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V. RAMASUBRAMANIAN, HEMANT GUPTA
Umadevi Nambiar – Appellant
Versus
Thamarasseri Roman Catholic Diocese Rep. by its Procurator Devssia’s Son Rev. Father Joseph Kappil – Respondent
What is the ruling on whether a plaintiff in a suit for partition must always seek cancellation of alienations? What is the interpretation of Power of Attorney and the scope of authority to sell under Section 41 of the Transfer of Property Act, 1882? What are the consequences of constructive notice and the correct application of the Interpretation Clause of Section 3 of the Transfer of Property Act in cases involving agents?
Key Points: - The Court held that it is not always necessary for a plaintiff in a partition suit to seek cancellation of alienations. (!) - The deed of Power of Attorney did not contain an express power of sale; thus, an agent cannot be presumed to have authority to sell, and punctuation cannot confer such authority. (!) (!) - The High Court erred in attributing constructive notice to the appellant under Section 3 of the Act; possession of an agent under a Power of Attorney is possession of the principal. (!) - Section 41 of the Transfer of Property Act requires reasonable care by the transferee to ascertain the power to transfer; if no power to sell exists, the transferee cannot rely on Section 41. (!) (!) - A person cannot derive title through an agent who did not have power to alienate; no one can confer a better title than what the transferor had. (!) - The appeal was allowed; the High Court judgment set aside and trial Court decree restored. (!) - The principle that alienees and co-sharers may sustain alienations to the extent of the co-sharer’s share. (!) - The doctrine Nemo dat quod non habet applies to prevent transfer of title by unauthorized alienations. (!) - The interpretation emphasizes that a Power of Attorney requires explicit authorization to sell; mere clauses about leases or security do not grant sale power. (!) (!)
JUDGMENT :
V. Ramasubramanian, J.
1. Their suit for partition having been decreed by the trial Court but reversed by the High Court in a regular first appeal, the plaintiffs have come up with the above appeal.
2. We have heard Shri Dushyant A. Dave, learned senior counsel for the appellant and Shri Thomas P. Joseph, learned counsel for the respondent.
3. The suit schedule property originally belonged to one Ullattukandiyil Sankunni. After his death, the property devolved upon his two daughters, one of whom is the appellant herein. The appellant herein executed a general Power of Attorney on 21.07.1971, registered as Document No.35 of 1971, in favour of her sister Smt. Ranee Sidhan. However, the said power was cancelled on 31.01.1985. But in the meantime, the appellant’s sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties. Therefore, the appellant first filed a suit in O.S.No.16 of 1986 followed by another suit in O.S.No.27 of 1988 against the assignees/releasees. Though a preliminary decree was passed in the second suit on 7.01.1989, the appellant came to know later that the assignees/releasees had sold the
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