Whether Will(Before Death Of Testator) Or General Power Of Attorney(GPA) Can Confer Title In Immovable Property?

 It goes without saying that the power of attorney executed by the Defendant-Appellant is of no consequence as on the strength of said power of attorney, neither sale deed has been executed nor any action pursuant thereof has been taken by the power of attorney holder which may confer title upon the Plaintiff-Respondent. Non-execution of any document by the general power of attorney holder consequent to it renders the said general power of attorney useless. {Para 12}

13. Similarly, the will dated 10.04.2002 executed by the Defendant-Appellant in favour of the Plaintiff-Respondent is meaningless as the will, if any, comes into effect only after the death of the executant and not before it. It has no force till the testator or the person making it dies. The said stage has not arrived in the present case and, therefore, even the aforesaid will in no way confers any right upon the Plaintiff-Respondent.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7527-7528 of 2012

Decided On: 02.06.2023

Ghanshyam  Vs. Yogendra Rathi

Hon'ble Judges/Coram:

Dipankar Datta and Pankaj Mithal, JJ.

Author: Pankaj Mithal, J.

Citation: MANU/SC/0642/2023.

Read full Judgment here: Click here

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Whether the court can protect the possession of a person who is claiming title to an immovable property based on an agreement of sale?

No doubt, agreement to sell is not a document of title or a deed of transfer of property by sale and as such, may not confer absolute title upon the Plaintiff-Respondent over the suit property in view of Section 54 of the Transfer of Property Act, 1882, nonetheless, the agreement to sell, the payment of entire sale consideration as mentioned in the agreement itself and corroborated by the receipt of its payment and the fact that the Plaintiff-Respondent was put in possession of the suit property in accordance with law as is also established by the possession memo on record, goes to prove that the Plaintiff-Respondent is de-facto having possessory rights over the suit property in part performance of the agreement to sell. This possessory right of the Plaintiff-Respondent is not liable to be disturbed by the transferer, i.e., the Defendant-Appellant. 

10. In the wake of the finding that the above-mentioned documents have not been fraudulently obtained or have not been manipulated, treating the said documents to be duly executed and as genuine, one thing is clear that the Plaintiff-Respondent is in a settled possession of the suit property at least in part performance of the agreement which cannot be disturbed or disputed by the transferer, i.e., the Defendant-Appellant.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7527-7528 of 2012

Decided On: 02.06.2023

Ghanshyam  Vs. Yogendra Rathi

Hon'ble Judges/Coram:

Dipankar Datta and Pankaj Mithal, JJ.

Author: Pankaj Mithal, J.

Citation: MANU/SC/0642/2023

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Under which circumstances power of attorney holder can sub-delegate his powers?

 A bare perusal of the complaint filed by the appellant-company reveals that it has been filed in the name of the company through its authorised representative, Ripanjit Singh Kohli. Therefore, the complaint is by the appellant company in its own name. It has not been filed in the name of the power of attorney holder. The complainant, that is the appellant company is entitled to file the complaint in its own name through its power of attorney holder. {Para 9}

10. There is a general power of attorney of the appellant company in favour of one of its directors, Kavindersingh Anand. The said power of attorney was executed after it was duly approved by the board of directors in its meeting dated 01.05.2010. Therefore, one of the directors of the appellant-company, i.e. Kavindersingh Anand is holding power of attorney of the appellant-company and is the true and lawful attorney of the same.

11. The said power of attorney explicitly authorises him to appoint “counsel” or “special attorneys” for conducting all cases or otherwise to do all other acts and things for due prosecution or defence of legal or quasi legal proceedings anywhere in the world.

12. The aforesaid power of attorney Kavindersingh Anand, on the strength of the aforesaid power of attorney, authorised Ripanjit Singh Kohli to lodge the aforesaid complaint.

13. The law is settled that though the general power of attorney holder cannot delegate his powers to another person but the same can be delegated when there is a specific clause permitting sub-delegation. A careful reading of the general power of attorney would reveal that the appellant-company in its meeting of the board of directors held on 1st May, 2010 has resolved to appoint one of its directors Kavindersingh Anand as its attorney of the company who was specifically authorised vide paragraph 2 to appoint counsels or special attorney(s).

