# AMAR NATH (DEAD) THROUGH L.R v. GIAN CHAND AND ORS

- **Citation:** [2022] 19 S.C.R. 281
- **Court:** Supreme Court of India
- **Decided:** 2022
- **Case number:** Civil Appeal No. 5797 of 2009
- **Bench:** K. M. Joseph, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amar-nath-dead-through-l-r-v-gian-chand-and-ors-36228
- **Pages:** 42

## Headnote

Deeds and Documents - Power of attorney - When not
cancelled - Plaintiff entered into an oral agreement for the sale of
his property for Rs. 55,000/- with the first defendant - It was
plaintiff's case that the first defendant couldn't arrange the money
and asked for further time - Plaintiff bonafide executed a special
power of attorney dtd. 28.01.87 in favour of the second defendant
for selling the property for Rs. 55,000/- - As per the plaintiff, as the
negotiation fell through in view of the first defendant not being
able to arrange the money, the second defendant surrendered the
original power of attorney to the plaintiff on 02.02.87 - However,
as per plaintiff, the second defendant applied for the copy of the
power of attorney, and fraudulently in collusion with the first
defendant executed the sale deed on 28.04.87 for Rs.30,000/- -
Plaintiff filed suit inter alia for declaration by way of permanent
injunction that he is the owner in possession of the property and
the mutation showing the sale in favour of the first defendant by
the second defendant was null and void - Trial Court declined the
relief of declaration by way of permanent injunction - Appellate
Court found that the case of the plaintiff that the power of attorney
was cancelled was unsustainable and that there was a valid sale
deed and endorsement - High Court set aside the findings of the
courts below and decreed the suit by declaring the plaintiff as the
owner in possession of the land and mutation showing the sale in
favour of the first defendant was declared null and void - On appeal,
held: The production of original power of attorney before the
Registering Authority was unnecessary for effecting registration of
the sale deed - Further, the plaintiff admitted that he did not get the
power of attorney cancelled at the Sub-Registrar Office - Even,
more importantly, he admitted to not having sent any notice of
cancellation - The only evidence consists of a statement of plaintiff
that the first defendant was aware of the cancellation and the
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statement of PW6, who had said that the first defendant was also
there on 02.02.87, when on two papers a line was drawn to signify
the cancellation - Furthermore, the Trial Court and also the appellate
court relied upon the DX (letter dated 02.06.87) sent by the plaintiff
himself, which appears to undermine the evidence about the
cancellation on 02.02.1987 - High Court should not have, at any
rate, disturbed the said finding in a Second Appeal - The case of
the plaintiff that power of attorney stood cancelled, in the manner
done on 02.02.1987 cannot be accepted - First defendant, who is
the third party, could not be attributed any knowledge of the
surrender or the alleged cancellation on 02.02.1987 - Impugned
Judgment set aside - Contract Act, 1872 - ss.201, 202, 207, 208 -
Registration Act, 1908 - ss.18, 18 A, 32-35.
Allowing the appeal, the Court
HELD: 1.1 When a person empowers another to execute a
document and the power of attorney, acting on the power,
executes the document, the power of attorney holder can present
the document for registration under Section 32(a). Section 32(a)
of the Registration Act deals with the person executing a
document and also the person claiming under the same. It also
provides for persons claiming under a decree or an order being
entitled to present a document. Section 32(b) speaks about the
representative or assignee of 'such a person'. The word such a
person in Section 32(b) is intended to refer to the persons covered
by Section 32(a). Finally, Section 32(c) provides for the agent of
'such a person' which necessarily means the persons who are
encompassed by Section 32(a). Besides agent of the person
covered by Section 32(a), Section 32(c) also takes in the agent of
the representative or assignee. Now the words representative
or assignee are to be found in Section 32(b). Thus, Section 32(c)
deals with agents of the persons covere

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[2022] 19 S.C.R. 281
281
AMAR NATH (DEAD) THROUGH L.R.
v.
GIAN CHAND AND ORS.
(Civil Appeal No. 5797 of 2009)
JANAUARY 28, 2022
[K. M. JOSEPH AND PAMIDIGHANTAM SRI
NARASIMHA, JJ.]
