Supreme Court: Power Of Attorney Impliedly Revoked When Principal Acts Independent Of Agency With Knowledge To Agent & Third Parties

 A con-joint reading of Sections 201 and 207 of the Contract Act and especially the illustrations appended to these Sections, I am of the view that the principal viz., Thelma Cecelia Pereira was well within her right and authority to deal with the suit property, dehors the Power of Attorney and during its subsistence and the moment the settlement deed was executed by the principal herself, it resulted in an automatic implied termination of the Power of Attorney given to the power agent.(Emphasis supplied) {Para 27}

21. In the absence of a particular mode suggested for revocation of the authority of an agent, the manner adopted by the principal to revoke the authority of the agent must be one which clearly and unequivocally communicates to the parties i.e., to be affected by such revocation, that the agent's authority has been withdrawn. In the framework of Sections 207 and 208 of the Act, the revocation/renunciation of authority may be made by express words or may be implied from the words and conduct of the principal, viz., which is inconsistent with the continuance of the agency. This is one facet of renunciation or revocation of authority of an agent; the other facet is governed by Section 208 of the Act. Section 208 provides for the effective time and date of termination of the agent's authority and third parties. From a plain reading, Section 208 infers and gives effect to revocation upon the twin conditions being satisfied, (i) communication to the agent and (ii) knowledge to a third party i.e., one who deals with or is likely to deal with the agent. Then, the revocation of authority becomes known to the agent and the said third parties. In other words, an idea in the mind of the principal to revoke cannot be construed as implied revocation or renunciation of agency. There ought to be an act or conduct of the principal which implies that the agency is revoked or withdrawn. If the revocation is expressed, such as by publication in newspapers, public notice or advertisement, communication to the agent etc., the parties who deal with the agent have a reasonable opportunity to know the revocation of agency by the principal. Two stages of revocation are, firstly, one dealing with the agent, and secondly, one which applies to the third parties. For attracting the consequence of revocation to either of the situations, the revocation of the agent's authority is made by the principal in a manner that clearly implies that the principal has withdrawn the authority to act on his or her behalf by the agent. Followed by knowledge to third parties, let us examine the circumstances of the case on whether implied revocation coupled with communication is established.

22. The Power of Attorney (Ex. A-4) was executed on 04.12.2003. The Appellant, on 30.11.2007, claims to have retired from service and settled in India. A power of attorney confers power for the execution of deeds in situations of necessity, including in the absence of the Appellant in the country. From the record, it can be noted that from 2007 onwards, the Appellant was not entirely absent from India or residing exclusively in the U.S.A. Therefore, the Appellant and Respondent No. 1 executed the sale deed dated 18.01.2008 (Ex. A-3). Respondent No. 2 is one of the witnesses to Ex. A-3. The execution of sale deed dated 16.04.2008 (Ex. A-5) is inconsistent with and contradictory to the power granted to Respondent No. 1 in Ex. A-4. This is an explicit conduct of the Appellant to act for herself on the share she holds in the property purchased in 1991. In Deb Ratan Biswas (supra), this Court held that the signing of a compromise by the Defendants themselves would amount to implied revocation of power of attorney. In a case where the principal chooses to act for himself, particularly to the agent's knowledge and a person to be affected, then it can be held that Section 207 of the Act is attracted. We have no doubt in holding that the Appellant, in terms of Section 207, impliedly revoked the authority of Respondent No. 1, and as required by Section 208, Respondent No. 2 had the knowledge of the independent dealing with the property by the Appellant. Therefore, the revocation takes effect on 18.01.2008. Ex. A-5 was executed on 16.04.2008. Thus, with the operation of implied revocation of authority, Respondent No. 1 cannot act as an agent of the Appellant and, hence, the sale deed insofar as the Appellant's share in the suit Schedule is held void ab initio.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6495 of 2023

Decided On: 09.07.2024

Thankamma George Vs. Lilly Thomas and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and S.V. Bhatti, JJ.

Author: S.V. Bhatti, J.

Citation: MANU/SC/0582/2024,2024 INSC 494.

