AMAR NATH vs GIAN CHAND - Supreme Court Case 2022

AMAR NATH vs GIAN CHAND - Supreme Court Case 2022 - 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5797 OF 2009
AMAR NATH … APPELLANT(S)
VERSUS
GIAN CHAND AND ANR. … RESPONDENT(S)
J U D G M E N T
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. 
2
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, 
3
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 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 
4
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 
5
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 
6
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 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;
7
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 
8
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 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 
9
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 I
st
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 
10
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,
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 
11
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 
12
reliance could be placed on Exhibit-DX dated
02.06.1987. The evidence of PW4-Sub-Registrar, is
referred to wherein he has 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 
13
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 
14
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 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,
1
(2016) 118 ALR 62
2 AIR 1950 Bom. 326
3
(2009) 14 SCC 782
15
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. Non-consideration 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
4
(2008) 4 SCC 594
5
(1999) 9 SCC 446
16
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 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
6 AIR 1914 PC 16
7 AIR 1922 PC 359
17
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.
18
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:
19
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 
20
(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.
THE OTHER PROVISIONS
17. The argument of the plaintiff would appear to be
that it is imperative, having regard to Sections 32 and 
21
33 of the Act, that the original power of attorney
should be produced. In view of this, we consider it
necessary to advert to Sections 32 and 33 of the Act,
which read as follows:
“32. Persons to present documents for
registration
`Except in the cases mentioned in sections
31, 88 and 89 every document to be
registered under this Act, whether such
registration be compulsory or optional,
shall be presented at the proper
registration office-
(a) by some person executing or claiming
under the same, or, in the case of a copy
of a decree or order, claiming under the
decree or order, or
(b) by the representative or assignee of
such a person, or
(c) by the agent of such a person,
representative or assign, duly authorised by
power-of-attorney executed and
authenticated in manner hereinafter
mentioned.”
33. Power-of-attorney recognisable for
purposes of section 32
(1) For the purposes of section 32, the
following powers-of-attorney shall alone be
recognised, namely:-
(a) if the principal at the time of
executing the power-of-attorney resides in
any part of India in which this Act is for
the time being in force, a power-of-attorney 
22
executed before and authenticated by the
Registrar or Sub-Registrar within whose
district or sub-district the principal
resides;
(b) if the principal at the time aforesaid
resides in any part of India in which this
Act is not in force, a power-of-attorney
executed before and authenticated by any
Magistrate;
(c) if the principal at the time aforesaid
does not reside in India, a power-ofattorney executed before and authenticated
by Notary Public, or any court, Judge,
Magistrate, Indian Consul or vice-consul, or
representative of the Central Government:
PROVIDED that the following persons shall
not be required to attend at any
registration-office or court for the purpose
of executing any such power-of-attorney as
is mentioned in clauses (a) and (b) of this
section, namely-
(i) persons who by reason of bodily
infirmity are unable without risk or serious
inconvenience so to attend;
(ii) persons who are in jail under civil or
criminal process; and
(iii) persons exempt by law from personal
appearance in court.
Explanation: In this sub-section "India"
means India, as defined in clause (28) of
section 3 of the General Clauses Act, 1897.]
Section 33 (2) In the case of every such
person the Registrar or Sub-Registrar or
Magistrate, as the case may be, if satisfied
that the power-of-attorney has been
voluntarily executed by the person
purporting to be the principal, may attest 
23
the same without requiring his personal
attendance at the office or court aforesaid.
Section 33 (3) To obtain evidence as to the
voluntary nature of the execution, the
Registrar or Sub-Registrar or Magistrate may
either himself go to the house of the person
purporting to be the principal, or to the
jail in which he is confined, and examine
him, or issue a commission for his
examination.
Section 33 (4) Any power-of-attorney
mentioned in this section may be proved by
the production of it without further proof
when it purports on the face of it to have
been executed before and authenticated by
the person or court hereinbefore mentioned
in that behalf.”
18. We also consider it necessary to refer to Section
34 of the Act. It reads as follows:
“34. Enquiry before registration by
registering officer.—(l) Subject to the
provisions contained in this Part and in
sections 41, 43, 45, 69, 75, 77, 88 and 89,
no document shall be registered under this
Act, unless the persons executing such
document, or their representatives, assigns
or agents authorized as aforesaid, appear
before the registering officer within the
time allowed for presentation under sections
23, 24, 25 and 26: Provided that, if owing
to urgent necessity or unavoidable accident
all such persons do not so appear, the
Registrar, in cases where the delay in
appearing does not exceed four months, may
direct that on payment of a fine not
exceeding ten times the amount of the proper
registration fee, in addition to the fine, 
24
if any, payable under section 25, the
document may be registered.
(2) Appearances under sub-section (1) may be
simultaneous or at different times.
(3) The registering officer shall
thereupon—
(a) enquire whether or not such
document was executed by the persons by
whom it purports to have been executed;
(b) satisfy himself as to the identity
of the persons appearing before him and
alleging that they have executed the
document; and
(c) in the case of any person appearing
as a representative, assign or agent,
satisfy himself of the right of such
person so to appear.