Deeds and Documents - Power of attorney - When not
cancelled - Plaintiff entered into an oral agreement for the sale of
his property for Rs. 55,000/- with the first defendant - It was
plaintiff's case that the first defendant couldn't arrange the money
and asked for further time - Plaintiff bonafide executed a special
power of attorney dtd. 28.01.87 in favour of the second defendant
for selling the property for Rs. 55,000/- - As per the plaintiff, as the
negotiation fell through in view of the first defendant not being
able to arrange the money, the second defendant surrendered the
original power of attorney to the plaintiff on 02.02.87 - However,
as per plaintiff, the second defendant applied for the copy of the
power of attorney, and fraudulently in collusion with the first
defendant executed the sale deed on 28.04.87 for Rs.30,000/- -
Plaintiff filed suit inter alia for declaration by way of permanent
injunction that he is the owner in possession of the property and
the mutation showing the sale in favour of the first defendant by
the second defendant was null and void - Trial Court declined the
relief of declaration by way of permanent injunction - Appellate
Court found that the case of the plaintiff that the power of attorney
was cancelled was unsustainable and that there was a valid sale
deed and endorsement - High Court set aside the findings of the
courts below and decreed the suit by declaring the plaintiff as the
owner in possession of the land and mutation showing the sale in
favour of the first defendant was declared null and void - On appeal,
held: The production of original power of attorney before the
Registering Authority was unnecessary for effecting registration of
the sale deed - Further, the plaintiff admitted that he did not get the
power of attorney cancelled at the Sub-Registrar Office - Even,
more importantly, he admitted to not having sent any notice of
cancellation - The only evidence consists of a statement of plaintiff
that the first defendant was aware of the cancellation and the
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statement of PW6, who had said that the first defendant was also
there on 02.02.87, when on two papers a line was drawn to signify
the cancellation - Furthermore, the Trial Court and also the appellate
court relied upon the DX (letter dated 02.06.87) sent by the plaintiff
himself, which appears to undermine the evidence about the
cancellation on 02.02.1987 - High Court should not have, at any
rate, disturbed the said finding in a Second Appeal - The case of
the plaintiff that power of attorney stood cancelled, in the manner
done on 02.02.1987 cannot be accepted - First defendant, who is
the third party, could not be attributed any knowledge of the
surrender or the alleged cancellation on 02.02.1987 - Impugned
Judgment set aside - Contract Act, 1872 - ss.201, 202, 207, 208 -
Registration Act, 1908 - ss.18, 18 A, 32-35.
Allowing the appeal, the Court
HELD: 1.1 When a person empowers another to execute a
document and the power of attorney, acting on the power,
executes the document, the power of attorney holder can present
the document for registration under Section 32(a). Section 32(a)
of the Registration Act deals with the person executing a
document and also the person claiming under the same. It also
provides for persons claiming under a decree or an order being
entitled to present a document. Section 32(b) speaks about the
representative or assignee of 'such a person'. The word such a
person in Section 32(b) is intended to refer to the persons covered
by Section 32(a). Finally, Section 32(c) provides for the agent of
'such a person' which necessarily means the persons who are
encompassed by Section 32(a). Besides agent of the person
covered by Section 32(a), Section 32(c) also takes in the agent of
the representative or assignee. Now the words representative
or assignee are to be found in Section 32(b). Thus, Section 32(c)
deals with agents of the persons covered by Section 32(a) and
agents of the representative or assignee falling under Section
32(b). It is in respect of such an agent that there must be due
authorisation by a power of attorney, which in turn, is to be
executed and authenticated in the manner provided for in Section
33. However, the person, who has actually signed the document
or executed the document for the purpose of Section 32(a) does
not require a power of attorney to present the document. It may
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be open to the principal, who has entered obligations under the
document, to present the document. Section 32(c) must alone be
read with Section 33 of the Act. Thus, when Section 32(c) of the
Registration Act declares that a document, whether it is
compulsorily or optionally registrable, is to be presented, inter
alia, by the agent of such a person, representative or assignee,
duly authorised by power of attorney, it must be executed and
authenticated in the manner and hereinafter mentioned
immediately in the next following section. Section 33 by its very
heading provides for power of attorney recognisable for the
purpose of Section 32. Section 32(a) cannot be read with Section
33 of the Act. In other words, in a situation, if a document is
executed by a person, it will be open to such a person to present
the document for registration through his agent. The agency can
be limited to authorising the agent for presenting the document
for it is such a power of attorney, which is referred to in Section
32(c). It is in regard to a power of attorney holder, who is
authorised to present the document for registration to whom
Section 33 would apply. In the facts of this case, the second
defendant was armed with the power of attorney dated 28.01.1987
and if it was not cancelled and he had executed the sale deed on
28.04.1987, he would be well within his rights to present the
document for registration under Section 32(a) of the Act.
Presentation is not a matter of form. Without a valid presentation
of the document, the registration would be illegal. However, in
the facts, the IInd defendant having presented the sale deed as
executant, the presentation and registration cannot be
questioned. For reasons indicated, Section 32(c) read with Section
33 and Section 34(2)(c) are interrelated and they would have no
application in regard to the document presented for registration
by a power of attorney holder who is also the executant of the
document. In other words, there is really no need for the
production of the original power of attorney, when the document
is presented for registration by the person standing in the shoes
of the second defendant in this case as he would be covered by
the provisions of Section 32(a) as he has executed the document
though on the strength of the power of attorney. To make it even
further clear, the inquiry contemplated under the Registration
Act, cannot extend to question as to whether the person who
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS.
