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2012 DIGILAW 1754 (PNJ)

Manjit Kaur etc. v. Madan Gopal

2012-12-05

M.JEYAPAUL

body2012
JUDGMENT Mr. M. Jeyapaul, J.: - The L.R.s of deceased-defendant No.5 D.S.Sandhu have filed the present appeal aggrieved by the decree for specific performance granted by the trial Court as prayed for by the plaintiffs and upheld by the first appellate Court. 2. The plaintiffs have contended in the plaint that the 3rd defendant in his capacity as Power of Attorney of the 1st and 2nd defendants executed the agreement for sale dated 6.11.1980 in favour of the plaintiffs agreeing to sell the suit property. The sale consideration was fixed at Rs.3,85,000/-. Part of the sale consideration to the tune of Rs.20,000/- was paid by the plaintiffs to the 3rd defendant. The sale deed was proposed to be executed and registered on 30.4.1981. Thereafter, on various dates a total sum of Rs.60,000/- was paid towards further part of the sale consideration. In part performance of the agreement for sale, sale deed dated 5.3.1981 with respect to plot No.89 was executed in favour of Bimla Devi, the sister-inlaw of the second plaintiff, a sale deed dated 12.3.1981 was executed with respect to plot No.90 in favour of Sanjukta wife of second plaintiff, a sale deed dated 3.3.1981 was executed with respect to 1/8th share in plot No.92 in favour of Raj Rani wife of plaintiff No.1 and a sale deed dated 3.3.1981 with respect to another 1/8th share in plot No.92 was executed in favour of the plaintiff himself. In all, 37 marlas had already been sold by defendants No.1 to 3 in favour of the plaintiffs. Having contended that the plaintiffs have been ever willing to perform their part of contract to get the sale deed executed in respect of the remaining property, they have filed the suit for specific performance of the agreement for sale. 3. Defendants No.1 to 3 filed their written statement admitting their execution of the agreement for sale in favour of the plaintiffs. But they contended that the plaintiffs were guilty of unreasonable delay and lapse. The plaintiffs were also not ready and willing to perform their part of the contract. They have submitted that as the plaintiffs never approached them for execution of the sale deed after 12.3.1981, they entered into an agreement for sale with the 4th defendant on 24.3.1983. They would also contend that in part performance of the said agreement, possession also was delivered to the 4th defendant on 31.5.1983. 4. They have submitted that as the plaintiffs never approached them for execution of the sale deed after 12.3.1981, they entered into an agreement for sale with the 4th defendant on 24.3.1983. They would also contend that in part performance of the said agreement, possession also was delivered to the 4th defendant on 31.5.1983. 4. The 4th defendant in his written statement has contended that he had no knowledge of the agreement entered into by defendants No.1 to 3 with the plaintiffs. He entered into an agreement for sale with the 1st defendant on 24.3.1983 to purchase plot No.91 for a sum of Rs.2,90,000/-. He paid a sum of Rs.30,000/- as earnest money and further sum of Rs.1,72,000/- on different dates towards sale consideration. The 4th defendant entered into an agreement to sell 3/4th share of plot No.92 to the 5th defendant vide agreement dated 25.8.1983 for a sum of Rs.3,10,000/-. The 5th defendant was also put in possession of 30 marlas of land in plot No.92 on 31.5.1983. Therefore, the 4th defendant has sought for dismissal of the suit. 5. Both the Courts below having held that Ex.P1 agreement for sale dated 6.11.1980 was admittedly executed by 3rd defendant on behalf of the 1st and 2nd defendant and that the plaintiffs were also ready and willing to perform their part of the contract decreed the suit. 6. At the time when the appeal was admitted on 13.9.1989, no substantial questions of law were framed by this Court. Therefore, the following questions of law were formulated for determination of this appeal:- “1. Whether Ex.P1 agreement for sale dated 6.11.1980 is valid and binding on defendants No.1 & 2, in the absence of any Power of Attorney executed by defendants No.1 & 2 in favour of defendant No.3. 2. Whether the admission of defendants No.1 & 2 that they agreed to sell the suit property to the plaintiff would ratify the action of defendant No.3, in the absence of written Power of Attorney.” 7. Learned counsel appearing for the appellants would vehemently submit that the plaintiffs have not established their version in the plaint that Ex.P1 agreement for sale dated 6.11.1980 was executed by the 3rd defendant on behalf of defendants No.1 & 2 in favour of the plaintiffs on the strength of Power of Attorney. Learned counsel appearing for the appellants would vehemently submit that the plaintiffs have not established their version in the plaint that Ex.P1 agreement for sale dated 6.11.1980 was executed by the 3rd defendant on behalf of defendants No.1 & 2 in favour of the plaintiffs on the strength of Power of Attorney. No power of attorney alleged to have been obtained by 3rd defendant on or before 6.11.1980 was produced before the Court. Nothing was on record to establish that there was some ratification of