandson or
great-grandson, as the case may be, who was born
or adopted prior to the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of
2005).
(5) Nothing contained in this section shall apply to
a partition, which has been effected before the 20th
day of December, 2004
Explanation.―For the purposes of this section
"partition" means any partition made by execution
of a deed of partition duly registered under the
Registration Act, 1908 (16 of 1908) or partition
effected by a decree of a court.]
13.2. It is by virtue of the amendment carried out to
Section 6 that a Hindu female has been treated
as a co-parcener and conferred an interest in
the joint family property in the same lines as
that of a male co-parcener. Prior to the
amendment coming into force, on 09.09.2005,
the Hindu female did not have any right over
the joint family property or any part thereof.
13.3. The proviso to sub-section (1) of Section 6
makes it clear that any partition and / or
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alienation of the property is saved and cannot
be questioned on account of the rights
conferred on a Hindu female in terms of the
amendment to Section 6.
13.4. In the present case, the agreement of sale
having been executed in the year 1990 by the
father and brother who were the only co-
parceners recognized as on that date to sell the
joint family property, the plaintiffs either
individually or jointly did not have any right,
title or interest in the said property as on that
date. The sale deed having been executed in
on 24.01.1995, much prior to 20.12.2004, the
said sale deed is saved by the proviso to sub-
section (1) of Section 6 and cannot be
questioned, so as to not upset any transaction
which has occurred prior to that date, since it is
only on account of the amendment that a Hindu
female has been provided a right over a joint
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family property, if not for the amendment, she
had no right in the joint family property.
13.5. Tested in the present facts, a sale deed having
been executed in favour of a third party namely
Defendant No.2 on 24.01.1995, subsequently
Defendant No.2 having formed a layout and
sold it to various fourth parties , third and
fourth party interests having been created, it
would create injustice if, after the amendment,
a Hindu female can claim a right over the
property which has already been alienated, and
third or fourth party rights have been created,
since the joint family has during the
subsistence of the said joint family, received
the sale consideration the consideration being
paid by the purchaser. It not being in dispute
that the purchaser is a bonafide purchaser for
value.
13.6. When a Hindu female/s, like the plaintiffs, did
not have any right, title or interest, a bonafide
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purchaser for value cannot be put at a
disadvantage only on account of the
amendment which has created a right in favour
of a Hindu family.
13.7. Thus, I answer point No.3 by holding that a suit
for partition filed in the year 2008 as regards a
property which had been alienated by way of a
registered document prior to 20.12.2004 is not
maintainable. There would be no cause of
action for maintaining such a suit, and as such,
such a plaint is liable to be rejected under Rule
11 of Order 7 of the Code of Civil Procedure.
14. ANSWER TO POINT No.4: Whether the order
passed by the Trial court suffers from any
legal infirmity requiring interference at the
hands of this court?
14.1. The Trial Court has not considered the above
aspects in the proper perspective inasmuch as
the Trial Court has come to a conclusion that
limitation is a mixed question of fact and law,
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though the said concept is right, it would have
to be applied to the factual matrix to ascertain
if the same would be applicable or not. The
question of limitation being a mixed question of
law and fact would be where the facts are in
dispute, and as such, a Trial is required to
ascertain what the facts are so as to apply the
law of limitation.
14.2. In the present case, ex-facie it is seen that a
sale has occurred on 24.01.1995and in terms of
Article 58, any suit challenging such a sale
would have to be filed within three years i.e.,
on or before 23.01.1998, the same not having
been filed, ex-facie the suit was barred by
limitation, which the Trial Court has not
properly considered.
14.3. Again, as indicated in my answers to the above
points, the Hindu female/s, that is the plaintiffs
herein being the daughters, did not have any
right in the property as on the date on which
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the registered agreement of sale was executed
by their father and brother as also on the date
on which the sale deed came to be executed
i.e., in the year 1995, they derived their right
only after the amendment to Section 6 of the
Hindu Succession Act. This aspect has also not
been taken into consideration in a proper
perspective by the Trial Court as reasoned out
supra in answer to the aforesaid points.
14.4. Lastly, the Trial Court has erred in coming to a
conclusion that on the death of the donee of
the Power of Attorney, the Power of Attorney
stands automatically terminated. As answered
above, no such termination can happen when
the Power of Attorney is one coupled with
interest. As such, on all the points above, the
Trial Court has misapplied itself and not
considered the proper legal position.
14.5. I answer Point No. 4 by holding that the order
passed by the Trial Court suffers from all the
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above legal infirmities requiring interference at
the hands of this Court.
15. ANSWER TO POINT NO. 5: What Order?
15.1. In view of my answers to the above points I
pass the following
ORDER
(i) Civil Revision Petition is allowed
(ii) The order dated 20.01.2023 passed on IA No.11 in O.S.No.162/2008 by the IIIrd Additional Senior Civil Judge and JMFC, Devanahalli, is set aside.
(iii) IA No.11 filed in O.S.No.162/2008 is allowed, consequently, the plaint in OS No. 162/2008 is rejected.
Sd/-
(SURAJ GOVINDARAJ) JUDGE PRS List No.: 2 Sl No.: 1