The language deployed, i.e., to appoint special attorneys is clear enough to indicate that the power of attorney holder has been authorised to appoint special attorneys in addition to the counsel for conducting cases and for doing other relevant and material acts in that connection. The use of the words “to appoint counsels or special attorneys” would not mean that he was authorised only to appoint counsel or special counsel for the purpose. The use of the word ‘counsel’ and ‘special attorney’ have different connotations. The use of the aforesaid words to appoint counsels or special attorneys in paragraph 2 of the power of attorney is quite distinct and refers to not only to appointment of counsel but of special attorneys other than the counsel. This is implicit upon the reading of paragraph 16 of the power of attorney which specifically deals with the appointment of solicitors, counsels, advocates, other consultants or professionals, but does not refer to attorneys. Therefore, a combined reading of paragraph 2 and paragraph 16 of the power of attorney would bring home the fact that the power of

attorney holder was authorised to appoint special attorney other than the counsel for the purposes for conducting and prosecution of cases on behalf of the appellant-company. This apart, the power of attorney holder was appointed under the resolution of the board of directors of the appellant company and the draft of the power of attorney was duly approved by the board. The said power of attorney as discussed above do provide for the sub-delegation of the functions of the general power of attorney holder and thus the filing of the complaint on behalf of the appellant company through its authorised representative Ripanjit Singh Kohli is not at all illegal or bad in law.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023

MITA INDIA PVT. LTD. Vs  MAHENDRA JAIN 

Author: PANKAJ MITHAL, J.

February 20, 2023.

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Whether father of plaintiff can prove readiness and willingness on behalf of plaintiff?

As regards the aspect of readiness and willingness, which according to the learned Counsel for the appellant, the respondent No. 1 only personally could have deposed about, it has been held by the Hon'ble Supreme Court in the case of Man Kaur (dead) by LRs v. Hartar Singh Sangha (supra), as follows-

"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.

(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.

(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."

12. This is the position of law laid down by the Hon'ble Supreme Court with regard to who can give evidence in respect of transactions on the basis of personal knowledge. Paragraph 18(g) would clearly cover the case of respondent No. 1 in the facts of the present case. Here is a case where the father of respondent No. 1 had accompanied him on the crucial date when the transaction between the parties took place on 25.08.2001 and in that light it cannot be said that the evidence given by him as a Power of Attorney holder could not be looked into by the Court, while considering the prayer for decree of specific performance made by respondent No. 1.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 450 of 2017

Decided On: 16.04.2018

Tousif Ahmed  Vs.  Ferozkhan and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(1) MHLJ 914

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Precaution to be taken by sub registrar prior to registration of general power of attorney

 As is apparent from the plain language of the abovementioned
Circular, the Registering Authority is required to examine the contents of
the General Power of Attorney to ascertain the nature of the document.

Clearly, parties cannot be permitted to register a General Power of
Attorney as a camouflage for sale of immovable property. Thus, it is
important to ascertain whether the Document sought to be registered
purports to create any interest in the property in favour of the person
appointed as a constituted attorney.
13. In the present case, the Power of Attorney is executed by the
petitioners in favour of their close relative (daughter -in-law and wife);
the same is not for any consideration; and does not create any interest in
the said property.
14. In view of the above, the decision of the Sub-Registrar and the
District Magistrate to decline the petitioners’ request for registration of
the General Power of Attorney, is unsustainable. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI
 W.P.(C) 9445/2017

HARMOHINI SARNA  Vs   GOVT OF NCT OF DELHI 

CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
Dated: 28.01.2019

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Whether complaint for dishonour of cheque can be filed through power of attorney holder?

