AMAR NATH (DEAD) THROUGH L.R v. GIAN CHAND & Ors.

1.5 Exhibit-DX may help to resolve the controversy. This is a letter dated 02.06.1987 which was admittedly, got scribed and dispatched by the plaintiff to the second defendant. [Para 55][318-G]

1.6 Contrary to the case of the plaintiff that the power of attorney stood cancelled on 02.02.1987, after it was surrendered to him on that day, it is that the plaintiff writes to the second defendant about having spoken to the second defendant regarding the land in question at Mehre and also gave him the power of attorney. There is no mention about the power of attorney having been surrendered on 02.02.1987 or about the so-called cancellation of the same. The further stand of the plaintiff was by way of asking the second defendant to inform the plaintiff at the earliest, if he could talk to anyone or had talked to anyone. The meaning of the of latter portion is made clear when he says that the money may be sent to him because he is in dire need of money. Therefore, it means that the case of the plaintiff that he had A B C D E F G H 286 SUPREME COURT REPORTS [2022] 19 S.C.R. cancelled the power of attorney by writing the word ‘cancelled’ on 02.02.1987, upon it being surrendered by the second defendant, cannot be accepted. The letter sent by the second defendant to the plaintiff on 16.06.1987 indicates that the second defendant tells the plaintiff that the plaintiff may have come to know that as power of attorney he had made the sale deed of the property. No doubt, he says that the plaintiff might have been ‘astonished to know’ regarding the sale. The second defendant further writes to the plaintiff that he has done this job in faith of friendship and for betterment. He admits that he could not go to the plaintiff as his brother was ill and, later on, his wife fell ill. He admits to having spent some amount from the money paid. This correspondence between the plaintiff and the second defendant would be fatal to the plaintiff’s case that the plaintiff had cancelled the power of attorney. [Paras 57, 58][320-E-H; 321-A-B]

1.7 The plaintiff, in his deposition, has stated that he had cancelled the power of attorney at Mehre and there itself was the Office of the Sub-Registrar located. He has admitted that he did not get the power of attorney cancelled at the Sub-Registrar Office. Even, more importantly, he has admitted to not having sent any notice of cancellation. The only evidence consists of a statement of PW1 that the first defendant was aware of the cancellation and the statement of PW6, who had said that the first defendant was also there on 02.02.1987, when on two papers a line was drawn to signify the cancellation. The Trial Court and also the appellate court have relied upon the DX sent by the plaintiff himself, which appears to undermine the evidence about the cancellation on 02.02.1987. The High Court should not have, at any rate, disturbed the said finding in a Second Appeal. In such circumstances, the conclusion is inevitable that the case of the plaintiff that power of attorney stood cancelled, in the manner done on 02.02.1987, cannot be accepted.

At any rate, it is difficult to accept the case of the plaintiff that the first defendant, who is the third party, could be attributed any knowledge of the surrender or the alleged cancellation on 02.02.1987, even assuming for a moment that this Court could lend credence to the plaintiff’s version in this regard that the second defendant surrendered A B C D E F G H AMAR NATH (DEAD) THROUGH L.R. v. GIAN CHAND AND ORS. 287 the power of attorney. This Court need not pronounce on the question whether the power of attorney being registered, it could be cancelled only by a registered power of attorney. This is said as even in the absence of a registered cancellation of the power of attorney, there must be cancellation and it must further be brought to the notice of the third party at any rate as already noticed. Such a cancellation is not made out. In this regard it is highly significant to notice the case actually set up in the plaint.

In the plaint what is averred by the plaintiff is that when the negotiations fell through the second defendant surrendered the original power of attorney to the plaintiff which is still in possession of the plaintiff and the plaintiff told the defendant no. 1 that the same stand cancelled and he shall not execute any sale deed on behalf of the plaintiff. [It is not even clear whether it should be understood as the plaintiff told the second defendant that same stand cancelled and he shall not execute any sale deed on behalf of the plaintiff.] It is further averred that “even defendant no. 2 was not competent to transfer the possession, rather the special power of attorney deemed to cancelled in the eyes of law since it was handed over to the plaintiff”. Therefore, the case set up by the plaintiff was that on the second defendant handing over the power of attorney to the plaintiff, the special power of attorney was deemed to have been cancelled in the eye of law.

There is no whisper in the plaint about the plaintiff having cancelled it in the manner in which he has deposed to in the evidence on 02.02.1987. As far as P-1 is concerned, it is dated 30.01.1987. The Trial Court has entered the finding that the P-1 stood proved and that the second defendant is bound by it. The Appellate Court has not disturbed the finding. In other words, proceeding on the basis that the second defendant had a duty to not sell the property below Rs.55,000/-, in terms of P-1, the breach of duty to not sell below Rs.55,000/-, when the second defendant sold the property for Rs.30,000/-, cannot invalidate the sale or render it null and void. A perusal of the power of attorney will make it clear that any restriction on the price is conspicuous by its absence in the power of attorney. The impugned Judgment is set aside. [Paras 59-63][321-B-H; 322-A-E] A B C D E F G H 288 SUPREME COURT REPORTS [2022] 19 S.C.R. Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and Another (2009) 14 SCC 782 : [2009] 11 SCR 686 – relied on.