(4) Any application for a direction under
the proviso to sub-section (1) may be lodged
with a Sub-Registrar, who shall forthwith
forward it to the Registrar to whom he is
subordinate.
(5) Nothing in this section applies to
copies of decrees or orders.
19. The argument of the plaintiff that for a proper
and legal presentation of a document, the first
defendant was obliged to produce the original power of
attorney, does not appear to be sound. In fact, the
matter itself is not res integra. This Court in Rajni
Tandon v. Dulal Ranjan Ghosh Dastidar and another
(supra), held, inter alia, as follows:
25
“19. In view of the aforesaid situation,
the issue that falls for our consideration
is whether a person who executes a document
under the terms of the power of attorney,
is, insofar as the registration office is
concerned, the actual executant of the
document and is entitled under Section 32(a)
to present it for registration and get it
registered.
21. Section 32 deals with persons who are
eligible to present documents for
registration before the proper registration
office. Section 32 specifies three
categories of persons who can present
documents for registration. The use of the
word “or” between the clauses of Section 32
demonstrates that the legislature intended
the said clauses to be read disjunctively
and not conjunctively. It is settled law
that the use of the word “or” is used to
signify the disjunctive nature of a
provision. In this regard reference may be
made to the decision of this Court in State
of Orissa v. State of A.P. [(2006) 9 SCC
591]
22. Clause (a) of Section 32 specifies
that a document can be presented for
registration by:
(i) by the person executing the document;
(ii) any person claiming under the
document presented for registration; and
26
(iii) in the case the said document is a
copy of a decree or order, any person
claiming under the decree or order.
Clauses (b) and (c) deal with cases where
the document is presented not by any person
mentioned in (i), (ii) and (iii) above but
by their agent, representative or assign.
This is so because the use of the words “such
person” in clauses (b) and (c) can be
understood to mean only persons as referred
to in (i), (ii) and (iii) above.
23. It may also be mentioned herein that
the scope of clauses (b) and (c) in Section
32 may to an extent overlap one another.
However, we do not propose to deal with the
same as it is not relevant for determination
of the issue before us. It is suffice to say
that insofar as clause (c) of Section 32 is
concerned the agents, representatives or
assigns of the persons referred to in (i),
(ii) and (iii) above can present the said
document for registration only if they are
duly authorised by the power of attorney
executed and authenticated in the manner
hereinafter mentioned.
24. The words “executed and authenticated
in manner hereinafter mentioned” in Section
32(c) would mean the procedure specified in
Section 33. This is clear from the opening
words of Section 33 which reads “for the
purposes of Section 32, the following power
of attorney shall alone be recognised”.
Section 32 refers to documents presented for
registration by a holder of “power of
attorney” in clause (c) and it therefore 
27
follows that the procedure specified under
Section 33 would be attracted where a
document is presented by a person holding
“powers of attorney” of the persons
mentioned in clause (a) of Section 32.
25. The aforesaid position makes it
explicitly clear that Section 32 of the Act
requires the documents sought to be
registered, to be presented, inter alia by
the person executing it. In other words, the
said expression requires presence of the
actual person executing the document. The
basic principle underlying this provision of
the Act is to get before the Sub-Registrar
the actual executant who, in fact, executes
the document in question. In fact, the ratio
of the decision in Ram Gopal [AIR 1960 Punj
226] has laid down a similar proposition on
the conjoint reading of Section 32 and
Section 33 of the Act and after referring
to all the judgments noted hereinbefore.
Same view has been expressed earlier by the
Bombay High Court in Ratilal
Nathubhai v. Rasiklal Maganlal [AIR 1950
Bom 326].
26. It is important to bear in mind that
one of the categories of persons who are
eligible to present documents before the
registration office in terms of Section 32
of the Act is the “person executing” the
document. The expression “person executing”
used in Section 32 of the Act, can only refer
to the person who actually signs or marks
the document in token of execution, whether
for himself or on behalf of some other
person. Thus, “person executing” as used in 
28
Section 32(a) of the Act signifies the
person actually executing the document and
includes a principal who executes by means
of an agent. Where a person holds a power
of attorney which authorises him to execute
a document as agent for someone else, and
he executes a document under the terms of
the power of attorney, he is, so far as the
registration office is concerned, the actual
executant of the document and is entitled
under Section 32(a) to present it for
registration and get it registered.
28. In the facts of the present case, it
is quite clear that Indra Kumar Halani, was
given the full authority by Nandlal Tantia
under the power of attorney to transfer the
suit property and to execute the necessary
document. It is an accepted position that
the said document had been executed by Indra
Kumar Halani in the name and on behalf of
Nandlal Tantia thereof. Therefore, for the
purposes of registration office under
Section 32(a) of the Act Indra Kumar Halani
is clearly the “person executing” the
document. Therefore, it follows that the
said sale deed which was executed and
authenticated by Indra Kumar Halani could
be presented for registration by him. We are
of the considered view that Indra Kumar
Halani acted in the aforesaid manner
mandated under Section 32(a) of the Act.