We have considered the decision of
this Court in A.C. Narayanan vs. State of
Maharashtra and Another  (2015) 12 SCC 203, 
wherein this Court
has clearly held that a complaint filed by the
power of attorney would be maintainable in
law. If that is so, the initial complaint
filed by the appellant on behalf of Sairabee
as the complainant would not be invalid in law
as held by the High Court in the order under
challenge. 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.237 OF 2012

SK. TAMISUDDIN  Vs  JOY JOSEPH CREADO & ANR. 

Coram:
RANJAN GOGOI, NAVIN SINHA, K.M. JOSEPH.

Dated:SEPTEMBER 25, 2018

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Whether petition for divorce by mutual consent can be presented through power of attorney?

 In view of the aforesaid circumstances, whether the issue involved in the present case was at a more preliminary level i.e. at the stage of filing of the petition through a Power of Attorney holder, it can be seen that there is no legal lacunae in filing of the petition through a registered Power of Attorney, and the said petition needs to be accepted by setting aside the impugned order by the Family Court. Further, in the light of the said legal position, Family Court will not insist upon the presence of the parties before the Court and would arrange for the consent terms to be recorded either through skype or adopting any other technology and the proceedings contemplated under Section 13-B of the Hindu Marriage Act in the time schedule specified therein.

IN THE HIGH COURT OF BOMBAY

Writ Petition St. No. 1788 of 2018

Decided On: 06.04.2018

Harshada Bharat Deshmukh Vs.  Bharat Appasaheb Deshmukh

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: AIR 2018 Bom 148,2019(1) MHLJ 767

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How to appreciate evidence regarding proof of execution of will?

Once it is found that the plaintiffs and especially the

plaintiff no.2 – Ramesh who was the propounder of the Will had

not discharged the burden of proving the due execution of the will

and   had   failed   in   removing   the   suspicious   circumstances

surrounding the same, the burden to disprove the said will did not

shift   on   the   defendants.   On   that   count   merely   because   the

defendant examined the power of attorney holder – Vitthal who

was not fully aware about the facts of the case would not affect the

case of the defendant.  It was only if the valid execution and due

attestation of the will at Exhibit­41 would have been proved as

required by Section 63 of the Indian Execution Act, that burden

would have shifted on the defendant. At that stage, the aspect of

the defendant not examining herself and instead examining her

power   of   attorney   holder   would   have   been   a   relevant   factor.

However, as it has been found that the will propounded by the

plaintiffs has not been duly proved the aspect of the defendant

examining   her   power   of   attorney   holder   is   not   of   much

consequence.  In that view of the matter, the decisions relied upon

by   the   learned   Counsel   for   the   appellants   in  Janki   Vashdeo

Bhojwani and another  as well  Man Kaur through her legal heirs

(supra)  does   not   take   the   case   of   the   plaintiffs   any   further.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

SECOND APPEAL NO. 167 OF 2004

 Ramesh Tanbaji Satpute Vs  Smt.   Tulsabai   Wd/o   Laxmanrao Bhanose 

CORAM: A.S. CHANDURKAR, J.

DATED:  22­-06-­2018   

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Whether power of attorney holder can give evidence in place of principal in suit for specific performance of contract?

We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.

(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 147-148 of 2001

Decided On: 05.10.2010

 Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha

Hon'ble Judges/Coram:

R.V. Raveendran and Aftab Alam, JJ.

Citation: JT 2010(10) 565

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How to appreciate evidence of power of attorney holder in suit for specific performance of contract?

The aforesaid proviso to Rule 14 categorically shows
that a person authorised is entitled to file and prosecute the suit
till its disposal.   In the instant case, it is not in dispute that the
plaintiffs had authorised Dhairyasheel (PW1) to act as their power
of attorney holder for signing of various documents, prosecuting
and contesting the litigations etc.  It is not at all disputed by any of
the plaintiffs or defendant no.2.  None of he plaintiffs or defendant
no.2   have   stated   that   they   have   not   authorised   Dhairyasheel
(PW1) the power of attorney holder.   Insofar as the aspect of
attestation at a later point of time after execution of the power of
attorney is concerned, I do not think any significance can be given
to it since none of the persons giving authority have disputed the
authority   of   the   power   of   attorney   holder   either   orally   or   in
writing to plead and prosecute their lis.  In the light of the above
provision, therefore, it is not possible to accept the submissions
about the incompetence of power of attorney.  The counsel for the
appellant then argued that the power of attorney holder had no
personal   knowledge   about   the   execution   of   agreement   and,
therefore, his evidence  is worthless and should not have  been
relied upon by the appellate Judge.  In this context, I have perused
the pleadings as well as entire evidence of Dhairyasheel (PW1)

