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2016 DIGILAW 1435 (GUJ)

Laxmanji Bhalaji v. Saharbhai Motibhai Desai

2016-07-21

Z.K.SAIYED

body2016
JUDGMENT : Z.K. Saiyed, J. 1. The present Revision Application is preferred against the order dated 8.5.2014 passed below Ex. 19 in Regular Civil Suit No. 223 of 2014 decided by the learned Ninth Additional Senior Civil Judge, Ahmedabad, wherein the trial Court rejected the application preferred by the present applicant under Order 7 Rule 11 (A) and (D). 2. This present Civil Revision Application is taken up for final disposal with the consent of the parties. I have heard the learned counsel for the respective parties. The counsel of the applicant has submitted that the moot question requires consideration is even if the plaint is read as it is the cause of action stated in the Regular Civil Suit No. 223 of 2014 by the applicant is imaginary and even if the plaint is believed as it is there is no existence of cause of action. The learned counsel of the applicant has submitted that for deciding whether any cause of action actually exist or not, this Court can even consider the statutory law as well as judicial pronouncement as settled by the Division Bench of Gujarat High Court in the case of Maharaja Shri Manvendrasinghji R. Jadeja v. Rajmata Vijaykuverba wd/o Maharaja Mahendrasinghji, reported in 1999 GLR 261 . The learned counsel further submitted that as settled by the Apex Court in the decision reported in I.T.C. Ltd. v. Debts Recovery Appellate Tribunal & Anr., reported in (1998) 2 SCC 70 that merely an illusory cause of action created by clever drafting would not make the suit maintainable. 3. Mr. Tattvam Patel, learned counsel for the applicant has submitted that though there is a checkered history the issue requires on limited aspect about maintainability of suit by reading plaint itself. The learned counsel of the applicant submitted that the land in question involved in the present suit is situated at Ahmedabad District, Taluka : Dascroi, Village : Jagatpur, admeasuring in all 46,640 Sq. Mtrs. The land was with one Bhalaji Gandhi (since deceased) being protected tenant. Allegedly on 26.6.1984 the Agreement to Sale was executed in 1981 in favour of one Prabhatbhai Haribhai Desai (deceased). In 1982, there was an order of Deputy Collector to convert the land to as old tenure land. Mtrs. The land was with one Bhalaji Gandhi (since deceased) being protected tenant. Allegedly on 26.6.1984 the Agreement to Sale was executed in 1981 in favour of one Prabhatbhai Haribhai Desai (deceased). In 1982, there was an order of Deputy Collector to convert the land to as old tenure land. Allegedly the power of attorney was executed in favour of Babubhai Nagjibhai Patel by Bhalaji Gandaji, Chudaji Bhalaji, Amarsingh Bhalaji and Jivatben and further Jivatben wife of Bhalaji had executed such power of attorney for three minors, namely, Vinaji Bhalaji, Laxmanji Bhalaji and Mansingh Bhalaji on 26.6.1984. 4. The learned advocate of the applicant has submitted that Saharbhai Motibhai Desai who is the grandson of deceased Prabhatbhai Haribhai - original Banakhat holder executed a Sale Deed in 2003 on the basis of power of attorney dated 26.6.1984 admeasuring 26,651.42 Sq. Mtrs., land which is equal to the shares of four shares. It is further submitted that the Deputy Collector erroneously mutated revenue entry for Sale Deed of entire land admeasuring 46,640 Sq. Mtrs. There is a suit challenging Sale Deed of this transaction is filed. However, at this stage, we are not concerned with it. 5. In sequence of this event later on further 'Chuk Durasti' (defect removal Sale Deed) is executed describing that the sale was for entire 46,640 Sq. Mtrs., land on 24.12.2010 by power of attorney holder in favour of the plaintiff. 6. The counsel of the applicant has submitted that the question deserves consideration in the present case is that such 'Chuk Durasti' (defect removal Sale Deed) based on irrevocable power of attorney in the year 2010 is maintainable in the eye of law or not, as the claim of the plaintiff is based on a 'Chuk Durasti' (defect removal Sale Deed) executed by power of attorney holder which has been executed in the year 1984. The learned counsel of the applicant has submitted that such power of attorney is nonexistence in the eye of law on following counts:-- "(1) There is no authority to mother to act as Karta of minor when husband is alive, head of the family for the minor. The learned counsel of the applicant has submitted that such power of attorney is nonexistence in the eye of law on following counts:-- "(1) There is no authority to mother to act as Karta of minor when husband is alive, head of the family for the minor. (2) The power of attorney could not be executed for the share of the property of minors, as immovable property of minor can be disposed of with permission of district Court in view of Sections 8 and 11 of the Hindu Minority and Guardianship Act, 1956. (3) The power of attorney did not remain in existence once minor has become major in the year 2010 and even the power gets ended once the power of attorney passes away. In the present case, undisputedly Bhalaji Gandaji Thakor has passed away as well as Vinaji Bhalaji has also passed away in the year 2009, therefore, there is non-existence of such power." 7. The applicant has further submitted that the order of the Deputy Collector challenged before the City Civil Court is not maintainable in view of the Section 11 of the Bombay Revenue Jurisdiction Act which bars the jurisdiction of suit. The order of Deputy Collector can be challenged before the higher authority prescribed under the Bombay Land Revenue Code. 8. The applicant had relied upon various citations in support of his submission. The learned counsel relied upon decision reported in Prahlad & Ors. v. Laddevi & Ors., reported in AIR 2007 (Rajasthan) 166 and Mahesh Govindji Trivedi v. Legal Heirs of Bhagvanji Govindji Trivedi & Ors., reported in 2014 (2) GLR 1482 to support the proposition of law that power of attorney does not exist after death of the person. 