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2011 Supreme(All) 888
[2011(4) ADJ 13]
ALLAHABAD HIGH COURT
BEFORE : SANJAY MISRA, J.
CHANDRAMA SINGH AND OTHERS ….Appellants
Versus
MIRZA ANIS AHMAD …Respondent
(Second Appeal No. 95 of 1989, decided on 25th March, 2011)
Counsel :
Sankatha Rai, Akhilesh Tripathi, Ashutosh Srivastava, P.K. Singh, R.C. Singh, Sudhir Kumar Shukla, Gyanendra Kumar Singh for the Appellants; R.K. Jain, J.N. Srivastava, J.N. Verma, M.D. Singh Shekhar,S.C. Srivastava for the Respondent.
Headnote:(Indian) Registration Act, 1908—Sections 32, 33 and 17(1)(b)—Powers of Attorney Act, 1882—Section 2—Registered—Attorney—Revocation—Mode of—Whether the registered power of attorney could be revoked without registration or cancellation thereof ?—No—Power of attorney relating to agricultural land of respondent includes the power to sell the land—If created rights relating to immovable property of a value of more than one hundred rupees—Therefore, such document would required registration under Section 17(1)(b)—Document whereby registered power of attorney was cancelled required registration and since it was admittedly not registered, the effect of non-registration under Section 49 would affect it—An notice of cancellation was compulsorily registrable and it was not registered then even upon its service upon the Attorney, it would not affect the rights created—A registered power of attorney could be revoked only upon execution of a registered document of revocation—Held, that since notice dated 20.2.1973 sent by registered post was only a communication and since it was not registered under the 1908 Act it did not revoke the registered power of attorney dated 17.3.1967—Impugned judgment set aside. [Paras 11 to 19]
Hon’ble Sanjay Misra, J.—This is a Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.9.1988 passed in Civil Appeal No. 152 of 1986 (Mirza Anis Ahmad v. Chandrama Singh and others) by Additional District Judge, (Special Judge), Ghazipur.
2. This Second Appeal was admitted on the following substantial questions of law :
“1. Whether the Registered Power of Attorney under the provisions of Section 32 read with Section 33 and Section 17 (1) (b) of the Indian Registration Act could be revoked without registration or cancellation thereof”
3. Under an order dated 16.8.2010 (passed in this appeal) this appeal survives only between the Appellant No. 2 namely Ramjas Singh Yadav and the Respondent namely Mirja Anis Ahmad.
4. Mirja Anis Ahmad, who was the owner of Plot No. 273 area 0-18-0 biswa situate in Village Baleshar, Pargana Ihaburala, District Ghazipur executed a Registered Power of Attorney on 17.3.1967 in favour of Ram Ker Singh who executed registered Sale-deed dated 26.12.1975 transferring half share each to Chandrama Singh and Ramjas Singh Yadav.
5. Mirja Anis Ahmad (hereinafter referred to as the plaintiff) brought an Original Suit No. 123 of 1977 in the Court of Munsif Ghazipur for cancellation of Sale-deed dated 26.12.1975 and for possession mainly for the reason that he had cancelled the Power of Attorney dated 17.3.1967 by a notice dated 20.2.1973 hence Ramker Singh was not a competent person to act on his behalf to execute the sale-deed dated 26.12.1975.
6. The Trial Court non-suited the plaintiff by dismissing his suit vide the judgment and decree dated 17.4.1986. The plaintiff’s Civil Appeal No. 152 of 1986 has been allowed by the judgment and decree dated 29.9.1988 whereagainst this Second Appeal has been filed by the two vendees namely Chandrama Singh (hereinafter referred to as the defendant No. 1) and Ramjas Singh Yadav (hereinafter referred to as the defendant No. 2) as also the Power of Attorney Ramker Singh (hereinafter referred to as the Attorney).
7. The First Appellate Court recorded a finding of fact that the plaintiff had proved by evidence that the notice dated 20.2.1973 was sent by registered post and was duly served on the Attorney. It took into consideration the evidence that was produced and proved. The postal receipt Ext. Ka-2 and postal acknowledge Ext. Ka-3 were proved by the hand writing and Finger Print Expert for the signature of the Attorney. The other Expert Report was considered and the Court found that when all the internal features of the signature tallied then a few external features on appearance could not be a ground to discard the Expert Evidence. It considered the admission of the attorney made in the proceedings for Bhumidhari Sanad where he had compromised with the plaintiff and such compromise was verified by the Presiding Officer and an order dated 19.7.1973 was passed (Ext.1). The Court took into account the oral statement of the witnesses and set aside the findings recorded by the trial Court for the reason that the Trial Court has erred by considering an isolated sentence whereas the oral statement as a whole should have been seen. When the entire oral statement indicated a particular stand then only one sentence was wrongly relied upon which was erroneously interpreted. The first appellate Court also held that the defendant No. 1 and defendant No. 2 were not bona fide purchasers. The defendant No. 1 was real brother of the Attorney and although the plaintiff was present in the village they made no efforts to speak to the plaintiff even though the plaintiff and the Attorney were at issue in proceedings of Bhumidhari Sand and in proceedings dated 16.10.1975 under Section 145 of Criminal Procedure Code. It held that no sale consideration was given to the plaintiff. The Court found two very relevant circumstances to disbelieve the plea of the Attorney. The first was that his power was cancelled by registered notice duly se