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executed the document in his capacity of the power of attorney
holder of the principal, was indeed having a valid power of attorney
or not to execute the document or not. [Paras 20, 21, 25][303-DH; 304-A-E; 305-B; 306-D-F]
1.2 On an analysis of the provisions, the argument of the
Plaintiff that the non-production of the original power of attorney
by the Respondent No. 2, was fatal to a valid registration being
effected is rejected. The understanding of the Courts regarding
Section 18A is also erroneous. Section 18A was enacted only to
ensure that the copying process is hastened, as noticed from the
Objects and Reasons. The Trial Court was right when it held that
Section 18A is concerned only with the document which is
presented for registration. The Trial Court clearly erred relying
upon Section 18(A) to hold that certified copy however being
produced of the power of attorney was in conformity with Section
18A and the High Court was equally in error to hold that Section
18A contemplated production of true copy of the power of attorney.
[Para 32][309-C-D]
1.3 Since, it is not disputed that the plaintiff did execute
the power of attorney, empowering the Respondent No. 2 to sell
the property and it is further not in dispute that the Respondent
No. 2 has executed the sale deed in favour of the Appellant, the
only question which arises is whether the power of attorney was
cancelled before the execution of the sale deed on 28.04.1987.
Undoubtedly, the further question would be whether the
cancellation was effected in a valid and legal manner and finally,
whether it was made known to not only to the Respondent No. 2
but also to the Appellant. Section 201 of the Contract Act, dealing
with termination of agency, declares that an agency can be
terminated by the principal revoking the authority of the agent.
An exception to the power of principal to revoke the agency is
found in Section 202 of the Contract Act, which provides that
where an agent has himself an interest in the property which forms
the subject of the agency, in the absence of an express contract,
the agency cannot be terminated to the prejudice of the agent's
interest. In such cases, the agency would be clearly irrevocable.
Section 207 of the Contract Act declares that revocation may be
express or may be implied in the conduct of that principal or
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agent, respectively. Section 208 deals with the time when
termination of the agent's agency takes effect. [Para 52][317-BE]
1.4 It is no doubt true that the case of the plaintiff is that
the second defendant was bereft of the authority to transfer the
property as on 28.04.1987 in view of the fact that the second
defendant had surrendered the power of attorney dated 28.01.1987
on 02.02.1987 and the plaintiff had produced the document. The
second defendant has denied the case of surrender before the
execution of sale deed. According to him, the power of attorney
had been misplaced. It is, accordingly, he applied for the certified
copy of the same and went ahead with the execution and
registration of the sale deed. According to the second defendant,
when sale was effected, the power of attorney was given back.
The first defendant, in fact, has set up the case that the original
power of attorney was with the second defendant even at the
time of the registration of the sale deed. It has already been held
that the production of original power of attorney before the
Registering Authority was unnecessary for effecting registration
of the sale deed. [Para 54][318-D-F]
1.5 Exhibit-DX may help to resolve the controversy. This
is a letter dated 02.06.1987 which was admittedly, got scribed
and dispatched by the plaintiff to the second defendant. [Para
55][318-G]
1.6 Contrary to the case of the plaintiff that the power of
attorney stood cancelled on 02.02.1987, after it was surrendered
to him on that day, it is that the plaintiff writes to the second
defendant about having spoken to the second defendant regarding
the land in question at Mehre and also gave him the power of
attorney. There is no mention about the power of attorney having
been surrendered on 02.02.1987 or about the so-called
cancellation of the same. The further stand of the plaintiff was by
way of asking the second defendant to inform the plaintiff at the
earliest, if he could talk to anyone or had talked to anyone. The
meaning of the of latter portion is made clear when he says that
the money may be sent to him because he is in dire need of money.
Therefore, it means that the case of the plaintiff that he had
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS.
