Virendar Shrivastava Vs Smt Saroj Despandey

This appeal has been preferred by the appellant/defendant under Section 96 of the CPC assailing the judgment and decree passed by the learned First Additional District Judge, Durg (C.G.) in Civil Suit No.6-A/2011 dated 17.11.2011 whereby, the suit filed by the respondent/plaintiff was decreed.

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The plaintiff filed a suit claiming therein declaration that the power of attorney dated 14.08.2006 and the sale deed dated 29.11.2006 are null and void and for the permanent injunction. The suit house is situated

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on Survey No.1179/273 admeasuring 1060 sqft. at Patwari Circle No.16, Santarabadi, Tehsil and District Durg (C.G.) which is in possession of the plaintiff where she is residing. It is further pleaded that prior to 2006, one Mintu Jagdalla was running STD/PCO in the verandah of the suit house. The defendant used to gossip with Mintu Jagdalla. A bank account in the name of the plaintiff was opened on instance of the defendant at Oriental Bank of Commerce Branch, Sindhi Colony Durg (C.G.) and Rs.1,000/was deposited by the defendant himself. A chequebook was issued and the signature of the plaintiff was taken over some blank cheques and those cheques were kept by the defendant. The signature of the plaintiff was also obtained on a stamp paper. The defendant took rin pustika , a map and Rs.5,000/- from the plaintiff to pay house tax. After some time, Mintu Jagdalla left the plaintiff’s premises. The defendant threatened the plaintiff to vacate the house and when she inquired about the matter, she came to know that fraudulently, the power of attorney was executed on 14.08.2006 and on that basis, the sale deed was executed on 29.11.2006. She stated that the power of attorney and the sale deed both are bogus documents.

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The defendant filed the written statement and denied the plaint averments. He pleaded that the suit house was purchased through a registered sale deed dated 29.11.2006 and the plaintiff was staying there as a tenant. It was further pleaded that the plaintiff agreed to sell her property in consideration of Rs.2,00,000/- and thereafter, a registered power of attorney was executed in the presence of the witnesses and by virtue of the power of attorney, the sale deed was executed. It was also pleaded that in the power of attorney itself, it was agreed between the

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parties that the plaintiff was ready to sell the suit house to the defendant. It was stated that the name of the defendant had been entered in the revenue records and the plaintiff had knowledge of mutation. It was also stated that on 20.10.2008, a rent agreement was also executed for a period of 11 months and Rs.1200/- was fixed as monthly rent.

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Learned Trial Court held that the house belonging to the plaintiff on Survey No.1179/273 admeasuring 1060 sq. ft. is situated at Santarabadi Durg (C.G.), the defendant by playing a fraud got executed a power of attorney in his name and thereafter executed the sale deed; it is not proved that the consideration of Rs. 2,00,000/- was paid to the plaintiff and thereafter registered power of attorney was executed; it is also not proved that the plaintiff is staying in the house with the consent of the defendant; it is also not proved that a rent agreement was executed on 20.10.2008; it is held that the plaintiff is not a tenant of the defendant and the plaintiff is entitled to the cancellation of the sale deed executed on 29.11.2006. Learned Trial Court after appreciating the oral and documentary evidence decreed the suit.

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Mr. Agrawal, the learned Senior Advocate appearing for the Appellant/Defendant argued that the plaintiff has failed to challenge the power of attorney dated 29.11.2006 whereas, on the basis of the said document, a sale deed was executed. He further argued that consideration of Rs. 2,00,000/- was paid by the defendant to the plaintiff and thereafter, the registered power of attorney and the sale deed were executed. He further submitted that a rent agreement was also entered on 20.10.2008 and the plaintiff is a tenant of the defendant. He also submitted that the sale deed is a registered document and according to

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Section 54 of the Transfer of Property Act, 1882, it confers the right in favour of the defendant. He stated that the learned Trial Court committed an error of law in decreeing the suit. In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matters of Ramesh B. Desai And Others vs Bipin Vadilal Mehta And Others, 2006(5) SCC 638, Shanti Budhiya Vesta Patel and Others Vs. Nirmala Jayprakash Tiwari and others, 2010(5) SCC 104, Daya Shanker (Since Deceased) And 14 others Vs. Rajendra Kumar And 12 Ors., 2016 0 Supreme(All) 4036, Kasthuri Radhakrishnan & Ors vs M.Chinniyan & Anr, 2016(3) SCC 296 . It is also contended that the plaintiff failed to file any cross-objection avoiding power of attorney, therefore, the judgment and decree passed by the learned Trial Court is liable to be quashed.

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On the other hand, the learned counsel appearing for the plaintiff would oppose the submissions made by Mr. Agrawal. It is argued by Mr. Singh that a bank account of the plaintiff was opened at the instance of the defendant and some blank cheques were taken from the chequebook. He further submitted that the plaintiff was not well-educated and taking benefit, she was taken to the office of the Sub-Registrar where by playing fraud, a power of attorney was executed. He also submitted that a forged power of attorney was used by the defendant himself in his favour. He further stated that the plaintiff has supported her case by filing an affidavit under Order 18 Rule 4 of CPC and in the crossexamination, her evidence remained uncontroverted. He further submitted that two complaint cases under Section 138 of the Negotiable Instrument Act were filed by the defendant against the plaintiff. He lastly

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submitted that the learned Trial Court after due appreciation of the evidence decreed the suit.

