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Ordinarily a Power of Attorney is construed strictly by Courts (vide Bryant, Powis and Bryant Ltd. vs La Banque du Peuple) (1). FAC |
Adopting the principle of strict construction of a Power of Attorney, the first question that is required to be answered is whether the Power of Attorney, Ext.P l was meant to confer the authority on the agent to act only in respect of the joint affairs or joint property of the co principals or it was in respect of the... |
In Ext.P 1 at three places the expression used is: "our Power of Attorney to act on our behalf and we empower the said person"; then again "on our behalf in all departments", and then lastly, "acts done and effected by the agent shall be deemed to be the acts done and effected by the principals." Mr. Gopalakrishnayya s... |
He said that apart from the strict construction the Court must put on a Power of Attorney, where the terms of the written contract are clear and unambiguous it is impermissible for the Court to take into consideration the other circumstances to determine the intention of the parties. FAC |
When a contract is reduced to writing, undoubtedly the Court must look at the terms of the contract and proceed on the assumption that the parties intended what they have said and if the terms are unambiguous the Court must give effect to the terms of the contract. Ratio |
However, it is well establish ed that in considering a contract it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties (vide Modi & Co. vs Union of India).(2) Exhibit P l being a Power of Attorney granted by three co principals in favour of one agent, the expre... |
The circumstances in which such Power of Attorney came to the executed and the fact that three different persons though near relations but having no joint property or venture joined in executing a Power of Attorney and the purpose and object for which it was executed when taken into consideration would throw light on t... |
In this connection it is an admitted position that the Power of Attorney was executed in April 1949 and that too, in the (1) at 177(2) ; 433 State of Hyderabad, the erstwhile Nizam 's State. Ratio |
In the wake of police action in the fall of 1943 and thereafter there were unusually disturbed conditions in Hyderabad State. Ratio |
Plaintiff himself has stated in plaint para 1 that the conditions in Hyderabad were disturbed that like himself, his father and brother found it difficult to make contact with their properties and it was being contemplated by the plaintiff that he might shift to Pakistan with others. Ratio |
All the three persons, i.e. his father, brother and the plaintiff found it difficult even to approach the properties of each of them and that all of them were contemplating;, to migrate to Pakistan. Ratio |
In his belated evidence in Court after defendants ' evidence was closed the plaintiff re affirmed that after police action he lost possession of his lands and it was difficult to approach the lands or manage the same. Ratio |
Even his clerk was not willing to undertake the responsibility. Ratio |
Further there is no evidence to show that all the three co principals had any joint property or any joint business or any joint venture in which they were jointly interested. Ratio |
Plaintiff says in his evidence that all the three joined in executing Power of Attorney Ext.P 1 because each of them had his land in that area and each was unable to manage his land. Ratio |
In this background it would be futile to say that the three co principals executed the power of Attorney in favour of the agent to lookafter their joint affairs and joint property alone. Ratio |
In fact, plaint para I leaves no room for doubt that each of the three co principals neither could manage nor could have access to each one 's own property and that each one was contemplating to migrate to Pakistan and that therefore they all gathered together and executed one Power of Attorney in favour of defendant N... |
It thus clearly transpires that each one of the co principals had his land, that each one of them was unable to manage his land, and that all the three of them were contemplating to migrate to Pakistan and that they wanted possibly to dispose on their lands, collect cash and skip over to Pakistan. Ratio |
If Power of Attorney Ext.P 1 was executed in this background it would illumine the scope and ambit of authority conferred by Ext. Ratio |
It would clearly appear that each one wanted to constitute defendant 34 to be his agent in respect of his property. Ratio |
Therefore, the contention that the power of attorney Ext.P 1 read with Ext.P 2 was a joint power only in respect of joint properties of the three co principals must be rejected. Ratio |
An incidental submission may be disposed of at this stage. Ratio |
It was urged that the Power of Attorney Ext.P 1 is legally invalid and defective in form and that the supplementary document Ext.P 2 does not render in valid. ARG |