29. The object of registration is
designed to guard against fraud by obtaining
a contemporaneous publication and an
unimpeachable record of each document. The
instant case is one where no allegation of 
29
fraud has been raised. In view thereof the
duty cast on the registering officer under
Section 32 of the Act was only to satisfy
himself that the document was executed by
the person by whom it purports to have been
signed. The Registrar upon being so
satisfied and upon being presented with a
document to be registered had to proceed
with the registration of the same.”
20. In other words, 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 
30
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 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 
31
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.
21. It is no doubt true that presentation is not a
matter of form. Without a valid presentation of the
document, the registration would be illegal. In this 
32
regard, the observations of the Privy Council in
judgment reported in Jambu Prasad v. Muhammad Aftab Ali
Khan and others8 may be noticed.
“Para 8. It was decided, and as their Lordships
considered correctly, by Sir John Stanley, C.J. and Sir
George Knox, J. in 1966 in Ishri Prasad v. Baijnath 28A.
707 : 3 A.L.J. 743 : A.W.N. (1906) 195 that the terms of
Sections 32 and 33 of Act III of 1877 are imperative,
and that a presentation of a document for registration
by an agent, in that case the agent of a vendee of
Immovable property, who has not been duly authorised in
accordance with those sections, does not give to the
Registering Officer the indispensable foundation of his
authority to register the document. As those learned
Judges said:
His (the Sub-Registrar’s) jurisdiction only comes into
force if and when a document is presented to him in
accordance with law.
Para 11. One object of Sections 32, 33, 34 and 35 of Act
III of 1877 was to make it difficult for persons to
commit frauds by means of registration under the Act.”
However, in the facts, the IInd defendant having
presented the sale deed as executant, the presentation
and registration cannot be questioned.
22. Section 34 provides for the inquiry to be done by
the Registering Office before he orders registration.
8 AIR 1914 PC 16
33
It declares that no document shall be registered under
the Act unless the persons executing such document or
their representatives, assigns or agents authorised as
aforesaid, appear before the Registering Authority
before the time, allowed for presentation under
Sections 23, 24, 25 and 26. This is, however, subject
to Sections 41, 43, 45, 69, 75, 77, 83 and 89.
Appearances under Section 34(1) may be simultaneous or
at different times. Section 34(3)(a) enjoins upon the
Registering Officer to enquire whether or not such
document was executed by the persons by whom it
purports to have been executed. Section 34(3)(b)
further makes it his duty to satisfy himself as to the
identity of a person’s appearing before him and
alleging that they have executed the document. It must
be understood and read along with Section 32(a).
Section 32(a) mandates presentation of the document for
registration by some person executing or claiming under
the same, inter alia. In respect of a person who
presents the document, who claims to have executed the
document, not only is he entitled to present the
document for registration, in the inquiry under Section 
34
34(3)(a) and 3(b), the duty of the Registering Officer
extends only to enquire and find that such person is
the person who has executed the document he has
presented and further be satisfied about the identity
of the person. When it comes to Section 34(3)(c), the
Registering Officer is duty-bound in respect of any
person appearing as a representative, assign or agent
to satisfy himself of a right of such a person to so
appear. Section 34(3)(c) is relatable to persons
covered by Section 32(b) and 32(c) of the Act. We have
already found that the word ‘agent’ is to be understood
as a person who is authorised to present the document
for registration. Such an agent would fall under
Section 32(c). Thus, in regard to persons falling in
Section 34(3)(c), it would, indeed, be incumbent on the
agent, inter alia, to produce the power of attorney as
such.
23. Section 33(4) of the Act must be read with Section
4 of the Power of Attorney Act, 1882. Section 33(4)
reads as follows:
“33(4) Any power-of-attorney mentioned in
this section may be proved by the production
of it without further proof when it purports 
35
on the face of it to have been executed
before and authenticated by the person or
Court hereinbefore mentioned in that
behalf.”
24. Sections 4(a) and (b) of the Power of Attorney Act,
1882 reads as follows:
“4. Deposit of original instruments creating
powers-of-attorney. — (a) An instrument
creating a power-of-attorney, its execution
being verified by affidavit, statutory
declaration or other sufficient evidence,
may, with the affidavit or declaration, if
any, be deposited in the High Court 9 [or
District Court] within the local limits of
whose jurisdiction the instrument may be.
(b) A separate file of instruments so
deposited shall be kept; and any person May
search that file, and inspect every
instrument so deposited; and a certified
copy thereof shall be delivered out to him
on request.”
25. For reasons, which we have 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 
36
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 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.
26. Section 35 of the Registration Act provides for
the procedure on admission or denial of execution. The
person, who has executed the document is to be asked
whether he accepts the execution of the document.
Section 35(2) reads as follows:
“35(2) The registering officer may, in order
to satisfy himself that the persons
appearing before him are the persons they
represent themselves to be, or for any other
purpose contemplated by this Act, examine
any one present in his office.”
