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2013 Supreme(Bom) 2495
HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Surekha Sakharam Washiwale
Versus
Nanobha Dhondiba Bharekar & Others
Appeal From Order No. 1249 of 2012 With Civil Application No. 1704 of 2012
Decided on: 12-12-2013
Advocate Appeared
For the Appellant:Rajesh A. Tekale, Advocate.
For the Respondents:R1, Pralhad D. Paranjape, Advocate.
The central legal point established in the judgment is the need to test and not accept transactions based on a withdrawn Power of Attorney, especially when evidence of misuse and withdrawal of authority is presented.
Headnote:
Power of Attorney - Property Dispute - SurajLamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. (2009(7) SCC 363) - The court discussed the validity and effect of transactions based on Power of Attorney, emphasizing the need to test such transactions and not accept them at face value when doubts and evidence of misuse are presented.
Fact of the Case:
The Appellant filed a Suit for cancellation of a sale deed, alleging that the Respondents attempted to forcibly take possession of her property by misusing a Power of Attorney and executing a sale deed without her consent.
Finding of the Court:
The court found that the sale deed was based on a withdrawn Power of Attorney and granted protective relief to the Appellant, setting aside the impugned order and injuncting the Respondents from disturbing the Appellant's possession of the property.
Issues: The issues revolved around the validity of the sale deed based on the withdrawn Power of Attorney, the ownership and possession of the property, and the need for protective relief to avoid further complications and protect third-party rights.
Ratio Decidendi: The court emphasized that transactions based on a withdrawn Power of Attorney need to be tested and cannot be accepted at face value, especially when evidence of misuse and withdrawal of authority is presented.
Final Decision: The impugned order was quashed and set aside, the Appeal from Order was allowed, the Respondents were injuncted from disturbing the Appellant's possession, and the Appellant was required to maintain the status quo with regard to the property pending the disposal of the Suit. The Appeal from Order and the Civil Application were disposed of, and there was no order as to costs.
Key Points: - The sale deed is based on a withdrawn Power of Attorney and protective relief was granted to the Appellant; impugned order quashed and set aside. (!) - The Power of Attorney was cancelled by public notice; mere reliance on the registered Power of Attorney is not sufficient to deny cancellation or protect the transaction. (!) (!) (!) - The Respondents were injuncted from disturbing possession; the Appellant was required to maintain status quo pending disposal of the Suit. (!) (!) - The Appeal from Order and Civil Application were disposed of accordingly with no costs. (!) (!) - The judgment emphasizes testing transactions based on a Power of Attorney when there is evidence of misuse or withdrawal. (!) (!) - The dispute concerns ownership, possession, and protective relief regarding the property in question. (!) (!) (!) - The plaintiff had long-standing possession and title from a prior sale deed, despite later disputes based on the Power of Attorney. (!) (!) - There was no consideration or proper deposit of funds in the plaintiff’s account supporting the challenged sale. (!) (!) - The authority of the Power of Attorney holder ends upon withdrawal/cancellation, and such withdrawal affects the validity of subsequent transactions. (!)
What is the effect of a withdrawn Power of Attorney on a sale deed and protective relief in a property dispute?
What is the court’s stance on relying on a registered Power of Attorney when cancellation has been published and the holder acted without authority?
What are the remedies or reliefs granted to the owner/plaintiff where a sale deed is based on a withdrawn Power of Attorney?
Heard finally, by consent of the parties. The Appellant-original Plaintiff has challenged order dated 20 July 2012, whereby her Application Exhibit-5 is rejected by the learned Joint Civil Judge, Senior Division, Pune.
2. On 9 April 2012, the Appellant has filed a Suit for cancellation of sale deed dated 11 October 2011, which is within limitation, on the following foundation.
3. In the year 2001, the Appellant purchased land admeasuring 1,925 sq. fts out of Survey No. 112/7B + 8A+9A/1, area admeasuring 01 Hector 28.05 Are situated at village Kothrud, Taluka Haveli, District Pune from Babanrao Dhondiba Sutar and others by way of registered sale-deed dated 27 December 2001. Her name is also came to be mutated in 7/12 extract under Mutation Entry No. 17138. She has constructed temporary sheds. Since then she is in possession of the Suit property.
4. The Appellant, as alleged, was in need of money and therefore, obtained loan from Respondent No.5 for Rs.75,000/- and by way of security executed a Visar Pavati in respect of Suit property. Respondent No.5 assured her that there are two intending buyers and she would fetch very good price for the property and convinced her to execute a Power of Attorney in favour of Defendant No. 2. The Appellant used to inquire about the sale. Respondent No.5 always gave false assurances and told to wait for some more days so that she would fetch good price. Later on, Respondent No.5 started threatening her and also insisted to sell the property to himself. Therefore, the Appellant cancelled the Power of Attorney by publishing notice dated 8 December 2007, in daily newspaper “Prabhat”. The Appellant received no consideration and never transferred the title or possession of the Suit property to anybody, on the basis of the Power of Attorney.
5. On 11 October, 2011, the Appellant got knowledge that Respondent Nos. 2 to 5 were trying to mis-utilize the documents and have executed sale-deed dated 11 October 2011, in favour of Respondent No.1. The Respondents were trying to make mutation entries and were likely to take forcible possession of the Suit property. Therefore, filed the Suit for declaration and temporary injunction for restraining the Respondents from taking over forcible possession of the Suit property.
6. The Power of Attorney though registered in the year 2007 itself, the Appellant cancelled the same by public notice on 8 December 2007. The sale-deed in question, is based upon the Power of Attorney issued who, as alleged, inspite of cancellation, misused the same and sold the property in question to Respondent-Defendant No.1. The basic document, based upon which the Plaintiff had received Rs.75,000/-, was admittedly not a registered document.
7. The sale-deed in question admittedly not signed by the Appellant-Plaintiff. The considerations so mentioned in the registered sale-deed are not received by the Appellant, but by Respondent-Defendant Nos. 2, 3 and 4 and on the respective dates. Even the case of Respondent No.1 is that the amount given only to the other Defendants'/Respondents'. There is nothing on record to show that the said amount though paid by cheques were further deposited in the account of Appellant-Plaintiff, which was one of the condition even of the alleged Power of Attorney.
8. The Apex Court recently in SurajLamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. (2009(7) SCC 363) has doubted such transaction based upon the Power of Attorney. The validity and the effect of such transactions are also discussed and tested, and in a way declared that the transfer of immovable property based upon such Power of Attorney and/or through such Power of Attorney needs to be tested and the facts of sale just cannot be accepted, when the doubts and materials are placed on record to show about the misuse and misdeed, based upon the same Power of Attorney.
9. The submission, therefore, that Defendant No.1 being bona fide purchaser and has made payment to the registered Power of Attorne
