Swaran Singh vs Harbans Singh and Others

S.K. Jain, J.—Swaran Singh defendant agreed to sell agricultural land fully described in the plaint in favour of Harbans Singh, Thakar Singh and Iqbal Singh sons of Fateh Singh Plaintiffs in equal shares of a sale consideration of Rs. 18,000/- vide agreement to sell dated 26.6.1972 registered on 29.6.1972. He received Rs. 13,000/- as earnest money. General Power of Attorney was executed in favour of Fateh Singh son of Tehal Singh on 26.6.1972 which was also registered on 29.6.1992 authorising him to get the sale complete. The said attorney Fateh Singh executed two sale deeds dated 28.8.1975 and 28.11.1975 respectively and also received Rs. 5,000/- as balance sale consideration. The possession of the land sold was delivered to the plaintiffs on 6.11.1973. Mutation was also sanctioned accordingly. The defendant cancelled the general power of attorney in favour of Fateh Singh and claimed himself to be the owner of the said property which necessitated the filing of Civil Suit No. 171-A of 17.2.1981 by Harbans Singh, Thakar Singh and Iqbal Singh, plaintiffs, against Swaran Singh defendant. It was contested by the defendant. He denied everything under the sun. It was contended that the general power of attorney in favour of Fateh Singh was executed thereby empowering him to manage the land and not to sell the same. It was cancelled through a registered document on August 27,1975.

The sale deeds executed by Fateh Singh on the strength of the alleged power of attorney were void ab initio. In the alternative, it was averred that even if the sale deeds are proved, the same are void ab initio being fraudulent and without consideration.

Learned trial Court vide its judgment and decree dated 7-12-1984, decreed the suit of the plaintiffs.

Feeling aggrieved, the defendant preferred Civil Appeal No. 240, instituted on 2-1-1985. The learned Additional District Judge, Amritsar, vide his judgment and decree dated 5-1-1988, dismissed the same.

It is that judgment and decree of the first appellate Court which has been appealed against by the defendant and which requires my examination of its sustainability.

I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and judgments of both the Courts below.

Mr. A.S. Cheema, learned Senior counsel for the appellant has argued that the learned Courts below have misread, misconstrued and misinterpreted the evidence and had, therefore, arrived at wrong conclusions. Vide power of attorney dated 26-6-1972 only power to manage the land was given to Fateh Singh whereas by addition of the words "sale and mortgage" this document has been made to read as power to execute the agreement to sell. Thus, a fraud has been played on the appellant. I do not find any force in this argument.

Combined reading of the agreement dated 26.6.1972, Ex.Pl, Power of attorney of the same date Ex. PW5/1, agreement to sell dated 6.11.1973 Ex.P.2. sale Deeds Ex.P.3 to Ex.P5 and statements of Deed Writer Harbhagwan Dass PW3, Harbans Singh attesting witness PW2, Mela Singh attesting witness PW4 and Shri B.D. Aggarwal, the then Sub Registrar PW5, goes a long way to prove the due execution of the said documents as also the payment of the sale consideration. Swaran Singh defendant appearing as DW1 has admitted the execution of the power of attorney Ex.PW5/l by him in favour of Fateh Singh. He has identified his signatures on the said power'' of attorney as also on the agreement Ex.P1. Besides this , Swaran Singh defendant vide Ex.DW3/1 had intimated to the Sub Registrar that he had executed a general Power of attorney dated 26.6.1972 in favour of Fateh Singh in connection with agricultural land measuring 119 Kanal-15 Maria situated in village Rodala, Tehsil Ajnala, District Amritsar, thereby authorising him to mortgage, sale, transfer the said land and to pursue any litigation in connection therewith. The above said evidence has not been rebutted or shattered in any manner and, therefore, I do not find any fault with the concurrent findings of the Courts below that Swaran Singh had executed a power of attorney in favour of Fateh Singh thereby authorizing him to execute the sale deeds in question and further that Swaran Singh had executed an agreement dated 26.6.1972 in favour of the plaintiffs and that defendant had failed to prove on record that a fraud had been played on him.

Second argument of the learned counsel for the appellant is to the effect that no second agreement of sale Ex.P-2 had been executed by Fateh Singh nor did he possess any authority from anybody to execute any such agreement. I do not find any substance in this argument. As mentioned in the preceding paragraphs execution of the agreement Ex.P2 has been proved on the record. As far as the power of Fateh Singh to execute the said agreement is concerned, I find that this agreement was executed on 6.11.1973, on the strength of general Power of attorney dated 26.6.1972, the power of attorney was got cancelled vide document Ex. DW3/1 dated 27.8.1975. Therefore, it cannot be said that on the date of execution (6.11.1973) of the agreement to sell Ex.P2 Fateh Singh had ceased to be the general attorney of the appellant. Coming to the executing of the three sale deeds Ex. P3 dated 28.10.1975, Ex.P4 and Ex.P5 both dated 30.10.1975. I find that these were executed in pursuance of the agreements to sell Ex.Pl and Ex.P2. Vide agreement Ex.P2 Fateh Singh had received the balance sale consideration of Rs. 5000/- and had also delivered possession of the suit land to the vendees in part performance of the Contract.

