Bharat Ram and Others vs Sunaina Rai and Another

Prashant Kumar, J.—This Civil Revision is directed against the judgment of learned District Judge. Giridih dated 25.5.2010 in Miscellaneous Appeal No. 10 of 2009 whereby and whereunder he allowed the appeal and set aside the order of Additional Munsif 1. Giridih dated 14.1.2009 in Title Suit No. 71 of 2006 and directed him to decide the petition filed on 25.1.2007, 16.4.2007, 1.4.2008 and 30.10.2008 by opposite parties.

It appears that O.P. No. 2, namely, Satya Prakash Rai has filed a suit bearing Title Suit No. 71 of 2006 for declaration of right, title and interest of Narayan Prasad Ral over suit land pertaining to Khata No. 134, Khewat No. 26, Plot No. 147 having an area of 48 dismals in village Dhendhadih, P.S. Deori. district-Giridih. It is stated that plaintiff/O.P. No. 2 is a power of attorney holder of aforesaid Sri Narayan Prasad Ral who executed a registered deed of general power of attorney in his favour on 29.4.2006. It then appears that during the pendency of suit plaintiff/O.P. No. 2 sold suit property to Sunaina Rai (O.P. No. 1) by executing a registered sale deed dated 27.11.2006. It appears that thereafter both the opposite parties jointly filed applications under Order I, Rule 10(2) read with Section 151 of the CPC on 25.1.2007 for impleading Sunaina Rai in the aforesaid suit. It also appears that O.P. No. 1, namely, Sunaina Rai had also filed an application under Order XXII, Rule 10, CPC for substituting her as plaintiff because she purchased the property and become absolute owner during the pendency of the suit.

It appears that petitioners, who were defendants in the Court below, had contested the aforesaid application and submitted that O.P. No. 2, had wrongly sold suit land to his own mother without taking leave of the Court. Thus the aforesaid transfer is hit by Section 52 of the Transfer of Property Act. It Is further submitted that after execution of the sale deed, the aforesaid Narayan Prasad Rai revoked general power of Attorney and aforesaid deed of revocation reveals that Satya Prakash Rai (O.P. No. 2) disclosed to Narayan Prasad Rai that he had not executed any document in furtherance of the authority given to him by general power of attorney. Accordingly, it is submitted by petitioners/defendants that the sale deed in question is a forged and fabricated document. It is also submitted by petitioners/defendants that consideration money has not been paid to Narayan Prasad Rai. Thus on that ground also, the sale deed appears to be void ab initio.

It appears that learned Additional Munsif 1, Giridih vide his order dated 14.1.2009 had given a finding that since the registered power of attorney has been revoked by its executant and recital made therein shows that attorney holder (Satya Prakash Rai) had not executed any deed in furtherance of the power given to him by deed of general power of attorney, the sale deed in favour of O.P. No. 1, who happens to be the mother of power of attorney holder, become suspicious. Learned Munsif further held that there is nothing on record to suggest that there was any payment of consideration amount to the plaintiff. In view of aforesaid two findings, learned Additional Munsif relying upon a judgment of Hon''ble Supreme Court in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, , had come to the conclusion that alienation of property is not bonafide. consequently he dismissed the applications filed by opposite parties. It is relevant to mention here that learned Munsif had admitted in the aforesaid order that as per decision of Hon''ble Supreme Court in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , subsequent purchaser can be impleaded as party to the suit, but without distinguishing that case, he passed the aforesaid order dismissing applications of opposite parties. It then appears that by the same order, he also dismissed the suit because it was filed by power of attorney holder of Narayan Prasad Rai and the said power of attorney had already been revoked.

Against the aforesaid order, O.P. No. 1 has filed an appeal i.e. Miscellaneous Appeal No. 10 of 2009 in the Court of District Judge, Giridih. It appears that learned District Judge relying upon the judgment of Hon''ble Supreme Court in Amit Kumar Shaw case (supra) as well as the judgment of this Court reported in 2003 (2) JLJR 109 and also a judgment of Guwahati High Court reported in 2008 (1) CCC 129 (Gau), had set aside the aforesaid order of Additional Munsif-1 and directed to decide petitions filed by the opposite parties afresh.

