Two competing agreements to sell the same undivided land share, one by the owner through her GPA holder for Rs.90 lakhs and one directly by the owner for Rs.70 lakhs. The Division Bench upheld the Single Judge: the earlier GPA-based agreement prevailed, and specific performance was granted to Ajay Sood while Umesh Sharma's suit was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2024:HHC:5294 )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
| OSA 1 of 2018 a/w OSA 2 of 2018 Reserved on : 04.07.2024. Date of decision: 17.07.2024 |
||
|---|---|---|
| _____________________ OSA 1 of 2018. |
__________ | ___________________________ |
| Umesh Sharma | Versus | …..Appellant. |
| Ajay Sood and others _____________________ |
__________ | …Respondents. ___________________________ |
| OSA 2 of 2018. | ||
| Umesh Sharma Ranjana Sood and anot |
Versus her |
…..Appellant. …Respondents. |
| _____________________ Coram: |
__________ | ___________________________ |
The Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. The Hon’ble Mr. Justice Satyen Vaidya, Judge.
________________________________________________________ For the Appellant(s) : Mr. Suneel Chauhan, Advocate. For the Respondent(s): Mr.K.D. Sood, Senior Advocate, with Mr. Het Ram Thakur and Mr. Rahul Gathania, Advocates, for respondent no. 1 in OSA No. 1 of 2018 and for respondent No. 2 in OSA no. 2 of 2018. Mr. Bhupender Gupta, Senior Advocate with Mr. Ajeet Pal Singh Jaswal, Advocate, for respondent no. 2 in OSA no. 1 of 2018 and for respondent no. 1 in OSA no. 2 of 2018.
2
M.S. Ramachandra Rao, Chief Justice.
These two appeals arise out of the common judgment dt.21.9.2017 in C.S.No.58 of 2006 and C.S.No.76 of 2007.
The back ground facts
3 to sell was attested by Smt.Rita Sood, wife of Lalit Kumar Sood and another person by name Renuka Sood w/o Ajay Sood, the purchaser.
4
In that notice she admitted that he had approached her for sale of the land, but at that time she was not fully acquainted with the latest position with respect to the status of the land and value etc., that he should contact her brother, who was her duly constituted attorney and he has been given the authority to deal with the land .
It was alleged that Sh.Umesh Sharma did not get in touch with her brother Lalit Kumar Sood, that her brother had already executed an agreement to sell in favour of Sh.Ajay Sood to sell the land prior to Sh.Umesh Sharma approaching her for purchase of the land.
5
It was stated that she had not entered into any legal and valid agreement to sell with Sh.Umesh Sharma. It was alleged that at the time of his visit , Sh.Umesh Sharma had brought a format of an agreement having blank spaces with him and made her and her husband sign the said format on the pretext that in case Sh.Umesh Sharma negotiates with her brother and if any deal is struck, he may require the terms of approval of formal agreement from her.
She stated that signatures on the format of a draft having blank spaces were appended bonafide on representations of Sh.Umesh Sharma that a formal agreement shall be entered into with her power of attorney when the deal is finalised.
It was contended that with an ulterior motive in order to take undue advantage of the signatures of Smt.Ranjana Sood, obtained on a blank format by misrepresentation by Sh.Umesh Sharma, he had forged , manipulated and fabricated some document without the knowledge and consent of Smt.Ranjana Sood and the notice was got issued.
It was alleged that she had never settled the terms of the sale of her land with Sh.Umesh Sharma and was not bound by his illegal and malafide acts which amount to forgery and cheating entailing criminal liability. She stated that she is not obliged to come to Shimla on 6.11.2006 and execute the sale deed in his favour.
6
C.S.No.58/2006
7
C.S.No.76/ 2007
8
Sood; and that no sale consideration had been received by her from Sh.Umesh Sharma.
Replication filed by Sh. Umesh Sharma to the written statement filed by Ajay Kumar Sood.
9
Sood and Lalit Kumar Sood, brother of Smt. Ranjana Sood, is false, frivolous and only a sham transaction with the intention to defeat the rights of Shri Umesh Sharma inasmuch as till 23.09.2006 i.e. on the date when Smt. Ranjana Sood entered into an agreement with Shri Umesh Kumar Sharma, no agreement was there between Sh. Lalit Kumar Sood and Sh. Ajay Kumar Sood. He contended that it was only an afterthought and the agreement to sell dt. 21.09.2006 was manipulated by the defendants in order to defeat his rights.
10
Replication by Ajay Sood
11
The issues
framed:
1. Whether the plaintiff is estopped by his own acts,
deeds and conduct to file and maintain the present suit, if so, its effect?
OPD 2. Whether the suit is not maintainable in its present form? OPD 3. Whether the plaintiff has suppressed true and material facts and not approached the Court with clean hands, if so, its effect?
OPD 4. Whether the plaintiff has no legal and enforceable cause of action to file and maintain the present suit, if so, its effect? OPD 5. Whether defendant No. 1 ever executed the alleged agreement of sale dated 23.09.2006? OPP 6. If issue No. 4 is decided in affirmative, then whether the plaintiff is entitled for a decree of specific performance, as alleged? OPP 7. Whether the alleged agreement of sale dated 23.09.2006 is a false and fabricated document and is a result of fraud and misrepresentation, if so, its effect? OPD-1 8. Whether defendant No. 1 has ever received any consideration amount, as alleged by the plaintiff? OPP 9. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as alleged? OPP 10. Relief.
12
also three other witnesses as PWs 2 to PW4 and marked Ext. PX to Ext.P1/H ( 11 documents).
The judgment of the learned Single Judge.