27. This provision gives authority to the Registering
Authority to satisfy himself that the persons appearing
before him are the persons they represent to be or for
37
any other purpose contemplated under the Act. Towards
this end, Registering Officer can examine anyone
present in his Office. Section 35(3) reads as follows:
“(3) (a) If any person by whom the document
purports to be executed denies its
execution, or
(b) if any such person appears to the
registering officer to be a minor, an idiot
or a lunatic, or
(c) if any person by whom the document
purports to be executed is dead, and his
representative or assign denies its
execution, the registering officer shall
refuse to register the document as to the
person so denying, appearing or dead:
Provided that, where such officer is a
Registrar, he shall follow the procedure
prescribed in Part XII: 50 [Provided further
that the 51 [State Government] may, by
notification in the 52 [Official Gazette],
declare that any Sub-Registrar named in the
notification shall, in respect of documents
the execution of which is denied, be deemed
to be a Registrar for the purposes of this
sub-section and of Part XII.]”
28. Thus, the aforesaid provision deals with
situations in which the Registering Authority refuses
the registration. If the registering Authority is
satisfied about the identity of the person and that he
admits the execution of the document, it may not be a 
38
part of the Registrar’s duty to enquire further. The
registration by itself will not bring the curtains down
on questions relating to title to the property. The
very purport of the Law of Registration is to usher in
and maintain a transparent system of maintaining
documents relating to property rights. It puts the
world on notice about certain transactions which are
compulsorily registrable Section 17 interalia. The law
also makes available facility of registering documents
at the option of the person (Section 18).
29. Section 57 of the Act provides for keeping Books
No. 1 and 2 and the Index relating to Book No.1 open
for inspection to any person applying to inspect the
same. Book No.1, it must be noticed, as provided in
Section 51, is a register of non-testamentary documents
relating to immovable property. Book No.2 is a record
of reasons for refusal to register.
30. Section 58 of the Act deals with the procedure on
admitting a document to registration.
“58. Particulars to be endorsed on documents
admitted to registration. —(l) On every
document admitted to registration, other
than a copy of a decree or order, or a copy 
39
sent to a registering officer under section
89, there shall be endorsed from time to
time the following particulars, namely: —
(a) the signature and addition of every
person admitting the execution of the
document, and, if such execution has
been admitted by the representative,
assign or agent of any person, the
signature and addition of such
representative, assign or agent;
(b) the signature and addition of every
person examined in reference to such
document under any of the provisions of
this Act; and
(c) any payment of money or delivery of
goods made in the presence of the
registering officer in reference to the
execution of the document, and any
admission of receipt of consideration,
in whole or in part, made in his
presence in reference to such
execution.
(2) If any person admitting the execution
of a document refuses to endorse the same,
the registering officer shall nevertheless
register it, but shall at the same time
endorse a note of such refusal. State
Amendments Tamil Nadu: In section 58, —
(i) in sub-section (1), after item (a),
the following item shall be inserted,
namely:— “(aa) in the case of a document
for sale of property, the signature and
addition of every person admitting the
claim under such document, and, if such
claim has been admitted by the
representative, assign or agent of any
person, the signature and addition of
such representative, assign or agent;”;
40
(ii) in sub-section (2), after the
expression “execution of a document”,
the expression “and in the case of a
document for sale of property, any
person admitting the execution of such
document, or any person admitting the
claim under that document” shall be
inserted. [Vide Tamil Nadu Act 28 of
2000].”
31. Section 71 provides for reasons for refusal to
register to be recorded. Section 72 provides for an
appeal to the Registrar against an Order of the SubRegistrar refusing to register. Section 77 contemplates
a Suit against refusal by the Registrar within 30 days
of his Order.
32. On an analysis of the provisions, we have no
hesitation in rejecting the argument of the plaintiff
that the non-production of the original power of
attorney by the second defendant, was fatal to a valid
registration being effected. 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 
41
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.
33. Admittedly, the plaintiff was the owner in
possession of the property. It cannot be disputed that
plaintiff entered into an agreement with the first
defendant to sell the property. What is disputed is the
price. On the one hand, the plaintiff contends that the
price was fixed at Rs.55,000/-. The defendants dispute
the said version. According to them, the property was
conveyed by the second defendant acting as the power
of attorney holder on behalf of the plaintiff in favour
of the first defendant for a total consideration of
Rs.30,000/-. The execution of power of attorney dated
28.01.1987, by the plaintiff in favour of the second
defendant is not in dispute. It is worthwhile to notice
the contents of the power of attorney: 
42
“Special Power Of Attorney
Stamp Paper Value Rs.5/- No. 1
I, Gian Chand age 35 years S/o Bhagwan
Dass S/o Jawahar is R/o Village Dhangota,
Tappa Dhatwal, Tehsil- Barsar who is owner
in possession of land in Tika Barsar Tappa
Panjgran Tehsil Barsar comprising Khasra No.
361 measuring 2k-lOm.
I an owner in possession of land. I want to
sell this land through sale deed because I
cannot, due to service, effect this task.
