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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Smt. Maya Devi - Appellant
Vs.
Des Raj and others - Respondents
RSA No. 307 of 2005-C a/w, Cross Objections No. 163 of 2008.
Decided on : 28.10.2015
General Power of Attorney - Property Dispute - [Indian Contract Act, 1872 - Section 202, Transfer of Property Act, 1882 - Section 53A, Code of Civil Procedure, 1908 - Order 20 Rule 5] - The court discussed the validity of a sale deed executed under a General Power of Attorney, the authority of the attorney to dispose of the property, and the adjustment of sale consideration against pronotes. The court found that the sale deed was valid as it was executed during the subsistence of the General Power of Attorney and the defendants failed to prove the adjustment of sale consideration against the pronotes.
Fact of the Case:
The plaintiff executed a General Power of Attorney in favor of the defendant to manage his property, but later revoked it when he found out that the defendant had sold the land without his consent. The defendant claimed that the sale was made under the plaintiff's authority and instructions.
Finding of the Court:
The court found that the sale deed was valid as it was executed during the subsistence of the General Power of Attorney and the defendants failed to prove the adjustment of sale consideration against the pronotes.
Issues: Validity of the sale deed executed under the General Power of Attorney, authority of the attorney to dispose of the property, and adjustment of sale consideration against pronotes.
Ratio Decidendi: The court held that the sale deed was valid as it was executed during the subsistence of the General Power of Attorney and the defendants failed to prove the adjustment of sale consideration against the pronotes.
Final Decision: The Regular Second Appeal was dismissed, and the Cross-objections were also dismissed.
Rajiv Sharma, J.
This Regular Second Appeal is directed against the judgment and decree, dated 01.04.2005, passed by the learned District Judge, Una, H.P. in Civil Appeal No. 44 of 2003, titled as Des Raj Vs. Smt. Shakuntla Devi.
2. Key facts necessary for the adjudication of this Regular Second Appeal are that the plaintiff/respondent No. 1 (hereinafter referred to as “the plaintiff” for the sake of convenience) had instituted a suit bearing Civil Suit No. 145 of 1991 against Sh. Madan Lal Vashisht, predecessor-in-interest of the defendants/appellants (hereinafter referred to as “the defendants” for the sake of convenience) as well as against Smt. Ram Piari and Sh. Tirath Ram for declaration. The case of the plaintiff was that he was resident of village Ajouli and was owner in possession of suit land measuring 0-14-42 Hcts., as detailed in head note of the plaint. Defendant Madan Lal (since deceased) was also resident of village Ajouli. He was a Medical Practitioner. The plaintiff was an agriculturist and in order to supplement his income by earning and doing work abroad, intended to go abroad during the year 1979 and came in contact with defendant No. 1. He pursuaded the plaintiff to execute a General Power of Attorney in his favour to manage the property of the plaintiff in his absence. The plaintiff executed General Power of Attorney on 29.05.1979 in favour of defendant No. 1 Madan Lal Vashisht. Plaintiff could not go abroad due to lack of money and also informed the defendant No. 1 and asked him not to do any act on the basis of general power of attorney. Defendant No. 1 did not do any act on the basis of power of attorney and the power of attorney remained only a paper transaction. The plaintiff came to know that the defendant No. 1 Madan Lal had sold the land on the basis of General Power of Attorney for consideration of Rs.1,50,000/- in favour of defendant No. 2 vide sale deed, dated 17.11.1989 and mutation has also been sanctioned on 26.03.1990. The suit land was abutting the Ajauli-Nangal road and was highly valuable from the business point of view and the rate of the land was Rs.15,000/- per marla. The actual price of the land was more than Rs.4 lac at that time. Thereafter, the plaintiff revoked the General Power of Attorney vide registered deed, dated 13.06.1991 and defendant No. 1 was duly notified through registered notice. According to the plaintiff, the sale deed was without his consent and authority.
3. The suit was contested by the defendants. According to the averments made in the written statement filed by the defendant No. 1, the sale was made under plaintiff's authority, Power of Attorney and under his instructions.
4. The defendants No. 2 and 3 also contested the suit. According to them, the suit land was sold by the defendant No. 1 as General Power of Attorney of the plaintiff to the defendant No. 2 vide sale deed, dated 17.11.1989 for a consideration of Rs.1,50,000/-.
5. The replication was filed by the plaintiff.
6. Smt. Ram Piari (defendant No. 2 in Civil Suit No. 145 of 1991), as mentioned hereinabove, also filed a Civil Suit against Des Raj, Shakuntla Devi, Babita, Chander Shekhar and Maya Devi bearing Civil Suit No. 739/95/92. According to the averments made in the plaint, she was owner in possession of the suit land on the basis of a registered sale deed, dated 17.11.1989 executed by Sh. Des Raj through his General Power of Attorney Madan Lal, predecessor-in interest of defendants No. 2 to 5. Sh. Des Raj was threatening to take forcible possession of the land without any right.
7. The suit was contested by Des Raj, defendant No. 1. According to him, the sale deed in favour of Smt. Ram Piari by Madan Lal, predecessor-in-interest of defendants No. 2 to 5 as his General Power of Attorney, was not genuine. The market value of the suit land was Rs.15,000/- per marla.
8. The suit was also contested by defendants No. 2 to 5. According to them, the amount received by Madan Lal has been adjust
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