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cancelled the power of attorney by writing the word 'cancelled'
on 02.02.1987, upon it being surrendered by the second
defendant, cannot be accepted. The letter sent by the second
defendant to the plaintiff on 16.06.1987 indicates that the second
defendant tells the plaintiff that the plaintiff may have come to
know that as power of attorney he had made the sale deed of the
property. No doubt, he says that the plaintiff might have been
'astonished to know' regarding the sale. The second defendant
further writes to the plaintiff that he has done this job in faith of
friendship and for betterment. He admits that he could not go to
the plaintiff as his brother was ill and, later on, his wife fell ill. He
admits to having spent some amount from the money paid. This
correspondence between the plaintiff and the second defendant
would be fatal to the plaintiff's case that the plaintiff had cancelled
the power of attorney. [Paras 57, 58][320-E-H; 321-A-B]
1.7 The plaintiff, in his deposition, has stated that he had
cancelled the power of attorney at Mehre and there itself was
the Office of the Sub-Registrar located. He has admitted that he
did not get the power of attorney cancelled at the Sub-Registrar
Office. Even, more importantly, he has admitted to not having
sent any notice of cancellation. The only evidence consists of a
statement of PW1 that the first defendant was aware of the
cancellation and the statement of PW6, who had said that the
first defendant was also there on 02.02.1987, when on two papers
a line was drawn to signify the cancellation. The Trial Court and
also the appellate court have relied upon the DX sent by the
plaintiff himself, which appears to undermine the evidence about
the cancellation on 02.02.1987. The High Court should not have,
at any rate, disturbed the said finding in a Second Appeal. In such
circumstances, the conclusion is inevitable that the case of the
plaintiff that power of attorney stood cancelled, in the manner
done on 02.02.1987, cannot be accepted. At any rate, it is difficult
to accept the case of the plaintiff that the first defendant, who is
the third party, could be attributed any knowledge of the surrender
or the alleged cancellation on 02.02.1987, even assuming for a
moment that this Court could lend credence to the plaintiff's
version in this regard that the second defendant surrendered
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the power of attorney. This Court need not pronounce on the
question whether the power of attorney being registered, it could
be cancelled only by a registered power of attorney. This is said
as even in the absence of a registered cancellation of the power
of attorney, there must be cancellation and it must further be
brought to the notice of the third party at any rate as already
noticed. Such a cancellation is not made out. In this regard it is
highly significant to notice the case actually set up in the plaint.
In the plaint what is averred by the plaintiff is that when the
negotiations fell through the second defendant surrendered the
original power of attorney to the plaintiff which is still in possession
of the plaintiff and the plaintiff told the defendant no. 1 that the
same stand cancelled and he shall not execute any sale deed on
behalf of the plaintiff. [It is not even clear whether it should be
understood as the plaintiff told the second defendant that same
stand cancelled and he shall not execute any sale deed on behalf
of the plaintiff.] It is further averred that "even defendant no. 2
was not competent to transfer the possession, rather the special
power of attorney deemed to cancelled in the eyes of law since it
was handed over to the plaintiff". Therefore, the case set up by
the plaintiff was that on the second defendant handing over the
power of attorney to the plaintiff, the special power of attorney
was deemed to have been cancelled in the eye of law. There is no
whisper in the plaint about the plaintiff having cancelled it in the
manner in which he has deposed to in the evidence on 02.02.1987.
As far as P-1 is concerned, it is dated 30.01.1987. The Trial Court
has entered the finding that the P-1 stood proved and that the
second defendant is bound by it. The Appellate Court has not
disturbed the finding. In other words, proceeding on the basis
that the second defendant had a duty to not sell the property
below Rs.55,000/-, in terms of P-1, the breach of duty to not sell
below Rs.55,000/-, when the second defendant sold the property
for Rs.30,000/-, cannot invalidate the sale or render it null and
void. A perusal of the power of attorney will make it clear that
any restriction on the price is conspicuous by its absence in the
power of attorney. The impugned Judgment is set aside. [Paras
59-63][321-B-H; 322-A-E]
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS.
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Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and
Another (2009) 14 SCC 782 : [2009] 11 SCR 686 -
relied on.
Anathula Sudhakar v. T. Buchi Reddy (dead) by LRs &
Ors. (2008) 4 SCC 594 : [2008] 5 SCR 331; Madhukar
Vishwanath v. Madhao & Ors. (1999) 9 SCC 446 -
referred to.
Jambu Parshad v. Muhammad Nawab Aftab Ali Khan
& Anr. AIR 1914 PC 16; Ma Shwe Mya v. Maung Ho
Hnaung AIR 1922 PC 359; Jambu Prasad v.
Muhammad Aftab Ali Khan and others AIR 1914 PC
16; Daya Shanker & Ors. v. Rajendra 14 Kumar &
Ors. (2016) 118 ALR 62; Ratilal Nathubhai & Anr. v.
Rasiklal Maganlal & Ors. AIR 1950 Bom. 326 -
referred to.
Pollock and Mulla, The Indian Contract and Specific
Relief Acts, 14th Edition - referred to.
Case Law Refrence
[2009] 11 SCR 686
relied on
Para 10
[2008] 5 SCR 331
referred to
Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5797
of 2009.
