[ UTTARAKHAND HIGH COURT ]

VINEET KUMAR JAIN vs ARCHANA GARG FA 38/15 23/10/19 [ Alok JJ ]

• Order 23 Rule 3A CPC Bar to suit – Initially, the suit was filed by the respondent merely on the strength of consent decree passed in the divorce suit – Subsequently, various things were stated in the plaint regarding conduct of the parties as well as arrangement of consideration money for the purchase of the house – Suit was not filed claiming herself owner of the house by the respondent. It is important to note that the initial objection of the appellant was also to the effect that terms and conditions of the consent decree passed in Divorce Suit had been violated by the respondent. In fact, on 04.10.2008 the appellant informed the Court that he has no intention to evict the appeal. It has been recorded in the order sheet dated 04.10.2008 of the suit – The settled legal position, as discussed, is that the consent decree is binding. It is an agreement between the parties with the approval of the Court. It may not act as res-judicata but it acts as estoppel. If for the enforcement of a consent decree, a separate suit is permitted to be filed, it will give rise to the multiplicity of the suit. It would be against the intention of the legislature as embodied under Order 23 Rule 3A of CPC. The suit, as such, is not maintainable.

Power of attorney – Sale of property by power of attorney having no authority to sell the property – By convoluted logic, punctuation marks cannot be made to convey a power of sale – Vendees of such property do not derive any valid title to the property – Vendees of such property having no valid title to the property cannot convey further any valid title to the respondent

Relevent Para:

Para (7)  While reversing Judgment and decree of the trial Court, the High Court held: (i) that
the failure of the appellant to seek the relief of setting aside the documents of transfer and/or
recovery of possession of the property was fatal to her case; (ii) that though the principle
behind Order II Rule 2 CPC may not be applicable to suits for partition, the appellant must be
held to have had constructive notice of the alienations made by her sister, in view of Section 3
of the Transfer of Property Act, 1882 (hereinafter referred to as “the Act”); (iii) that once
constructive notice is attributed to the appellant, any relief for cancellation of the documents of
alienation would have already become time barred, by the time the Power of Attorney was
cancelled; (iv) that since the deed of general Power of Attorney filed as Exhibit A1 did not
contain any express power to sell the suit property, the transferee cannot be held to have
exercised `reasonable care’ as required by the proviso to Section 41 of the Transfer of Property
Act, 1882; and (v) that despite this fact, the appellant was not entitled to a decree for partition,
in view of her failure to seek the cancellation of the alienations, in spite of having constructive
notice of the alienations.

Para (9) But we do not agree with the above submissions of the learned counsel for the
respondent. It remains a plain and simple fact that the deed of Power of Attorney executed by
the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent:
(i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or
without security, and to execute and if necessary, register all documents in connection
therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of
the appellant and present them for registration, under Clause 22. But there was no clause in the
deed authorizing and empowering the agent to sell the property. The argument that the deed
was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for
the reason that the draftsman has chosen to include, (i) an express power to lease out the
property; and (ii) an express power to execute any document offering the property as security
for any borrowal, but not an express power to sell the property. Therefore, the draftsman
appears to have had clear instructions and he carried out those instructions faithfully. The
power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well
as the High Court were ad idem on the finding that the document did not confer any power of
sale.
Para (17) We do not know how the ratio laid down in the aforesaid decisions could be applied
to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A1, deed of
Power of Attorney did not contain a clause authorizing the agent to sell the property though it
contained two express provisions, one for leasing out the property and another for executing
necessary documents if a security had to be offered for any borrowal made by the agent.
Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale.
Even the very decision relied upon by the learned counsel for the respondent, makes it clear
that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha
Aiyar’s Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses
contained in the deed of Power of Attorney.

Para 19  It is a fundamental principle of the law of transfer of property that “no one can
confer a better title than what he himself has” (Nemo dat quod non habet). The appellant’s sister
did not have the power to sell the property to the vendors of the respondent. Therefore, the
vendors of the respondent could not have derived any valid title to the property. If the vendors
of the respondent themselves did not have any title, they had nothing to convey to the
respondent, except perhaps the litigation.

Partition – Not always necessary for a plaintiff in a suit for partition to seek
cancellation of alienations, for the reasons viz. (a) alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer; (b) it may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner.

Relevent Para : 15

It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations.

Power of attorney – Possession of an agent under a deed of Power of Attorney is also the possession of Principal – Unauthorised sale by agent does not tantamount to Principal parting with possession.

Relevent Para:

The reasoning given by the High Court for holding that the appellant ought to have
challenged the alienations, is that the appellant was out of possession. Here again, the High
Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is
also the possession of the Principal and that any unauthorized sale made by the agent will not
tantamount to the Principal parting with possession.

Cases referred:
Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman
Educational Trust, 2012(3) Civil Court Cases 651 (S.C.) : 2012(2) Apex Court
Judgments 606 (S.C.) (Para 18)
Delhi Development Authority vs. Durga Chand Kaushish, 1973(2) SCC 825 (Para 16)
Syed Abdul Khader vs. Rami Reddy & Ors., 1979(2) SCC 601 (Para 16)

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Umadevi Nambiar 19421_2017_41_1502_34598_Judgement_01-Apr-2022