# Daya Shanker (Since Deceased) & Ors v. Rajendra Kumar & Ors - **Citation:** (2016) 5 ILRA 1367 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-30 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shanker-since-deceased-ors-v-rajendra-kumar-ors-43750 - **Pages:** 6 ## Headnote Second Appeal - Scope under Section 100 CPC - No substantial question of law - Interference not permissible. Where the controversy relates to cancellation of a registered General Power of Attorney (GPA) and validity of a sale deed executed by the GPA holder, and the first appellate court, on proper appreciation of oral and documentary evidence, records a finding that the registered GPA was never cancelled in accordance with law, such findings are pure findings of fact and do not give rise to any substantial question of law. 1368 INDIAN LAW REPORTS ALLAHABAD SERIES Power of Attorney - Cancellation - Requirement of registered instrument - Notice insufficient. A registered General Power of Attorney, which creates a legal right in respect of immovable property authorising the attorney to transfer the same, cannot be cancelled, limited or extinguished by an unregistered document or by mere notice, even if sent by registered post. In view of Sections 17 and 49 of the Registration Act, 1908, cancellation of such registered GPA can be effected only by a duly executed and registered instrument. Sale Deed executed by GPA holder - Validity. Where a sale deed is executed by a duly authorised power of attorney holder in accordance with the authority conferred by a registered GPA, and there is no legal proof of prior cancellation of such authority, the sale deed is valid and effective, notwithstanding the fact that the vendees are close relatives of the GPA holder or that no separate proof regarding utilisation of sale consideration is adduced. Burden of Proof - On principal. The burden lies upon the principal to establish that the power of attorney holder acted beyond or contrary to the authority granted. Mere non-intimation of execution of sale deed by the agent to the principal, though morally improper, does not constitute fraud or illegality in absence of violation of the terms of the power of attorney. Certificate of Posting - Evidentiary value. Mere proof of sending a notice under certificate of posting is not proof of its service. Cancellation of authority under GPA cannot be presumed on such basis. Held: The findings recorded by the first appellate court are based on correct appreciation of evidence and suffer from no perversity or legal infirmity. No substantial question of law arises for consideration. Second appeal dismissed. ## Text 5 All. Daya Shanker (Since Deceased) & Ors. Vs Rajendra Kumar & Ors. 1367 20. The only dispute in this matter relating to fact as to whether plaintiffs/respondents are owner of disputed property and whether they are entitle to recover possession of disputed property from defendant/appellant. These are not questions of law. These points related to fact that could be decided on the basis of evidences as has been done by the lower courts. The ownership of plaintiffs/ respondents is proved. It is also proved that status of defendant/appellant in disputed property is that of trespasser and she is liable to be evicted. The finding in this regard by lower courts are found correct and acceptable which is hereby confirmed. 21. On examination of the reasoning recorded by the learned first appellate court in first appeal, I am of the view that judgment in civil appeal as above is well reasoned, and based on proper appreciation of entire evidences on record. In this matter dispute related to such fact that could have been decided on basis of evidence, as it had been decided by first appellate court. No perversity or infirmity is found in finding recorded by the lower courts to warrant interference through this appeal. No question of law, much less a substantial question of law, was involved before this Court. None of the contentions of the learned counsel for the appellants/defendants can be sustained. 22. In view of the above, this appeal is dismissed. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 374 Of 2016 Daya Shanker (Since Deceased) & Ors. ...Appellants Versus Rajendra Kumar & Ors. ...Respondents Counsel for the Appellants: C.K. Parekh Counsel for the Respondents: Vinod Kumar Dwivedi,Rahul Pandey Second Appeal - Scope under Section 100 CPC - No substantial question of law - Interference not permissible. Where the controversy relates to cancellation of a registered General Power of Attorney (GPA) and validity of a sale deed executed by the GPA holder, and the first appellate court, on proper appreciation of oral and documentary evidence, records a finding that the registered GPA was never cancelled in accordance with law, such findings are pure findings of fact and do not give rise to any substantial question of law. 1368 INDIAN LAW REPORTS ALLAHABAD SERIES Power of Attorney - Cancellation - Requirement of registered instrument - Notice insufficient. A registered General Power of Attorney, which creates a legal right in