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I have heard the learned counsel appearing for the parties and perused the record.

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The relief sought in the plaint would show that the plaintiff has challenged the sale deed dated 29.11.2006. The power of attorney was executed in favour of the defendant vide Ex.D/3 on 14.08.2006, by this document, the defendant was permitted to take care of the suit property, transfer the property and execute a registered deed on behalf of the plaintiff. He was also authorized to collect the revenue documents. The defendant on the basis of the registered power of attorney Ex.P/3 executed the registered sale deed in his own favour on 29.11.2006 in consideration of Rs.2,00,000/-. The sale deed was executed in the presence of two witnesses.

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A rent agreement was also entered between the parties and the suit house was rented to the plaintiff herself on 20.10.2008 by the defendant. The suit property was recorded in the name of the defendant pursuant to the sale deed dated 29.11.2006.

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Rajan Naikar (PW3) has supported the case of the plaintiff. The defendant examined himself and stated that the plaintiff agreed to sell the suit house in consideration of Rs. 2,00,000/- and thereafter, power of attorney was executed in the presence of the witnesses. He further stated that pursuant to the power of attorney, the sale deed was executed on 29.11.2006. He further deposed that a rent agreement was executed on 20.10.2008 and the suit premises were rented by the defendant to the plaintiff on a fixed rent of Rs.1200/- per month.

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The power of attorney Ex.D/3 would show that in six places, the plaintiff has put her signature but the date is not mentioned. Likewise, in the sale deed dated 29.11.2006, the defendant and the witnesses have not mentioned the date below their signatures. In the agreement to sell Ex.D/6 also there is no mention of date. The passbook of the plaintiff Ex.P/3 would show that a bank account was opened with Rs.1000/- on 02.08.2006 which fortifies the contention made by the defendant.

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In the matter of Ramesh B. Desai (supra), the Hon’ble Supreme Court held that Order VI Rule 4 of CPC requires complete particulars of fraud in pleadings. Para 22 reads as under:-

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“Undoubtedly, Order VI Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. Where some transaction of money takes place to which 'A', 'B' and 'C' are parties and payment is made by cheques, in normal circumstances a third party 'X' may not get knowledge of the said transaction unless he is informed about it by someone who has knowledge of the transaction or he gets an opportunity to see the accounts of the concerned parties in the Bank. In such a case an assertion by 'X' that he got no knowledge of the transaction when it took place and that he came to know about it subsequently through some proceedings in court cannot be said to be insufficient pleading for the purpose of Order VI Rule 4 CPC. In such a case 'X' can only plead that he got no knowledge of the transaction and nothing more. Having regard to the circumstances of the case, we are of the opinion that the High Court was in error in holding that there was no proper pleading of fraud.”

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In the present case, the plaintiff has categorically pleaded that she was kept in the dark and without her consent a registered power of attorney was executed and later on, on the basis of said document, a registered sale deed was executed in favour of the defendant himself. The defendant became the purchaser as well as the seller and thus, the

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component of fraud has been pleaded by the plaintiff.

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In the matter of Dayashankar (supra) , it is held that a registered power of attorney creates a legal right in immovable property, which can only be limited or extinguished through a registered document. The sale deed executed under the authority of the registered power of attorney was deemed valid and could not be cancelled by a registered notice for cancellation of the power of attorney.

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In the present case, the power of attorney was not cancelled by a registered notice, it was in existence when the sale deed was executed. The allegation in the present case is that without the consent of the plaintiff, the power of attorney was executed and on that basis, the sale deed was executed.

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In the present case, there is an allegation of fraud, therefore, the facts are distinguishable.

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In the matter of Suraj Lamp and Industries Private Limited through Director Vs. State of Haryana and another, 2012 (1) SCC 656, the Hon’ble Supreme Court held that the power of attorney cannot be used by that person for his own benefit in whose favour power of attorney is executed. Relevant paras 20 & 21 reads as under:-

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“20.A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

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21. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :

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"13. A grant of power of attorney is essentially governed

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by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

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52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."

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In the present case, the defendant was authorized to act as an owner to take care of the suit property, alienate the same on behalf of the owner, and collect the documents whereas the defendant exercised powers for which he was not entrusted and therefore, the sale deed executed by the defendant in his own favour has rightly been held null and void by the learned Trial Court.

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Though the plaintiff has not assailed the power of attorney, the same is not fatal to the case of the plaintiff as cancellation or noncancellation of power of attorney will not affect the case of the plaintiff. The ultimate document is the sale deed and the same has been challenged by the plaintiff.

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Taking into consideration the facts discussed above and the law laid by the Hon’ble Supreme Court in the matter of Suraj Lamp and Industries Private Limited (supra), in the opinion of this Court, the

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learned Trial Court has rightly decreed the suit, Consequently, the present appeal fails and is hereby dismissed . No order as to cost(s).

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19. A decree be drawn accordingly.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Rekha

Virendar Shrivastava v. Smt Saroj Despandey

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Virendar Shrivastava v. Smt Saroj Despandey

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