the act of 3rd defendant by 1st & 2nd defendants. Referring to Ex.P1 agreement for sale, he would submit that there is a specific clause therein that a Power of Attorney would be obtained by the 3rd defendant for executing and registering the sale deed. Referring to receipt Ex.P38, he would submit that the 3rd defendant issued the receipt for payment to the plaintiffs subject to execution of the regular agreement for sale. Referring to the sale deeds executed by the defendants No.1 & 2 in favour of the plaintiffs and their nominees, learned counsel appearing for the 5th defendant would submit that there was no reference as to the agreement for sale alleged to have been executed by the 3rd defendant on behalf of the 1st & 2nd defendant on 6.11.1980 in favour of the plaintiffs. Inasmuch as Ex.P1 was not executed by the 1st and 2nd defendants the agreement for sale Ex.P1 executed by 3rd defendant in his capacity as attorney is invalid in the eye of law. The plaintiffs are bound to establish their case inspite of the fact that there was no resistance from the defendants in order to get a decree as prayed for. Even otherwise, there was no valid written statement filed by 1st and 2nd defendants admitting the execution of agreement for sale. Just because defendants No.4 & 5 did not contest the suit, the plaintiffs cannot obtain a decree even without substantiating their case. Therefore, he would submit that the plaintiffs are not entitled to any relief as prayed for. 8. Learned counsel appearing for the plaintiffs/respondents No.1 & 2 would submit that the 5th defendant who remained ex-parte before the trial Court even without filing any written statement to focus his stand cannot now complain that a decree has been passed in favour of the plaintiffs based on the admissions made by defendants No.1 to 3. 8. Learned counsel appearing for the plaintiffs/respondents No.1 & 2 would submit that the 5th defendant who remained ex-parte before the trial Court even without filing any written statement to focus his stand cannot now complain that a decree has been passed in favour of the plaintiffs based on the admissions made by defendants No.1 to 3. It is his further submission that defendants No.1 to 3 in their written statement and also in their evidence through the power of attorney have categorically admitted that the 3rd defendant on behalf of 1st & 2nd defendants executed agreement for sale on 6.11.1980. Therefore, the L.R.s of the 5th defendant cannot validly challenge the decree passed by the Courts below. Even the 4th defendant had not denied the execution of the agreement dated 6.11.1980 executed by defendants No.1 to 3 in favour of the plaintiffs. He had merely contended he did not have any knowledge about such an execution of the agreement. Inasmuch as there is no pleading before the trial Court that the agreement itself was invalid in the eye of law, the appellants cannot canvass for the first time before the second appellate Court that the agreement was invalid in the eye of law. It is his further submission that the plaintiffs have established that they were ready and willing to perform their part of the contract and therefore, the Courts below have rightly decreed the suit in favour of the plaintiffs. 9. It is a trite law that the plaintiff must succeed or fail on his own case and cannot take advantage of weaknesses in the defendant’s case to get a decree. [See, Punjab Urban Planning and Development Authority vs. M/s Shiv Saraswati Iron & Steel Re-rolling Mills, 1998(1) PLJ 643]. 10. In terms of Section 102 of the Evidence Act, initial onus is always on the plaintiff and if he discharges the same and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. [See, Anil Rishi vs. Gurbaksh Singh, [2006(2) Law Herald (SC) 1455] : 2006(3) RCR (Civil) 347]. 11. [See, Anil Rishi vs. Gurbaksh Singh, [2006(2) Law Herald (SC) 1455] : 2006(3) RCR (Civil) 347]. 11. In the instant case, the plaintiffs have pleaded that the 3rd defendant in his capacity as Attorney of 1st & 2nd defendant executed an agreement for sale dated 6.11.1980 in favour of the plaintiffs to sell the suit property in their favour. The part of the consideration also had been paid not only under the agreement, but also thereafter on the demand made by 3rd defendant on behalf of 1st & 2nd defendants. It is true that no power of attorney executed by 1st & 2nd defendants in the name of 3rd defendant was produced before the Court. The 4th defendant never challenged the said agreement for sale. He had very modestly submitted that he had no knowledge about such an agreement for sale executed by the 3rd defendant in his capacity as power of attorney of 1st & 2nd defendants in favour of the plaintiff. The 4th defendant having filed the written statement disappeared from the scene before the commencement of trial. Never had he let-in any evidence to further substantiate his plea in the written statement. The 5th defendant was served with notice. It may not be out of place to make a mention that the appellants herein are none other than the L.R.s of deceased-5th defendant. The 5th defendant did not choose to appear before the trial Court. But at the instance of the plaintiffs, he was called upon by the trial Court to produce the sale deed alleged to have been executed by the 4th defendant in his favour. He appeared before the trial Court and sought time. Thereafter, the 5th defendant also disappeared from the trial proceedings. In other words, the 4th defendant remained ex-parte after filing the written statement and the 5th defendant remained ex-parte throughout even without filing the written statement. 