K. Raja vs Mariyamma

Budihal R.B, J.—Heard the arguments of the learned counsel appearing for the appellants-defendants and also the arguments of the learned counsel appearing for the respondents-plaintiffs.

The respondents-plaintiffs have filed the suit before the Trial Court for the relief of declaration that the sale deed dated 13.12.2002 executed by defendant No. 1 in his capacity as the Power of Attorney of late Abbas Beary in favour of defendant No. 2 as null and void and consequently, for permanent injunction to restrain the defendants and anybody on their behalf from interfering with the peaceful possession and enjoyment of ''A'' schedule property. In the said suit, defendants have also claimed by way of counter claim, the relief of mandatory injunction directing the plaintiffs to execute the sale deed in their favour with regard to ''A'' schedule property and put them into possession of the said property.

As per the relevant facts involved in the case, four dates are important to decide the matter.-. On 19.08.1999 deceased Abbas Beary has executed agreement of sale in favour of defendant No. 1 for the sale of suit ''A'' schedule property and it is also the case of the appellants-defendants that on the same day said Abbas Beary has also executed the General Power of Attorney in favour of defendant No. 1. According to the defendants case, it is the General Power of Attorney coupled with interests as per Section 202 of Contract Act and it is irrevocable. It is also the case of the defendants that under the agreement of sale defendant No. 1 has paid Rs. 1,00,000/- as advance sale consideration and remaining amount has to be paid at the time of registration of the sale deed.

The facts also show that on 26.08.2002 Abbas Beary expired. In that regard, death extract has been produced before the Trial Court as per Exhibit P-4 and it is not in dispute. Facts also show that after the death of Abbas Beary, defendant No. 1, who is the holder of agreement of sale and also the General Power of Attorney, executed the sale deed in favour of defendant. No. 2 in respect of ''A'' schedule property. Therefore, it is the contention of the plaintiffs-respondents before the Trial Court that on the basis of the said sale deed, defendant No. 2 so also defendant No. 1 started obstructing the peaceful possession and enjoyment of the suit schedule property by the defendants. Hence, they have sought the said reliefs in the suit.

Looking to the materials placed on record, the sale deed executed by the defendant No. 1 in favour of defendant No. 2 is admittedly after the death of owner of ''A'' schedule property i.e., Abbas Beary. Defendant No. 1, who was only the holder of agreement of sale or the General Power of Attorney, as per Section 54 of Transfer of Property Act, he was not having the ownership rights or title to ''A'' schedule property. Therefore, the sale deed executed by defendant No. 1 in favour of defendant No. 2 only on the basis of agreement of sale cannot confer valid title or ownership rights in favour of defendant No. 2. So this has been held by both, trial Court as well as First Appellate Court.

Regarding the interference said to have been caused by the defendants in the said suit, after considering the evidence on record, both the Courts below have recorded concurrent findings that plaintiffs were able to prove the interference caused by the defendants in the peaceful possession and enjoyment of the suit schedule property.

It is the contention of the appellants-defendants that in the said suit they have also claimed, by way of counter claim, the mandatory injunction to direct the respondents-plaintiffs to execute the sale deed in favour of defendant No. 1 as performance of the agreement of sale dated 19.08.1999.

As per the materials placed on record so also discussion made by the Courts below, DW-1, who is defendant No. 1, the holder of agreement of sale as well as General Power of Attorney holder, admitted in his evidence that he has not at all issued any notice either to Abbas Beary or to the legal representatives, calling upon them to execute registered sale deed in respect of ''A'' schedule property. On the basis of this admission, the Courts below have recorded the finding that defendant No. 1 has failed to make out a case that he was ever ready and willing to perform his part of the contract to get the sale deed in respect of ''A'' schedule property in his favour.

It is the contention of the learned counsel for the appellants herein that the General Power of Attorney, which was also executed on the same day i.e., on 19.08.1999 is coupled with interests and hence, it is irrevocable.

It is undisputed fact that in the said General Power of Attorney, there is no specific mention that it is irrevocable by the executant of the Power of Attorney and there are two independent deeds i.e., the agreement of sale and the General Power of Attorney. This aspect has been taken into consideration and ultimately the Courts below have came to the conclusion that when in the General Power of Attorney, there is no specific mention that it is coupled with interests which attracts Section 202 of the Contract Act, the Courts below have recorded the finding that Section 202 of the Contract Act is not made applicable to the case on hand.

Learned counsel for the respondents herein during the course of his arguments submitted that as per Section 201 of the Contract Act, by the death of executant of General Power of Attorney, automatically it comes to an end.

Looking to these aspects of the matter and the concurrent findings of the Courts below regarding the possession of the plaintiffs over the suit schedule property and the interference so also execution of the sale deed by defendant No. 1 in favour of defendant No. 2 without there being title to defendant No. 1, the trial Court has came to the right conclusion in decreeing the suit of the plaintiffs, which is confirmed by the First Appellate Court. Neither there any illegality nor there is any perverse or capricious view taken by the Courts below. There is no substantial question of law involved in this appeal.

Hence, appeal is dismissed.