Sardar Bir Singh v. Noor Ahmed and others — 1972 DIGILAW 66 (GAU)

Judgement JUDGMENT:- The property involved in this litigation is situate in Gauhati town and was originally owned by Eda Khan who had let it out to Mia Singh more than a quarter of century ago at a monthly rent of Rs.35/-. Eda Khan was survived by a widow, two sons including Abdul Kader, and three daughters. Abdul Kader died unmarried and Eda Khans widow breathed her last on 27-2-61, about six months before the suit out of which this second appeal has arisen was instituted on 5-8-61. Therefore, as at present, the three daughters and the only living son Noor Ahmed of Eda Khan are the owners of the property. 2. The suit was filed by Noor Ahmed and his three sisters for eviction of Mia Singh on the grounds that he was a defaulter in the matter of payment of rent since 1st of August, 1955, that he had sub-let a part M the property to the defendant No.3 Amivangshu Ghose without the consent of the landlord, and that the property was bona fide required by the plaintiffs for their own business. Besides the prayer of eviction and recovery of Rs.1015/- as arrears of rent the plaintiffs had laid claim to Rs.700/- by way of compensation for use and occupation for the period after the tenancy of Eda Khan had been terminated by giving him notice of eviction on 16-11-60 requiring him to vacate the premises by 31st of December, 1960. This compensation was claimed at the rate of Rs.100/- per mensem. 3. Apart from Mia Singh and Amivangshu Ghose, the plaintiffs had impleaded Mia Singhs son Bir Singh as a pro forma defendant. Mia Singh having died during the pendency of the suit, his son Bir Singh assumed the role of principal defendant. 4. In the written statement filed by Mia Singh, he had denied sub-letting of any part of the property, or that he was a defaulter, or that the property was required bona fide by the plaintiff Noor Ahmed for the purposes of his business. 4. In the written statement filed by Mia Singh, he had denied sub-letting of any part of the property, or that he was a defaulter, or that the property was required bona fide by the plaintiff Noor Ahmed for the purposes of his business. Mia Singh pleaded, while denying the charge of his being a defaulter, that he had expended a sum of Rs.4536 on repairs, improvements and extension of the demised property, that that much expense he had incurred with the knowledge and consent of Abdul Kader, the deceased son of Eda Khan, and that if that amount of Rs.4536/- was credited to the account, it would be found that he had paid more than the rent which was due to the plaintiffs by the date of the suit. Mia Singh denied that the plaintiffs were entitled to claim any compensation from him for use and occupation or at the rate of Rupees 100/- per mensem. 5. As many as 15 issues were settled between the parties by the trial Court. The substance of the findings reached by it was that the rent up to July, 1955, had been paid by Mia Singh, that thereafter he had not paid even a penny towards the rent and as such he was a defaulter, that the plaintiffs required the premises bona fide for the purposes of their business, and that the plaintiffs were entitled to get rent at the contractual rate up to 31-12-60 and compensation thereafter at the same rate and not at the rate of Rs.100/- per mensem claimed by them. In consequence of these findings the plaintiffs were awarded a decree for the recovery of Rs.1260/-. Rupees 1015/- as arrears of rent and Rs.245/- for use and occupation and for ejectment of the defendants from the property in dispute together with proportionate costs. The defendants were given one months time for vacating the premises. 6. An appeal by Bir Singh against the decree of the trial Court in the Court of the District Judge, L.A.D., Gauhati, proved unavailing. It was dismissed with costs though it was held that the plaintiffs had failed to establish that they required the premises in dispute bona fide for the purposes of their business. 6. An appeal by Bir Singh against the decree of the trial Court in the Court of the District Judge, L.A.D., Gauhati, proved unavailing. It was dismissed with costs though it was held that the plaintiffs had failed to establish that they required the premises in dispute bona fide for the purposes of their business. However, the District Judge held that the tenant was not only liable to eviction for reason of non-payment of rent but also for having sublet a part of the premises without the consent and authority of the landlord. 