JUDGMENT
M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code), challenging the judgment and decree dated 21-8-1979 passed by the learned Additional District Judge, Jalandhar, reversing the findings recorded by the Civil Judge, Phillaur. The suit of the plaintiff appellant for possession had been decreed by the Civil Judge on 27-9-1978.
2. The plaintiff-appellant filed the suit claiming that she being the only daughter of Waryama son of Nathal was entitled to inherit the suit land in accordance with the provisions of Hindu Succession Act, 1956. She further alleged that defendant-respondents No. 1 and 2 were the real nephews of Waryama her father who died in Canada on 30-8-1974. Defendant-respondents No. 3 and 4 are the grandsons being the sons of defendent-respondents No.1 and 2 respectively and accordingly on account of the presence of the plaintiff appellant who is the direct heir of Waryama being his daughter she was entitled to inherit the suit land or the estate left by him. It was further alleged that on account of the marriage of the plaintiff appellant, she left her own village and taking advantage of her absence, the defendant respondents had taken forcible and Illegal possession of the suit land to which they had no right or Interest: She further asserted that the possession of the defendant-respondents of the suit land is illegal, forcible, null and void and they were merely trespassers. On enquiry, the plaintiff-appellant is alleged to have found that the defendant-respondents had some power of attorney executed by Waryama in their favour which is claimed to be absolutely wrong.
3. Defendant-respondents No. 1, 3 and 4 filed their written statement and set up the plea that Waryama deceased had executed a general power of attorney in favour of defendant-respondent No. 1 on 23-10-1972 which is duly attested by a Notary Public in Canada. On the basis of the power of attorney, defendant-respondent No. 1 executed two sale deeds for a consideration of Rupees 15,000/- each on 27-12-1972 in favour of defendant-respondents No. 3 and 4. It is the case of the defendant-respondents that they are bona fide purchasers of the land with valuable consideration. They had no notice of any rights of inheritance or reversioner and have claimed protection under the law. Replication was also filled reiterating the stand taken in the plaint. On the basis of the pleadings of the parties, the trial Court framed following issues :–
” 1. Whether Chanan Kaur is the sole heir of deceased Waryama ? OPP
2. Whether deceased Waryama had executed a general power of attorney in favour of defendant No. 1 and had authorised him to sell the land ? OPD
3. Whether defendant No.1 as attorney of deceased Waryama sold the land to defendants No. 3 and 4 vide two sale deeds ? OPD
4. Whether the defendants are bona fide purchasers for valuable consideration and without notice?
5. Whether the defendants have become owner of the suit property by adverse possession ? OPD
6. Relief.”
4. Before proceeding further, it would be appropriate to make a reference to the following pedigree table for better appreciation of the facts.
Nathal
|
————————————
| |
Waryama Shama
| Two sons
| |
| ---------------------------------------
| Pakhar Singh Ujjagar Singh
| (Deft. Resdt.1) (Deft. Resdt.2)
| | |
| | |
Chanan Kaur Hardev Singh Hardial Singh
(Plff-appellant) (Deft. Respdt.3) (Deft.-Respdt.4)
daughter of
Waryama
5. The trial Court on issue No. 1 came to the conclusion that the plaintiff-appellant is the daughter of Waryama and as such, is his sole heir. On Issue No. 2, the findings have been returned that there was valid power of attorney Ex. D3 in favour of defendant-respondent No. 1 and its correctness must be presumed in view of Section 85 of the Indian Evidence Act, 1872 because the power of attorney was executed by Waryama, father of the plaintiff-appellant before a Barrister and Solicitor in the province of Alberta (Canada) and it also bore the seal of Notary Public. Reliance has also been placed on Section 78(6) of the Evidence Act. On issues Nos. 3 and 4, the trial Court held that the sale deeds Exs. D1 and D2 are simple paper transactions which were executed to deprive the plaintiff-appellant of her rights because both the sale deeds were without consideration. It was further held that the defendant-respondents No. 3 and 4 were not bona fide purchasers and the sale deeds were liable to be struck down. On issue No. 5, it was held that although the defendant-respondents No. 3 and 4 were in possession of the land, yet they cannot be considered to be the owner by adverse possession as it is the admitted position that Waryama was the true owner of the land. On the basis of the aforesaid findings, the suit of the plaintiff-appellant was decreed with cost.