Simply because the sale deeds were executed by Fateh Singh after the cancellation of Power of attorney Ex.PW5/l in his favour (vide document Ex.DW3/l dated 27.8.1975), it cannot be said that these sale deeds were void ab initio or did not pass any title in the land in dispute to the vendees, for the reasons that:-

(a) the entire contract has been executed under agreements Ex.Pl and Ex.P2 in as much as whole of the sale consideration was received and possession was delivered. What remained to be done was on the execution and registration of sale deeds;

(b) in view of the provisions of Section 204 of the Indian Contract Act, 1872, which provide that the principal cannot revoke the authority given to his agent after the authority has been partly exercised, so far as regard such acts and obligations as arise from acts already done in the agency. The appellant could not turn round and cancel the power of attorney executed by him in favour of Fateh Singh when he had received the sale consideration and delivered possession of the land to the vendees thereby completing the major part of the contract of sale; and

(c) the power of attorney was cancelled on 28.7.1975. There is no evidence on record to show that notice of this fact was served upon the vendees prior to the execution of the sale deeds. The case of the appellant in his statement is that he had informed the attorney in the presence of Harnam Singh verbally and that he had also informed him through registered notice but neither any copy of the notice nor postal receipt has been produced to show that any notice was put in the course of registered postal transmission to his address nor any acknowledgment receipt showing the service of the said notice either on Fateh Singh or on the vendees has been exhibited on record.

Furthermore, the notice is alleged to have been issued on 19.9.1975, about a month after the cancellation of the power of attorney on 27.8.1975. Section 208 of the Indian Contract Act provides that the termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them. Thus, it is evident on the face of the record that the temination of the authority of Fateh Singh was not made known to him or to the vendees prior to the execution of the sale deeds. Therefore, the sale deeds Ex. P.3 to Ex. P5 were perfectly valid and had transferred a sound and valid title to the vendee-respondents.

Before parting with the judgment, I would like to discuss the authorities cited by the learned counsel for the appellant at the bar.

I can possibly have no quarrel with the proposition of law laid down by the Apex Court in Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, to the effect that whether the particular transaction is vitiated on the ground of undue influence is primarily a decision on a question of fact. But a decision of the first appellate Court reached after placing the onus wrongly or based on no evidence, or where there has been substantial error or defect in the procedure producing error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision, But as mentioned in the earlier part of this judgment, it has not been established in evidence that either of the six documents namely agreements Ex.P1 and Ex.P2 power of attorney Ex.PW5/1 or the sale deeds Ex.P3 to Ex.P5 were the result of undue influence. No error or defect, muchless substantial, in the procedure adopted by either of the Courts below has been pointed out. Therefore, the above said authority does not, in any way improve the Case of the appellant.

No piece of evidence brought or) the record by the appellant has been pointed out which was allegedly ignored by the lower appellate Court. Therefore, the ratio laid down by a Single Bench of this Court in Gumek Singh alias Nek Singh v. Batbir Singh etc 1977 CLJ 256 is not applicable to the facts of this case.

It has been argued on behalf of the appellant that vide document Ex.P1 the power of manage the land was given. But by adding words "sale and mortage" it has been converted into an agreement of sale. The Courts below have misread this document and found it to be art agreement to sell. Therefore, the High Court can interfere with the said finding of fact. He has relied upon Anil Kumar v. Amra Ram (1984) 86 P.L.R. 133, in support his agreement. I have gone through the said judgment. There can be no quarrel with the proposition of law laid down therein to the effect that the High Court can interfere with a finding of fact reached by the first appellant Court on the basis of misreading of evidence. But the said judgment is of no help to the appellant because a bare reading of Ex. P.1 would show that it is an agreement to sell agricultural land.

Again, I can possible have no quarrel with the ratio laid down in Md. Ziaul Haque Vs. Calcutta Vyaper Pratisthan, , to the effect that when the case of the parties was that there were two agreements and when the party failed to prove the transaction alleged, it would be inadmissible to allow such party to set up the earlier agreement unmodified as the only agreement governing the parties, but the said ratio cannot be grafted on the facts and circumstances of this case. Herein, the latter agreement Ex.P-2 does not supersede the earlier agreement Ex.P1, vide which the land was agreed to be sold for Rs. 18,000/- out of which Rs. 13,000/- were received by the prospective vendor through his general power, of attorney as major part of the sale consideration. The latter agreement Ex.P2, is in furtherance of the earlier agreement Ex.P1 as through the said agreement balance sale consideration of Rs. 5,000/- was received by the prospective vendor from the prospective vendees and possession of the land agreed to be sold vide agreement Ex.Pl was delivered to them in part performance thereof. It is thus clear that the latter agreement Ex.P2 does not in any way supersede or modify the earlier agreement Ex.Pl, nor it intends to set up a false case. It does not in any way-render the earlier agreement Ex.Pl ineffective. Rather, it is in execution of the terms contained in the earlier agreement Ex.Pl.

Lastly, the learned counsel for the appellant, placing reliance on Lakshminarayana Reddiar v. Singaravelyu Naicker AIR 1963 Mad 24, has argued that the plaintiff-respondents had taken unfair advantage of the position of the appellant and got the agreement Ex.P-2 executed and, therefore, the sale deeds Exs. P-3 to P-5 , were rendered invalid. I have carefully examined this judgment. Therein, it has been held that the plaintiff secured for himself the properties, far below the market price, not negotiating for them on equal terms. Thus, the plaintiff obtained a measure of unfair advantage over the judgment-debtor by the terms of the contract in that case and, therefore, specific performance was refused. Therefore, the above said judgment is also of no avail to the appellant.

As a sequel to the above discussion, the concurrent findings returned by the two court below do not warrant interference by this Court in this Regular Second Appeal.

Resultantly, this Regular Second Appeal fails and the same is hereby dismissed. However, the parties are left to bear their own costs.