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Supreme Court: Under which circumstances limitation for setting aside sale deed will not commence inspite of its registration?

 We examine the plea of limitation raised by the Respondents. The Respondents' case is that the suit was filed on 11.05.2011, and in effect, the suit seeks to set aside the sale deed dated 16.04.2008 (Ex. A-5). The suit was filed beyond the limitation period and should have been dismissed. Limitation is a question of law and fact. The period of limitation and the time from which the period begins to run, depend on the Article in the Schedule appended to the Limitation Act of 1963. The case falls under "Part III - Suits Relating to Declarations". Article 58 reads thus:

{Para 15}

15.1. The words "when the right to sue first accrues" have been interpreted and held by this Court in Smt. Neelam Kumari and Anr. v. U.P. Financial Corporation MANU/UC/0123/2008 : AIR 2009 Utt 5. The starting point for the limitation in the case of setting aside sale deeds has two limbs: the date of execution and the date of knowledge. There is no difficulty in applying the period of limitation expiring three years from the date of execution, provided that the Appellant had knowledge of Ex. A-5 on the date of registration and the right to sue first accrued. The Respondents, in the circumstances of the case, failed to establish the Appellant's knowledge of the execution of Ex. A-5. In the final analysis, Ex. A-5 is held as without authority and void. The applicability of limitation has a different perspective. So, the starting point is when the right to sue first accrued to the Appellant. The admitted case of the Respondents is that the Appellant is a US citizen and she stayed abroad. Therefore, unless it is clearly established as a fact that the Appellant had knowledge of Ex. A-5, it cannot be inferred that the Appellant had contemporaneous knowledge of Ex. A-5 and the limitation started running from the date of execution of Ex. A-5. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6495 of 2023

Decided On: 09.07.2024

Thankamma George Vs. Lilly Thomas and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and S.V. Bhatti, JJ.

Author: S.V. Bhatti, J.

Citation: MANU/SC/0582/2024,2024 INSC 494.

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Supreme Court: Specific Performance Suit Can't Be Decreed Based On Power Of Attorney Holder's Deposition About Plaintiff's Readiness & Willingness

 Having noticed the three judgments of this Court in Janki Vashdeo Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), we are of the view that in view of Section 12 of the Specific Relief Act, 1963, in a suit for specific performance wherein the Plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not entitled to depose in place and instead of the Plaintiff (principal). In other words, if the Power of Attorney Holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined. If a Plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. A Plaintiff cannot examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. The term 'readiness and willingness' refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness. {Para 12}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7840 of 2023

Decided On: 17.05.2024

Rajesh Kumar Vs. Anand Kumar and Ors.

Hon'ble Judges/Coram:

Pankaj Mithal and Prashant Kumar Mishra, JJ.

Author: Prashant Kumar Mishra, J.

Citation: 2024 INSC 444,MANU/SC/0459/2024.

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Supreme Court: Specific Performance Of Contract Can Be Refused If Suit Wasn't Filed Immediately After Breach Though Within Limitation Period

 In Saradamani Kandappan v. S. Rajalakshmi and Ors.   MANU/SC/0717/2011 : 2011:INSC:446 : (2011) 12 SCC 18, this Court held that every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance. {Para 16}

17. In Atma Ram v. Charanjit Singh   MANU/SC/0154/2020 : 2020:INSC:162 : (2020) 3 SCC 311, this Court has observed in para 9 thus:

9. ........No explanation was forthcoming from the Petitioner for the long delay of three years, in filing the suit (on 13-10-1999) after issuing a legal notice on 12-11-1996. The conduct of a Plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12-11-1996 claiming readiness and willingness, but who institutes a suit only on 13-10-1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance.

