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1999 Supreme(HP) 39
High Court Of Himachal Pradesh
LOKESHWAR SINGH
KIMTU - Appellant
Versus
LACHHI DEVI,OM PRAKASH - Respondent
RSA No. 269 of 1993
Decided On : 04/01/1999
Mr. S.S. Mittal, Advocate, for the Appellant; Ms. Devyani Sharma, Advocate, for the Respondent No. 1; Mr. N.K. Thakur, Advocate, for the Respondent No. 2.
A sale of land by an unauthorized person is void ab initio and does not confer any title on the purchaser.
Headnote:
TRANSFER OF PROPERTY ACT - SECTION 41 - OSTEENSIBLE OWNER - BURDEN OF PROOF - SALE OF LAND BY UNAUTHORIZED PERSON - VOID AB INITIO - LIMITATION - ADVERSE POSSESSION - ESTOPPEL - SUIT FOR POSSESSION - DECREE.
Fact of the Case:
Plaintiff filed a suit for possession of land sold by Smt. Sobhi, holder of a general power of attorney of Gehru, to defendant No.1. The plaintiff alleged that Gehru was deaf and dumb and was unable to manage his property, and that the sale was void ab initio. The defendant No.1 claimed that she was a bona fide purchaser and that the suit was barred by limitation.
Finding of the Court:
The court held that the general power of attorney executed by Gehru in favor of Smt. Sobhi was void ab initio and that the sale of the suit land to defendant No.1 was also void ab initio. The court further held that the suit was not barred by limitation as the plaintiff had filed the suit within three years of the death of Gehru. The court also held that the defendant No.1 was not a bona fide purchaser as she had knowledge of the invalidity of the general power of attorney.
Issues: 1. Whether the general power of attorney executed by Gehru in favor of Smt. Sobhi was valid. 2. Whether the sale of the suit land to defendant No.1 was void ab initio. 3. Whether the suit was barred by limitation. 4. Whether the defendant No.1 was a bona fide purchaser.
Ratio Decidendi: 1. The court held that the general power of attorney executed by Gehru in favor of Smt. Sobhi was void ab initio as Gehru was deaf and dumb and was unable to manage his property. 2. The court held that the sale of the suit land to defendant No.1 was also void ab initio as Smt. Sobhi was not authorized to sell the land. 3. The court held that the suit was not barred by limitation as the plaintiff had filed the suit within three years of the death of Gehru. 4. The court held that the defendant No.1 was not a bona fide purchaser as she had knowledge of the invalidity of the general power of attorney.
Final Decision: The court allowed the appeal, set aside the judgments and decree passed by the courts below, and passed a decree for possession of the suit land in favor of the plaintiff.
Lokeshwar Singh Panta, J.—The above second appeal has been filed by the plaintiff in Civil Suit No. 34 of 1987 on the file of Senior Sub-Judge, Lahaul Spiti District at Kullu exercising the powers of Sub-Judge, 1st Class, Kullu, having lost before both the courts below.
2. The appellant-plaintiff filed the suit for possession of the land comprised in Khasra No. 5082/52 Khatauni No. 731/1549 admeasuring 1-13 biswas and 1/10 share of Khata No. 732 Khatauni No. 1550 Khasra No. 44 min measuring 31 bighas 5 biswas i.e. 3 bighas 3 biswas, total land being 4 bighas 16 biswas situate in Phati Nathan, Kothi Naggar, Tehsil and District Kullu, with further prayer of recovery of Rs. 970/- as mesne profits. The suit was filed against two defendants, namely, Smt. Lachhi Devi respondent-plaintiff and Smt. Devku.
3. It was the case of the plaintiff that her father Gehru was deaf and dumb from his childhood and was also possessing very slow intelligence, thus, due to the disability he was unable to manage his property and to enter into contract. Gehru used to live with his mother, who managed his property, but after her death, Smt. Sobhi, the wife of Gehru started squandering away his landed property. Smt. Sobhi was able to get a general power of attorney in her name from Gehru in the year 1962 and at that time, the plaintiff was aged about 5/6 years. It was also alleged in the plaint that under the power of attorney Smt. Sobhi sold or gifted major portion of the property of Gehru. The suit land to the extent of 4.16 bighas was also sold for small consideration of Rs. 3,360/- to defendant No.1 Smt. Lachhi Devi on 21.3.1963 vide registered sale-deed and the said sale was void, illegal and also unauthorised act. Gehru died on 22.2.1984 and the plaintiff being his daughter was entitled for possession of suit land and also prayed for recovery of Rs. 970/- as mesne profits.
4. The first defendant filed a separate written statement disputing the claims of the plaintiff. Under preliminary objection, defendant No.1 denied that the plaintiff was the daughter of Gehru and questioned her locus standi to file the suit, alternatively she prayed that in the presence of defendant No. 2, the plaintiff was not entitled to inherit and seek the possession of the suit land. She also raised pleas of estoppel, limitation and valuation of the suit land and, inter alia, pleaded that Gehru became little dumb due to illness prior to 1962 but this disability did not affect his speech and power to execute the power of attorney. It was also pleaded that Smt. Sobhi was de facto guardian of Gehru and she transferred the suit land for consideration, thus supported the sale in question. She further alleged that she was a bona fide purchase and the suit land was sold to her by Smt. Sobhi for legal necessity. The defendant prayed for the dismissal of the suit on the above grounds.
5. In her replication, the plaintiff denied the preliminary objections and reiterated and reaffirmed the allegations made in the plaint. On the above claims and counter-claims, the suit came to be tried and the learned trial Judge framed eight issues of which seven pertain to the points raised in dispute between the parties. The issues so framed read as under:—
1. Whether the plaintiff has no locus standi to file this suit. OPD.
2. Whether the plaintiff is barred by her act or conduct from filing this suit? OPD.
3. Whether the suit is within limitation? OPP.
4. Whether Gehru deceased was not competent to execute any valid power of attorney as alleged? OPP.
5. If issue No. 4 is proved, whether Smt. Sobhi sold the suit property for the benefit and legal necessity of deceased Gehru as alleged? OPD.
6. Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction? If so, what is its value for this purpose? OP Parties.
7. Whether the plaintiff is entitled to recover mesne profits from the defendant No. 1 ? If so, at what amount? OPP.
8. Relief.
6. The learned trial Judge after con