The defect pointed out is that when Ext P 1 was offered for registration the Sub Registrar has nowhere noted in his endorsement 434 that the donors of the power who executed the Power of Attorney Ext.P 1 were identified to him by someone known to him or they were personally known to him. FAC |
Undoubtedly the Sub Registrar in order to be satisfied that there is no impersonation may require some person known to him to identify those who admit execution before him but in case the persons who have executed the deed before him are known to him the failure to endorse that fact on the deed does not render the deed... |
In any event if those who executed the deed admit having executed the deed, the fact that the Sub Registrar failed to endorse the fact of the persons being known to him would not render the deed invalid. FAC |
A General Power of Attorney is not a compulsorily registrable document. FAC |
No rule or regulation was pointed out to us in support of the submission that it was obligatory for the Sub Registrar to make the endorsement that those who have executed the deed were either personally known to him or were identified by someone known to him. FAC |
Therefore, there is no merit in the contention and it must be rejected. Ratio |
The next contention is that upon a true construction of Ext.P 1, the authority conferred thereby was to manage the property of the donors of the power and it did not confer any authority to purchase or sell the property. ARG |
Simultaneously it was stated that Ext.P 2 does not improve the position in this behalf. ARG |
Both the Courts have rejected this submission and for very good and convincing reasons. FAC |
A bare perusal of Ext.P 1 clearly shows that apart from the power to manage the property, a further power to purchase and sell lands was conferred on the agent. FAC |
Power to purchase and sell lands has been expressly mentioned at two places in Ext.P 1., But even apart from this, the plaintiff in his cross examination has admitted that after executing Ext.P 1 the Registrar pointed out that the Power of Attorney Ext.P 1 does not confer the authority to sell land and offer for regist... |
P 2 has been reproduced in extenso by the High Court in its judgment and in no uncertain and most unambiguous terms it is stated therein that the power to sell and registration of sale deed was conferred by Ext. FAC |
But even if Ext.P 2 were to be excluded from consideration, the Power of Attorney Ext.P 1 clearly confers an authority on the agent to sell the property. FAC |
If we recall at this stage the circumstances in which Ext.P 1 came to be executed in favour of defendant No. 34, it clearly appears that plaintiff, his father and brother were keen to get the lands sold as they were contemplating to migrate to Pakistan. Ratio |
In the face of this express and explicit power it could not be said that the authority was conferred only to manage the property. Ratio |
435 In Ext.P 1 the expression 'to manage the property ' is nowhere to be found. Ratio |
On the contrary the general Power of Attorney is couched in a language which confers wide authority to file suits, defend actions, engage advocates, appear in various offices, purchase and sell land and execute sale deeds and get them registered, to borrow money, to employ persons needed for carrying out affairs and to... |
It is difficult to appreciate the submission that the authority was only to manage the property. Ratio |
The submission is not borne out by the contents of Exts.P l and P 2. Ratio |
Incidentally in this connection it was urged that the power to purchase and sell land and to execute documents and to offer them for registration does not include the power to sell agricultural land. Ratio |
This has only to be mentioned to be rejected because the expression 'lands ' would include both agricultural and non agricultural land. Ratio |
The next contention is that even if the Court were to accept that the authority conferred by the Power of Attorney encompasses the authority to sell land, the power to sell land was hedged in with a pre condition 1 or with a pre requisite that the land could be sold either for Financing litigation or if for that purpos... |
Sustenance is sought to be drawn for this submission from the following few lines in Ext.P 1: "and purchase or sell (sic) of lands and that he is authorised to appoint any pleader or special Muktar when occasioned (sic) and to stop or to take or file any copies in any suit or to the any suit or file any written stateme... |
" In Ext.P 2 the supplemental Power of Attorney, it is stated that the power for sale and registration of documents was conferred on the agent The, construction suggested is not warranted by the language used in Ext. Ratio |
The power to purchase or sell land was not hedged in by any pre requisite or pre condition. Ratio |