18. In the case in hand, the Plaintiff entered into an agreement with only one of the co-owners and thereafter sought extensions for execution of the sale deed but did not prefer any suit though he was aware of the sale deed dated 14.05.1997 executed in favour of Defendant Nos. 12 to 14 and sent a legal notice on 30.05.1997 and even objected to the subsequent purchasers' application for mutation of their names in the revenue records on 20.08.1997 and refers to a meeting of the Gram Panchayat dated 06.12.1997, yet the suit was preferred, on 09.05.2000 on the last date of limitation. Thus, on the strength of observations made by this Court in K.S. Vidyanadam (supra), Azhar Sultana (supra), Saradamani Kandappan (supra) & Atma Ram (supra), the suit having been preferred after a long delay, the Plaintiff is not entitled for specific performance on this ground also.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7840 of 2023

Decided On: 17.05.2024

Rajesh Kumar Vs. Anand Kumar and Ors.

Hon'ble Judges/Coram:

Pankaj Mithal and Prashant Kumar Mishra, JJ.

Author: Prashant Kumar Mishra, J.

Citation: 2024 INSC 444,MANU/SC/0459/2024.

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Can power of attorney represent a party in divorce by mutual consent proceeding?

 In Harshada Bharat Deshmukh v. Bharat Appasaheb Deshmukh, MANU/MH/0602/2018 : AIR 2018 Bombay 148 : [2018 (2) HLR (Bom.) 148], the Bombay High Court considered Section 10 of the Family Courts Act, Order III Rule 1 of CPC, Order VI Rules 14 and 15 of CPC and various judgments on the aspect of representation of a party through a Power of Attorney and in the context of Section 13B of the Act, observed, that there is nothing under the said provision which would bar a Power of Attorney holder to represent a party and observed as under:-

"(10) Section 13B of the Hindu Marriage Act do not contain any provision abrogating the power of power of attorney holder under the Code of Civil Procedure, and therefore, the procedure governing the proceedings filed under Section 13B of the Hindu Marriage Act would be governed by Order III as well as Order VI of the Code of Civil Procedure.  {Para 22}

 IN THE HIGH COURT OF KARNATAKA

M.F.A. No. 4453 of 2020 (FC)

Decided On: 10.11.2020

In Re: Aditya Jagannath and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Neranahalli Srinivasan Sanjay Gowda, JJ.

Citation: MANU/KA/5159/2020

Author: B.V. Nagarathna, J.

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Whether the court can cognizance of an offence for dishonour of cheque even if original power of attorney is not filed alongwith complaint?

  From the aforesaid analysis of law on the subject, it is clear that in a case where the complainant is a company, an authorized employee can represent the said company. Once an averment to this effect is made in the complaint, it is sufficient for the Magistrate to take cognizance and issue process. It also emerges that in case authority of a person filing complaint on behalf of the company is disputed by the accused, the same would be a matter of trial to be decided during the course of trial and it would not be a ground to dismiss the complaint at the threshold itself. The ratio laid down in these judgments has not been taken note of either by Delhi High Court or by Madras High Court in the judgments relied upon by the petitioner. Thus, the ratio laid down in these judgments to the effect that production of original Power of Attorney is necessary at the time of taking cognizance of the complaint under Section 138 of NI Act, is not the correct position of law. {Para 12}

13) In the instant case, the respondent/complainant has specifically pleaded that Shri Basharat Gul is the duly constituted Attorney of the Bank who is authorized to institute the complaint and verify the pleadings. A copy of the Power of Attorney has been annexed to the complaint. Therefore, the learned Magistrate was justified in taking cognizance of the complaint and issuing process against the petitioner on the basis of the impugned complaint.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

CRM(M) No.88/2020

AB. RASHEED BHAT  Vs. HDFC BANK LTD 

CORAM:  MR. JUSTICE SANJAY DHAR, JUDGE

Pronounced on:21.10.2022

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Whether any unauthorized sale made by the agent will tantamount to the Principal parting with possession of immovable property?

 The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. {Para 14}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

Civil Appeal No. 2592 of 2022 

MRS. UMADEVI NAMBIAR Vs THAMARASSERI ROMAN CATHOLIC DIOCESE 

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Whether the power of attorney holder can sale immovable property without specific authorization in power of attorney?

 But we do not agree with the above submissions of the learned counsel for the respondent. It remains a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22. But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has chosen to include, (i) an express power to lease out the property; and (ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale. {Para 9}

17. We do not know how the ratio laid down in the aforesaid decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyar’s Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney.

