Back
2006 Supreme(MP) 1020
2007(1) JLJ 90
Rajendra Menon, J.
Shamim Afroz (Smt.) and others v. Mehfooz-ul Hassan and
others
Second Appeal No. 1395 of2005 (Gwalior) against the judgment and
decree of Additional District Judge, Ganj Basoda, passed in Civil
Appeal No. 145-A of 2005 affirming the judgment and decree of Civil
Judge, Class 1, Ganj Basoda passed in Civil Suit No. 45-A of 2003;
Decided on 6.9.2006.
R.D. Jain with Ashish Saraswat for appellants;
Y.G. Khot for respondent No.2;
Y.S. Chaturvedi, Government Advocate for respondent No.4.
Headnote:(1) Evidence Act, 1872 -- Ss.91, 92, 65 and 114 -- written power of attorney admitted -- it should be proved either in original or by secondary evidence -- its averments cannot be proved by oral evidence – non-production may give rise even to adverse presumption.
Whether the Court below has erred in holding that the sale deed executed by defendant No.1 in favour of defendant No.2 on the basis of power of attorney is valid when the power of attorney is not filed in the Court to show that the said document contains powers to sell the property? [Para‘ 2 Held: Except for making oral statement unsupported by any documentary evidence plaintiffs wanted the suit to be decreed.
This was not accepted by the Courts below and for the reasons as indicated hereinabove Courts below have rejected the suit. It is the considered view that the reasons given by the Courts below for not accepting the contentions advanced by the plaintiffs cannot be termed as perverse or illegal in any manner whatsoever. Once the basis for making the claim, namely the power of attorney was not produced or its contents proved as per law, no case was made out by the plaintiffs for granting any relief. Even if the original power of attorney was not available with them, they could have proved it by leading secondary evidence. This was also not done nor was Sharif-ul Hasan summoned for giving evidence. (2003)6 SCC 595 and AIR 1961 SC 1316 followed. [Para 18
(2) Contract Act, 1872 -- S.29 -- payment of consideration indicated in sale-deed -- also proved by oral evidence -- provision not attracted. [Para 19
(3) Limitation Act, 1963 -- Arts. 59 and 94 -- transfer not in relation to charitable or religious endowment -- Art. 94 does not apply -- transfer made and possession also handed over -- must be in the knowledge of plaintiff -- suit beyond 3 years is barred by limitation under Art.59. [Para 20
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 91] 92] 65 rFkk 114 && fyf[kr eq[rkjukek Loh—r && og ;k rks ewy }kjk vFkok f}rh;d lk{; }kjk lkfcr fd;k tkuk pkfg, && mlds izdFku ekSf[kd lk{; }kjk lkfcr ugha fd, tk ldrs && is‘k ugha fd, tkus ls izfrdwy mi/kkj.kk Hkh dh tk ldrh gSA
D;k fupys U;k;ky; us ;g vfHkfu/kkZfjr djus esa xyrh dh gS fd izfroknh Ø- 1 }kjk izfroknh Ø- 2 ds i{k esa fu"ikfnr eq[rkjukek ij vk/kkfjr foØ; foys[k fof/kekU; gS tcfd ;g nf‘kZr djus ds fy, fd mDr nLrksot esa mDr laifÙk foØ; djus dh ‘kfDr varfoZ"V gS] eq[rkjukek U;k;ky; esa Qkby ugha fd;k x;k gSA ¿ iSjk 2À
vfHkfu/kkZfjr % fdlh nLrkosth lk{; ds leFkZu fcuk ekSf[kd lk{; ij ls oknhx.k okn fMØhr fd;k tkuk pkgrs FksA fupys U;k;ky;kas }kjk ;g eatwj ugha fd;k x;k vkSj Åij crk, x, dkj.kksa ls fupys U;k;ky;ksa us okn [kkfjt dj fn;kA ;g lqfopkfjr jk; gS fd oknhx.k }kjk fd, x, ladFku eatwj ugha fd, tkus ds fy, fupys U;k;ky;ksa }kjk fn, x, dkj.k foi;ZLr vFkok voS/k ugha dgs tk ldrsA tc nkok fd, tkus dk vk/kkj eq[rkjukek is‘k ugha fd;k x;k Fkk mldh varoZLrq fof/k ds vuqlkj lkfcr ugha dh xbZ] dksbZ vuqrks"k iznku fd, tkus ds fy, oknhx.k }kjk dksbZ ekeyk fl) ugah fd;k x;kA Hkys&gh ewy eq[rkjukek] muds ikl miyC/k ugha Fkk] f}rhf;d lk{; izLrqr dj og mls lkfcr dj ldrs FksA ;g Hkh ugha fd;k x;k vkSj u ‘kjhQ&my glu gh lk{; nsus ds fy, cqyk;k x;kA ¼2003½6 ,l lh lh 595 rFkk , vkb vkj 1961 ,l lh 1316 vuqlfjrA ¿ iSjk 15] 12 ,oa 13À
¼2½ lafonk vf/kfu;e] 1872 && /kkjk 29 && izfrQy dk lank; foØ;&i= esa minf‘kZr && ekSf[kd lk{; }kjk Hkh lkfcr && mica/k vkdf"kZr ugha gksrkA
¿ iSjk 19À
¼3½ ifjlhek vf/kfu;e] 1963 && vuq- 59 rFkk 94 && varj.k] iwrZ vFko /kkfeZd foU;kl ds laca/k esa ugha && vuq- 94 ykxw ugha gksrk && varj.k fd;k x;k vkSj dCtk Hkh ns fn;k x;k && oknh dh tkudkjh esa gksuk gh pkfg, && vuq- 59 ds v/khu 3 o"kZ ls ijs okn ifjlhek oftZr gSA
¿ iSjk 20À
1. This is plaintiffs second appeal under section 100 CPC assailing the concurrent findings recorded by the Courts below and dismissing the suit filed by the plaintiffs.