From the Judgment and Order dated 31.07.2008 of the High Court
of Himachal Pradesh at Shimla in R.S.A. No. 27 of 1997.
Rajesh Gupta, Harpreet Singh for M/s K J John and Co., Advs.
for the Appellant.
V. Giri, Sr. Adv., Sanchar Anand, Anant Kumar Vatsya, Shiv Kumar,
Sameer Singh, Devendra Singh, Advs. for the Respondents.
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The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. By the impugned judgment the High Court in a second appeal
has reversed the concurrent findings rendered in a suit filed by the first
respondent and the appellant who is the second defendant in the suit has
filed the present appeal. The second respondent who is the second
defendant in the suit though served has chosen not to appear. The parties
shall be referred to by their status in the Trial Court.
THE SUIT
2. The plaint schedule property hereinafter referred to as the
'property' consists of 2 Kanals, 10 Marlas and odd land belonged to the
plaintiff and was in his possession. He was serving as a junior engineer.
He entered into an oral agreement for the sale of the property for a
consideration of Rs. 55,000/-. It is the plaintiff's case that when the
plaintiff came on leave, the first defendant could not arrange the money
and asked for further time. The plaintiff bonafide executed a special
power of attorney in favour of the IInd defendant for selling the property
for the amount of Rs. 55,000/-. As the negotiation fell through in view of
the first defendant not being able to arrange the money, the second
defendant to whom the power of attorney was executed, surrendered
the original to the plaintiff, and the plaintiff told the first defendant that
the same stood cancelled. The second defendant is alleged to be a deed
writer and a clever person. He applied for the copy of the power of
attorney, and fraudulently in collusion with the first defendant, executed
the sale deed on 28.04.1987 for Rs. 30,000/. The second defendant,
according to the plaintiff, could not execute the sale deed in the absence
of the original power of attorney, and the sub registrar was supposed to
verify the aspect from the second defendant under Sections 32, 33 and
34 of the Registration Act. The sale deed was without authority. The
second defendant 'was not competent to transfer the possession'. The
special power of attorney is deemed to have been cancelled in the eye
of law since it was handed over to the plaintiff. When the plaintiff came
from his service and enquired with the officials of the revenue staff or
the consolidation authority, and got the copies, then he came to know
about the sale and that the mutation has been sanctioned. It is on this
case that the plaintiff filed a suit for declaration by way of permanent
injunction that he is the owner in possession of that property and the
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ORS.
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mutation showing the sale in favour of the first defendant, by the second
defendant, was null and void, and that the second defendant was not
having any authority to sell the land owned by the plaintiff, and hence
the defendant be restrained from interfering with the ownership and
possession of the plaintiff. It was further prayed that in case it was
proved that the second defendant was an agent of plaintiff then in that
case, the suit for rendition of accounts be decreed.
3. The first defendant (appellant) in his written statement inter
alia pleaded that he while admitting that the plaintiff is a junior engineer,
his actual place of posting was not known to him. It is also admitted that
the first defendant entered into an agreement orally to get the property
purchased for Rs.30,000/- and not Rs.55,000/-. It is denied that the first
defendant could not arrange for the money. The plaintiff received
Rs.10,000/- as part price. The remaining Rs.20,000/- was paid at the
time of registration. The negotiation of the sale did not fall through. Second
defendant never surrendered the original power of attorney. The plaintiff
got the power of attorney after the sale deed was executed by the second
defendant. The sum of Rs.20,000/- was given in the presence of the sub
registrar. The first defendant was a bonafide purchaser. The sale deed
was effected in a legal manner and after verification by the sub registrar.
The second defendant was competent to execute the sale deed.
4. The second defendant also filed a written statement. He
contended that there was an agreement between the plaintiff and the
first defendant independently without the intervention of the second
defendant for the sum of Rs.30,000/- out of which the plaintiff was
himself given Rs.10,000/- as earnest money from the first defendant.
The remaining Rs.20,000/- was to be received on the registration of the
sale deed as at the time of sale, it could not be effected immediately.
The plaintiff had to join his duty and therefore wanted the second
defendant to have a registered special Power of Attorney from him and
then, execute the sale deed and get it registered after receiving the
remaining amount of consideration of Rs.20,000/. The consideration of
the sale deed being Rs.55,000/- is stoutly denied. It is his further case
that the remaining consideration was handed over to the plaintiff and the
power of attorney was handed over to the plaintiff. However, the case
that the power of attorney was handed over before execution of sale
deed is denied. He denied acquaintance with the government officer
much less the sub registrar. There is no prohibition of law for executing
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a sale deed on the basis of the copy of the registered power of attorney,
when the original could not be traced and the plaintiff insisted for the
money showing that he has a great need. Legally and factually, it is
pleaded 'that no registered deed to cancelled orally.' It requires another
registered deed to cancel it.