9. The applicant further relied upon (1998) 2 SCC 70 ITC Ltd. v. Debt Recovery Appellate Tribunal to canvass the proposition that whether the plaint discloses real cause of action or whether the plaint created on illusion of cause of action by clever drafting. 10. On the other hand Mr. Kavina, learned Senior Counsel for the opponent has vehemently opposed the application. It has been emphatically submitted that there is checkered history of litigation between the parties. The various contentions raised in the plaint raises cause of action which has arisen on 5.2.2014 when Deputy Collector changed entry of execution of Sale Deed in 2003 for a land size of 46,640 Sq. It has been emphatically submitted that there is checkered history of litigation between the parties. The various contentions raised in the plaint raises cause of action which has arisen on 5.2.2014 when Deputy Collector changed entry of execution of Sale Deed in 2003 for a land size of 46,640 Sq. Mtrs., excluding the property of minors. It is further submitted that the Court cannot look into the other documents or written statements for deciding application under Order 7 Rule 11 of the Civil Procedure Code and it has to strictly see only plaint. If the plaint is seen as it is, it discloses cause of action. He has further submitted that as per provisions of Section 84(C) it is a Mamlatdar jurisdiction. He has further submitted that it is a violation of law and further drawn attention to the provisions of Section 85 and 85(a) of Tenancy Act. It is further submitted that the law is settled by the Division Bench of Gujarat High Court as well as of Apex Court. He has submitted that pertinent aspect is that the irrevocable power of attorney which is referred does expressly provide the power. Under these circumstances, unless the power of attorney is cancelled, the authority under the power of attorney would continue. 11. I have considered the rival submissions. The moot question requires consideration is authority of power of attorney holder executed on 26.6.1984 by four persons and by mother on behalf of three minor can be said existing and "whether such power of attorney can be utilized to execute for 'Chuk Durasti' (defect removal Sale Deed) in the year 2010. 12. In my view the power of attorney did not remain in existence after passing away of Bhalaji Thakor and at the relevant time minor Vinaji has also passed away in the year 2009. The power of attorney even otherwise did not remain in existence for the fact that two other minors Laxmanji Bhalaji and Mansingh Bhalaji have attained age of majority, therefore the power of attorney did not remain of major. Therefore, the power of attorney did not remain in existence thereof. The contention that power of attorney is irrevocable would not have much bearing as it is coupled with interest. The provisions of Section 202 of Contract Act will not have application in the facts of the case. 13. Therefore, the power of attorney did not remain in existence thereof. The contention that power of attorney is irrevocable would not have much bearing as it is coupled with interest. The provisions of Section 202 of Contract Act will not have application in the facts of the case. 13. If the power of attorney is not treated to be existing the 'Chuck Durasti' document executed by the power of attorney holder will have not existence and cannot be considered to be existing or enforceable in the eye of law. 14. One more contention of the application that the power of attorney executed authorizing to dispose of minor's property was not valid in view of specific provision of Sections 8 and 11 of Hindu Minority and Guardianship Act, 1956. Section 8 of the Hindu Minority and Guardianship Act reads as under:-- "8. Powers of natural guardian (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the Court:- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is void able at the instance of the minor or any person claiming under him. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular-- (a) proceedings in connection with the application shall be deemed to be proceedings under the Act within the meaning of section 4A thereof; (b) the Court shall observe the procedure and have the powers specified in Sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court. (6) In this section, "Court" means the City Civil Court or a District Court or a Court empowered under section 4A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate." 15. The act is having over riding effect in view of Section 5 of the Act of 1956. In view of this fact, the executions of power of attorney qua the rights of minor were not in accordance with law. It is also to be noted that such power of attorney did not remain in existence qua share of minor after they attain the age of majority 16. In view of the above facts, the suit filed claiming execution of further Sale Deed and of defect removal Sale Deed in the year 2010 based on such power of attorney executed in the year 1984 qua the properties of minor is not maintainable. The suit itself is not disclosing the legal cause of action tenable in the eye of law. 17. The Revision Application deserve to be allowed on above legal aspects. The suit itself is not disclosing the legal cause of action tenable in the eye of law. 17. The Revision Application deserve to be allowed on above legal aspects. The plaint of civil suit is rejected as per Order 7 Rule 11 of Civil Procedure Code. 18. This Civil Revision Application is allowed with no order as to costs. Rule is made absolute to the aforesaid extent. After pronouncement of the judgment Mr. P.C. Kavina, learned Senior Counsel has requested to stay this order for a period of six weeks. Mr. Tattvam Patel, learned counsel has objected to such request. Looking to the facts of the case and circumstances of the case, operation and implementation of present order shall stand stayed for a period of six weeks from today.