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Bhagu Govinda Patel Vs. Narayan Tukaram Survashi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 627 of 1924
Judge
Reported in(1926)28BOMLR428; 94Ind.Cas.658
AppellantBhagu Govinda Patel
RespondentNarayan Tukaram Survashi
DispositionAppeal allowed
Excerpt:
dekkhan agriculturists' belief act (xvii of 1879), section 63a -agriculturist-execution of documents-a person holding power of attorney from agriculturist not exempt from the section.;section 63a of the dekkhan agriculturists' relief act, 1879, applies to agriculturists who intend to sell or mortgage their properties. the fact that an agriculturist gives a power of attorney to another person to execute a conveyance or mortgage on his behalf cannot prevent the application of the section. - - section 63a clearly applies to agriculturists who intend to sell or mortgage their properties, and the fact that an agriculturist gives a power of attorney to another person to execute a conveyance or mortgage on his behalf cannot prevent the application of the section......possession both courts have found that the plaintiff could not get possession, although he got a sale-deed in his favour. being out of possession then he must rely upon the title which he sets up under his sale-deed.2. now dadu govinda did not execute the sale-deed himself. at that time he had been found guilty of the offence of murder and had been sentenced to death, in order to raise money to enable him to appeal against the sentence of death to the high court, he, while in satara jail, gave a power of attorney to his mother to sell his property. that power of attorney was cancelled and he gave a fresh power of attorney to one tukaram while he was in yeravda jail. this power authorised tukaram to sell the plaint land, if required. accordingly, tukaram sold the land to plaintiff for.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover possession of the plaint property alleging that it belonged to one Dadn Govinda who took Rs. 500 from the plaintiff and sold it to him on June 12, 1920. Plaintiff alleged that he got possession according to the terms of the deed but defendant thereafter wrongfully deprived him of possession. With regard to possession both Courts have found that the plaintiff could not get possession, although he got a sale-deed in his favour. Being out of possession then he must rely upon the title which he sets up under his sale-deed.

2. Now Dadu Govinda did not execute the sale-deed himself. At that time he had been found guilty of the offence of murder and had been sentenced to death, In order to raise money to enable him to appeal against the sentence of death to the High Court, he, while in Satara jail, gave a power of attorney to his mother to sell his property. That power of attorney was cancelled and he gave a fresh power of attorney to one Tukaram while he was in Yeravda jail. This power authorised Tukaram to sell the plaint land, if required. Accordingly, Tukaram sold the land to plaintiff for Rs. 500. Eventually the sentence of death was commuted by the High Court to transportation for life.

3. The defendant, the mother of the convict, challenges the sale-deed as being invalid under Sections 57 and 63A of the Dekkhan Agriculturists' Relief Act. It does not appear that Section 57 has any application, but under Section 63 A :-

When an agriculturist intenda to execute any instrument required by Section 17 of the Indian Registration Act, 1877, (it should now be 1908) to be registered under that Act, he shall appear before the sub-registrar within whose sub-district the whole or some portion of the property to which the instrument is to relate is situate, and the Sub-regiatrar shall write the instrument, or oause it) to be written, and require it to be executed, and attest it and, if the executant is unable to read the instrument, cauae it to be further attested, and otherwise act in accordance with the procedure prescribed for a Village-Regiabrar by Sections 57 and 59 of this Act, and shall then regiater the instrument in accordance with the provisions of the Indian Regiatration Act, 1877.

4. By Sub-clause (2) :-

An instrument 11 which Sub-section (1) applies shall not be effectual for any purpose referred to is Section 49 of the Act last-mentioned unless it has been written, executed and attested in the manner provided in that subsection.

5. The trial Court held that by virtue of Section 63 A an agriculturist, who wants to execute a document which requires registration, has himself to appear before the Sub-Registrar. He is not allowed to execute a document through an agent, Accordingly he dismissed the plaintiff's suit.

6. In appeal the learned District Judge set aside that order and decreed the plaintiff's claim. It is difficult to follow the somewhat involved argument of the Judge, but it seems to ma that Section 63A was enacted in order to provide protection to agriculturists intending to execute an instrument required by Section 17 of the Indian Registration Act to be registered. If it had been intended that this section should not apply in the case of documents executed by an agriculturist through an attorney, then it would have been so stated in the section, It must be remembered that when a party executes a power of attorney enabling the attorney to deal with his property and execute conveyances on his behalf, he is still the executing party. Section 63A clearly applies to agriculturists who intend to sell or mortgage their properties, and the fact that an agriculturist gives a power of attorney to another person to execute a conveyance or mortgage on his behalf cannot prevent the application of the section.

7. A very simple test will show that this reading of the section is correct. An agriculturist owning property and intending to sell or mortgage it might give a power of attorney to a non-agriculturist to execute a sale-deed or a mortgage on his behalf. Then, if the argument of the respondent were to prevail, the agriculturist's attorney would be able to execute the document on his behalf without complying with the provisions of Section 63A, although the agriculturist is in law the executing party.

8. I think, therefore, that the plaintiff cannot rely on his sale, deed as entitling him to possession of the property, but if the defendant resists the plaintiff's claim to possession on this ground, she is bound in equity to return the money which was paid by the plaintiff when he obtained the sale-deed.

9. There will be a decree, therefore, in favour of the plaintiff for Rs. 500 with interest at six per cent, from June 12, 1920, to date. There will be no order as to costs, Plaintiff to be given a charge on the property to secure what is payable to him under the decree.

Coyajee, J.

10. I agree.


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