and the cross­examination.  In the examination­in­chief, the power
of   attorney   holder   deposed   about   the   entire   transaction   in
question, readiness and willingness, details about the agreement,
payments made and so on and so forth, which clearly shows his
personal  knowledge   about  the  transaction  in   question  and  the
filing of the litigation i.e. the suit in question.  If according to the
appellants, he had no personal knowledge about the transaction,
there ought to have been appropriate pleadings in the written
statement and appropriate cross­examination to him to bring out
from his mouth that he did not have any personal knowledge
about the transaction.  However, it is significant to note that not
only that there is no cross­examination on that point but there is
no even a single suggestion to him that he does not know anything
about the transaction and that he was not a witness to depose on
behalf of the plaintiffs or the proposed vendees.  In the absence of
appropriate   pleadings   and   the   cross­examination,   it   would   be
difficult to accept such a submission.   Secondly, the submissions
that his evidence was hearsay evidence,   again will have to be
rejected   as   he   deposed   about   the   whole   transaction.   There   is
further submission that the contents of the power of attorney were
not   proved   by   the   power   of   attorney   holder   and   the   answer

obviously   would   be   that   Dhairyasheel   (PW1)   deposed   about
details or the power of attorney in his favour which was also
exhibited   and   there   is   no   cross­examination   that   he   was   not
authorised by the plaintiffs and defendant no.2 nor the plaintiffs
and defendant no.2 disputed his authority to act on their behalf.
As to his evidence before the Court, in this context the learned
counsel for the appellants vehemently relied on some judgments
about the evidence of power of attorney holder, numbering 1 to 7
is in the list of reliance. I have carefully gone through all these
decisions.   The first decision was rendered in the case of  Janki
Bhojwani (supra).  In that case, the apex Court specifically found
on facts that the power of attorney holder did not have personal
knowledge about the matters of the appellants and, therefore, he
could not depose about his personal knowledge of the matter of
the   appellants   and   therefore   he   could   neither   depose   on   his
personal knowledge nor could be cross­examined on those facts
which were to the personal knowledge of the principal.  As stated
earlier, there is no even remote suggestion or pleading anywhere
or admission in the evidence about want of personal knowledge.
On  the  contrary, Dhairyasheel  (PW1) deposed on  his personal
knowledge about each and every details of the transaction which

was not challenged.   Hence, such matters cannot be resolved by
merely   raising     questions   but   there   has   to   be   foundation   in
pleadings as well as evidence which is absent in the present case.
The   existence   of   readiness  and  willingness   on   the   part   of   the
plaintiffs or the proposed vendees to perform their part of contract
has, in fact, been deposed by Dhairyasheel (PW1) the power of
attorney holder of the plaintiffs.  It is significant to note that upon
careful   reading   of   the   examination­in­chief   and   the   crossexamination
of this witness Dhairyasheel (PW1) for the plaintiffs,
it is seen  that he  categorically deposed  in  paragraph 4  of  his
evidence as under:
“4. ...The plaintiffs repeatedly requested the defendant
no.1 to execute the Sale Deed but as the defendant no.1
failed   to   obtain   the   necessary   documents   from   the
different authority, the Sale deed could not be executed.
On 14.10.1987 the defendant no.1 issued the notice to
plaintiffs   and   defendant   no.2.     By   this   notice   the
defendant   no.1   alleged   that   the   suit   agreement   was
cancelled by him.  The plaintiffs had duly replied to this
notice.  The office copy of the reply notice is placed on
record vide Exhibit­94.  The postal acknowledgment is at
Exhibit­95.  By this reply notice, the vendees had called
upon to defendant no.1 to attend Sub Registrar's office
on 13.3.1989 for execution of the Sale Deed.  We waited
for him up to 4.00 p.m.  However, the defendant no.1