5. The Trial Court framed the following issues, inter alia:-
I. Whether sale in question is without consideration and void as
alleged;
II. Whether the plaintiff is entitled to the relief of declaration and
permanent injunction;
III. Whether the plaintiff is entitled to the rendition of account
from defendant No.2 in the alternative;
IV. Whether the plaintiff is estopped from filing the present suit
by his act and conduct;
V. Whether the suit is not properly valued for Court fee and
jurisdiction;
6. The evidence consisted of oral evidence on behalf of the plaintiff
tendered through eight witnesses. The documentary evidence on behalf
of the plaintiff consisted of P1 to P11. The first defendant was examined
as DW1. The second defendant was examined as DW4. DW2 and
DW3 were two other witnesses examined on behalf of the defendant.
DX which will assume considerable significance was also adduced apart
from D1 and D2. The Trial Court, interalia, while answering issues no. 1
and 2 was alerted about the provisions of Section 33 and 34 of the
Registration Act apart from Section 18A. Section 18A was found to
deal with the document presented for registration. It went on to find
inter alia that the reading of Section 58,59 and 60 of the Registration Act
leads to the conclusion that the registration of the document is a solemn
act. The endorsement of the registration raised a presumption that the
executants or their duly authorised agents appeared before the Registrar.
It is for the other side to prove that the document was not presented for
registration, once it is proved that the document had been presented.
The execution was proved before the sub registrar. The sub registrar
has given evidence as PW4 and proved the sale for a consideration of
Rs.30,000/. The sale was also proved by the marginal witnesses. Section
18 A of the Registration Act makes it clear that the sale deed must be
AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND
ORS. [K. M. JOSEPH, J.]
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accompanied with a true copy of the power of attorney. That second
defendant was having a certified copy of the special power of attorney.
The Trial Court did not accept the plaintiff's case that the second
defendant was not his power of attorney at the time of the sale. It relied
upon DX-letter dated 02.06.1987 written by the plaintiff. The Trial Court
did not attach any weight to the alleged cancellation of the power of
attorney especially when the second defendant was having a certified
copy of the special power of attorney, which was a registered power of
attorney. The cancellation also required registration. Exhibit PW 5A dated
02.07.1987 by which the second defendant agreed to pay Rs.30,000/- to
the plaintiff is relied upon and it was inexplicable as why it was executed,
if on 02.02.1987, the special power of attorney given to the second
defendant was cancelled. The power of attorney was found subsisting.
The mere writing of a word 'cancelled' on the original power of attorney
(P2) did not mean that the power of attorney had been cancelled, till
notice was given to the second defendant. The Ist defendant was not
bound by any agreement between plaintiff and the second defendant.
As per Section 18A, sale deed should accompany true copy of the power
of attorney and the original is not required. P1-agreement binds the plaintiff
and the second defendant having been proved by the scribe and witnesses.
P1 and P2 must be read together. Plaintiff agreed with the second
defendant to sell the land for consideration not less that Rs.55,000/-. No
ground was given to set aside the sale. The sale was found effected for
Rs.30,000/- and was not a void transaction. In answering issue no. 3, it
was found however that the plaintiff was entitled to the rendition of the
account from the second defendant. The second defendant was in fact
found liable to pay Rs.55000/- based on P1 agreement. It was found
that the P1 agreement controlled the power of attorney. The agent could
not act against the interest of the principal. The court fee of Rs.19.50
was found correctly fixed. The Trial Court proceeded to decline the
relief of declaration by way of permanent injunction as the plaintiff was
not the owner in possession but the Suit for rendition of accounts from
the second defendant was decreed.
FINDINGS OF THE FIRST APPELLATE COURT
7. The plaintiff authorised the second defendant by power of
attorney dated 28.01.1997 to sell the property for Rs.55,000/-. The Court
found that the case of the plaintiff, that the power of attorney was
cancelled was unsustainable, having regard to the evidence of DW4,
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wherein he has deposed that he has received DX-letter also. The plaintiff
has admitted sending DX. The Court proceeded to find that there was a
valid sale deed and endorsement (PW4A). It was found that the sale
deed was executed.
FINDINGS OF THE HIGH COURT
8. The following questions of law were framed:
"1. Whether in view of the admitted position that defendant No.2
who was the petition writer, and in whose favour power of attorney
had been executed by the appellant for executing the sale deed
for a consideration of Rs. 55,000/- to the knowledge of respondent
No.1, it had to be assumed that the sale deed Ex.PW-3/A was
fraudulently executed for Rs. 30,000/- when the Power of attorney
had been cancelled and revoked and returned by the appellant
and the document Ex.PW-5/A was duly proved?