respect of immovable property authorising the attorney to transfer the same, cannot be cancelled, limited or extinguished by an unregistered document or by mere notice, even if sent by registered post. In view of Sections 17 and 49 of the Registration Act, 1908, cancellation of such registered GPA can be effected only by a duly executed and registered instrument. Sale Deed executed by GPA holder - Validity. Where a sale deed is executed by a duly authorised power of attorney holder in accordance with the authority conferred by a registered GPA, and there is no legal proof of prior cancellation of such authority, the sale deed is valid and effective, notwithstanding the fact that the vendees are close relatives of the GPA holder or that no separate proof regarding utilisation of sale consideration is adduced. Burden of Proof - On principal. The burden lies upon the principal to establish that the power of attorney holder acted beyond or contrary to the authority granted. Mere non-intimation of execution of sale deed by the agent to the principal, though morally improper, does not constitute fraud or illegality in absence of violation of the terms of the power of attorney. Certificate of Posting - Evidentiary value. Mere proof of sending a notice under certificate of posting is not proof of its service. Cancellation of authority under GPA cannot be presumed on such basis. Held: The findings recorded by the first appellate court are based on correct appreciation of evidence and suffer from no perversity or legal infirmity. No substantial question of law arises for consideration. Second appeal dismissed. (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Heard learned counsel for the parties and perused the records. 2. It is admitted case between the parties that plaintiff no.-1 had executed a registered general power of attorney (GPA) dated 9.2.1988 of his property in favour of defendant no.-1 Jitendra Kumar (son of Laxman Prasad). Then defendant no.-1 had executed sale-deed of disputed property on the basis of said power of attorney in favour of defendants no. 2, 3 and 4. Admittedly, defendants no. 2 and 3 are sons of Laxman Prasad and real brother of defendant no.-1 Jitendra Kumar. It is also admitted that defendant no.-4 Sharda Dutt is real father-in-law of defendant no.-1 Jitendra Kumar. It is also admitted that on the basis of power of attorney, the sale-deed was executed on 3.8.1991, but it was not registered that day, and its registration proceeding was performed and completed on 26.2.1992. It is proved from the evidences, although it was not admitted by defendants, that plaintiff has sent registered notice dated 3.10.1991 to defendant no.-1 for cancellation of registered power of attorney, which was served on him. 5 All. Daya Shanker (Since Deceased) & Ors. Vs Rajendra Kumar & Ors. 1369 3. Plaintiffs had filed suit for cancellation of sale-deed dated 3.8.1991 executed by defendant no.-1 (the power of attorney holder) in favour of defendants no. 2, 3 and 4 on the ground that this was executed without authority and without any consideration, as a result of conspiracy committed by defendant no.-1 with his brothers defendants no. 2 and 3 and father-in-law defendant no.-4. This ground was also taken that this sale-deed was executed without any bona fide or good faith, and was got executed for prejudicing the rights of plaintiff and defendant no.-5 over disputed property. 4. After affording opportunity of hearing to parties and accepting their evidences, the Court of Civil Judge (Senior Division), Fatehpur had passed judgment dated 7.2.2009, by which original suit was decreed and sale-deed dated 3.8.1991, registered on 26.2.1992, was cancelled. In this judgment, trial court had given finding to the effect that plaintiff had sent first notice of cancellation of sale-deed by post under certificate of posting dated 8.7.1991 and held that sending of this notice under certificate of posting is proof of its service on defendant no.-1. Trial court had also given finding that after service of notice of cancellation of power of attorney, the sale-deed in question was executed, therefore it is liable to be cancelled, as defendant no.-1 had no right to execute sale-deed after such knowledge of power of attorney. 5. Against the judgment of trial court, Civil Appeal No.-10/2009 was preferred, which was heard and allowed by the judgment dated 7.11.2015 of Additional District Judge, Court No.-9, Fatehpur. In this judgment, first appellate court had held that registered document can be cancelled in accordance with law by registered deed only. It was also held that service of notice under certificate of posting dated 8.7.1991 and registered notice dated 9.10.1991 is legally not proved. First appellate court also held that in power of attorney, plaintiff no.-1 had authorized power of attorney holder defendant no.-1 to execute sale-deed, gift deed, mortgage deed or other transfer deed of disputed property and got it registered and received payment. With these findings first appellate court had held that till execution of sale-deed in question, the power of attorney executed by plaintiff no.