Therefore, through his statement on behalf
of me, appoint Sh. Yash Pal Singh S/o Sh
Gian Singh R/o Bath Patialan, Tappa Dhatwal,
Tehsil Barsar, District Hamirpur, as my
Special Power of Attorney and I authorize
him that he may sell the above said land to
whoever he wants to, and at whatever price,
prepare sale deed and produce before Sub
Registrar, give statement, receive
requisite amount. Thereafter above
mentioned land may got mutated in the name
of Vendee, got attested. I will accept
whatever is done by the attorney.
Therefore, being conscious and knowing I
write the Special Power of Attorney for
proof.
Albad
Sh. Gian Chand
Sd/- “
34. The said power of attorney is dated 28.01.1987.
The second defendant has executed the sale deed in
favour of the first defendant on the strength of the
power of attorney dated 28.01.1987 on 28.04.1987. The
contention of the plaintiff, however, is that the 
43
original power of attorney was surrendered by the
second defendant to the plaintiff on 02.02.1987. It is
the further case of the plaintiff that on 02.02.1987,
he cancelled the power of attorney, which was within
the knowledge of the first and the second Defendant.
The further case of the plaintiff is based on P1 dated
31.01.1987, which is described as an agreement. It is
profitable to refer to the same:
“AGREEMENT
I, Yash Pal Singh son of Gian Singh, am a
resident of village Balh PatialanTappa
Dhatwal, Tehsil — Barsar, District —
Hamirpur and I have been appointed vide
registered Special Power of Attorney dated
28/01/1987 in respect of sale of land
bearing Khasara No. 361 situated in Tikka
Barsar by Gian Chand son of Bhagwan Dass
resident of village — Dhangota Tappa
Dhatwal, Tehsil — Barsar. I on behalf of
Gian Chand made a deal to sell the aforesaid
land measuring 2 Kanal 10 Marla to Amar Nath
son of Bhakshi Ram of Mehre for 55,000/-
(Rupees Fifty Five Thousand). Amar Nath did
not have the total consideration amount to
pay and he wanted a week's time to arrange
the money. For this reason, Gian Chand
appointed me as a Special Power of Attorney
because Gian Chand had urgently to go to
Kinnaur. Therefore, 1, now, would be able
to sell this land only for 55,000/-(Rupees
Fifty Five Thousand) otherwise I would be
unable to sell. Therefore I write this 
44
agreement so that it can be used when
required.
Writer Yashpal Singh Witness
Sd/- Sd/- Sd/-
Nikka Ram Dev Raj
S/o Shri Setu Ram S/o Shri Chhangnia
 Ram
V+P.O. - Ghangot, Tehsil — Barsar V+P.O. —
Ghangot, Tehsil — Barsar District — Hamirpur
District — Hamirpur 30/01/1987”
35. According to the plaintiff, on the basis of the
agreement to sell the property for Rs.55,000/-, the
second defendant, who has given the power of attorney
on 28.01.1987, was empowered to sell the property for
a price of Rs.55,000/- only. It is thereafter that on
02.02.1987, on account of the default of the first
defendant to raise the amount of Rs.55,000/-, the
second defendant allegedly surrendered the power of
attorney to the plaintiff. The power of attorney was
cancelled.
A LOOK AT THE EVIDENCE
36. PW1, who is the plaintiff, has, inter alia, deposed
as follows:
45
P1 agreement was written and given to PW1 by
the second defendant. It was read over to him in
his presence and the second defendant accepted its
correctness and signed it. It was told that the
property will not be sold for less than rupees
fifty-five thousand. He has executed the Special
Power of Attorney in favour of the second
defendant. Later, the purchaser (not clear) told
him that he would get the registry done after the
2
nd or 7th of February. PW1 came to Mehre on
02.02.1987 but the purchaser (not clear), it is
stated, could not arrange for money. On the same
day, the second defendant returned the power of
attorney and the power of attorney was cut and was
cancelled on that date by writing the word
‘cancelled’ by PW1 on asking by the second
defendant. The power of attorney was in his
possession. Defendant No.2 applied in court for
obtaining the power of attorney and obtained a copy
on the same day. PW1 did not know of the registry,
which was made and it was made/executed by deceit
and he did not get any money. He tried to contact 
46
the second defendant and he told him that he was
in need of money and he had sold the land. After
that, he caused P3-Lawyer’s Legal Notice.
Defendant No.1 was aware of the cancellation of
the power of attorney and that the property was in
his possession. In cross-examination, he has
admitted to DX being scribed by his friend at his
instance and it being duly signed by him. Where he
had written Power of Attorney -cancelled, it is
signed by him. He cancelled Power of Attorney at
Mehre. He admits that there itself, the Office of
the Sub-Registrar was situated. He did not cancel
the power of attorney through the Sub-Registrar
Office. PW1 further admits that he did not send
any notice of cancellation. He remained on leave
from 26.01.1987 to 02.02.1987. He denied Defendant
No.1 had given any money to his wife. There was no
talk regarding money. He denies them having
received Rs.10,000/-. He had purchased a land for
Rs.15,000/- in 1982. He learnt about sale of the
land on 02.06.1987. He did not send any notice on
02.06.1987. Defendant No.1 was not present when 
47
they decided that the land will not be sold for
less than Rs.55,000/-. Even P1 was not scribed in
the presence of Defendant No.1. When the Power
Attorney was cancelled the Defendants and one Nikka
Ram were present. He then says Nikka Ram is a
resident of Ghangot and he did not know him. He
denies the suggestion that Nikka Ram is the brother
of Ram Das, whose son, he admits has married his
sister. The property is banjar.