7. Shri P. Choudhury, who appeared for the appellant Bir Singh in this Court, challenged the correctness of the ejectment decree primarily on the ground that the notice of termination of tenancy had not been given to Mia Singh by a legally authorised person on behalf of the entire body of landlords, and that since that notice lacked validity on that account it was ineffective for terminating the tenancy and so the suit for eviction was not maintainable. Shri Chaudhury urged further that the trial Court having not framed any issue relevant to the plea of the plaintiffs that Mia Singh had sublet a part of the property and he was consequently liable to eviction, and, further, since the trial Court had not founded its decree on the basis of subletting, the District Judge was not justified in holding that the tenant was liable to ejectment for the reason of unauthorised subletting of a part of the demised property. The last submission made by Shri Choudhury was that the Court below had wrongly held Mia Singh to be defaulter in the matter of payment of rent. Shri B.C. Barua, representing the plaintiffs-respondents, joined issue with Shri Choudhury on all the three points raised by the latter. He maintained that the tenant was a defaulter, that he had sublet a part of the premises without authority, and that the notice of eviction suffers from no flaw, legal or factual. 8. Though Shri Choudhury laboured for a while to show that Mia Singh had expended Rs.4536/- towards repairs, improvements and extension of the property in dispute with the consent of Abdul Kader and as such he was entitled to the credit of that amount, but when the relevant evidence was thrashed in this Court Shri Choudhury could not hold fast. 8. Though Shri Choudhury laboured for a while to show that Mia Singh had expended Rs.4536/- towards repairs, improvements and extension of the property in dispute with the consent of Abdul Kader and as such he was entitled to the credit of that amount, but when the relevant evidence was thrashed in this Court Shri Choudhury could not hold fast. In paragraph 22 of the written statement it had been admitted that the sum of Rs.4536/-had been spent on repairs etc., sometime before 22nd March, 1950. It has come in evidence that Abdul Kader had died a long time before the present suit was filed, and that in a previous suit for eviction (Title Suit No.44 of 1950) filed against Mia Singh, the latter had claimed credit for this amount of Rs.4536/- apart from another sum of Rs.3500/-. In that suit Mia Singh was allowed credit only for Rs.3500/- and not for the second sum of Rs.4536/-. Therefore, Mia Singh and his heir Bir Singh are precluded by the principles of res judicata from re-asserting the claim to get credit for Rs.4536/-. Further, we have the distinct finding of the District Judge that the tenant had failed to prove that he bad spent Rs.4536/- with the permission of the plaintiffs or Abdul Kader on repairs etc., of the premises in dispute. That being a finding of fact, it is not open to challenge in second appeal. I, therefore, hold that the defendant is a defaulter since 1st August, 1955, in the matter of payment of rent. 9. The fate of the appeal will be determined, the parties counsel were agreed, by reply to the question whether the plaintiff Noor Ahmed had the necessary authority of his co-owners to serve a notice of ejectment on Mia Singh and to file the suit on their behalf. The facts bearing on this question are that the mother and the three sisters of Noor Ahmed had executed in India the power of attorney Ext.5 on 7-10-1948 in his favour, and that after the death of the mother of Noor Ahmed his three sisters, who are currently living in Pakistan, executed a fresh power of attorney Ext.6 on 30th June, 1961, in his favour. This document was both executed and registered in Pakistan and despatched to the plaintiff Noor Ahmed. This document was both executed and registered in Pakistan and despatched to the plaintiff Noor Ahmed. The mother of the plaintiffs died on 27-2-61, the notice terminating the tenancy was issued to Mia Singh on 16-11-60 through an Advocate engaged by Noor Ahmed for himself, his mother and his sisters, and the suit was filed on 5-8-61. A common Law that the two powers of attorney suffer from Shri Chaudhury urged, is that they do not in terms authorise Noor Ahmed either to issue a notice of ejectment or to appoint an Advocate for the purpose, and so Noor Ahmed had no authority to do either of those acts. It was not denied by Shri Choudhury that both the powers of attorney give authority to Noor Ahmed to file suits for eviction against the tenants of the properties mentioned therein on behalf of the executants thereof. ILR 57 Cal 10 : (AIR 1929 Cal 651), Bodardoja v. Ajijuddin, is a clear-cut authority for the proposition that a power of attorney expressly empowering the agent to sue in ejectment should be construed as implying an authority to issue notice to quit, for the power to sue in ejectment should ordinarily be taken to include power to take such action as may be necessary as preliminaries to the institution of such a suit. I respectfully agree with the view taken by the Calcutta High Court. Indeed, in my opinion, the matter does not admit of any doubt. True, as contended by Shri Choudhury, the power of attorney is to be construed strictly but that does not tantamount to stating that it should be construed purely literally. A