did not attend the Registrar's office on that day. Hence,
the vendees were constrained to file he present suit.  The
defendant no.1 was many times requested both orally
and in writing to execute the Sale Deed.   The vendees
were all the while and are still ready and willing to
perform their part of contract and to get the Sale Deed
executed.  In the present suit the plaintiffs have claimed
the decree for specific Performance of contract.”
13. The cross­examination of this witness if carefully seen,
shows   that   this   evidence   in   paragraph   4   has   not   even   been
touched in the cross­examination muchless shattered.   Not only
that there is no even suggestion to this witness that the plaintiffs
were not ready and willing or that the plaintiff and defendant no.2
were   not   ready   and   willing   to   perform   their   part   of   contract.
Further, perusal of the evidence of two witnesses of the defendant
namely; appellant nos. 1 and 2, does not even show a semblance
of evidence that there was no readiness and willingness on the
part of the plaintiffs and defendant no.2.  It clearly appears from
the entire record that power of attorney holder had full personal
knowledge about the  entire  transaction and that plaintiffs and
defendant no.2 were ready and willing to perform their part of
contract.  In the wake of the above factual position in this case, all

the   judgments   on   this   point   cited   by   learned   counsel   for   the
appellant from Serial No.1 to 4, which are on their facts are, not
applicable in the present case.
The question no.1, therefore, will have to be answered
in the affirmative that the power of attorney holder could validly
depose about the readiness and willingness.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.60/2007
Santosh s/o Nathu Vaidya, V Namdeo s/o Adkuji Budde,

CORAM:­ A. B. CHAUDHARI, J.

Dated : 04.04.2016
Citation: 2017(2) ALLMR 340

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Whether compromise effected by power of attorney holder beyond scope of his authority is valid?

After hearing learned Senior Counsel/learned Counsel for the parties, we are of the opinion that a bare reading of the compromise indicates that the power of attorney was with respect to the agreement dated 16.11.1993 and not with respect to the agreement dated 26.06.1995 entered into with Rajbans Kaur. The High Court has not adverted to this aspect of the matter at all whether power of attorney holder has exceeded the authority in conferring certain rights in favour of Rajbans Kaur and whether there was any power with the power of attorney holder to confer the rights upon Rajbans Kaur. The said material aspect was required to be gone into by the High Court, which has not been done. As 65% shares have been given to Rajbans Kaur, the High Court should have examined whether the power of attorney holder had the authority to do so or had the authority to only deal with respect to the agreement dated 16.11.1993.

IN THE SUPREME COURT OF INDIA

C.A. Nos. 3226-3227 of 2016 

Decided On: 29.03.2016

 Sukhpal Singh Vs. Jaswinder Kaur and Ors.

Hon'ble Judges/Coram:

V. Gopala Gowda and Arun Mishra, JJ.

Citation: AIR 2017 SC 1358

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Good legal article on power of attorney

http://mja.gov.in/Site/Upload/GR/Summary%20of%20Topic%20A.pdf

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Whether power of attorney holder can get personal benefits by doing any act on behalf of principal?

 The law relating to power of attorney is governed by the provisions of the Power of Attorney Act, 1982. It is well settled therein that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature. Applying the aforesaid principle, this Court in Suraj Lamp and Industries Private Limited (2) vs. State of Haryana & Anr., (2012) 1 SCC 656 held in paragraphs 20 and 21 as under:

“20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, this Court held: (SCC pp. 90 & 101, paras 13 & 52) “13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

* * *

52. Execution of a power of attorney in terms of the provisions of the Contract Act as also thePowers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.” An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.” This was followed by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706 (para 20)

43) When we apply this well settled principle of law to the facts of the case in hand, we are of the considered view that when Dhanapal, who was acting as an agent of A. Radhakrishnan on the strength of power of attorney, executed the tenancy agreement with respondent No. 1 in relation to the suit premises then he did such execution for and behalf of his principal - A Radhakrishnan, which resulted in creating a relationship of landlord and tenant between A. Radhakrishnan and respondent No. 1 in relation to the suit premises. In this execution, Dhanapal being an agent did not get any right, title and interest of any nature either in the suit premises or in tenancy in himself. The effect of execution of tenancy agreement by an agent was as if A. Radhakrishnan himself had executed with respondent No.1.