6. Feeling aggrieved, the defendant-respondents No. 3 and 4 preferred an appeal before the learned Additional District Judge, Jalandhar. The findings of the trial Court that the sale deeds were without consideration, have been reversed because according to the learned Additional District Judge the recitals in the sale deeds Exs. D1 and D2 dated 27-11 -1972 themselves show that the sale deeds were executed for a valuable consideration. The Additional District Judge further held that the view of the Civil Judge was incorrect. The mere fact that Pakhar Singh attorney of Waryama did not remit the sale consideration to Waryama would not constitute a valid ground for holding that the sale deeds suffered from any legal infirmity. The view of the learned Additional District Judge read as under :–
“I have heard the learned counsel for the parties and have gone through the Judgment and record of the trial Court, In my opinion, the plea giving rise to Issue No. 4 was superfluous and did not form a material question of fact or law to give rise to an issue for adjudication at the trial. If it is proved that defendant No. 1 as attorney of deceased Waryama sold the land to defendants Nos. 3 and 4 vide two sale deeds, it matters little whether the transferee defendant were bona fide purchasers for consideration and without notice. A sale by an authorised agent is as good as by the Principal and the transfer of the land by a true owner to a third person does not imply the plea of the transferee that it was bona fide and for consideration and without notice. In addition to that, I am of the opinion that the learned trial Court was swayed by emotions and thus fell in error. The simple question which was involved in the suit was whether the plaintiff Chanan Kaur had succeeded to Waryama qua the land in suit. She had based her claim for possession on the basis of the title and inheritance caused by the death of Waryama who was its previous owner. It is pertinent to point out that in the plaint no challenge was specifically made to the two sale deeds effected in favour of the appellants, The plaintiff did not take any step to get the two sale deeds set aside or cancelled, being voidable transactions and such the learned trial Court was not justified in adjudicating the question regarding consideration of the sale deeds, the relationship of the transferees with the attorney and such like things. The learned trial Court held and rightly, so that, Pakhar Singh defendant No. 1 had been given a General Power of Attorney by Waryama deceased with authority to sell the suit land. Once that finding is there it matters little whether the transfer was in favour of a relation or a stranger by the General Attorney or whether the consideration received by the attorney was remitted to the principal or not. To defeat the suit fully and completely the defendants were obliged to prove that Waryama deceased had given a valid power of attorney in favour of Pakhar Singh and the said attorney by virtue of the power vested in him, transferred the land of the principal in favour of transferee. The other questions are between the principal and the agent and the third parties are not at all effected by any controversy between the principal and the agent. It is proved on record that Pakhar Singh executed sale deeds Exs. D.1 and D.2 in favour of the present appellants. The power of attorney in favour of Pakhar Singh by Waryama deceased is also proved. Thus at the time of death of Waryama, he was not the owner of the suit land and the plaintiff could succeed nothing out of the suit land. She could not, therefore claim possession of the suit land on the basis of title and inheritance.
8. The learned trial Court appears to have been greatly influenced by the fact that one of the transferees is the son and the other a nephew of the General Power of Attorney of Waryama. It was probably forgotten that each of the two sale deeds were for consideration of Rs. 15,000/- out of which Rs. 14,000/- were paid each time before the Sub-Registrar. The endorsement of the Sub-Registrar can be prima facie read into evidence and that goes to show that the money did shift hands from the vendees to the vendor through his agent. The fact that the attorney has not remitted the amount to his principal is not going to effect the rights of the transferees.”