Each recital constitutes a separate power, namely, (i) power to purchase or sell land, (ii) power to appoint a pleader or Mukhtar, (iii) power to file suit or appear and file written statement (iv) power to borrow money or to enter into any comprise in any suit or get it settled through arbitration and withdraw any sui... |
There is nothing in Ext.P 1 which 436 would even remotely indicate that the land could be sold only for financing the litigation or if for that purpose a loan was borrowed, to repay the loan Such power of wide amplitude conferring such wide authority cannot by construction be narrowed down to deny an authority which th... |
The ordinary authority given in one part of the instrument will not be cut down because there are ambiguous and uncertain expressions elsewhere but the document will be considered as ? whole for interpretation of particular words or directions (see Halsbury 's Laws of England, 4th Edn., Volume I, Para 733). Ratio |
The contention, therefore, must be negatived. Ratio |
The next contention is that even if Ext.P 1 confers authority on dependant 34 to sell land, the authority so conferred on defendant 34 was to act on his own and not at the behest of an outsider or as a rubber stamp of someone and that in this case evidence clearly shows that it was Kazim Yar Jung, the father of the pla... |
At first blush the argument is really attractive but it does not stand scrutiny. Ratio |
Land involved in the dispute was granted by the Nizam when the father of the plaintiff was a Minister in the Nizam 's Government. FAC |
Patta evidencing the grant was taken in favour of the plaintiff who was then a minor. FAC |
The father of the plaintiff really believed that he was the owner of the land and in fact on 20th October 1949 he wrote to Tahsildar, Medak; that his son was a benamidar and that the lands may, therefore, be transferred in his name. FAC |
Thus, the father of the plaintiff acted as if he was the owner of the land but when a contention on; behalf of the respondents that the plaintiff was a benamidar would be presently examined, it would be painted out that the plain tiff we the real owner and was not a benamdar. FAC |
That is the true legal position. Ratio |
the fact, however, remains hat the father of the plaintiff who must be a man of considerable influence being a Minister in the Government of Nizam, must have acted as if he was the owner of the land. Ratio |
Undoubtedly, the agreement Ext.D 18 for sale of land was entered into between the father of the plaintiff and defendant No. l and pursuant to this agreement defendant No. 34 executed a sale deed in favour of defendant No. 31, but it may be noticed that the agreement Ext.D 18 was entered into two months prior to the gra... |
There is, however, evidence to show that the agreement for sale of land and the sale deed were taken in the presence of and to the know ledge and with the full acquiescence of the plaintiff witness Kishta Reddy, D.W. 2 has stated in his evidence that defendant 1 Rami Reddy 437 paid the consideration for purchase of lan... |
He has further stated that Kazim Yar Jung, Plaintiff 's father and daughter of Kazim Yar Jung and both of his sons including the plaintiff were present when the amount of consideration was paid. Ratio |
This witness 's presence at the time of payment of consideration cannot be disputed because receipt Ext. FAC |
D 16 which evidences payment of consideration for the sale of land to defendant No. 1 though signed and passed by Kazim Yar Jung, the father of the plaintiff, was attested by him. FAC |
This evidence which has remained uncontroverted would show that the consideration for sale of land in favour of defendant 1 pursuant to agreement of sale Ext.D 18 was paid to the plaintiff in the presence of this witness and plaintiff accepted the same though the receipt Ext.D 18 was passed by the father of the plainti... |
A feeble attempt was made to explain this inconvenient evidence by saying that in agreement Ext.D 18 lands are not especially described by setting out the Survey Numbers or the Khata Numbers and as in that very village plaintiff 's father had also his lands, the plaintiff may have as well remained under the impression ... |
This explanation cannot be swallowed for the obvious reason that there was no reason for the plaintiff to accept the consideration or the consideration being put in his hands if his land was not being sold. Ratio |
Even if the father of the plaintiff could be said to be an ostensible owner of the land and he purported to sell the land, the plaintiff the real owner as he claimed to be had acquiesced in the same and accepted the consideration and in this background he would be estopped from challenging the title which was transferr... |
In the back drop of these circumstances the principle enunciated in section 41 of the Transfer of Property Act would come to the rescue of the transferee. Ratio |
Section 41 of the Transfer of Property Act provides that where, with the consent, express or implied, of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not a... |
