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Raja Ram Vs. Jagdish Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 42 of 1973
Judge
Reported in1979WLN756
AppellantRaja Ram
RespondentJagdish Prasad and anr.
DispositionAppeal allowed
Cases ReferredWali Mohammed v. Jamaluddin A.I.R.
Excerpt:
civil procedure code - order 41 rule 27 and evidence act--section 85--power of attorney--document purporting to be power of attorney executed and authenticated before notary provisions of section 85 are mandatory--held, authentication before--notary is equivalent to affidavit of identity & no further proof is required under order 41 rule 27.;the courts shall presume that every document purporting to be power of attorney and to have been executed before and authenticated by the authorities mentioned in the section, was so executed and authenticated.;the provisions of section 85 of the evidence act are mandatory and in the case of a document purporting to be a power of attorney to have been executed before and authenticated by a notary public, the authentication of the notary is to be..........under order 41 rule 27 cpc and along with his application, he filed two fresh powers of attorney executed by jim ay merchant and dinoo merchant in favour of their brother kaiki merchant authorising him to do all acts necessary for conveying the title of property to the plaintiff and ratifying all past actions done by the said holder of powers of attorney. these twp powers of attorney dated 11th january, 1973 and 3rd february, 1973 are duly registered with the sub-registrar of documents of bombay. on the basis of these two documents now placed on record, it was contended by mr. mehta, learned counsel for the appellant that all the objections raised by the defendant in this regard before the lower appellate court are now no longer tenable and the defects, if any, in the earlier.....
Judgment:

N.M. Kasliwal, J.

1. This is a plaintiff's second appeal in a suit for recovery of arrears of rent, mesne profits and eviction of the defendants from the premises described in the plaint.

2. The plaintiff's case in brief was that he purchased the suit premises from the heirs of Shri Sawakshaw merchant. The eviction was sought on the ground of sub-letting and reasonable and bona fide personal requirement. The defendants contested the suit and took an objection inter alia that the plaintiff had not acquired the title as a landlord. On the pleadings of the parties, the trial court framed the following issues:

1. Whether the defendant No. 1 is a tenant of the plaintiff on a monthly rent of Rs. 4675 p.m. in the shop in suit?

2. Whether the tenancy of the defendant No. 1 is a permanent tenancy and he can not be evicted from the house in suit?

3. Whether the heirs of the deceased Shri Sawakshaw Rustomji sold house to the plaintiff without obtaining a succession certificate and as such the plaintiff does not become the landlord of the defendant No. 1 by virtue of that sale?

4. Whether the defendant No. 1 is in arrears of rent from 13-10-69 and the plaintiff is entitled to recover the rents claimed in the suit?

5. Whether the plaintiff is entitled to evict the defendant on the grounds mentioned in para 8 of the plaint and para 16 of the replication?

6. Whether the month of tenancy of the defendant No. 1 starts from the list of every month and ends with the last day of that month?

7. To what relief, if any, is the plaintiff entitled?

After recording the evidence, the trial court decreed the suit in favour of the plaintiff. Aggrieved against the judgment and decree of the trial court, the defendant preferred an appeal. The learned Civil Judge, who heard the appeal set-aside the judgment and decree of the trial court and made the following observations:

My conclusion, therefore, is (1) that Ex. 3 has not been executed before and authenticated by the authority named in Section 33(1)(A) registration Act and (2) that Kaiki was not authorised by Ex. 9 & Ex. 10 to execute the sale deed Ex. 1 on behalf of Jemmy and Dinoo, he was only authorised to admit execution on behalf of Dinoo and Jimmy. Admission of execution does not include the execution of the document.

The plaintiff has thus, come in second appeal to this Court.