44) In view of the foregoing discussion, we are of the considered opinion that the High Court was not right in holding that the tenancy in relation to suit premises was with Dhanapal. We cannot thus concur with the finding of the High Court and accordingly reverse the finding and hold that the appellants were able to prove that the tenancy in relation to the suit premises was between A. Radhakrishnan and respondent No.1 and on the death of A. Radhakrishnan, it was created between the appellants and respondent No.1 by operation of law which entitled the appellants to maintain the eviction petition against respondent No.1 seeking his eviction on the grounds available to them under the Act.

Reportable

Supreme Court of India

Tmt. Kasthuri Radhakrishnan & Ors vs M.Chinniyan & Anr on 28 January, 2016

Bench: J. Chelameswar, Abhay Manohar Sapre

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL No.5158 OF 2009

Citation;(2016)3 SCC296

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Whether power of attorney holder can depose on behalf of landlord?

As to Question No.(ii) :  The landlady had examined
her power of attorney holder in support of her prayer for eviction.
The said power of attorney holder was her brother­in­law.  In his
affidavit, he had specifically stated that he had been collecting the
rent from the tenants and managing the affairs of the landlady.
He was aware of all the facts of the case. He further stated that on
4­7­2009, he had issued a letter to the defendant nos.1 and 2
demanding arrears of rent. This letter was not replied.   He has
then stated that the landlady through her Counsel had issued a
registered notice dated 21­11­2009.  He identified the signature of

the said Counsel and stated that the contents of the notice were
true.  The submission made on behalf of the petitioners that the
power of attorney holder was not competent to depose on behalf
of the landlady cannot be accepted.  As noted above, the power of
attorney holder was the brother­in­law of the landlady.   He had
been collecting rent from the tenants and had also issued a letter
on her behalf demanding arrears of rent.  He was aware about the
legal notice issued demanding arrears of rent. In Man Kaur (supra)
which decision was relied upon by the learned Counsel for the
petitioners the position as to who could give evidence on behalf of
another person  in matters involving personal knowledge has been
summarized.  In the present case, it cannot be said that the power
of   attorney   holder   had   deposed   about   the   acts   done   by   the
principal – landlady. In fact, various steps were taken by the power
of   attorney   holder   himself   and   therefore,   he   was   very   much
competent to depose as her power of attorney holder.  Thus, in the
facts of the present case and considering the relationship between
the power of attorney holder and the landlady, it is held that the
power of attorney holder was competent to depose on behalf of

the landlady.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6936 OF 2015

Shri  Sagar   Bhagwat,  ­V Smt.   Kiran   Wife   of   Ishkumar  Leekha,  

CORAM: A.S. CHANDURKAR, J.

DATED: 28­-07-­2016.

Citation: 2016(6) MHLJ368,(2016)5 ALLMR 826

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Whether landlord can apply for release under rent Act through power of attorney?