12. The plaintiffs have let-in evidence to establish that Ex.P1 agreement for sale dated 6.11.1980 was executed by the 3rd defendant as attorney of the 1st & 2nd defendants to sell the suit property. In other words, the 4th defendant remained ex-parte after filing the written statement and the 5th defendant remained ex-parte throughout even without filing the written statement. 12. The plaintiffs have let-in evidence to establish that Ex.P1 agreement for sale dated 6.11.1980 was executed by the 3rd defendant as attorney of the 1st & 2nd defendants to sell the suit property. They also having produced four sale deeds in the names of the plaintiffs and their close relatives executed by defendants No.1 to 3 respectively have contended that execution of those four sale deeds was also in part performance of the agreement for sale executed originally by the 3rd defendant on behalf of 1st & 2nd defendants on 6.11.1980. 13. On a careful perusal of Ex.P1 agreement for sale dated 6.11.1980, it is found that the 3rd defendant describing himself as attorney of 1st & 2nd defendants executed the agreement for sale on their behalf. 14. Let us see what actually is the meaning of the word ‘Attorney’. An Attorney is one who is put in the place of another. He can also be called as an ‘Agent’ as he acts for another. In short, an ‘Attorney’ is one who is appointed by another person to do anything in his absence. As per Section 182 of the Indian Contract Act, 1872, an ‘Agent’ is a person employed to do any act for another or to represent another in dealings with the third person. The person for whom such an act is done is called the ‘Principal’. Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority in terms of Section 196 of the Indian Contract Act, 1872. The ratification may be expressed or implied by the conduct of the person on whose behalf the acts are done. 15. The 3rd defendant has executed Ex.P1 agreement for sale describing himself as an Attorney of the 1st & 2nd defendant. It has to be seen whether he had the authority to act on behalf of the 1st & 2nd defendants. 15. The 3rd defendant has executed Ex.P1 agreement for sale describing himself as an Attorney of the 1st & 2nd defendant. It has to be seen whether he had the authority to act on behalf of the 1st & 2nd defendants. The 1st & 2nd defendants through their Power of Attorney who was examined as DW1 have categorically admitted that an agreement for sale dated 6.11.1980 was executed by the 1st and 2nd defendants through their Attorney, 3rd defendant in the suit. 16. The 3rd defendant conferred authority on his counsel C.D.Aggarwal to act not only on his behalf, but also on behalf of 1st & 2nd defendants. He also filed memo of appearance on behalf of the 3rd defendant on the strength of the authority given to him by the 3rd defendant on his behalf and also on behalf of defendants No.1 & 2. Written statement also was filed by the 3rd defendant on behalf of defendants No.1 to 3. Proper vakalat was given thereafter by defendants No.1 & 2 on 5.8.1985 to Shri Hari Datt, Advocate. The 1st & 2nd defendants had not disputed the fact that the written statement was filed by the 3rd defendant on their behalf also on 1.9.1983. In my considered view, there is an implied ratification by 1st & 2nd defendants by their conduct the act of 3rd defendant in appointing an advocate for them also for filing written statement. Thus written statement filed by 3rd defendant on their behalf has been impliedly ratified by 1st & 2nd defendants. Even otherwise, the evidence given by DW1, the Power of Attorney of 1st & 2nd defendants categorically admitting the act of the 3rd defendant on behalf of 1st & 2nd defendant cannot be lost sight of. 17. In the above facts and circumstances, it is found that defendants No.1 to 3 have virtually admitted the fact that 3rd defendant acted on the basis of the authority given by 1st & 2nd defendants and executed the subject agreement Ex.P1 dated 6.11.1980. In my view, the plaintiffs have established through the evidence let-in by them and also through the evidence of DW1 that in fact Ex.P1 was executed by the 3rd defendant on behalf of 1st & 2nd defendants. 18. In my view, the plaintiffs have established through the evidence let-in by them and also through the evidence of DW1 that in fact Ex.P1 was executed by the 3rd defendant on behalf of 1st & 2nd defendants. 18. In the face of such acceptable evidence produced on the side of the plaintiffs, I find that there is virtually no resistance to the plea of the plaintiffs that the subject agreement for sale was executed by the 3rd defendant on behalf of 1st & 2nd defendants. The plaintiffs also established that in part performance of the agreement for sale, four sale deeds had been executed with respect to the part of the property covered under Ex.P1 to the plaintiffs and their close relatives. Non-reference to the agreement for sale Ex.P1 in those sale deeds would not in any way raise a presumption that those sale deeds had not been executed in terms of agreement for sale Ex.P1, more especially, when there is candid admission by defendants that those four sale deeds had been executed in favour of the plaintiffs and their close relatives only in terms of the agreement for sale Ex.P1. 