7. Mr. Vikas Singh, learned counsel for the plaintiff-appellant has argued that the power of attorney dated 23-11-1972 Ex. D3 cannot confer any right on Pakhar Singh, defendant-respondent No. 1 to transfer the land to defendant-respondent No. 3 because it was not registered. According to the learned counsel, the power of attorney was required to be registered as laid down by the Supreme Court in the case of Manjunath Anandappa v. Tammanasa, AIR 2003 SC 1391. Therefore, the power of attorney is liable to be Ignored and as a consequence, the sale deed would be a completely sham transaction. The learned counsel has further argued that the sale transactions clearly show that Pakhar Singh, defendant-respondent No. 1 has transferred the land to defendant-respondent No. 3 his own son and defendant-respondent No. 4 who is son of his real brother and therefore, such a transaction would east a doubt and the finding of the trial Court that no consideration in fact was remitted by the two vendees defendant-respondents No. 3 and 4; was cor rect.
8. Shri R.C. Dogra, learned senior counsel appearing for the defendant-respondents has argued that the findings of the learned Additional District Judge cannot be reopened in the second appeal under Section 100 of the Code. The learned counsel has pointed out that this Court cannot re-appreciate evidence to substitute its own findings in preference to the one recorded by the learned Additional District Judge unless it comes to the conclusion that the findings are without evidence and perverse. The learned counsel has further submitted that even on merit, the findings deserve to be accepted because failure on the part of the agent to deposit the sale consideration to his principal received by the sale of the land would not constitute a valid ground to invalidate the sale deeds Exs. D1 and D2. This consideration of Rupees 14,000/- out of Rupees 15,000/- was paid in cash in front of the Sub-Registrar according to the recitals in the sale deeds. The learned counsel has also pointed out that the power of attorney executed in a foreign land would not require any registration in this country because there is a presumption of truth about its due execution under Sections 85 and 78(6) of the Act which is attached to such documents as long as the said power of attorney is certified by the Notary Public.
9. After hearing the learned counsel for the parties, I am of the considered view that this appeal is devoid of any merit and is thus liable to be dismissed. Firstly, the findings of facts recorded by the learned Additional District Judge cannot be re-opened under Section 100 of the Code because it has neither been pointed out nor it flows from the record that the findings are without evidence. It is a fact that Ex. D3, a power of attorney, was executed in favour of Pakhar Singh by Waryama in Canada on 23-10-1972 and the same has been duly proved on record. The power of attorney has been authenticated by a Notary Public and was executed by Waryama in the presence of a Barrister and a Solicitor. On the basis of power of attorney, Pakhar Singh, defendant-respondent No. 1 executed two sale deeds on 27-12-1972 in favour of his son Hardip Singh, defendant-respondent No. 3 and his brother’s son defendant-respondent No. 4. The sale deeds were for valuable consideration of Rupees 15,000/- and Rs. 14,000/-in each case were paid in front of the Sub-Registrar. Therefore, a valid title would pass on to defendant-respondents Nos. 3 and 4. The aforementioned findings of fact are based on, documentary as well as oral evidence. Those findings cannot be re-opened by re-appreciating the evidence and recording a finding different than the one recorded by the Courts below. The finding of the trial Court has been rightly reversed by the learned Appellate Court because the non-remittance of the sale consideration by a power of attorney to his principal would not constitute a basis to conclude that no sale took place and those sale deeds were paper transactions. Moreover, it was for the principal namely Waryama to raise a claim against his agent for non-remittance of the amount. The power of attorney Ex. D3 is a valid document and after perusing the same, I find that it has been executed in Canada before Mr, JNM Striluck Barrister and Solicitor for the City of Calgary in the presence of Alberta (Canada). The same has been duly authenticated by the Financial Commissioner, Punjab. The signature and the stamp of the Financial Commissioner is duly affixed on the document. It is well-settled that document like power of attorney duly attested by a Notrary Public coming from a foreign country must be presumed to be validly executed as has been laid down under Section 85 of the Act. Similar provision has been made with regard to these documents under Sub-section (6) of Section 78 which deals with proof of official/public documents. Section 85 and Sub-section (6) of Section 78 read as under :–
“Section 78. Proof of other official documents.–
(6) public documents of any other class in a foreign country– by the original, or by copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of (an Indian Consul) or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.”