In the instant case, it is the owner who has applied for release under Section 21 of the Rent Act through power of attorney. The application through power of attorney is as if it is by the principal. The power of attorney has not set up his own need and has not filed the release application in his own name. Therefore, the submission that the release application is not maintainable as it has been filed through the power of attorney holder has no force.
The power of attorney holder acts on behalf of the principal and not for any of his personal rights. There is no express prohibition under the Rent Act debarring the owner-landlord from applying for release through power of attorney holder. 
The submission that the release application is not signed and verified by the owner and landlady as contemplated by Rule 15 of the Rules framed under the Rent Act is also without substance. 
Rule 15 of the Rules provides that the application for release must be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure. 
Rule 14 of Order VI C.P.C. states that every pleading shall be signed by the party and his pleader, if any. Under the proviso it lays down that if a party is not available it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. It by necessary implication means that ordinarily pleadings/release application are required to be signed by the party concerned but in his absence a person duly authorised to sign on his behalf may also sign it which definitely includes the power of attorney. 
Thus, there is no bar for the power of attorney holder to sign and verify the pleadings as contemplated by Rule 14 Order VI C.P.C. referred to in Rule 15 of the Rules framed under the Rent Act. 
The release application in the case at hand as stated earlier, has been filed in the name of the owner-landlady through the power of attorney holder. It has been signed and verified by the power of attorney holder on behalf of the owner-landlady. The owner-landlady by her own affidavit (paper No.74A-2) has accepted that the release application has been filed on her behalf through the power of attorney holder and that she reiterates and verifies the contents of the release application. 
In view of the above, there is no illegality in signing and verifying the release application by the power of attorney holder. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 WRIT - A No. - 1974 of 2015 

Smt. Rashmi Bhatiya And Another. 
 Smt. Geeta Sharma And Another. 
Citation: 2016 SCCONLINEALL617,
Hon'ble Pankaj Mithal,J. 

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When suit filed by company through its officer is validly instituted?

It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.

Supreme Court of India

United Bank Of India vs Sh. Naresh Kumar And Ors on 18 September, 1996

BENCH:
KIRPAL B.N. (J)
BHARUCHA S.P. (J)

Citation:AIR 1997 SC 3:1996 SCC(6)660

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Whether Advocate is entitled to act in professional capacity as well as constituted attorney of a party?

 In view of above I therefore, answer the questions formulated by the Court at the commencement of hearing of this proceedings as under :--

(a) An Advocate is not entitled to act in a professional capacity as well as constituted attorney of a party in the same matter or cause. An Advocate cannot combine the two roles. If a firm of Advocates is appointed as Advocates by a Suitor, none of partners of the Advocates' firm can act as recognised agent in pursuance of a power of attorney concerning the same cause.

(b) The existing practice followed by the firm of advocates/solicitors/attorneys particularly in case of non-resident clients combining the two roles is opposed to law and is required to be discontinued forthwith.

(c) The Prothonotary and Senior Master, High Court shall not accept any vakalatnama in favour of a firm of advocates where one or the other partner of the same firm also holds a power of attorney from the plaintiff or the defendant or any other suitor before the Court in the same cause.

Equivalent Citation : AIR 1993 Bom 217

IN THE HIGH COURT OF BOMBAY

Arbitration Petition No. 210 of 1989 in Award No. 66 of 1989

Decided On: 18.12.1992

Oil and Natural Gas Commission Vs. Offshore Enterprises Inc.

Hon'ble Judges/Coram:
D.R. Dhanuka, J.

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When complaint for dishonour of cheque can be filed through power of attorney holder?