-1 in favour of defendant no.-1 was not cancelled, and the power of attorney holder (defendant no.-1) had executed sale-deed in question under authority obtained from the owner of property that is plaintiff no.-1. Therefore, said grounds for cancellation of sale-deed are not proved. On the basis of these findings, first appellate court had allowed the appeal and dismissed the original suit. 6. Aggrieved by the impugned judgment of first appellate court, present second appeal has been preferred by plaintiffs of the original suit. 7. Learned counsel for the appellant contended that the cancellation of authority under power of attorney by notice under certificate of posti9ng dated 8.7.1991 and by registered post dated 9.10.1991 is proved; therefore, after knowledge of such notice the defendant no.-1 had no right to execute sale-deed, and the said sale-deed was unauthorizedly executed by him which is liable to be cancelled. He further contended that defendant no.-1 is real brother of defendants no. 2 and 3 and is son-in-law of defendant no. 4. He had connived with these defendants and executed sale-deed in question without any payment of consideration because it is not proved that what 1370 INDIAN LAW REPORTS ALLAHABAD SERIES happened to alleged consideration, therefore the judgment of trial court was correct and appeal should be admitted for being allowed. 8. These contentions of learned counsel for the appellants were refuted by learned counsel for the respondents, who contended that first appellate court had rightly discussed legal provisions including provisions of Sections 32, 33 of Indian Registration Act and held that any document for the value of more than 100/- rupees cannot be cancelled under Section 17(1) of this Act by registered notice. Such registration can be cancelled only by the registered deed. He further contended that trial court had erroneously considered the service of notice allegedly sent on 8.7.1991, because this notice is not proved, nor was available on record before the court. He further submitted that other grounds mentioned in plaint for cancellation of saledeed were not proved. It was burden of plaintiff to prove those grounds, which he failed to do so, therefore there is no error in judgment of lower appellate court. He further contended that dispute relates to finding of fact that could be decided on the basis of evidences and no substantial question of law arises in this matter; therefore, this appeal should be dismissed. 9. So far finding of trial court regarding service of notice dated 8.7.1991 under certificate of posting is concerned, it is altogether erroneous and perverse. Neither that notice nor its contents were proved. Apart from mere sending of a notice under certificate of posting may be the proof of its sending, but it cannot be proof of its service as held by trial court. The sending of information of the cancellation of authority under power of attorney by notice under certificate of posting dated 8.7.1991 is not proved. The finding of the first appellate court in this regard is found factually correct and acceptable. 10. This contention of learned counsel for the appellants is also unacceptable that burden of proof lies on defendant, who had failed to prove by suppressing evidence of defendant no.-1 Jitendra Kumar, the earlier power of attorney holder. Admittedly, the defendant no.-1 Jitendra Kumar was agent of plaintiff no.-1, who had been authorized by plaintiff to execute sale-deed or other document of transfer to anyone and receive consideration in the way he likes. The sale-deed dated 3.8.1991 executed by defendant no.-1, the power of attorney holder, is not in violation of any of the terms of power of attorney dated 9.2.1988. Since defendant no.-1 was power of attorney holder and agent of plaintiff, so burden was on plaintiff to prove that his power of attorney holder had acted against the terms of power of attorney given to him. The rights of vendees of sale-deed in 3 question cannot be denied merely on the ground that they are near relative of power of attorney holder, especially when no act appears to have been committed against the authority given to power of attorney holder (defendant no.-1) under said registered power of attorney. The burden was not on defendants/vendees to prove that what happened to the consideration of sale-deed given by them to power of attorney holder of plaintiff. There can be no presumption that sale-deed would become illegal or void, if it is executed by power of attorney holder in favour of his near relatives. In this matter, it is immaterial as to whether defendant no.-1 had given notice of sale-deed in question to plaintiffs or not. Trial court had rightly held that it was moral duty of defendant no.-1 power of attorney holder to inform this fact to plaintiffs, but such duty was not legal. If power of attorney 5 All. Daya Shanker (Since Deceased) & Ors. Vs Rajendra Kumar & Ors. 1371 holder or agent of plaintiffs had not given notice of the acts performed by him under authority of power of attorney, then mere noninformation cannot be the proof of act of fraud or illegality. 