18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

Civil Appeal No. 2592 of 2022 

MRS. UMADEVI NAMBIAR Vs THAMARASSERI ROMAN CATHOLIC DIOCESE 

Coram: Hemant Gupta; V. Ramasubramanian, JJ.

Author: V. Ramasubramanian

Dated: APRIL 1, 2022 

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Whether registration of a document by the power of attorney holder can be declared invalid if power of attorney is unregistered?

 As far as the decision in the case of Ashok Kumar (supra) of a coordinate bench of this Court, true it is that it has been held that if the document is presented for registration by a power of attorney holder, such a power of attorney must be registered one else the registration of the document at his instance would be void. However, this decision of the brother Judge can no longer be said to be laying down a correct proposition in view of the decision of the Supreme Court in the case of Rajni Tandon (supra). While reversing a decision of the Calcutta High Court on the lines similar to the one in the matter of Ashok Kumar (supra) it has been laid down in Rajni Tandon (supra) that registration of a document by a power of attorney holder is not invalid on the ground of absence of registration of the power of attorney. It, therefore, needs to be concluded that the decision in the matter of Ashok Kumar (supra) stood impliedly overruled by the decision in the matter of Rajni Tandon (supra). {Para 12}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

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Whether it is mandatory to attest the sale deed?

As regards the proof regarding sale-deed is concerned, as has been rightly pointed out by the lower courts, it is not a document which requires any attestation if one goes through the provisions of Section 54 of the Transfer of Property Act. Since Subhash and Ajay were the executants who had never disputed its execution and were not even called as witnesses by the appellants, no error can be found with the observation of the courts below in holding that since the plaintiff No. 1 was a person who had signed the sale-deed and was examined as a witness on behalf of the plaintiffs and had stated about execution of document and its registration, there was sufficient proof regarding its execution.

{Para 10}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

Hon'ble Judges/Coram:

Mangesh S. Patil, J.

Citation: MANU/MH/0720/2022

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Whether recital in power of attorney that immovable property should not be sold below specific amount will invalidate sale deed?

 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.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

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How to prove valid cancellation of power of attorney?

 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 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 notice of the third party at any rate as already noticed. Such a cancellation is not made out.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

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Whether the owner of immovable property can challenge the execution of the sale deed if the sub-registrar fails to verify the original power of attorney at the time of registration of the document?

 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.

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 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.

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 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.

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. 

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

CIVIL APPEAL NO. 5797 OF 2009

28th January 2022

Author: K. M. JOSEPH, J.

Citation: 2022 ALL SCR (ONLINE) 94

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Whether wife must give special power of attorney in favour of her husband for giving evidence on her behalf?

The other contention of the applicant-defendant is that the husband was not the duly constituted agent of the wife Janabai inasmuch as the power of attorney exhibit 15 was executed at Kanhan while the attestation by other witnesses is executed at Ramtek. Apparently, the argument sounds logical and reasonable. But this is a peculiar case of relationship between husband and wife and the husband acting for and on behalf of his wife, not as a contractual agent, but as an implied agent.

11. Section 192 of the Indian Contract Act defines what is an “agent” and a “Principal”. An “Agent” is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the “principal”. Under Section 183, any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent. Section 185 provides that no consideration is necessary to create an agency. Now, the next two provisions of Contract Act viz. sections 186 and 187 are important for the purpose of the present case; section 186 says: “The authority of an agent may be expressed or implied” and section 187 states:

“An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.”

 12. The relationship of Principal and Agent may be constituted by (a) express appointment, (b) by implication of law from the conductor situation of parties or from the necessity of the case, or (c) by subsequent ratification by the principal. Since no consideration is required to create an agency and since the authority of an agent could be expressed or implied and that authority could be expressed even by words “spoken” or “written” and it can be implied when it could be inferred from the circumstances of the case and things spoken or written, or the ordinary course of dealing, then each case of an agent representing the principal, and his authority could be inferred from the circumstances as may be accruing in a given case. The husband and wife is a relationship which is special and important case of implied authority. Under law, the husband and wife are treated as one person. More so in India and in Hindu societies where the wife is illiterate, it is the husband who has an implied authority to conduct all property transactions for and on behalf of his illiterate wife and is a custom which is broadly and generally accepted as the ordinary course of dealings. This presumption could be rebutted on behalf of the other party by specifically alleging that either husband and wife are living separate or are divorced or are not on cordial terms. But for that purpose, specific pleadings and necessary proof is required. In the matter of giving evidence in an ejectment suit on behalf of wife, the husband need not have a special power of attorney to adduce evidence on her behalf unless it was challenged in the defence pleadings.