2. Whether the court below has misconstrued the basic document
of title Ex.PW-5/A, PW-3/A, P-1, P-2 and wrong inference have
been drawn from facts proved on record?
3. Whether on the material on record it was established that there
was non-compliance of mandatory provisions of section 18A, 59
and 61 of Registration Act and the findings that registered power
of attorney could only be executed by registered document is
sustainable in law?
4. Whether the sale deed Ex.PW-3/A conferred any valid title on
defendant No.1 and the plaintiff was entitled to the relief of
injunction and declaration?
5. Whether in the facts and circumstances of the case, the
presumption raised stood rebutted and the plaintiff was entitled to
the relief of injunction and declaration instead of the alternative
relief of rendition of accounts as held by the court below?"
9. Thereafter, the Court proceeded to discuss the evidence and
records the following findings:
Defendant No.2 was not competent to execute the sale deed.
Power of attorney dated 28.1.1987 was cancelled on 02.02.1987.
Therefore, no reliance could be placed on Exhibit-DX dated 02.06.1987.
The evidence of PW4-Sub-Registrar, is referred to wherein he has
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admitted that it was not clear from the endorsement on the sale deed as
to by whom Defendant No.2 was identified to be the power of attorney.
It is further found that it is evident from the language of Section 18 of
the Registration Act that it was necessary for the Registering Authority
to see the true copy of the special power of attorney. In view of the
cancellation of the original power of attorney which was cancelled on
02.02.1987, the same could not be relied upon by the Registering Authority
for the purpose of execution of the sale deed. The evidence of PW6 is
relied upon to find that at time of the cancellation of the power of attorney,
Defendant No.1 was present. This implied that Defendant No.1 was
aware of the cancellation. In the written statement, it is noted that the
stand of second defendant was that the power of attorney had been
misplaced. The High Court proceeded to set aside the findings of the
courts below and decreed the suit by declaring the plaintiff as the owner
in possession of the land and the mutation showing the sale in favour of
the First Defendant was declared null and void.
THE SUBMISSIONS OF THE Ist DEFENDANT/
APPELLANT
10. The High Court has clearly erred in exercising jurisdiction
under Section 100 of the Code of Civil Procedure, 1908 (hereinafter
referred to as 'the CPC', for short). The substantial questions of law
were purely factual. The terms of the power of attorney would show
that the case of the plaintiff that the consideration was settled at
Rs.55,000/-, was incorrect. It is further contended that it is an admitted
fact that Defendant No.1 was put in possession on the execution of the
sale deed and Defendant No.1 has been found by trial court to be in
possession. The power of attorney which was registered, could have
been cancelled only by a registered document. In this regard, we drew
support from the judgment of the Allahabad High Court in Daya Shanker
& Ors. v. Rajendra Kumar & Ors.1 . He also sought support from
judgment of the Madras High Court (Madurai Bench) dated 11.12.2019
in Second Appeal No. (MD) 652 of 2015. The first defendant would
contend that the registration of a document brings it in public domain and
the registered document must be cancelled by the same means. It cannot
be permitted to be cancelled in secrecy. He relied on Ratilal Nathubhai
& Anr. v. Rasiklal Maganlal & Ors.2 Sections 32(a) of the Registration
1 (2016) 118 ALR 62
2 AIR 1950 Bom. 326
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Act, 1908 (hereinafter referred to as 'the Act', for short) contemplates
a situation where a power of attorney holder is authorised to execute a
sale deed. In this case, under the power of attorney executed by the
plaintiff, the second defendant was competent to execute the sale deed
and he could, therefore, present it for registration. In this regard, he
drew support from the judgment of this Court in Rajni Tandon v. Dulal
Ranjan Ghosh Dastidar and Another3 (2009) 14 SCC 782. The
appellant also points to the relief sought in the plaint and the court fees to
be paid being Rs.19.50, which was the court fees paid for injunction
simplicitor only. The plaintiff never sought cancellation of the sale deed
nor recovery of possession. The appellant relied on judgment of this
Court in Anathula Sudhakar v. T. Buchi Reddy (dead) by LRs &
Ors.4 and Madhukar Vishwanath v. Madhao & Ors.5, in this regard.
THE SUBMISSIONS OF THE PLAINTIFF
11. The High Court was justified in interfering under Section 100
of the CPC. The High Court rightly found it necessary that the First
Appellate Court should have discussed the evidence after formulating
the points for determination under Order XLI Rule 31 of CPC. It is
further contended that there was fraud and collusion and to the knowledge
of both the defendants, the power of attorney stood withdrawn. Nonconsideration of relevant evidence justified the High Court in interfering
under Section 100 of the CPC. Construction of a document of title or of
a document which was foundation of a right, raised a question of law. In
cases of extreme perversity, the High Court can interfere under Section
100. Referring to Sections 32, 33 and 34 of the Registration Act, it is
contended that improper presentation of a document is not a mere defect.