37. PW2 is one Kishori Lal, who has produced the
summoned record, of which, P-4 is a copy. He has stated
that he knows the Second Defendant and he can recognise
his handwriting.
38. PW3 is one Ram Lal, working as a Deed Writer at
Barsar. He has scribed the sale deed (P-3/A). The
second defendant is his nephew. At the time of scribing
the document, he had with him copy of the Special Power
of Attorney.
39. PW4 is posted as the Sub-Registrar at Barsar since
1982. He knew the second defendant, who is a Deed
Writer. He had received Exhibit-P4-application. He 
48
recognises the handwriting of the second defendant. He
had written for the Office Report. P-5 was certified
by him. It is not necessary to enclose Special Power
of Attorney with the sale deed but it is for their
satisfaction that the power of attorney is given. He
was got identified by Bakshi Ram and is also known to
him. He deposed that he did not know of any requirement
of a production of the original power of attorney under
Sections 34 and 35 of the Registration Act and the
Manual. He has denied fabrication of the document in
collusion with the second defendant. In his crossexamination, PW4 has stated that on his asking, it was
apprised that the second defendant is plaintiff’s class
fellow. The original of P-4 was written by the second
defendant. It was after due diligence/inquiry that he
has ordered for the release of copy of the document.
He has further stated that second defendant has himself
verified/certified and identified as special power of
attorney. Rs.20,000/- were given in his presence to him
and Rs.10,000/- were confirmed to have been received
earlier at home.
49
40. PW-5 is one Vikram Kumar. He has stated that the
second defendant has confirmed to have received
Rs.30,000/-. The agreement was made at his shop at
03.00 p.m. He and one Kartar Singh had signed.
41. PW6 is one Dev Raj. He claims to be witness to P1, which has been signed by him. It was scribed/written
by Nikka Ram and the second defendant was the person
who got it written. It was read over to the second
defendant, who had thereafter signed. The land was
authorised to be sold for Rs.55,000/- and there was no
authority to sell it for lesser value. On 02.02.1987,
it was expressed in his presence that the land could
not be sold at the price and you take back the power
of attorney. Then, on two papers, the line was drawn.
At that time, first defendant was also there. In his
cross-examination, he has deposed that earlier to his
examination, he had deposed two times. He denied having
deposed as witness in many cases. He does not have any
relation of marriage-death with the plaintiff nor was
he from his village. He says on that day (it must be
on 02.02.1987), he had come to Mehre for purchasing
oil. P-1 was written at the place where all the Deed 
50
Writers sit at the Tehsil. He cannot give detail as to
who had met him on 30.01.1987 and 02.02.1987. The talk
on 02.02.1987 was on the courtyard of the Tehsil where
the Deed Writers sat. On 02.02.1987, he had gone there,
for photograph and for making certificate. Mehre is 6-
7 kilometres from Ghangot and Buhdi is 5 kilometres
away. He claims that while oil is available at Buhdi,
there was no photographer available. The suggestion
that he has deposed as witness in every case, is denied.
42. PW-7, one Kartar Singh, the other witness, has
deposed that the second defendant has confirmed payment
of Rs.30,000/-.
43. PW-8 is Nikka Ram. He admits that P-1 contained
his signatures and it was written by him at the instance
of second defendant. It was signed by the second
defendant and also by one Dev Raj, who is examined as
PW6. In cross-examination he has deposed that P-1 was
written at Mehre and there are Deed Writers at Mehre.
He had come to Mehre in connection with his work. Dev
Raj has also come there with him. He also admitted that
he has deposed as witness in two other cases.
51
44. DW1 is the first defendant/appellant. He had
purchased the property vide PW3/A. The deed for sale
was settled for Rs.30,000/- with the plaintiff. At the
time of agreement, Rs.10,000/- was paid to the
plaintiff in the presence of Roshanlal and the IInd
defendant. At the time of registration, Rs.20,000/- was
paid to the second defendant before the Sub-Registrar.
There was neither any agreement for the sale of land
for Rs.55,000/- nor had he agreed to such an amount.
He was in possession of the property. He states in
cross-examination that original registered power of
attorney was seen at the time of registry. The power
of attorney would have been presented before the SubRegistrar. The sale agreement was done at the shop of
Roshan Lal. There was no written agreement. He has
denied the claim that he had not paid Rs.10,000/-.
45. DW2 is Roshan Lal. He is the witness to the sale
deed. He deposed that the sale was for Rs.30,000/- and
that he and Bakshi Ram had signed. Rs.10,000/- was
earlier paid. But it was not paid in his presence and
Rs.20,000/- was given at the time of registration and
Rs.10,000/- had already been paid as advance. 