13
that Smt. Ranjana Sood stated that during the life time of her brother she did not cancel or revoke the General Power of Attorney Ext. PW-4/1; and once Sh. Lalit Kumar Sood entered into an agreement to sell Ex.P-A/1 with Sh. Ajay Sood,. Smt. Ranjana Sood was disabled to execute any agreement to sell with respect to the suit land in favour of Sh.Umesh Kumar Sood during the subsistence of Ext. PW4/1.
14
Umesh Sharma and Sh. Deshbandhu Sood wanted to create this in order to entitle them to file CS 58 of 2006.
15
civil suit no. 76 of 2007 and directed Smt. Ranjana Sood to execute sale deed in favour of Sh. Ajay Kumar Sood within three months.
OSA No.1 and 2 of 2018
16
Ajay Sood was not executed prior in time to the agreement to sell Ex.PW1/A dt. 23.09.2006 entered into by Sh. Umesh Sharma with Smt. Ranjana Sood.
17
had already entered into an agreement to sell Ex.P-A/1 dt. 21.09.2006 with someone though he did not disclose the name of the buyer. Her evidence is consistent and the appellant’s counsel could not convince us that it was not truthful.
18
19
not have executed the agreement to sell Ext. PW1/A dt. 23.09.2006 in favour of Sh. Umesh Kumar Sharma for a lesser consideration of Rs. 70 lacs. Naturally a vendor would like to get more consideration for his property and not less consideration, and this conduct of Smt. Ranjana Sood is consistent with the fact that she was ignorant about Ext. PA/1 dt. 21.09.2006 and she came to know about it only later.
So she was not the absolute owner of the suit land and was only a co-owner.
20
as correctly described in Ex.P-A/1 dt. 21.09.2006 and could not convey the absolute title to specific area as mentioned in Ex.PW-1/A dt. 23.09.2006.
21
circumstances, be believed because there is no revocation till his death in 2009 and on 21.9.2006, he had already executed Ex.P-A/1 in favor of Sh.Ajay Sood.
to sell by the power of attorney, we do not accept the said principle in
view of the judgment of the Supreme Court in Timblo Irmaos Ltd.
Margao v. Jorge Amibal Maltos Sequeira and another1
“11. We think that perhaps the most important factor in interpreting a power of attorney is the purpose for which it is executed. It is evident that the purpose for which it is executed must appear primarily from the terms of the power of attorney itself, and, it is only if there is an unresolved problem left by the language of the document, that we need consider the manner in which the words used could be related to the facts and circumstances of the case or the nature or course of dealings. We think that the rule of construction embodied in proviso 6
1 AIR 1977 SC 734.
22
to Section 92 of the Evidence Act, which enables the Court to examine the facts and surrounding circumstances to which the language of the document may be related, is applicable here, because we think that the words of the document, taken by themselves, are not so clear in their meanings as the learned Judicial Commissioner thought they were.
12. As we have already mentioned, the learned Judicial Commissioner chose to concentrate on the single word "exploitation" torn out of its context. The word "exploitation" taken by itself, could have been used to describe and confer only such general powers as may be needed for the working or exploitation of the mine. But, the earlier parts of the document show that the main purpose of the document was to give power to Thakker Junior to represent Mr. Sequeira not only in litigation and financial affairs but "to draw up and sign" various "documents and correspondence." It is true that the powers to sell is not specifically mentioned in the document. The nature of the documents and the correspondence which Thakker Jr. could sign on behalf of Mr. Sequeira is also not clarified. Instance of particular kinds of business to be transacted by the agent in the course of "exploitation" of the mine are given, such as "acquisition of petrol, gun powder, train, transport vehicles, machines, furniture and other instruments used in mining industry. It is difficult to see how any documents even for these special purposes could be signed without a power to buy and sell on behalf of the Sequeiras, Furthermore, the power expressly includes giving of "import and export orders." Now, the conduct of a business so as to give necessary orders for purposes of exporting and importing must, we think, by a necessary implication, include the power to sell what is excavated from the mine to be exploited. Otherwise, how could iron ore be exported? It is a well-known rule of construction that powers necessary and incidental to the effective exercise of the powers conferred will be implied.
13. The learned Judicial Commissioner had, in our opinion, overlooked several well-known rules of interpretation : firstly, that, a word used in a document has to be interpreted as a part of or in the context of the whole; secondly, that , the purpose of the powers conferred by the power of attorney has to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties, and the manner in which the parties themselves understood the purpose of the document; and, thirdly that, powers which are
23
absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be ''necessarily implied.”(emphasis supplied)
conferred by the power of attorney holder have to be ascertained having
regard to the need which gave rise to the execution of the document, the practice of the parties, and the manner in which the parties themselves understood the purpose of the document. Also the powers which are absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be necessarily implied.
(M.S. Ramachandra Rao) Chief Justice.
(Satyen Vaidya)
Judge.
(cmThakur)
July 17, 2024
2 issues framed by the court
Whether the GPA holder's agreement to sell dated 21.09.2006 in favour of Ajay Sood was validly executed prior to the agreement of 23.09.2006 with Umesh Sharma.
Whether a power to execute an agreement to sell is impliedly conferred by a general power of attorney authorising sale of property.
Colour shows how this judgement treated each authority
1912 Indian Cases 636Distinguished¶66
Timblo Irmaos Ltd. Margao v. Jorge Amibal Maltos Sequeira and anotherRelied on¶66
AIR 1977 SC 734 · Who else cites this
Umesh Sharma
Ajay Sood and others
Umesh Sharma
Ranjana Sood
Ranjana Sood
M.S. Ramachandra Rao
Satyen Vaidya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