Full Bench of Nagpur High Court held in the case of Jiwibai v. Ram Kumar, AIR 1947 Nag 17 (FB), that though the power of attorney is to be construed strictly and where the special powers are followed by general words, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers and as enlarging those powers only for the carrying out of the purposes for which the authority is given, nevertheless it is to be construed as including all incidental powers necessary for carrying out its object effectively. On the basis of this principle the Full Bench held that where the power of attorney conferred upon an agent express authority to settle the dispute between the parties by the method of "give and take", and further stated that "whatever would be required to be done in the conduct of the suit would be done by the agent and the same would be binding on me as if I had done the same", the express authority given to the agent to compromise included the power to refer the suit to arbitration. The extent of the power given by the principal to his agent by a power-of-attorney, it is manifest, has to be spelled out on a fair interpretation of the language used therein. By fair interpretation I mean an interpretation which corresponds with the true intention of the principal as gathered from the language used in the document. If the principal entrusts a particular job to the agent then it is not necessary that all that has to be done by the agent to accomplish that job should be detailed minutely in the power-of-attorney. The authority to do all that is normally required to be done by an individual in doing such job may reasonably be assumed. In this view of the law I have no matter of doubt that there is implicit in the authority given to Noor Ahmed by his mother and three sisters to file a suit for ejectment that he should give a notice to the tenant on their behalf terminating the tenancy before filing the suit. 10. The contention of Shri Choudhury that Noor Ahmed had no legal authority of engaging a Counsel on behalf of his mother and sisters on the basis of the power-of-attorney either for giving ejectment notice or filing an eviction suit is completely without merit. Firstly, the power-of-attorney itself gives authority to Noor Ahmed to engage an Advocate. In the second place, the principle implicit in the maxim "delegates non potest delegare" mentioned in paragraph 396 of Vol.I, Third Edition, Halsburys Laws of England, is not of universal application. The maxim only lays down, it is stated in paragraph 396 the general rule that an agent cannot delegate his power or duties to another, in whole or in part, without the express authority of the principal, or authority derived from the statute. The maxim only lays down, it is stated in paragraph 396 the general rule that an agent cannot delegate his power or duties to another, in whole or in part, without the express authority of the principal, or authority derived from the statute. It is stated further in that paragraph that generally speaking, where there is personal confidence reposed or skill required there can be no delegation, however general the nature of the duties, unless necessity compels the handing over of the responsibility to some one else. It is common knowledge that normally an Advocate has to be engaged for conducting or defending a litigation of contentious nature. Therefore, when authority was given to Noor Ahmed by his mother and sisters to file suit against their common tenant, they must have known that Noor Ahmed will have to engage an Advocate for filing and conducting the suit. Therefore, apart from the fact that the power-of-attorney specifically gives authority to Noor Ahmed to engage an Advocote, he could have done so even if such authority had not been specifically given to him. It cannot be plausibly urged that Noor Ahmed was possessed of such forensic skill that he could draft a plaint, determine the court-fee required for it, get the proper issues settled in the suit, lead evidence in support of the prayer of eviction, and efficiently cross-examine the defence witnesses. He had therefore necessarily to engage an Advocate of standing to discharge his obligations as an agent. Under the caption "Implied Authority to Delegate", Halsbury states in para 399 that to the maxim delegatus non potest delegare there are certain well-recognised exceptions, where an authority to delegate will be implied, generally on the ground that there is no personal confidence reposed or skill required, and that the duties are capable of being equally well discharged by any person. In para 402 it is staled that where the very nature of the employment necessitates a partial or total delegation, the rule can have no application. Our case is clearly covered by such implied authority to delegate. The rule relied upon by the appellants counsel is not inflexible for there are certain matters which demand a high degree of technical skill which an ordinary general agent cannot be expected to possess. Our case is clearly covered by such implied authority to delegate. The rule relied upon by the appellants counsel is not inflexible for there are certain matters which demand a high degree of technical skill which an ordinary general agent cannot be expected to possess. Again it looks clear to me, a power to employ sub-agent may be conferred by the usage of a particular trade, or, implied from the mode of dealings between the parties. 