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1837 Supreme(SC) 13
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
] MEMBER OF THE JUDICIAL COMMITTEE,—LORD BROUGHAM, MR. BARON PARKE, MR. JUSTICE BOSANQUET, SIR JOHN NICHOLL, AND THE RIGHT HON. SIR THOMAS ERSKINE, CHIEF JUDGE OF THE COURT OF BANKRUPTCY.
BOMAN JEE MUNCHER-JEE - Appellant
Versus
SYUD HOOSSAIN ABD-OOLLAH - Respondents
On Appeal from the Sudder Dewanny Court of Bombay.
Decided On : 6th and 7th December, 1837.
Privy Councillor,- Assessor, The Bight Hon, Sit Edward Hyde East, Bart.
A sale of property is void if the power of attorney authorizing the sale is not proven. Mere reference to such power in a Will is insufficient to establish the authority to sell or delegate that authority to a third party.
Headnote:(A) Mahomedan Law - Power of Attorney - Sale of property - Proof of authority - Validity of sale based on a power of attorney mentioned in a Will but not produced in court - The onus of proving the existence and scope of the power of attorney rests with the party claiming title under the sale - Mere reference to such power in a Will is insufficient to establish a legal presumption of authority to sell or delegate such authority to a third party. (Paras 504-506)
(B) Evidence - Non-production of document - Distinction between non-production and non-proof - A sale is annulled not merely because a document was not produced, but because the power to convey was not proven by the document or any other circumstances allowing a legal presumption. (Para 505)
Facts of the case:
A property right was inherited by several siblings. One sibling allegedly granted a power of attorney to another sibling to manage and sell his share. The attorney subsequently executed a Will appointing his spouse as the heir to the power of attorney, authorizing the spouse to sell the share to clear debts. The spouse sold the property to a third party. The original owner later challenged the sale, asserting that the power of attorney did not authorize the sale. The original power of attorney was not produced during the proceedings.
Findings of Court:
The court found that the vendor did not possess sufficient power to alienate the property by sale. The evidence provided was insufficient to prove the existence or the specific terms of the power of attorney.
Issues: Whether a sale of property is valid when the authority to sell is inferred from a Will referring to a power of attorney that has not been produced in court, and whether such authority can be delegated to a third party without express authorization.
Ratio Decidendi: The court held that the validity of a sale depends on the proof of the power to convey. The non-production of the power of attorney, combined with the absence of evidence to presume its existence or the authority to delegate, means the vendor had no right to convey the property. A reference to a power of attorney in a Will does not constitute legal proof of the power's existence or its contents.
Result: Decree affirmed; sale annulled.
Legal Category Hierarchy
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property law
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agency
- power of attorney
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transfer of property
- sale
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agency
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succession law
- wills
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practice and procedure
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evidence
- proof of documents
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evidence
Judgement
By a firman (or royal grant) under the seal of the Emperor of Delhi, purporting to bear date the 22nd year of the reign of Mahomed Shah, (A. D. 1748,) a certain part of the income of the pergannah of Chourasee, in the province of Ahmedabad, consisting of the moghulaee or government dues of the villages of Batta and Khansa, and their dependencies, Kussolee and Lashor, was granted to Syud Abd-ool Reheman and his issue for ever.
On the death of Syud Abd-ool Reheman, the dues descended to his son, Syud Abd-oollah; and upon Syud Abd-oollahs death, they descended to and became divisible in shares amongst his three sons, Syud Hamud, Syud Abd-oollah Reheman, and the respondent, Syud Hoossain Abd-oollah, and his two daughters, Sharifa Fatima and Sharifa Alvea.
In the year Hijra 1221 (A D. 1806), the respondent, Syed Hoossain Abd-oollah, left Surat, where he then resided, and went and settled in the island of Java ; and it was alleged that previously to his departure be executed and delivered to his eldest; brother, Syud Hamud,
1 M.I.A. 494 ( 1836- 1837) Boman Jee Muncher-Jee V. Syud Hoossain Abd-Oollah 91
an instrument in the nature of a power of attorney, authorizing him to receive and appropriate his share of the moghulaee dues of the villages in payment of his debts, and for that purpose empowering him to mortgage or sell such share.
On the 8th of May 1822, Syud Hamud, by his agent, Wittuldas, executed a mortgage of his own (and in pursuance of this pretended authority included his brothers, the respondents) shares of the dues of the villages, to Govindun, as the agent of the firm of Atmaram Bookun, for the sum of Rs. 12,001.
On the 7th Mohurrum 1238 Hijra (24th of September 1822, A.D.), a short time previous to his death, Syud Hamud made and executed, according to the forms and solemnities of the Mahomedan law, an instrument in the nature of a Will and deed of gift, in which, after referring to the alleged power of attorney given to him by his brother, the respondent, Syud Hoossain," he declared, both on his own behalf, and on behalf of his younger brother, Syud Hoossain, that the villages of Batta and Khansa had been mortgaged by him, by the mortgage bond of the 8th of May 1822, in order to clear off his own debts, and those due by his younger brother (the respondent), and that as he had paid off all his brothers debts, he had therefore included his brothers share of the dues in the said mortgage. And he thereby constituted his wife, Sharifa Hadji Begum, after his death, heir to the said power of attorney, and therefore to pay off the debts which had been contracted on the mortgage, and to be guardian of his children and dependents, and those of his constituent, Syud Hoossain. and also authorized her after his death to sell his half share of the moghulaee dues of the village of Batta, and also the halt share of his constituent, Syud Hoossain, (which had been mortgaged,) as heir to him and his said constituent, for the price of the day, and to pay the proceeds into the hands of the afore-named bankers to whom the property was mortgaged, and to clear off the mortgage from the half share of the village of Khansa, and to give Syud Hoossain, his constituent afore-named, his share in charge to his wife, that she might maintain herself and her children, and to keep his share in her own possession, for the maintenance of herself, her two children, and also his other relations and dependents."
On the 6th Safar Mahasafar 1240 Hijra (30th of September 1824, A. D.), Sharifa Hadji Begum, by virtue of the authority vested in her by the will and deed of gift of her husband, Syud Hamud, entered into an agreement with the appellant, Boman-jee Muncher-jee, for the sale to him of the moghulaee dues of the village of Batta, including the share of the respondent, Syud Hoossain, for the sum of R. 25,001, and, pursuant to such agreement, a deed of sale was drawn up by the Kazi, bearing date the 26th of October 1824, whereby, in consideration o