3. During the pendency of the appeal, the plaintiff appellant filed an application under Order 41 Rule 27 CPC and along with his application, he filed two fresh powers of attorney executed by Jim ay merchant and Dinoo merchant in favour of their brother Kaiki merchant authorising him to do all acts necessary for conveying the title of property to the plaintiff and ratifying all past actions done by the said holder of powers of attorney. These twp powers of attorney dated 11th January, 1973 and 3rd February, 1973 are duly registered with the Sub-Registrar of documents of Bombay. On the basis of these two documents now placed on record, it was contended by Mr. Mehta, learned Counsel for the appellant that all the objections raised by the defendant in this regard before the lower appellate court are now no longer tenable and the defects, if any, in the earlier powers of attorney stand removed. Reliance in this connection is placed on Jugraj Singh v. Jaswant Singh : [1971]1SCR38 and Babu Lal v. Kanhaiya Lal 1974 R.L.W. 570. In Babulal's case, his Lordship Lodha, J. (as he then was) in similar circumstances placing reliance on the above referred Supreme Court case observed as under:

In Jugraj Singh v. Jaswant Singh also while the suit was pending and because of the challenge to the power of attorney on the ground that it had not been properly authenticated under the law, a fresh power of attorney was executed by the owner of the property in favour of the agent as required by law. The second power of attorney was held to be valid and effective both under Section 85 of the India Evidence Act and Section 33 of the Indian Registration Act, and it was further held that being a document ratifying the former inclusive act related back to the time when the first document was made and it cured the illegality in the presentation for registration which had taken place. Their Lordships further came to the conclusion that in view of the second power of attorney there was proper execution of the document of sale, and its registration. The Supreme Court's case is all fours in the facts and circumstances of the present case. There is no denying the fact that the second power of attorney which has been presented in this Court is not lacking in any manner. Consequently I allow the application under Order 41, Rule 27 CPC and admit the second power of attorney dated 26.9.73 in evidence and further hold that on the basis of the second power of attorney there was a proper execution and registration of the sale deed.

4. Mr. Singhvi, learned Counsel for the defendants respondents contended that even though the two powers of attorney have been placed on record under Order 41 Rule 27 CPC, but the same must be proved by some oral evidence as to the identity of the persm, who has executed these powers of attorney. I see no force in the contention raised by Mr. Sirghvi. Under Section 85 of the Evidence Act, a presumption has to be drawn as regards powers of attorney for its execution and authentication. Nothing has been brought out by the learned Counsel for the respondents to show that the genuineness of these documents is in any manner suspected. These documents have been duly registered before the Sub Registrar of deeds, Bombay and these powers of attorney have been executed in order to remove any defects pointed cut in the earlier powers of attorney. In Babulal's case as well as in Jugraj Singh's case before the Supreme Court, the powers of attorney were taken on record without any further proof, In the facts and circumstances of the case before me, I also do rot feel it necessary to require any further proof, as nothing has been shown to doubt the genuineness of the two powers of attorney placed on record along with the application under Order 41 Rule 27 CPC before this Court. Mr. Singhvi has placed reliance on Salimatual Fatima alias Bibi Hossoini v. Koyloslpoti Narain Singh I.L.R. 1890 Cal. 903, wherein it was observed that mere registration of a document is not in itself sufficient proof of its execution. In the above case the plaintiff Koylashpoti Narain Singh brought a suit against Salimatul-Fatima on the basis of a mortgage bond purported to have been executed in his favour by one Ahmed Hosain as general agent of the defendent Salimatul-Fatima; and from the endorsement of registration, it appeared that it had been registered by Ahmed Hosain under a general power of attorney dated 9th August, 1878 Salimatul Fatima pleaded that she was a pardahnashin lady, Ahmad Hosain was not her general agent, and had no authority to raise any loan on her behalf; that she did not execute the power of attorney; that the mortgage bond was not executed with her knowledge or consent; and that she had received no part of the consideration money.

5. The Subordinate Judge found that Ahmed Hosain had acted for Salimatul-Fatima as her agent on various occasions that the power of attorney dated 9th August, 1878 had been returned to the husband of Salimatul-Fatima and the bond was executed under that power of attorney. Although it had not been proved that Salimatul Fatima had executed the power of attorney, the Subordinate Judge admitted secondary evidence of its contents and came to the conclusion that it had been satisfactorily proved that Ahmed Husain had authority from Salimatul-Fatima to take loans and execute mortgages on her behalf. He thus decreed the plaintiff's suit. This decision was affirmed by the District Judge of Gaya. On a second appeal before the High Court, it was argued that a mere registration of a document cannot be held sufficient proof of its execution. Their Lordships in the above context observed:

There is no report of either argument or judgment; as the note appears, it would be to the effect that mere registration of a document is in itself sufficient proof of its execution. We think that there must have been some misapprehension as to the grounds on which the document was admitted in evidence by the learned judge. We think we should not treat this note as an authority for the proposition above mentioned, which we think could not be accepted We must hold that in this case there is no proof that the lady ever executed the document under which it is sought to bind her.

