A Supreme Court Bench of Justice MR Shah and Justice BV Nagarathna has heard a matter pertaining to the requirement of establishing the validity of a power of attorney in order to establish the validity of a sale deed. The Bench has issued a split verdict in the matter. Justice MR Shah allowed the appeal, while Justice BV Nagarathna dismissed it.

Senior Advocate Rana Mukherjee appeared for the Appellants, while Counsel Hrishikesh Baruah appeared for the Original Plaintiffs.

Facts:

In this case, it was alleged that the owner and possessor of "Schedule A" property had taken a loan of Rs 10,000 from his tenant (original plaintiff No. 2) . Subsequently, he went to East Pakistan and executed a Power of Attorney in favour of original plaintiff No. 2 to enable repayment of the alleged loan amount by sale of the subject land to himself. Thereafter, original plaintiff No. 2 transferred "Schedule A" property to his wife (Original plaintiff No.1), allegedly for repayment of a sum of Rs. 20,000/- taken by him from her.

Original plaintiff No. 2 allegedly constructed a godown at the rear end of the grocery shop in another part of "Schedule A" property ("Schedule C" property).

It was the case on behalf of the plaintiffs that original defendant No.1 tried to dispossess the plaintiffs from the said Schedule C" property.

It was the case on behalf of the defendants that their predecessor-in-interest held out that original defendant No. 1 was in possession of the suit land for more than thirty years and was running a business from the said property, while denying that the plaintiffs had acquired any right, title or interest as claimed over the suit land. The original defendants also claimed to be in peaceful possession of the property for over forty years and it was their case that they were paying the municipal taxes and land revenue and other statutory dues. The plaintiffs alleged that the defendants had started a pucca construction on ‘Schedule C’ property and forcibly dispossessed them from the said property.

Subsequently, the plaintiffs approached the law.

Justice MR Shah's Judgment:

Justice MR Shah noted that "The original PoA is not produced on record. As per Section 32 of the Registration Act, every document to be registered under the Registration Act shall be presented at the proper registration office by some person executing or claiming under the same, or, by the agent of such a person, representative or assign, duly authorised by PoA executed and authenticated in the manner mentioned in Section 33(1)(c) of the Registration Act."

In the same context, he further observed that "Only in a case where the execution of the PoA is as per Section 32 read with Section 33(1)(c) of the Act, there shall be statutory presumption under Section 60 and/or under the provisions of the Registration Act."

On the conduct of the plaintiffs, he noted that "the plaintiff no.2 is claiming title on the basis of the PoA alleged to have been executed by the original owner which is not forthcoming and that plaintiff no.1 is claiming the title on the basis of the sale deed executed by plaintiff No.2 as a PoA holder of the original owner which is not forthcoming".

Resultantly, he allowed the appeal, and no orders were passed as to costs.

Justice BV Nagarathna's Judgment:

Justice BV Nagarathna observed that "In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law."

She also held that the non- production of the power of attorney in the suit was also not fatal to the case of the plaintiffs. In that regard, she placed reliance on the case of Amar Nath vs. Gian Chand and Anr, and observed that "production of the original power of attorney is not an indispensable requirement to establish the validly of execution of a sale deed. It would therefore follow that production of a power of attorney is not a necessary requirement to prove a sale deed before a court of law executed through a power of attorney."

Further, she noted that there was no reason to disbelieve that the recitals contained in the registered sale deed merely on the ground that the document conferring power of attorney in favour of plaintiff no. 2 was not produced before the Trial Court.

Consequently, she dismissed the appeal and parties were directed to bear their respective costs.

Cause Title: Manik Majumder and Others v. Dipak Kumar Saha (Dead) through Lrs. & Others

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Power of AttorneySale DeedJustice MR ShahJustice BV Nagarathna

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