11. This fact is not disputed that if power of attorney holder had acted in accordance with authority under power of attorney without any knowledge of cancellation of such authority on 3.8.1981, and said sale-deed was registered on 26.2.1992, therefore it would be a valid and effective document unless it is proved that power of attorney had already been legally cancelled at the time of execution of sale-deed under its authority. 12. The only point in this matter has been as to whether registered power of attorney can be cancelled by unregistered document or by registered notice of cancellation. 13. Section 17 of Registration Act directs mandatory registration of 'nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property'. Section 49 of this Act provides that "No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered." 14. Registered power of attorney creates a legal right of GPA holder in immoveable property to transfer it, in accordance with the terms mentioned in it. This right in such immoveable property can be limited or extinguished only through the registered document, and not otherwise. 15. In present matter plaintiff no.-1 had executed a registered power of attorney (GPA) dated 9.2.1988 of his property in favour of defendant no.-1. Then defendant no.-1 had executed sale-deed of disputed property on the basis of said power of attorney in favour of defendants no. 2, 3 and 4. From the time of execution of registered GPA till now, said authority under GPA was never withdrawn, cancelled or limited by plaintiff, the executor of said GPA. Therefore the saledeed was executed on 3.8.1991 under the authority of said GPA was a valid document which could not be cancelled by registered notice dated 3.10.1991 to defendant no.-1 for cancellation of registered power of attorney, which was served on him. 16. If the plaint case on its facts, are taken to be true, in that situation also, the sale-deed dated 3.8.1991/ registered on 26.2.1992 was a valid and legal document, creating the ownership rights of purchasers (defendants no. 2, 3 & 4) in disputed property. This finding of lower appellate court through impugned judgment is found correct that said registered GPA dated 9.2.1988 was never cancelled. 17. The only points to be determined in this appeal before this court was as to whether the plaintiff-appellant had cancelled the GPA granted by him to defendant no.-1 (GPA holder), and as to whether the sale-deed dated 3.8.1991/ registered on 26.2.1992 is liable to be cancelled. These are 1372 INDIAN LAW REPORTS ALLAHABAD SERIES not the question of law, but are questions of fact that could be decided on basis of evidences, as had been done by the lower court. The impugned judgment in present case is based on appreciation of all the available evidences, and findings are apparently acceptable. Such findings cannot be interfered in second appeal. 18. On examination of the reasoning recorded by the learned first appellate court in first appeal, I am of the view that judgment in civil appeal was well reasoned, and was based on proper appreciation of entire evidences on record. No perversity or infirmity is found in finding re corded by the first appellate court to warrant interference through this appeal. No substantial question of law was involved before this Court. None of the contentions of the learned counsel for the appellant can be sustained. 19. In view of the above, this appeal is dismissed. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 572 Of 2016 Ram Bhool Yadav & Ors. ...Appellants Versus Gyan Kunj Construction Pvt. Ltd. & Ors. Respondents Second Appeal - Order VII Rule 11 CPC - Rejection of plaint - Limitation - Scope. While considering an application under Order VII Rule 11 CPC, the Court has to examine only the averments made in the plaint as a whole and not dissect isolated sentences. If, on a meaningful reading of the plaint, the cause of action appears to be a bundle of facts requiring evidence, the plaint cannot be rejected at the threshold on the ground of limitation. Limitation - Article 58 of Limitation Act, 1963 - "First accrual of right to sue". Though limitation for a suit seeking declaration and cancellation/rectification of a document is three years from the date when the right to sue first accrues, the determination of such date depends upon the facts pleaded. Where the plaint discloses that the plaintiff came to know about the alleged error or illegality in the document subsequently, the question as to when the right to sue first accrued becomes a mixed question of law and fact, which cannot be decided without evidence. Cause of Action - Interpretation of pleadings. Cause of action is a bundle of essential facts which must be read holistically from the plaint. Mere mention of an earlier date in the plaint does not conclusively determine limitation if, on a cumulative reading of the pleadings, subsequent discovery of facts giving rise to the cause of action is pleaded. Second Appeal - Section 100 CPC - No substantial question of law.