The case before me is entirely different. It is not disputed by Dinoo and Jimmy that they had not executed a power of attorney in favour of Kaiki, on the contrary, they have ratified the previous acts of Kaiki. The document have been produced in original, which have been registered by the Sub-Registrar of deeds, Bombay. No circumstances or arguments have been advanced to raise any doubt in the genuineness of these document. Provisions of Section 85 of the Evidence Act were not brought to the notice of learned Judges of the Calcutta High Court. The execution of power of attorney was disputed be the executant Salimatul-Fatima herself As such the Calcutta case it clearly distinguishable. Next case, relied upon by Mr. Singhvi is Siva Pratap Bhattadu v. Commissioner of Income Tax, Madaras A.I.R. 1924 Mad. 880. In the above case, it has been held that statements in powers of attorney are required to be proved like any other statement. There is no such controversy in the case before me The only argument advanced by the learned Counsel for the respondents is that the documents in question ought to have been proved by some oral evidence as required in regard to any other private document As already observed by me that Section 85 of the Evidence Act clearly lays down a provision that the courts shall ensue that every document purporting to be a power of attorney and to have been executed before and authenticated by the authorities mentioned in the section, was so executed and authenticated. It has been observed in. In the Goods of Mylne I.L.R. 1906 Cal. 625 that the provisions of Section 85 of the Evidence Act are mandatory and in the case of a document purporting to be a power of attorney and to have been executed before and authenticated by a Notary Public, the authentication of the Notary is to be treated as the equivalent of an affidavit of identity of the executant, and no affidavit of identity is necessary. Similarly, in Wali Mohammed v. Jamaluddin A.I.R. 1950 All. 524 it was observed:

under Section 85 of the Evidence Act, there is a presumption that every document purporting to be a power of attorney, and to have been executed before and authenticated by, a notary public, or any Court, Judge, Magistrate, British Counsel or Vice-counsel or representative of Her Majesty or of the Central Government, was so executed and authenticated. The authentication is not merely attestation, but something more. It means that the person authenticating has assured himself of the identity of the persons who has signed the instrument as well as the fact of execution. It is for this reason that a power of attorney bearing the authentication Of a Notary public or authority mentioned in Section 85 is taken as sufficient evidence of the execution of the instrument by the person who appears to be the executant on the face of it. The presumption, no doubt, is reputable. But unless rebutted the presumption stands and the document can be admitted in evidence as a document executed by the person alleged to have executed it without any further proof.

The Bombay High Court also in. P.R. Society v. IMP Restaurant A.I.R. 1939 Bom. 347 observed as under:

Under Section 85 the Court shall presume that a power of attorney extcuted before and autenthicated by a Notary public, was so executed and authenticated. The provision is mandatory, and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. More over, there are different legal modes of executing a power of attorney & the provision of Section 85 is not exhaustive.

Thus, considering the facts of the present case, in any view of the matter, I am of the considered view that the documents now filed by the appellant along with an application under Order 41 Rule 27 CPC require no further proof.

6. As the learned lower appellate court had dismissed the suit of the plaintiff merely en the above objections, which defect has now been removed by placing on record the two powers of attorney, this appeal has to succeed and the judgment and decree passed by the learned Civil Judge, Sirohi dated 30th August, 1972 has to be set-aside. As the learned lower appellate court has not decided the appeal on other questions, the parties would be free to advance their arguments on all the other points raised in the appeal and the lower appellate court shall decide the appeal on merits.

7. In the result, the appeal is allowed, the judgment and decree of the learned Civil Judge, Sirohi dated 30 August, 1972 is set-aside and the case is remanded back to the learned Additional District Judge, Sirohi for deciding the appeal afresh on merits in the light of the observations made above. In the facts and circumstance of the case, the parties are left to bear their own costs of this appeal.


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