52
46. DW3 has been examined to establish that the
possession of the property was with the first
defendant. He has deposed on the said lines. He has
denied the possession of the plaintiff over the
property. He also, however, says that he does not know,
who is in possession of the disputed land (it is found
from the translation that the last five words are
undecipherable).
47. DW4 is the second defendant. He deposed that he
knew the plaintiff as student. He was appointed as the
power of attorney holder, at time plaintiff was at
Kinnaur. Plaintiff had posted a letter to him.
Plaintiff received Rs.10,000/- from the first defendant
at the shop of Roshan Lal. For the purpose of the sale
deed, he had scribed the sale deed for a total
consideration of Rs.30,000/-. He admits to having
received Rs.20,000/- from the first defendant before
the Sub-Registrar. He denies, however, having paid the
balance amount to the plaintiff. He also delivered
possession of the land to the first defendant in
furtherance of the sale. He has sold the land with the
consent of the plaintiff. In cross-examination, he, 
53
inter alia, stated that he received a registered letter
from the plaintiff. He does not know whether the
original of DX is with him. The original power of
attorney was not available with him, when the sale was
registered. It was misplaced. He claims that P2 was not
the same power of attorney, which was given to him but
cancelled and cuttings thereon, is (not clear) in my
hand. He denies having returned P2 (power of attorney)
back to the plaintiff and that he was left with no
authority to sell the land. He denies having signed P1
agreement. He had entered into the oral agreement with
the first defendant for the sale of land and had
received Rs.10,000/- but there was no written
agreement. The application for getting certified copy
of the power of attorney was given on the date when the
sale was to be registered because the power of attorney
had been misplaced. He is a Deed Writer since 1980. At
the time when Rs.10,000/- was received, the first
defendant and Roshan Lal were present. It is wrong to
say that on 16.08.1987, he had written a letter. His
license was cancelled by the Deputy Commissioner. He
states that it is wrong that he was accused of creating 
54
a fake document. He has paid Rs.20,000/- but he did not
remember as to when he paid Rs.20,000/-. He has stated
to have been paid the amount to the plaintiff’s wife
at her residence. The disputed land was fenced with
wires and angle iron later by the first defendant. He
has denied that he has not paid any money to the
plaintiff and the suggestion that he was paid
Rs.55,000/- by the first defendant. He has denied
having been given Rs.10,000/- by the first defendant.
He denies as wrong that he had got the sale registered
before the receipt of DX. He has further denied
plaintiff being in possession.
48. In our view, the High Court has overstepped its
limits by reappreciating the evidence, a task which
must be left to the First Appellate Court. It is true
that the First Appellate Court did not fully conform
to the requirements of Order XL1 Rule 31 of the CPC.
The property is banjar land. Quite clearly, the
plaintiff wanted to sell the land. He has admittedly
executed the Power of Attorney in favour of the second
defendant. A perusal of the power of attorney, which
is dated 28.01.1987, would reveal the following: 
55
Plaintiff has described himself as the owner
of possession of the land. He wanted to sell the
land through sale deed. Thereafter, it was stated
that he could not, due to service, effect this
task. Therefore, he appointed the second defendant
as the special power of attorney and authorised
him that he may sell the above land to whosoever
he wanted to and at whatever price, prepare the
sale deed, produce before the Sub-Registrar,
receive requisite amount, thereafter, the abovementioned may be got mutated in the name of the
vendee. The plaintiff has declared that he will
accept, whatever is done by the attorney.
49. According to the first defendant, he entered into
the agreement with the plaintiff. He has paid
Rs.10,000/- as advance. According to the plaintiff
also, there was an agreement with the first defendant
to sell the land. The consideration, however, was
Rs.55,000/-.
50. If, we now look into P-1, which is the alleged
agreement, which was executed by the Power of Attorney,
we may reconstruct the case of the plaintiff. Plaintiff 
56
had to leave the place in keeping with the exigencies
of the service. There was an agreement to sell in favour
of the first defendant. The property was agreed to be
sold for Rs.55,000/-. First Defendant was unable to
raise the amount. Therefore, the agreement dated
30.01.1987, was entered into and it refers to the power
of attorney dated 28.01.1987. The power of attorney is,
undoubtedly, registered. If the plaintiff’s case is
believed, P-1 agreement is executed by the second
defendant, which recites that he has been appointed as
the power of attorney. It is further recited that the
second defendant, on behalf of the plaintiff, has made
a deal to sell the property for Rs.55,000/-. It is
stated still further that the first defendant did not
have the total amount of consideration. He wanted a
weeks’ time to arrange the money. For this reason, it
is finally stated that the plaintiff had appointed him
as the power of attorney because the plaintiff had to
urgently go to Kinnaur. Finally, it is stated in P-1
that therefore, he would now be able to sell the land
only for Rs.55,000/-, otherwise, he would be unable to
sell. 
57
51. As far as Exhibit-P-1 is concerned, even PW1-the
plaintiff has deposed that first defendant was not
present when they decided that land will not be sold
for less than Rs.55,000/-. He further has deposed that
P1 agreement was not scribed in the presence of the
first defendant. In fact, even PW6 has not spoken about
the presence of the first defendant at the time of
making of Exhibit-P-1. What PW6 has spoken is about the
presence of the first defendant also on 02.02.1987,
when the power of attorney was purportedly cancelled.