11. In the result I hold that there is no merit in the submissions that Noor Ahmed could not have given a notice of ejectment on behalf of his co-landlords, and that he could not have engaged an Advocate either for giving the notice or for filing and conducting the suit. 12. The next point canvassed by Shri Choudhury was that after the death of the widow of Eda Khan the power of attorney Ext.5, dated 7-10-48, completely lost its effectiveness even on behalf of the three daughters of Eda Khan. In other words, Shri Choudhurys contention was that if power is given by some persons jointly to another for doing some work on their behalf, and one of them dies, the agency comes to an end even on behalf of the surviving principals. In support of that submission the counsel sited the Privy Council decision in (1914) 41 Ind App 51 (PC), Venkatadri Appa Row v. Venkata Narasimha Appa Row. The Privy Council held therein that when a Hindu testator, having two wives, provided by his will that they "should adopt a boy who is our sannihita whenever it strikes you that our samastanam should continue," one of the widows after the death of the other lost authority to adopt a boy to the testator. Shri Choudhury urged that since, according to the decision of the Privy Council, authority given jointly to two co-agents could be exercised by them jointly and not singly, it should be held, as a necessary corollary, that where one of the co-principals dies, the authority given by the surviving principals to a particular agent also comes to an end. Here again it is not possible to agree with Shri Choudhury. Here again it is not possible to agree with Shri Choudhury. The Privy Council authority cited by him is clearly distinguishable on the fact that it was a case of co-agents and not of co-principals, and, secondly, the power to adopt given by the testator to his two wives was subject to the specific condition that the two wives shall have the right to adopt jointly, which condition clearly negatived the right of one of the two widows to adopt a boy all by herself during the lifetime of the other or singly after the latters demise. Shri Choudhury was unable to point out any clause in the power of attorney Ext.5 that on the death of either of the principals, the agency of Noor Ahmed stood terminated even on behalf of the surviving co-principals. Shri Choudhury very candidly conceded that he had not been able to find any reported judgment lending support to the point raised by him. I, therefore, hold that on the death of the mother of Noor Ahmed, the document Ext.5 remained operative on behalf of his three sisters. 13. Another point raised by Shri Choudhury was that on the execution of Ext.6 by the three sisters of Noor Ahmed, the previous power of attorney Ext.5 stood ipso facto withdrawn, and that since Ext.6 is not valid for the reason of its non-registration, the plaintiffs cannot fall hack on Ext.5 to claim authority for Noor Ahmed to file the suit on behalf of his sisters. Shri Barua, representing the plaintiffs-respondents submitted in reply that there is no warrant for the proposition that on execution of Ext.6 the document Ext.5 became completely inoperative, or that Ext.6 is a nullity only for the reason of its non-registration. Before proceeding to determine the merit of the rival contentions, I want to mention that the notice of ejectment had been given on 16-11-60 which was a few months before the death of Noor Ahmeds mother and that since at the time of the notice the power of attorney Ext.5 was in full force no objection could be taken to the validity of the notice as was tried to be done by Shri Choudhury in the initial stages of the arguments addressed by him. He laboured under the impression for a while that the notice was also given after the death of the mother of Noor Ahmed. 14. He laboured under the impression for a while that the notice was also given after the death of the mother of Noor Ahmed. 