 In the High Court of Bombay

(Nagpur)

(Before S.W. Puranik, J.)

Laxman Sadashiv Pandre Vs Janabai Rajaramji Ambagade 

Civil Revn. Appln. No. 638 of 1982

Decided on September 25, 1985

Citation: 1985 SCC OnLine Bom 236 : 1986 Mah LJ 75

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Can the court declare the sale deed void on the grounds of want of consideration if the sale deed records that consideration was paid?

 Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

CIVIL APPEAL NOS. 6989-6992 OF 2021

22nd November 2021

Citation: 2021 ALL SCR (ONLINE) 678

Author: ABHAY S. OKA, J.

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Whether court can permit the power of attorney holder of legal heirs of the deceased complainant to apply to continue prosecution?

Likewise, under Section 302 of the Code, a person, who is entitled to continue the prosecution, is required to make an application himself but under both the provisions aforesaid, instead of taking steps personally, a party can be represented through a pleader. Power of attorney holder can represent the concerned party under both the provisions of the Code, in case permission for such representation is sought from the court by the concerned person and granted by it. But where no such permission is sought by the concerned person, meaning thereby, in the case of Section 205 of the Code  an accused and in the case of Section 302 of the Code  a party who has right to continue the prosecution, power of attorney holder cannot be allowed to represent the concerned person in the proceeding.

In the present case, neither heirs of the complainant filed petition under Section 302 of the Code to continue the prosecution nor any permission was sought by them from the competent court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law. This being the position, we are of the view that the trial court was not justified in allowing the petitions under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and petitions under Section 302 of the Code are fit to be dismissed giving liberty to the heirs either to make application themselves before the court concerned to continue the prosecution or apply to the court to grant permission to them to authorize the power of attorney holders to continue the prosecution on their behalf.

 Supreme Court of India

Jimmy Jahangir Madan vs Bolly Cariyappa Hindley (Dead) By ... on 4 November, 2004

Author: B.N.Agrawal

Bench: B.N.Agrawal, H.K.Sema

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Whether power of attorney holder of landlord can file eviction suit against tenant?

At the outset, it is required to be noted that the suit premises was leased in favour of original Respondent No. 1 - original tenant - Bala Venkatram pursuant to the rental agreement dated 23.05.2007 executed by the Appellant herein. Therefore, the rental agreement was between the Appellant and original Defendant No. 1 - Bala Venkatram. Defendant No. 1 was put in possession as a tenant pursuant to the aforesaid rental agreement dated 23.05.2007 executed by the Appellant in favour of original Defendant No. 1 - original tenant - Bala Venkatram. Therefore, as such, it would not be open for the Respondents to deny the status of the Appellant as a landlady. Therefore, the original Respondents cannot challenge the authority of the Appellant to file an eviction petition. Even otherwise, considering Section 2(6) of the Act and considering the fact that Respondent No. 1 was paying the rent to the Appellant pursuant to the aforesaid rental agreement dated 23.05.2007, the Appellant can be said to be the landlord/landlady and therefore the eviction petition at the instance of the Appellant would be maintainable. {Para 6.1}


IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9443 of 2019

Decided On: 07.01.2020

 A. Mahalakshmi Vs.  Bala Venkatram

Hon'ble Judges/Coram:

Ashok Bhushan and M.R. Shah, JJ.

Citation: AIR 2020 SC 322

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Whether any person can give evidence even though power of attorney is not executed in favour?