The provisions are intended to prevent forgery and procurement of
conveyance by fraud or undue influence. Reliance was placed on
judgment of Privy Council in Jambu Parshad v. Muhammad Nawab
Aftab Ali Khan & Anr.6 and Ma Shwe Mya v. Maung Ho Hnaung7. It
is further contended that Section 33(4) clearly contemplates the original
power of attorney being produced at the time of presentation of the sale
deed. The original power of attorney was not produced in this case by
the second defendant. The original power of attorney was with the plaintiff
3 (2009) 14 SCC 782
4 (2008) 4 SCC 594
5 (1999) 9 SCC 446
6 AIR 1914 PC 16
7 AIR 1922 PC 359
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and he has produced the same which was marked as Exhibit-P2. It was
surrendered by the second defendant. The evidence of PW6 is relied
upon. The case of the first Defendant that he was a bonafide purchaser,
was a false pretence. After the cancellation of the power of attorney,
the entire procedure of making an application by the second defendant
for a copy, its preparation and receipt, shows fraud and collusion between
the Defendants and the Sub-Registrar (PW4) and officials of the
Registering Authority. The plaintiff took us through the deposition to
demonstrate the falsity of the Defendant's case. There was an oral
agreement between the plaintiff and the first defendant to sell and
purchase, respectively, the property at Rs.55,000/-. The plaintiff was
not paid Rs.10,000/- as claimed by the first defendant. Finding that the
first defendant will not be able to raise Rs.55,000/-, the second defendant
surrendered the power of attorney on 02.02.1987. The plaintiff has not
received any amount from the first defendant or the second defendant.
There is no equity in the case of first defendant. To do complete justice,
the impugned judgment must be upheld.
ANALYSIS
A BRIEF SURVEY OF THE REGISTRATION ACT.
12. We must make a survey of the relevant provisions of the
Registration Act. Section 17 deals with the documents which are
compulsorily to be registered. The consequences of a compulsorily
registrable document not being registered are spelt out in Section 49 of
the Act. Section 18 deals with documents, which are optionally registrable.
In other words, they are documents, which do not attract the wrath of
Section 49 of the Act. In the state of Himachal Pradesh from where this
case arises, Section 18A has been inserted (vide Vide Himachal Pradesh
Act 2 of 1969, s. 3). It reads as follows:
"18-A. Documents for registration to be accompanied by a
true copy.- Notwithstanding anything contained in this Act, the
registering officer shall refuse to register any document presented
to him for registration unless such document is accompanied by a
true copy thereof."
13. The argument of the first defendant, based on Section 18A, is
as follows:
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Section 18A contemplates the production of the certified copy of
the power of attorney and therefore the production of the certified copy
of the power of attorney along with the original of the sale deed, was
fully justified. The High Court, in the impugned judgment, has referred
to Section 18 (apparently Section 18A) and held that it is evident from
the said provision that it was necessary for the Registering Authority to
see the true copy of the special power of attorney.
IMPACT OF SECTION 18A
14. What Section 18A contemplates is the production of a true
copy of a document, which is sought to be got registered. The document,
which is sought to be registered in this case was the sale deed executed
by the second defendant in favour of the first defendant. We are not
called upon to decide the case that the true copy of the sale deed was
not produced.
15. In fact, our view finds support from the Statement of Objects and
Reasons to be found in the Indian Registration (Punjab Amendment Bill),
1961. Section 18A was first introduced in Punjab and it, is thereafter, that it
was also made applicable in respect of the State of Himachal Pradesh. The
Statement of Objects and Reasons to the Punjab Bill reads as follows:
"According to section 52(1)(c) of the Indian Registration Act,
1908, all documents registerable under the Act, are copied in the
relevant Bahis before they are returned to the executant. It takes
a considerable time to copy out these documents in the relevant
Bahis and the delay causes considerable loss to the litigant people.
Similarly, there is no check on the writing of deeds and
to give relief to the public on these two accounts. Applications under
this Act, and also on the fees charged by deed-writers. Often, people
with little. experience and knowledge of the laws on Stamp Registration
are. writing out these documents at very high rates. This Bill seeks to
give relief to the public on these two accounts."
16. It is, therefore, clear that the true copy of the document presented
for registration is to be produced under Section 18A. It is only to avoid the
delay resulting from having to copy the document, that Section 18A was
inserted.
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THE OTHER PROVISIONS
17.