52. Since, it is not disputed that the plaintiff did
execute the power of attorney, empowering the second
defendant to sell the property and it is further not
in dispute that the second defendant has executed the
sale deed in favour of the first defendant, 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 second defendant but also to the first
defendant. Section 201 of the Contract Act, dealing 
58
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
agent, respectively. Section 208, which deals with the
time when termination of the agent’s agency takes
effect, reads as follows:
“208. When termination of agent’s authority
takes effect as to agent, and as to third
persons.—The termination of the authority of
an agent does not, so far as regards the agent,
take effect before it becomes known to him, or,
so far as regards third persons, before it
becomes known to them. —The termination of the
authority of an agent does not, so far as
regards the agent, take effect before it
becomes known to him, or, so far as regards
third persons, before it becomes known to
them."”
59
53. We may notice the following view from Pollock and
Mulla, The Indian Contract and Specific Relief Acts, 14th
Edition:
“Termination not to Affect Third Parties
without Notice
Termination becomes effective only when it
comes to the knowledge of the affected party.
Even if the agent is aware of the revocation,
it does not affect third parties who in good
faith enter into contract with the agent
and in ignorance of the revocation; they
are protected; such provision is in interest
of commerce:9 Where the principal has
terminated the agency, or the agency has
been terminated by happening of events, the
principal continues to be bound by the
agent's act under the doctrine of apparent
authority, until the third parties have
notice of the termination.
Time from which Termination Operates
`Revocation by the act of the principal
takes effect as to the agent from the time
when the revocation is made known to him;
and as to third persons when it is made
known to them, and not before.'”
54. 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 
60
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. We
have already held that the production of original power of
attorney before the Registering Authority was unnecessary
for effecting registration of the sale deed. We take note
of the discrepancy emerging from the testimony and the
case set up by the parties.
55. However, what we would think, may help to resolve the
controversy is Exhibit-DX. This is a letter which was
admittedly, got scribed and dispatched by the plaintiff to
the second defendant. It is dated 02.06.1987, and reads as
follows:
61
“Dear Yashpal Ji Ex-Dx
Namaskar
Hoping you are well and the news is that I came
here 3-4 days back but could not come to you I
was here regarding the land. I have got
registry done and I am in dire need of money.
I had spoken to you regarding land at Mehre and
also gave you power of Attorney. You please
inform at the earliest if you can talk to
anyone or have talked to anyone then kindly
send the money because I am in dire need of
money.
I am sending this by registered post because
it is possible that You may not receive the
letter in the Court.
Thank You
You can respond on the address below:
(Dian Chand Dhiman)
Junior Engineer, IPH
Nagul Ski, District – Kinnaur”
56. PW1 has admitted, having sent the aforesaid letter.
The second defendant has sent a letter on 16.06.1987 and
it reads as follows:
“Barsar
Distt. Hamirpur
16-6-1987
“Dear Babu Gian Jee,
Namaskar,
62
I am quite well. I wish your well-being.
Further, it is stated in brief that your
registered AD letter has been received. And
you may have come to know that I as power
of attorney have made the sale deed of your
land. You might have been astonished to know
regarding this, but there is no need to
worry in this regard. I have done this job
in faith of friendship and for betterment.
In this regard I had talked at the shop of
Kanshi Ram-Sita Ram and talked to your
brother-in-law, Shopkeeper at Sohari. I
could not come to you with the reason
because my brother was ill at Nangal and
later on my wife fell ill. And I could not
send full payment to you till today due to
the reason that I had spent some amount from
this money. Therefore, I thought that until
the full amount is not paid then it would
not be fair. Besides you meet me, I could
not meet then get the information from the
shop of Kanshi Ram at Bus Stand Hamirpur.
Rest all is fine.
Yours
-sdYash Pal Singh,
Document Writer,
Barsar, Distt.
Hamirpur,
H.P.”
57. It is apparent that whatever may be the state of the
oral evidence and the difficulty in arriving at the truth
on an appreciation of the same, the documents which we
have adverted to, unerringly points to the following facts.
63
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 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.
58. 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 
64
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, in our view, would be fatal to the
plaintiff’s case that the plaintiff had cancelled the power
of attorney.
59. While on cancellation, we may notice that 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 
65
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, we find it 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 we could lend credence to the plaintiff’s
version in this regard that the second defendant
surrendered the power of attorney. We 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 we say 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 
66
notice of the third party at any rate as already noticed.
Such a cancellation is not made out.
60. 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.]
61. 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 
67
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.
62. 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.
63. The upshot of the above discussion is that the
impugned Judgment cannot be sustained. The appeal is 
68
therefore allowed and the impugned Judgment will stand set
aside. Parties to bear their respective costs.
………………………………………………………………………J.
 [ K.M JOSEPH ]
 ………………………………………………………………………J.
 [PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
JANUARY 28, 2022.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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