Section 85. Presumption as to powers- of-attorney.– The Court shall presume that every document, purporting to be a power – of-attorney, and to have been executed be fore, and authenticated by, a Notary Public, or any Court, Judge, Magistrate (Indian) Consul or Vice-Consul, or representative of the (Central Government), was so executed and authenticated.”
10. A perusal of Section 85 shows that the Court must presume that a power of attorney authenticated by a Public Notary or any Court. Indian Consul or representative of the Central Government was validly executed and authenticated. Similarly under Sub-section (6) of Section 78 any public document of any other class in a foreign country can be proved by producing the original or by a copy certified by the legal keeper thereof with a certificate under the seal of a Notary Public. It is thus evident that a rebuttable presumption has to be raised in favour of general power of attorney executed in favour of Pakhar Singh, defendant-respondent No. 1 by Waryama and therefore, the Court is under an obligation to record that such a fact stands proved unless and until it is disproved.– No evidence to the contrary has been led by the plaintiff-appellant to disprove the power of attorney Ex. D3. Therefore, the Courts below have recorded a correct conclusion. In support of the aforementioned view, the judgment of the Supreme Court in the case of Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761, could be cited where a power of attorney executed in California (U.S.A.) was considered as a valid basis for executing the documents for transferring property. There were two power of attorneys one without authentication of a Notary Public and the other one authenticating the previous one by noticing that the earlier power of attorney was defective. The second power of attorney was duly authenticated by a Notary Public. The sale deed has been executed on the basis of the first power of attorney. The argument was raised that the later power of attorney will not authenticate and ratify the acts which have already taken place. In this context, referring to Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act, 1908 (for brevity, ‘the Registration Act’), their Lordships of the Supreme court observed as under :–
“7. The short question in this case is whether Mr. Chawla possessed such a power of attorney for executing the document and for presentation of it for registration. Now, If we were to take into account the first power of attorney which was executed in his favour on May 30, 1963, we would be forced to say that it did not comply with the requirements of the law and was ineffective to clothe Mr. Chawla with the authority to execute the sale deed or to present it for registration. That power of attorney was not authenticated as required by Section 33 of the Indian Registration Act which in the ease of an Indian residing abroad, requires that the document should be authenticated by a Notary Public. The document only bore the signature of a witness without anything to show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that that power of attorney is also duly authenticated in accordance with our laws. The only complaint is that the Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act.
8. The only question is whether the second power of attorney was effective to render valid the transaction of sale and the registration of the document both earlier than the power of attorney. In our judgment, it would be so Mr. Hardev Singh does not read into this matter the fact of ratification by Vernon Seth Chotia of his earlier power of attorney. The. second power of attorney states in express terms that the first power of attorney was defective and was being ratified. Vernon Seth Chotia also stated in the second power of attorney that the act of Mr. Chawla would be his act which included not only the making of the document but also the presentation the document.”
11. It is thus apparent that the document Ex. D3 satisfies the requirement of Section 33 of the Registration Act and there is no further requirement that the power of attorney is required to be registered. According to Section 33 of the Registration Act, a power of attorney executed by the principal who was not residing in India at the time of execution, if authenticated by a Notary Public, then it is recognised for the purpose of Section 32. Accordingly, Ex. D3 fully satisfies the requirement of Section 33 of the Registration Act.
12. The argument that a power of attorney requires a registration under the Registration Act raised by the learned counsel for the plaintiff-appellant on the basis of judgment in Manjunath Anandappa’s case (AIR 2003 SC 1391) (supra), would not require any detailed consideration because the law attaches a rebuttable presumption to a power of attorney executed by the principal in a foreign country. Such a power of attorney has to be presumed to be validly executed if the same is authenticated by a Notary Public of that country and the original or its certified copy is produced before the Court. Such a power of attorney shall also meet the requirements of Section 33 of the Registration Act and no further registration would be required. Therefore, the Judgment of the Supreme Court in Manjunath Anandappa’s case (AIR 2003 SC 1391) (supra) is not applicable to the facts of the present case.
13. In view of the above, this appeal fails and the same is dismissed.