Section 41 codifies what was once treated as a principle in equity which the Judicial Committee had recognised in Ram coomar vs Macqueen,.(1) wherein the Judicial Committee observed as under: "It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out... |
The father of the plaintiff executed agreement D 18 to sell the land to defendant 1. Ratio |
The transaction was completed in the presence of the plaintiff and the consideration was put in the hands of the plaintiff. Ratio |
Plaintiff would certainly be estopped from contesting the validity of the sale on the ground that the father had no authority to sell the land or on the ground that though his father entered into the agreement Ext.D 18, his constituted attorney defendant 34 acted as a mere rubber stamp. Ratio |
In this connection it would be very profitable to refer to a notice served by the plaintiff on defendant 1, Ext.D 21 dated 19th December 1949. Ratio |
Now, before the true impact of this notice can be gauged, a few dates may be recalled. Ratio |
The Power of Attorney Ext.P 1 was executed in favour of defendant 34 on 10th April 1949. Ratio |
Agreement Ext.D 18 was entered into between the father of the plaintiff and defendant No. 1 on 14th February 1949. Ratio |
This would show that agreement D 18 was entered into between the father of the plaintiff and defendant 1 prior to the execution of the Power of Attorney, Ext. Ratio |
The public notice cancelling the Power of Attorney was issued on 25th October 1949. Ratio |
Now, notice Ext.D 21 is dated 19th December 1449. FAC |
Therefore, it clearly transpires that notice Ext.D 21 was issued by the plaintiff after he had developed a suspicion about the fraud alleged to have been perpetrated by defendants 1 and 34 and after cancelling the Power of Attorney in favour of defendant No. 34. Ratio |
Yet by this notice Ext.D 21 plaintiff called upon defendant 1 to meet him to purchase the lands set out in the notice if he was so desirous, otherwise plaintiff would sell the same to others. Ratio |
The lands described in the notice clearly exclude those pieces of lands sold under the authority of Power Of Attorney Ext. Ratio |
Does it stand to reason to believe that plaintiff who suspected that he was the victim of a fraud at the hands of defendant 1 and that he had to take steps to cancel the Power of Attorney granted by him in favour of defendant 34 specifically at the instance of 439 defendant 1 would ever invite him to purchase some othe... |
If there was any substance in the case put forth by the plaintiff that the sale already completed by defendant 34 in favour of defendant 1 pursuant to the agreement, Ext.D 18 executed by the father of the plaintiff in favour of defendant 1 was not acceptable to him or was not binding on him he would not invite him to p... |
The conduct of the plaintiff belies his suspicion, and the allegation of fraud and want of authority is clearly an after thought. Ratio |
Viewed from any angle, the contention of the plaintiff is without merits and must be rejected. Ratio |
It was next contended that the High Court was in error in granting MP.2762/61 permitting the heirs of defendants 8, 9 and 11 to produce the sale deeds which they did not produce in the trial Court and after relying on the same, reversing the decree of the trial Court. ARG |
The High Court has given cogent reasons for granting CMP. 2762/61. Ratio |
Order 41, Rule 27, C.P.C. enables the appellate Court to admit additional evidence in the circumstances or situation therein mentioned one such being where the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. Ratio |
By a catena of decisions of this Court, it is well established that Order 41, Rule 27, C.P.C 'does not confer a right on the party to produce additional evidence. Ratio |
But if the Court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. Ratio |
The High Court has given cogent reasons why it felt impelled to permit production of registered sale deeds so as to enable it to pronounce judgment in the matter. Ratio |
If the High Court considered the production of registered sale deeds essential so as to enable it to pronounce judgment, there is no reason why we should interfere with the discretionary power properly exercised by the High Court in the interest of justice. Ratio |
Even otherwise, the High Court was justified in permitting additional evidence to be produced when it consisted of registered sale deeds. Ratio |
Such additional evidence has to be read as part of the record. Ratio |
Once these registered sale deeds are taken into consideration, a part of the decree of the trial Court granted in favour of the plaintiff awarding him possession of the land on the only ground that the sale deeds in respect of those pieces of lands were not produced, could not be maintained and the High Court rightly a... |
We may now turn to two contentions raised on behalf of the respondents. FAC |
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