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CASE TITLE – Rajesh Kumar v. Anand Kumar & Ors.

CASE NUMBER – Civil Appeal No. 7840 of 2023

DATED ON – 17.05.2024

QUORUM – Justice Pankaj Mithal & Justice Prashant Kumar Mishra

 

FACTS OF THE CASE

The appellant/plaintiff has called into question the judgment rendered by the High Court of Madhya Pradesh dated 01.09.2016 in First Appeal No. 340 of 2003 allowing the appeal preferred by the respondent nos. 1 to 3/defendant nos. 12 to 14. The appellant/plaintiff agreed to sell with respondent no. 4 (acting as Power of Attorney holder of respondents/defendant nos. 2 to 11) for purchase of land situated at village Khirsau, Tehsil Sihora, District Jabalpur, M.P for sale consideration at the rate of Rs. 3,000/- per acre, totalling Rs. 4,41,000/-. The appellant/plaintiff paid earnest money of Rs. 41,000/- on the date of agreement to sell and the balance amount was to be paid on the date of registration of the sale deed which was to be done within six months from the date of the agreement. On 26.12.1996, another agreement was executed between the appellant/plaintiff and the Power of Attorney Holder extending the execution of the sale deed till 31.03.1997, the remaining terms being the same. Another entry was made on 23.04.1997 mentioning that the agreement to sell shall come to an end on 31.05.1997. However, the respondent/defendant no. 1 being the Power of Attorney Holder of respondents/defendant nos. 2 to 11 executed the sale deed of the suit land on 14.05.1997 in favour of respondent nos. 1 to 3/defendant nos. 12 to 14 even though the said respondents were aware of the earlier sale agreement and its extensions. The sale deed dated 14.05.1997 was executed behind the back of the appellant/plaintiff which came to his notice subsequently on which a legal notice was sent on 30.05.1997 calling upon the respondents/defendant nos. 1 to 11 to be present in the Registrar’s office at Sihora on 31.05.1997 to carry out the formalities for execution of the sale deed. Despite receipt of this notice, the respondents/defendant nos. 1 to 11 did not attend the Registrar Office. On 31.05.1997, the appellant/plaintiff was informed by the sub-Registrar that the suit land has been sold in favour of respondent nos. 1 to 3/defendant nos. 12 to 14. According to the appellant/plaintiff, he has the suit land, therefore, he objected to the application dated 20.08.1997 moved by the respondents/defendant nos. 12 to 14 for mutation of their names.

 

ISSUES

Whether a Power of Attorney Holder can depose in a civil suit of this nature on behalf of the plaintiff?

Whether the agreement is void ab initio because it was not signed by all the owners of the suit land?

 

CONTENTIONS BY THE APPELLANT

The Learned senior counsel appearing for the appellant submitted that the High Court had committed a serious error of law and fact by setting aside the well-reasoned judgment and decree passed by the Trial Court. According to him, the execution of the sale agreement by defendant no. 1 as a Power of Attorney Holder of Defendant Nos. 2 to 11 having been duly proved and the appellant/plaintiff has paid the earnest money and filing the suit within time, the First Appellate Court ought not to have set aside the judgment of the Trial Court. It was further submitted that the High Court was not correct in holding that the defendant nos. 2 to 11 had not signed the agreement because defendant no. 1 was their Power of Attorney Holder. The High Court has also erred in holding that the Power of Attorney Holder cannot depose in a civil suit on behalf of the plaintiff. According to him, non-appearance of the appellant/plaintiff as a witness would not have any adverse impact in a suit of this nature

 

CONTENTIONS BY THE RESPONDENT

The Learned senior counsel for the respondents/defendants submitted that the agreement dated 26.09.1995 is void ab initio because it was not executed by all the owners of the suit land. It was then argued that in a suit for specific performance non-appearance of plaintiff as a witness is fatal to his case because it is he who has to plead and prove the readiness and willingness. He mentioned that the High Court has rightly set aside the judgment and decree of the Trial Court which is based on perverse finding and incorrect application of settled legal principles.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court observed that the Madhya Pradesh High Court has non-suited the appellant/plaintiff on two counts. Firstly, that defendant no. 1 is not the sole owner of the property which was the coparcenary property and the other coparceners did not sign the initial agreement and secondly, that the appellant/plaintiff having failed to appear in the witness box, the testimony of his Power of Attorney Holder cannot be read as statement of the plaintiff in a civil suit of this nature, and in the initial agreement dated 26.09.1995 was executed by Defendant no. 1-Gajay Bahadur Bakshi. It is the case of the appellant/plaintiff that Gajay Bahadur Bakshi was the Power of Attorney Holder of Defendant nos. 2 to 11, the other co-owners/coparceners of the suit property. However, the agreement itself no where states that Gajay Bahadur Bakshi has executed the agreement as Attorney Holder of Defendant nos. 2 to 11. On the contrary, it was mentioned in the agreement that Gajay Bahadur Bakshi would be responsible for getting the sale deed executed and registered by all the co-owners or co-khatedars at the time of registration. Neither the names of all the co-owners/coparceners/co-khatedars are mentioned in the agreement, and thus, held that the High Court was right in finding that all the co-owners have not signed the agreement. The Hon’ble Supreme Court also viewed the so-called power of attorney pleaded in the plaint through which the defendant nos. 2 to 11 authorised defendant no. 1 to execute the agreement, have not been produced and proved in the Trial Court, and held that, neither in the agreement nor in course of trial the power of attorney is proved by tendering the same in evidence. They were of the view that  in a suit for specific performance wherein the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not entitled to depose in place and instead of the plaintiff. It was also mentioned that the term ‘readiness and willingness’ refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness. And since the plaintiff entered into an agreement with only one of the co-owners and thereafter sought extensions for the execution of the sale deed but did not prefer any suit though he was aware of the sale deed dated 14.05.1997 executed in favour of defendant nos. 12 to 14 and sent a legal notice on 30.05.1997 and even objected to the subsequent purchasers’ application for mutation of their names in the revenue records on 20.08.1997 and refers to a meeting of the Gram Panchayat dated 06.12.1997, yet the suit was preferred, on 09.05.2000 on the last date of limitation. The Hon’ble Supreme Court held that the suit having been preferred after a long delay, the plaintiff is not entitled to specific performance on this ground and proceeded to say that they uphold the judgement of the High Court of Madhya Pradesh.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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