It is submitted by learned counsel for the petitioner that Hon''ble Supreme Court in Bibi Jubaida Khatoon case had laid down that if the alienation prima facie did not appear to be bonafide then the Court is competent to refuse the applications filed by the transferee pendente lite for impleading him as party to the said suit It is submitted that admittedly O.F. No. 1 Sunaina Rai is the mother of O.P. No. 2 (the general power of attorney holder). It is further submitted that O.P. No. 2 is an advocate and he, with a view to grab property, had wrongly executed sale deed in favour of O.P. No. 1 (his mother) without any consideration. It is then submitted that Narayan Prasad Rai had revoked the general power of attorney executed in favour of O.P. No. 2 few days after the execution of sale deed. He further submits that O.P. No. 2 admitted before Narayan Prasad Rai that he has not transferred any property in pursuance of authority given to him under power of attorney. It is submitted that aforesaid circumstances prima facie goes to show that the sale deed in favour of O.P. No. 1 is not bonafide and is a suspicious document. Under the said circumstance, it is submitted that learned Additional Munsif had rightly refused to implead O.P. No. 1 as party to the suit, consequently, the learned District Judge had committed error by holding that without any evidence it cannot be decided as to whether the transaction is bonafide or not. Accordingly, it is submitted that appellate order cannot be sustained.

Having heard the submissions, I have gone through the record of the case as well as the Judgment of Hon''ble Supreme Court referred hereinabove. It is true that Hon''ble Supreme Court in Bibi Jubaida Khatoon''s case has held that if the alienation prima facie did not appear to be bonafide, then it is open for the Court to refuse prayer of the transferee to implead him as party because as per Section 52 of Transfer of Property Act, a transferee pendente lite has no right to seek impleadment in the suit. However, from perusal of order of learned Additional Munsif, I find that the reasons for holding that sale deed is not bonafide, are not sound. Learned Additional Munsif had given first ground for coming to such conclusion is that Sunaina Rai (O.P. No. 1) is mother of O.P. No. 2 who executed sale deed in her favour as an attorney holder of Narayan Prasad Rai. There is no law which prevents an attorney holder from transferring land enumerated in the deed of power of attorney to his own mother after receiving consideration money on behalf of executant of power of attorney. Thus the aforesaid reason given by learned Additional Munsif does not appear to be correct. The second ground for coming to such conclusion is that the power of attorney was revoked by its executant after execution of sale deed. Admittedly on the day on which the sale deed was executed, power of attorney in favour of O.P. No. 2 was valid and thus the subsequent revocation of the power of attorney will not affect the right of transferee in whose favour sale deed executed prior to revocation of power of attorney. Third reason given by learned Additional Munsif that in the recital of deed of revocation of power of attorney, it is mentioned that Satya Prakash Rai had admitted before Narayan Prasad Rai, that he had not sold any property as per the authority given in power of attorney, also does not inspire confidence because the aforesaid recital made in the revocation deed is merely an averment made in a document which require proof. Fourth reason i.e. non payment of consideration money, also based on no evidence. From perusal of appellate order (para 10), I find that in the sale deed, it was mentioned that Rs. 60,000/- has been paid to the seller as a consideration money. It is admitted position that the sale deed is a registered document, therefore in the absence of any legal evidence it cannot be held that no consideration money paid.

Under the said circumstance, there is no material available on record on the basis of which it can be held that sale deed executed in favour of O.P. No. 1 is not bonafide. It has been held by their Lordships of Supreme Court in Amit Kumar Shaw case at paragraph No. 12 that "question about the existence and validity of assignment or devolution can be considered at the time of hearing of the proceedings". Under the said circumstance, the learned District Judge has rightly concluded that without taking any evidence it can not be held that sale deed is suspicious document.

It has been held by their Lordships of Supreme Court in Amit Kumar Shaw case that "a transferee pendente lite can be added as proper party, if his interest in the subject matter of the suit is substantial and not just peripheral".

In the instant case interest of O.P. No. 1, in whose favour suit land transferred by execution of registered sale deed appears to be substantial and if suit decided in favour of plaintiff then she become absolute owner. Under the said circumstances, O.P. No. 1 is vitally interested in the litigation. It is an admitted position that after execution of sale deed, the power of attorney executed in favour of O.P. No. 2 has already been revoked. Under said circumstance. O.P. No. 2 may not have any interest in pursuing the suit. It is worth mentioning that petitioners had prayed before the Additional Munsif that since the general power of attorney has already been revoked, thus suit be dismissed. In this back ground also, I find that O.P. No. 1 is vitally interested in the present litigation.

In view of the discussion made above. I find no illegality and/or irregularity in the impugned judgment of learned District Judge which require any interference by this Court. Thus, I find no merit in this civil revision, same is accordingly, dismissed.