19. In the absence of any resistance from 4th & 5th defendants and also in the face of the admission made by defendants No.1 to 3, there was no occasion for the plaintiffs to produce the Power of Attorney executed by defendants No.1 & 2 in favour of defendant No.3. Defendants No.1 & 2 have admitted candidly that Ex.P1 was executed only with their authority and approval. The non-production of such Power of Attorney executed by them would not invalidate the agreement for sale. Even assuming for the sake of arguments that there was no written Power of Attorney executed by defendants No.1 & 2 in favour of 3rd defendant to enter into an agreement for sale Ex.P1, the said agreement would not become invalid as a Principal can employ an Agent even orally conferring authority on him to act on behalf of the Principal. In the instant case, it will have to be construed in the face of the admission made by defendants No.1 to 3 that such an authority given by Principal to the agent was also ratified by the Principal. 20. On the side of the appellants, the decision of Hon’ble Supreme Court in H.Siddiqui (Dead) By LRs. In the instant case, it will have to be construed in the face of the admission made by defendants No.1 to 3 that such an authority given by Principal to the agent was also ratified by the Principal. 20. On the side of the appellants, the decision of Hon’ble Supreme Court in H.Siddiqui (Dead) By LRs. vs. A.Ramalingam, [2011(3) Law Herald (SC) 1646] : 2011 STPL(Web) 224 SC was cited. It was held therein as follows:- “5. On the contrary, Shri Rajiv Dutta, learned senior counsel appearing for the sole respondent has vehemently opposed the appeal contending that the respondent never executed the power of attorney in favour of his brother enabling him to transfer the suit property. Power of attorney had never been filed before the Trial Court nor had it been proved. The photocopy of the same was shown to the respondent during the time of his cross-examination wherein he has admitted his signature thereon only. The respondent had never admitted its contents or genuineness of the same. Therefore, the power of attorney itself had not been proved in terms of Sections 65 and 66 of the Indian Evidence Act, 1872 (hereinafter called Act 1872) and, thus the question of proceeding further by the Trial Court could not arise.” That was a case where the executant of the Power of Attorney denied the very execution of Power of Attorney in favour of his brother to transfer the suit property. Further photocopy of the Power of Attorney alone was produced. The original Power of Attorney was not filed before the Court. The content and genuineness of the same was vehemently disputed. Under such circumstances, the Hon’ble Supreme Court held in the above case that Power of Attorney was not proved in terms of Section 65 & 66 of the Evidence Act. In my considered view, the above ratio will not apply to the facts and circumstances of this case. 21. The Hon’ble Supreme Court in Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 has held as follows:- “8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. 21. The Hon’ble Supreme Court in Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 has held as follows:- “8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.” 22. In the instant case, I find that the plaintiffs have established that defendants No.1 & 2 through 3rd defendant have executed a valid and enforceable agreement for sale. I have already held that non-production of Power of Attorney executed by 1st & 2nd defendants in favour of the 3rd defendant to enter into an agreement for sale would not invalidate the agreement for sale nor would it make unenforceable. 23. The Hon’ble Supreme Court in Azhar Sultana vs. B.Rajamani and others, [2009(4) Law Herald (SC) 2483] : 2009(2) RCR (Civil) 123 has held as follows:- “7. 23. The Hon’ble Supreme Court in Azhar Sultana vs. B.Rajamani and others, [2009(4) Law Herald (SC) 2483] : 2009(2) RCR (Civil) 123 has held as follows:- “7. The Court in a suit for specific performance of contract is required to pose unto itself the following questions, namely: (1) Whether the agreement of sale is valid and binding on both the vendor and the vendee; and (2) Whether the plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963 (hereinafter referred to for the sake brevity as ‘Act’).” In the instant case, the evidence on record would go to establish that the agreement of sale is valid and binding on the parties concerned. Factually, both the Courts below have held that the plaintiffs have been ready and willing to perform their part of the contract. Therefore, the above ratio would not come to the rescue of the 5th defendant. 24. In view of the above discussion, both the substantial questions of law have been answered in favour of respondents No.1 & 2 and consequently, the appeal is dismissed with cost.