While dealing with the position of a power of attorney holder,
the Supreme Court in A.C.Narayanan vs State of Maharashtra & Anr, 2013 (4)
JCC (NI) 214: (2014) 11 SCC 790 had stated:-
“Nevertheless, an explicit assertion as to the knowledge of
the Power of Attorney holder about the transaction in
question must be specified in the complaint……….”
(Emphasis Supplied)”
16. The aforesaid requirement of such an assertion in the complaint
about the power of attorney holder being in know of the transaction in
question is to ensure that without knowledge or without any cause,
any person may not be harassed or troubled or prosecuted in a Court
of law.
17. Though there is no specific statement in the complaint about the
special power of attorney holder to be conversant with the transaction
between the complainant and the petitioner, but the settlement
agreement (Ex.CW-1/H) has been signed by both, the special power of
attorney holder and the petitioner. This makes it very clear that the
petitioner also is aware of the fact that the entire transaction was
known to the attorney. The Supreme Court in A.C.Narayanan (Supra)
has categorized the legal position regarding a power of attorney
holder:-
(i) Filing of complaint petition under Section 138 of N.I. Act
through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on
oath before the Court in order to prove the contents of the
complaint. However, the power of attorney holder must
have witnessed the transaction as an agent of the
payee/holder in due course or possess due knowledge
regarding the said transactions.
(iii) It is required by the complainant to make specific
assertion as to the knowledge of the power of attorney
holder in the said transaction explicitly in the complaint and
the power of attorney holder who has no knowledge
regarding the transactions cannot be examined as a witness
in the case.
(iv) In the light of Section 145 of N.I. Act, it is open to the
Magistrate to rely upon the verification in the form of
affidavit filed by the complainant in support of the
complaint under Section 138 of the N.I. Act and the
Magistrate is neither mandatorily obliged to call upon the
complainant to remain present before the Court, nor to
examine the complainant of his witness upon oath for taking
the decision whether or not to issue process on the
complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney
cannot be delegated to another person without specific
clause permitting the same in the power of attorney.
Nevertheless, the general power of attorney itself can be
cancelled and be given to another person.”
18. Thus it is clear that the purpose of a specific statement about the
knowledge of the attorney holder in complaint is only for the purposes
of avoiding prosecution by any person, who is unknown to the
transaction. This not being the case in the present set of facts, the same
cannot be read and construed against the complainant/respondent.
IN THE HIGH COURT OF DELHI AT NEW DELHI
 CRL.REV.P. 683/2015

Date of decision: 13.01.2016

M/S.JANE NORMAN RETAIL PVT LTD Vs  STATE (NCT OF DELHI) 

CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Citation:2016 ALLMR(CRI)JOURNAL328

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Whether power of attorney holder who executes tenancy agreement on behalf of landlord becomes landlord of tenanted premises?

In our opinion, Dhanapal was a power of attorney holder of A. Radhakrishnan. He executed the tenancy agreement on behalf of the original owner – A. Radhakrishnan in favour of respondent No.1. Such act done by Dhanapal did not create any right, title and interest in his favour and nor he ever asserted any such right in himself and indeed rightly qua A. Radhakrishnan or the appellants in relation to suit premises. That apart, respondent No.1 in clear terms admitted in his evidence and in the pleading of cases filed by him against the appellants about his status as being the tenant. In the light of this legal position, the High Court should have held this issue in appellants’ favour.

42) The law relating to power of attorney is governed by the provisions of the Power of Attorney Act, 1982. It is well settled therein that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature. Applying the aforesaid principle, this Court in Suraj Lamp and Industries Private Limited (2) vs. State of Haryana & Anr., (2012) 1 SCC 656 held in paragraphs 20 and 21 as under:

“20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, this Court held: (SCC pp. 90 & 101, paras 13 & 52) “13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

* * *

52. Execution of a power of attorney in terms of the provisions of the Contract Act as also thePowers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.” An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.” This was followed by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706 (para 20)

43) When we apply this well settled principle of law to the facts of the case in hand, we are of the considered view that when Dhanapal, who was acting as an agent of A. Radhakrishnan on the strength of power of attorney, executed the tenancy agreement with respondent No. 1 in relation to the suit premises then he did such execution for and behalf of his principal - A Radhakrishnan, which resulted in creating a relationship of landlord and tenant between A. Radhakrishnan and respondent No. 1 in relation to the suit premises. In this execution, Dhanapal being an agent did not get any right, title and interest of any nature either in the suit premises or in tenancy in himself. The effect of execution of tenancy agreement by an agent was as if A. Radhakrishnan himself had executed with respondent No.1.

44) In view of the foregoing discussion, we are of the considered opinion that the High Court was not right in holding that the tenancy in relation to suit premises was with Dhanapal. 

Supreme Court of India

Tmt. Kasthuri Radhakrishnan & Ors vs M.Chinniyan & Anr on 28 January, 2016

Bench: J. Chelameswar, Abhay Manohar Sapre

Reportable

                      


                CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL No.5158 OF 2009




Citation;(2016)3 SCC296

Print Page