2. The appeal was admitted on 2nd January 2006 for consideration of the following three substantial questions of law:
(i) Whether the Court below has erred in holding that the sale-deed executed by defendant No.1 in favour of defendant No.2 on the basis of power of attorney is valid when the power of attorney is not filed in the Court to show that the said document contains powers to sell the property?
(ii) Whether the sale is void in absence of any consideration? and (iii) Whether the Court below has erred in dismissing the suit as barred by limitation?
3. Property in question, which is the disputed property in the present suit consists of various land situated in Village Baike Tehsil Ganj Basoda District Vidisha. The total area of the land is 1.207 hectares and particulars of the same are given in para 2 of the memorandum of appeal. The said property was the joint property of Wahid-ul Hasan and Mehfooz-ul Hasan, who are real brothers. Apart from these two persons one Sharif-ul Hasan is the third brother who is also having some share in the property.
4. Plaintiffs hereinabove are the sons and daughters of Wahid-ul Hasan. They filed the suit against their uncle Mehfooz-ul Hasan and his son Maqsood Ali, who are defendants No.1 and 2 respectively before the Courts below. It was the case of plaintiffs that Wahid-ul Hasan was not staying in Ganj Basoda, he was a teacher in the Education Department and he was staying in Ujjain with his family members. The said Wahid-ul Hasan had given a power of attorney to his brother Mehfooz-ul Hasan on 31st May 1984 for looking after the property. It was the specific case of the plaintiffs that the power of attorney given to Mehfooz-ul Hasan did not authorize him to sell the property, it was only executed for delegating him power of managing the property. Plaintiffs contend that in spite of the fact that, Mehfooz-ul Hasan was not authorized to sell any of the property, he' alienated the property vide various sale-deeds to various persons so also to his son Maqsood Ali on 11.7.1990 for a consideration of Rs.14,500/(Rupees fourteen thousand five hundred only). Inter alia contending that Mehfooz-ul Hasan was not authorized to sell the property, the sale made by him is illegal and not binding on the plaintiffs suit was filed for restoration of possession and for declaration of the sale-deeds as null and void and not binding on the plaintiffs.
5. Suit has been dismissed by both the Courts and, therefore, plaintiffs are before this Court in this appeal under section 100 CPC.
6. In the suit initially Mehfooz-ul Hasan was imp-leaded as defendant No.1 and Maqsood Ali was imp-leaded as defendant No.2. However, during the pendency of the suit Mehfooz-ul Hasan died on 12.10.2002 and, therefore, his legal heirs have been brought on record. During his life time this defendant filed a written statement on 28.1.2002 and submitted that the power of attorney did not authorize him to sell the property. After his death his legal heirs have again filed a separate written statement and submitted that their father was not authorized to sell the property and the power of attorney only gave him a right to look after the property and manage it. However, defendant No.2 Maqsood Ali denied all these contentions and submitted that the power of attorney authorized his father to sell the property, Exhibit P-8 sale-deed dated 11.7.1990 was executed in his favour, he had paid a consideration ofRs.14,500/- (Rupees fourteen thousand five hundred only) to his father and the sale was made with the knowledge of Wahid-ul Hasan. It was stated by him that Wahid-ul Hasan had died on 11.2.1996 and during his life time apart from the sale-deed (Ex.P-8) executed in favour of defendant Maqsood Ali, sale-deeds (Ex.P9 to P-12) were executed by Mehfooz-ul Hasan in the name of