14. The argument about the invalidity of Ext.6 for the reason of its non-registration was based on Sections 32 and 33 of the Registration Act. Section 32 states, inter alia, that every document to be registered under the Act shall be presented at the Registration office by an agent of the executant, representative or assign, duly authorised by power of attorney executed and authenticated in the manner provided under Section 33. The relevant part of Section 33 states that for the purposes of Section 32 that power of attorney can be recognised if the principal at the time of executing it does not reside in India which should have been executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Counsel or Vice-Counsel, or representative of the Central Government. It will be noticed that the provisions of Sections 32 and 33 can be invoked only when the question of validity of registration of a document crops up. However, in the present case no such question arises. It is correct that Ext.6 gives right to Noor Ahmed to sell landed properties on behalf of his three sisters. But that power has nothing to do with the other power given by the same document to Noor Ahmed to file suits against the tenants and to appoint lawyers for the purpose of representing his three sisters in such suits. Even if the document Ext.6 is not valid respecting the power for transfer of the landed properties of his sisters, the document does not lose value respecting the rest of the powers given by it. It is well settled that if the transaction is divisible and one part can be effected by an unregistered instrument and the other requires registration, the instrument may be used as evidence of the part which does not require registration of course subject to the condition that the part which is not registered must be independent of the part which requires registration. The paint can be best made out by an illustration. The paint can be best made out by an illustration. Where, for instance, movable as well as immovable property is transferred for separate and distinct considerations, then the document shall be admissible in support of a claim to movable property even though it is inadmissible as regards immovable property for want of its registration. The power given to Noor Ahmed for filing suits against the tenants of himself and the three sisters has nothing to do with the right given to him by his sisters to transfer immovable properties on their behalf. Consequently, it looks apparent to me that the document Ext.6 cannot be declared illegal or invalid even for the purpose of filing suit against the tenant on behalf of the three sisters of Noor Ahmed. In view of this finding I see no necessity of discussing in detail the contention that on execution of Ext.6 the previous power of attorney stood withdrawn ipso facto. Suffice it to say that the two documents can stand simultaneously, the one executed subsequently having not abrogated the previous one. 15. The last point urged by Shri Choudhury was that the patta number of the property having been wrongly entered both in Ext.5 and Ext.6, neither of the documents could be availed of by Noor Ahmed on behalf of his sisters for filing the present suit. Shri Barua strenuously urged that this argument was not available to his opposite counsel inasmuch as it had not been raised in the written statement, nor an issue had been framed in that respect. The alternative submission of Shri Barua was that the wrong mention of the patta number of the property is nothing more than a clerical mistake which fact does not rob the documents of their value. It was admitted by the appellants counsel that objection relevant to the insertion of wrong patta number in the two documents had not been adopted in the written statement. This mistake was actually noticed for the first time by the District Judge while he was preparing the judgment on conclusion of the arguments addressed to him. To get the matter clarified he brought it to the notice of the parties counsel and then asked them to address him further. This mistake was actually noticed for the first time by the District Judge while he was preparing the judgment on conclusion of the arguments addressed to him. To get the matter clarified he brought it to the notice of the parties counsel and then asked them to address him further. The plaintiffs thereupon moved an application stating that by mistake the patta number of the property entered as item No.(1) in the schedule to the power of attorney had been wrongly mentioned as 479 instead of 497. The plaintiffs also filed a large number of documents to establish that it was a case of sheer clerical mistake, and those documents were admitted into, evidence by the District Judge on the authority of Rule 27. Order 41, Civil Procedure Code. The District Judge ultimately held that it was a case of mistake and that since the defendant had not taken any objection in the written statement in that respect and since the defendant knew well that the suit related to a property in Paltan Bazar, Gauhati, of which admittedly he was a tenant, the power of attorney could not be considered as invalid. I think, that was the only right approach to adopt. I have no misgivings that the patta number of the property in dispute was wrongly mentioned as 479 although actually it is 497 and that since the parties did not labour under any mistake the point raised by Shri Choudhury has no practical value. 16. No other point was urged in support of the appeal. 17. In conclusion I dismiss the appeal with costs. Appeal dismissed.