In his cross-examination it is elicited that the witness has no power of attorney or written authorisation to give evidence in the Court. The learned Counsel for the defendants contended at the time of arguments that P. W. 1 has no right to give evidence on behalf of the bank without power of attorney or written authorisation. In my view, this arguments, has no merit. Anybody can come and give evidence in Court provided that he is acquainted with the facts of that case. No power of attorney or authorisation is necessary for any witness to give evidence in Court. It may be for filing the plaint, or signing the plaint or signing a written statement an authority may be necessary, but to give evidence on oath, anybody, who is acquainted with the facts can give evidence.

IN THE HIGH COURT OF BOMBAY

Suit No. 1710 of 1979

Decided On: 20.12.1996

Central Bank of India Vs. Tarseema Compress Wood Manufacturing Company and Ors.

Hon'ble Judges/Coram:

R.G. Vaidyanatha, J.

Citation: AIR 1997 Bombay 225.

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Whether adopted person can obtain details about his adoption through power of attorney?

 Sub-regulation (6) of Regulation 44 undoubtedly seeks

to achieve an important purpose of not parting with

confidential and sensitive information in relation to an

adopted child to third party. The purpose for framing said

sub-regulation, therefore, can easily be appreciated.

However, when the adopted person himself or herself

appoints an attorney to act for and on his / her behalf, such

power of attorney ceases to be a third party and would

therefore not be hit by the limitation contained in subregulation

(6) of Regulation 44. A person who is appointed

as attorney acts for and on behalf of the person so

appointing him and therefore, cannot be considered to be a

third party for the purpose of Regulation 44(6). Subject to

certain safeguards, therefore, we propose to direct the

concerned respondents and in particular SARA to provide

necessary documents and further information as may be

available with it to Ms. Anjali Pawar as a duly constituted

attorney of the petitioner for such purpose.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 13670 OF 2018

Beena (Leena) Makhijani Muller Vs  The Commissioner,

Department of Women & Child

Development, Maharashtra

CORAM : AKIL KURESHI &

S.J. KATHAWALLA, JJ.

DATE : OCTOBER 9, 2019.

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Whether it is necessary to examine executant of notarized power of attorney to prove execution of power of attorney?

The only question which arises for consideration is, whether in absence of the notary public being produced as a witness or the executant thereof being not produced as a witness to prove the same, was the document proved as per law.

33. Authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction. Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order. The use of the expression 'shall presume' shows that the section is mandatory and the court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the notary public. As observed in AIR 1984 363 E.C. & E. Co. Ltd. v. J.E. Works, if 2 conditions are satisfied, firstly the power of attorney being executed before a notary public and secondly it being authenticated by a notary public, a presumption would arise under Section 85 about the executant of the power of attorney.

34. Onus would thus lie on the opposite party to prove to the contrary.

35. It is well settled that authentication would mean more than mere execution. Where proof of authentication surfaces, benefit of Section 85 has to be granted.

36. No negative evidence has been brought on record, none has been shown to me by the petitioners.

37. The purpose of Section 85 of the Evidence Act appears to be that a duly executed and authenticated power of attorney can be proved under Section 85 without undue expenses to be incurred by producing the executant thereof or the original board resolution.

38. The reason is obvious. Banks, insurance companies and multinational companies empower officers to institute and file suits on their behalf. Large number of suits are filed by these organisations. If the original board resolution or the executant of the power of attorney has to submit itself/himself before the court as a sine qua non to prove the power of attorney, practical difficulties would arise and un-necessary expenses would be incurred by the organisations to prove the document in the afore-noted manner.

39. I am in full agreement with the view taken by the learned Rent Control Tribunal that the authority of the person who had signed and verified the petition as also instituted the eviction petition stood duly proved by means of production of the authenticated and notarised power of attorney bearing the seal of the notary public.

IN THE HIGH COURT OF DELHI

CM(M) Nos. 64 and 65, 67, 69, 92 and 101/2005

Decided On: 29.01.2007

 Kamla Rani  Vs. Texmaco Ltd. and Ors.

Hon'ble Judges/Coram:

Pradeep Nandrajog, J.

Citation : AIR 2007 Delhi 147

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